AFL Telecommunications LLC v. Incorporated et al

Filing 248

ORDER denying 215 Motion in Limine; denying 216 Motion in Limine; denying 217 Motion in Limine; denying 218 Motion in Limine; denying 219 Motion in Limine; granting 220 Motion in Limine; denying 221 Motion in Limine; denying [222 ] Motion in Limine; granting 223 Motion in Limine; denying 224 Motion in Limine; granting in part and denying in part 225 Motion in Limine; denying 226 Motion in Limine; denying 227 Motion in Limine; denying 228 Motion in Limine; g ranting in part and denying in part 229 Motion in Limine; denying 230 Motion in Limine. Trial shall begin on 12/2/2013 at 9:00 a.m.; final conference set for 11/26/2013 at 4:30 PM. The parties shall hold a settlement conference by 9/30/2013.. Signed by Judge David G Campbell on 7/25/2013.(DGC, nvo)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 AFL Telecommunications LLC, Plaintiff, 10 11 12 No. CV11-1086 PHX-DGC ORDER SETTING TRIAL vs. Incorporated, et al., Defendants. 13 14 A Final Pretrial Conference was held on July 24, 2013. Counsel appeared on 15 behalf of Plaintiff and Defendant. On the basis of the parties’ written submissions and 16 the hearing, 17 IT IS HEREBY ORDERED: 18 1. Trial in this matter shall begin on December 2, 2013, at 9:00 a.m. 19 2. The trial shall last 5 days (December 2-6, 2013). Plaintiff shall be allotted 20 12 hours of trial time and Defendants shall be allotted 10 hours of trial time. The Court 21 will keep track of each side’s time. Opening and closing statements, direct examination, 22 and cross-examination shall be counted against the parties’ allotted time. 23 3. A final conference shall be held on November 26, 2013, at 4:30 p.m., in 24 Courtroom 603, Sandra Day O’Connor Federal Courthouse, 401 West Washington Street, 25 Phoenix, Arizona 85003. Out-of-state counsel may participate by telephone. 26 4. The parties’ proposed final pretrial order was approved by the Court as the 27 final pretrial order in this case. The order shall govern the presentation of evidence and 28 other trial issues, and, pursuant to Rule 16(e) of the Federal Rules of Civil Procedure, 1 shall be modified only to prevent manifest injustice. 2 arguments, and relief not requested or identified in the order shall not be available at trial, 3 except to prevent manifest injustice. 4 5. Evidence, objections, legal The Court addressed Plaintiff’s motion in limine to exclude evidence of 5 costs. Doc. 225. The motion was granted in part and denied in part. The Court held 6 that Defendants may present evidence regarding the actual costs they incurred for 7 purchasing the Fujikara splicers and evidence to support their claim that 40% of their 8 annual overhead is attributable to fusion splicers. Because they did not disclose other 9 costs in response to Plaintiff’s interrogatories on this subject, they may not present 10 11 evidence of such other costs. 6. The Court addressed Plaintiff’s motion in limine to exclude previously 12 undisclosed opinion testimony. Doc. 226. The motion did not identify specific expert 13 testimony to be excluded, and therefore was denied. The Court will, however, hold all 14 parties to their Rule 26(a) expert disclosures. Expert opinions not timely disclosed under 15 Rule 26(a)(2)(B) or (C) and the Court’s Case Management Order will not be permitted 16 during trial. 17 7. The Court addressed Plaintiff’s motion in limine to exclude references to 18 Plaintiff’s financial status and foreign ownership. Doc. 228. The motion asks the Court 19 to preclude Defendants from mentioning AFL’s wealth or foreign ownership in a 20 derogatory or prejudicial manner. The motion did not identify specific evidence to be 21 excluded, and therefore was denied. The Court will, however, prevent all parties from 22 presenting derogatory or prejudicial arguments or evidence during trial. Parties may 23 object if they believe such evidence or arguments are being presented. 24 8. The Court addressed Plaintiff’s motion in limine to exclude previously 25 undisclosed documents or fact testimony. Doc. 230. The motion did not identify specific 26 documents or testimony to be excluded, and therefore was denied. The Court will, 27 however, preclude all parties from presenting documents or testimony that should have 28 -2- 1 2 been disclosed during discovery under the Federal Rules. 9. The Court addressed Defendants’ motion in limine to exclude all evidence 3 relating to Entergy splicer date of sale. Doc. 215. The motion was denied. Defendants 4 argue that the sale occurred before Plaintiff obtained exclusive agreements with Fujikara, 5 and that the sale therefore cannot be presented in support of their copyright or trademark 6 claims. The Court has already granted summary judgment on the copyright claim (Doc. 7 200), so that argument was denied as moot. The Court previously ruled that Plaintiff has 8 standing to make a Lanham Act claim for sales after 2003. Doc. 200 at 16-17. As a 9 result, the Court denied Defendants’ request to preclude the 2006 sale. The sale is clearly 10 relevant to the Lanham Act claim, and its probative value is not substantially outweighed 11 by the risk of unfair prejudice. 