United States District Court, D. Delaware
HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE
Wilmington this 2nd day of
October, 2017, having reviewed the proposed
pretrial i order and exhibits to it (D.I.
490) ("PTO"), IT IS HEREBY ORDERED
Plaintiff GN Netcom, Inc.'s ("GN" or
"Plaintiff) motion in limine ("MIL")
No. 1, to preclude certain expert evidence, is
DENIED. The Court is not persuaded that the
timing or i nature of the evidence in dispute was improper;
in any event, the circumstances (including as measured by
application of the Pennypack factors) do not warrant
the exclusion sought.
GN's MIL No. 2, to preclude evidence or arguments
concerning exclusive dealing arrangements in other
industries, is DENIED. Defendant
Plantronics, Inc. ("Plantronics" or
"Defendant") agrees not to argue or suggest that
just because exclusive dealing arrangements are lawful in
some markets that they are lawful in the relevant market. The
purposes for which Plantronics proposes to draw comparisons
to other markets are relevant and the probative value is not
substantially outweighed by the competing concerns of
Fed.R.Evid. 403. GN may propose a jury instruction - to the
effect that behavior which might otherwise comply with
antitrust law may be impermissibly exclusionary when
practiced by a monopolist - should it believe one is
warranted to reduce the risk of juror confusion.
Court will rule on GN's MIL No. 3, to preclude evidence
of Don Houston's punishment as a result of spoliating
evidence, in connection with addressing GN's objection to
Plantronics' use of Mr. Houston's deposition
testimony (see PTO Ex. 13 ¶ 1), and in
connection with resolving how spoliation will be presented at
Plantronics' MIL No. 1, to preclude certain testimony of
GN's expert Professor Elhauge, is
DENIED. The Court already denied
Plantronics' Daubert motion to strike the
entirety of Elhauge's proposed testimony. (See
D.I. 405; D.I. 482) Plantronics provides no persuasive basis
for why the Court should reevaluate its decision.
Defendant's new contention that counsel's statement
about the number of PODs - which misstated Plaintiffs
expert's actual number - should be treated as a binding
judicial admission is unavailing. See Anderson v.
C.I.R., 698 F.3d 160, 167 (3d Cir. 2012) ("[T]o be
binding, judicial admissions must be unequivocal.").
Plantronics' MIL No. 2, to exclude evidence regarding the
"relevant market, " is DENIED. To
a substantial extent, this motion, too, asks the Court to
reconsider its earlier decision to deny Plantronics'
Daubert motion to strike the entirety of
Elhauge's proposed testimony, for no persuasive reason.
The evidence at issue in the motion is relevant and its
probative value is not substantially outweighed by the
competing concerns of Rule 403. Nor is the Court persuaded
that the timing of GN's disclosures has so unfairly
prejudiced Plantronics as to warrant the relief sought.
Plantronics' MIL No. 3, to exclude certain evidence and
argument relating to document production or spoliation of
evidence, is DENIED WITHOUT PREJUDICE to
renew after the Court rules on how spoliation is to be
handled at trial. The Court observes that "GN does not
anticipate arguing or presenting evidence to the jury on any
of those topics" identified in Plantronics' motion.
(D.I. 490-11 at 63 of 69) However, GN properly "reserves
the right to argue and/or present evidence as to any of the
[identified] topics in cross-examination should
Plantronics' direct examination open the door to such
evidence." (Id.) Should GN feel the "door
has been opened, " it must first provide notice to
Plantronics and the Court if it intends to use
i such evidence on cross-examination, and
Plantronics may then renew its objections.
identified additional disputes in the PTO, IT IS
FURTHER ORDERED that:
• When disclosing deposition testimony intended to be
presented before the jury, i the parties
shall also indicate whetherl(if to be played as opposed to
read) they will play "subtitles" depicting the text
as well, and the other side shall indicate whether it objects
to the subtitles.,
• Plantronics' proposals (PTO at 12) that the
parties exchange demonstrative exhibits for opening and
objections thereto at 7:00 and 10:00 p.m. the night before
opening statements is ADOPTED,
• Having reviewed the PTO, and given the Court's
familiarity with the disputed issues to be presented to the
jury, the parties are each allocated a total of twelve (12)
hours for their trial presentations given how the Court
calculates time. Trial will be held, subject to the
parties' time limits, between 8:30 a.m. and 4:30 p.m. on
October 11, 12, 13, 16, 17, and 18J Counsel shall appear at
8:30 a.m. each morning; the jury will be available at 9:30 on
October 11 and 9:00 on each succeeding day.
• Provided that the parties jointly propose an
instruction for the Court to read to the jury, the Court
will, as the parties request, instruct the jury not to give
consideration to confidentiality designations on certain
exhibits. (PTO at 16)
• The proposed juror questionnaire (PTO Ex. 15) is
APPROVED, provided the parties contact the Court's jury
administrator and comply with any instruction and guidance
given to them by her. Voir dire, which will take place in the
courtroom at ...