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GN Netcom Inc. v. Plantronics Inc.

United States District Court, D. Delaware

October 5, 2017

GN NETCOM, INC., Plaintiff,
v.
PLANTRONICS, INC., Defendant.

          MEMORANDUM ORDER

          HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE.

         At Wilmington this 5th day of October, 2017:

         Having reviewed the parties' joint status report filed on October 3 (D.I. 500), as well as other materials submitted throughout this case, and having discussed these issues with the parties on multiple occasions, including during the pretrial conference (“PTC”) held on October 2, IT IS HEREBY ORDERED that:

         1. Rather than respond to the four spoliation-related questions posed by Plaintiff GN Netcom, Inc. (“GN” or “Plaintiff”) and Defendant Plantronics, Inc. (“Plantronics” or “Defendant”), the Court has determined the preliminary and final jury instructions it will give with respect to spoliation, as well as the “Stipulated Facts” it will read to the jury at or near the start of the forthcoming trial.

         2. The deadline for the parties to file proposed preliminary jury instructions, consistent with this Order and any other Orders the Court may issue subsequently, is Monday, October 9 at 3:00 p.m. At the same time the instructions are filed they must also be submitted to chambers by electronic mail in PDF and either Corel WordPerfect or Microsoft Word format.

         3. The deadline for the parties to file proposed final jury instructions and verdict forms, consistent with this Order and any other Orders the Court may issue subsequently, is Saturday, October 14 at 3:00 p.m. At the same time the instructions are filed they must also be submitted to chambers by electronic mail in PDF and either WordPerfect or Microsoft Word format.

         4. With respect to the parties' dispute as to whether statements, arguments, and evidence from Plantronics relating to its purportedly positive relationship with the government, historically and currently, will “open the door” to GN presenting evidence of the recent GSA debarment investigation, the Court holds that this will not open the door. With respect to the debarment investigation, any minimal probative value is substantially outweighed by the risks of unfair prejudice, juror confusion, and waste of time. The door would, however, be opened were Plantronics to argue or present evidence, inaccurately, that it has never been the subject of a government investigation. Should GN believe at any point that the door to use of the GSA evidence has been opened, it must provide notice and obtain leave of the Court before using such evidence. No additional briefing should be submitted on this issue at this time.

         5. As Plantronics now requests a ruling prior to trial as to the admissibility of evidence relating to minimum advertised price (“MAP”) policy and horizontal restraints, the Court holds that, based on the argument to date, such evidence is relevant and the concerns identified by Plantronics do not substantially outweigh the probative value of such evidence. Plantronics may, however, renew its objections to specific evidence of MAP policy and horizontal restraints if it believes the Rule 403 balance favors exclusion.

         6. Given the parties' stipulation in the pretrial order (“PTO”) (see D.I. 490 at 12), as well as their statements in the status report, the Court does not perceive a ripe dispute with respect to “foundation” for exhibits to be admitted into evidence. Any such disputes will be resolved at trial through the procedures already provided for in the PTO and the Court's typical practices.

         7. The Court continues to believe that twelve (12) hours per side is an adequate amount of time for each party to fully and fairly present its case, consistent with the Court's practices for how it counts time. Nevertheless, given Plantronics' insistence to the contrary, and GN's non-opposition (see D.I. 500 at 7), the Court will increase the parties' time allocation to fourteen (14) hours per side. In order to maintain this trial within the dates previously given (October 11-18), the Court will not dismiss the jury until 5:00 p.m.[1]

         8. Plantronics' request that the jury be asked to make certain factual findings with respect to equitable defenses is DENIED. Given the complexity of the issues the jury must necessarily decide, and given Plantronics' repeatedly-expressed concerns about the amount of time allocated to this trial, the Court will not ask the jury to return an advisory verdict.

         9. Under the circumstances, the Court has determined that it will NOT charge all time for arguing objections outside the presence of the jury (e.g., when the Court meets with counsel at 8:30 a.m. each morning) to the objecting party. Instead, the Court will charge each party for the time that party is speaking regarding such objections. The Court will split evenly whatever time it takes the Court to articulate its decision on such objections.

         10. Provided that the parties make the revisions noted below, submit a revised version consistent with this Order and confer with the Court's jury administrator no later than 12:00 p.m. tomorrow (October 6) and comply with all instructions they receive from the jury administrator, and provided that the parties understand the Court will not delay jury selection to allow any additional time for the parties to review the responses, the Court will direct the jury administrator to instruct members of the jury pool to complete the “Confidential Juror Questionnaire” (revised version submitted October 3, see D.I. 498-1), in an effort to reduce ...


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