12 10. The Court addressed Defendants’ motion in limine to exclude evidence of 13 Entergy splicer due to lack of evidence regarding country of origin. Doc. 216. The 14 motion was denied. The motion argues that Plaintiff’s evidence regarding the country of 15 origin is inadmissible hearsay. The Court concluded that the declaration of the records 16 custodian attached as Exhibit A to Plaintiff’s response (Doc. 236-1) satisfies the 17 authentication requirements of Rule of Evidence 902(12) and the additional requirements 18 of Rule 803(6)(A)-(E), and that the records attached to the declaration are therefore 19 admissible under Rule 803(6) as records of a regularly conducted activity. 20 11. The Court addressed Defendants’ motion in limine to exclude the Entergy 21 report as hearsay. Doc. 217. The Court denied the motion, with the following 22 observations. Whether the report qualifies as a business record under Rule 803(6) must 23 be determined after testimony about the elements of Rule 803(6) has been presented at 24 trial. The Court cannot conclude at this stage that those elements cannot be satisfied. 25 The fact that a report is prepared infrequently does not mean that it is not a business 26 record, provided the elements of Rule 803(6) are satisfied. The statements in the report 27 attributable to Fujikara constitute hearsay within hearsay and must have their own basis 28 -3- 1 for admissibility under the hearsay rules. The Court does not agree with Plaintiff’s 2 argument that they too fall within 803(6) because the information contained in the 3 statements is kept in the ordinary course of Fujikara’s business. Rule 803(6) concerns 4 records, not information, and Plaintiff does not contend that the report is a Fujikara 5 business record. The Court does not view the contents of the report as expert opinion 6 under Rule 702. 7 12. The Court addressed Defendants’ motion in limine to exclude all references 8 to other gray market sellers. Doc. 218. The Court denied the motion. The Court cannot 9 conclude at this stage of the case that all references to other gray market sellers would be 10 irrelevant or prejudicial. In a Lanham Act case like this, the jury will be required to 11 determine whether differences in the product were material and whether consumer 12 confusion was likely. It is possible that evidence of other gray market activities will be 13 relevant to some of these issues. That is a decision the Court can make only in the 14 context of trial. 15 13. The Court addressed Defendants’ motion in limine to exclude testimony 16 regarding customer expectations and confusion. Doc. 219. The motion was denied. 17 Defendants argue that testimony from AFL personnel on these subjects necessarily would 18 lack personal knowledge and be based on hearsay. The Court cannot rule on personal 19 knowledge and hearsay objections until it hears the testimony in question. Moreover, as 20 Plaintiff notes, testimony about information obtained from consumers may be admissible 21 state of mind evidence under Rule 803(3). See Lahoti v. Vericheck Inc., 636 F.3d 501, 22 509 (9th Cir. 2011). 23 14. The Court addressed Defendants’ motion in limine to exclude all evidence 24 of used fusion splicers. Doc. 220. Defendants argue that used fusion splicers are not at 25 issue in this case. Plaintiff filed no response. The Court will grant the motion. 26 15. The Court addressed Defendants’ motion in limine to exclude punitive and 27 trebled damages. Doc. 221. The motion was denied. 28 -4- Punitive damages are not 1 authorized by the Lanham Act, but they may be recovered under Plaintiff’s state-law 2 claim for unfair competition, a claim not addressed in Defendants’ motion. Whether the 3 evidence in this case justifies sending the punitive damages claim under the state-law 4 count or a treble damages claim under the Lanham Act to the jury is a matter that must be 5 decided at the close of Plaintiff’s evidence. The Court cannot make that determination at 6 this stage of the case. 7 16. The Court addressed Defendants’ motion in limine to exclude all evidence 8 that English is not available on units made for sale in China. Doc. 222. Defendants 9 contend that Stephen Althoff has no personal knowledge of this subject and that Fujikara 10 witnesses on this issue have not been listed as trial witnesses. Plaintiff responds that two 11 Fujikara witnesses with knowledge on this subject, Hiroshi Sugawara and Noriyuki 12 Kawanishi, have been listed as possible trial witnesses and have personal knowledge on 13 this subject. 14 exclusion of these witnesses is not required for nondisclosure. Both were deposed during 15 the course of this litigation. The Court accordingly denied the motion. 16 17. For reasons stated in paragraph 18 below, the Court concludes that The Court addressed Defendants’ motion in limine to exclude evidence 17 relating to Daniel Parsons’ drug conviction and alleged drug use. Doc. 223. The Court 18 concludes that Mr. Parsons’ drug conviction, which is more than ten years old, and 19 testimony that he more recently engaged in the manufacture and distribution of drugs, is 20 not relevant to this Lanham Act case. 21 identified, the Court concludes that the risk of unfair prejudice would substantially 22 outweigh it under Rule 403. The Court accordingly granted the motion. Even if some marginal relevance could be 23 The Court does not agree that the evidence is admissible under Rule 404(b). 24 Plaintiff argues that “[t]he evidence in question tends to show that Mr. Parsons has 25 intentionally and knowingly engaged in the sale of illicit items for his own personal 26 benefit without regard for the interests of others. This is a material point in dispute in this 27 litigation, and evidence of his prior bad acts should be admitted to establish willfulness.” 28 -5- 1 Doc. 242. But this is precisely the kind of “propensity evidence” Rule 404 is designed to 2 preclude – an assertion that Defendant sold illicit items for his own benefit in the past and 3 therefore did so here as well. 4 The Court also concludes that the conviction, being more than ten years old, 5 cannot be used for impeachment under Rule 609. “A conviction more than 10 years old 6 may be admitted only if its probative value substantially outweighs its prejudicial effect. 7 Because this test is so stringent, convictions more than 10 years old should be admitted 8 rarely and only in exceptional circumstances.” Vol. 4, Jack B. Weinstein & Margaret A. 9 Berger, Weinstein's Federal Evidence, § 609.06[1] (Matthew Bender 2d ed.2013) 10 (emphasis in original). In this Lanham Act case, the Court sees little if any probative 11 value – even for impeachment – in a drug conviction more than ten years old. 12 Plaintiff argues that the circumstances of departure from Defendants’ employment 13 may become relevant for some former employees of Defendants, and that those 14 circumstances include Defendant Parsons’ recent drug us. If Plaintiff concludes that such 15 evidence becomes important during the trial, counsel for Plaintiff can raise the issue with 16 Court outside the hearing of the jury. 17 18. The Court addressed Defendants’ motion in limine to exclude undisclosed 18 witnesses. Doc. 224. The motion concerns witnesses who were deposed in this case but 19 never listed in a disclosure by Plaintiff under Rule 26(a)(1)(A)(i). The Court denied the 20 motion. The Court concludes that the identity of these witnesses as individuals likely to 21 have discoverable information (Rule 26(a)(1)(A)(i)) was made known to Defendants by 22 virtue of the fact that each of them was deposed by Defendants. This eliminated the need 23 for supplemental disclosure with respect to these witnesses. 24 Plaintiffs complied with the trial witness disclosure obligation in Rule 26(a)(3)(A)(1) by 25 listing the witnesses in the proposed final pretrial order. See Doc. 207, ¶ 2. And because 26 each of these witnesses was deposed by Defendants, the Court concludes that a failure to 27 disclose them, if it had occurred, would be harmless, and that exclusion of the witnesses 28 -6- See Rule 26(e)(1)(A). 1 2 would therefore not be required under Rule 37(c)(1). 19. Defendants filed a motion in limine to exclude argument and testimony 3 regarding the performance and reliability of fusion splicers. Doc. 227. The motion is 4 denied. Defendants argue that Plaintiff failed to produce testing documents as required 5 by the Court’s July 5, 2012 order, and that the Court should sanction Plaintiff by 6 precluding any evidence of splicer testing. In response, Plaintiff produces a letter with 7 which it transmitted to Defendants the documents required by the Court’s July 5, 2012 8 order, and assert that several hundred pages of the production included splicer testing 9 information. Doc. 244-1 at 2. On this record, the Court cannot conclude that Plaintiff 10 should be sanctioned for failing to comply with the Court’s order. In addition, Plaintiff 11 has disclosed expert testimony concerning the condition and likely performance of the 12 Entergy splicer that would not be subject to preclusion even if the documents had not 13 been produced. 14 20. The Court addressed Defendants’ motion in limine to exclude AFL’s 15 undisclosed warranty and consumer copyright license agreement. Doc. 229. The motion 16 is granted in part and denied in part. Defendants argue that AFL failed to produce 17 warranty documents after it agreed to do so in a conference call with the Court on 18 June 15, 2012, and failed to produce its consumer copyright license. 19 Defendants contend, AFL should be precluded from presenting evidence regarding the 20 warranty and license agreement at trial. In response, AFL does not dispute that it failed 21 to produce the warranty documents, but argues that its claim is based not on the terms of 22 the warranty but on the fact that customers receive warranty service from AFL and 23 Fujikara for regular market items, but not for gray market items. AFL clearly agreed to 24 produce warranty documents to the extent they exist (Doc. 229-1 at 15), a fact 25 acknowledged and relied on by the Court (Doc. 229-1 at 25). Because it never produced 26 warranty documents, AFL will be precluded at trial from presenting evidence concerning 27 the terms of its warranty. AFL will not be precluded, however, from presenting evidence 28 -7- As a result, 1 that it provides warranty service at its own factory and at Fujikara. That fact has been a 2 part of AFL’s position in this case from the outset. With respect to the license agreement, 3 AFL asserts that it produced documents containing terms of the license, including 4 AFS00176. In its evidence at trial, AFL will be limited to terms of the license disclosed 5 in documents produced during discovery or disclosed during deposition testimony. 6 21. The Court provided the parties with the Court’s proposed voir dire 7 questions. These questions will be discussed during the conference to be held on 8 November 26, 2013. 9 22. The Court provided the parties with the Court’s proposed preliminary jury 10 instructions to be given at the beginning of trial. 11 addressed at the November 26, 2013 conference. 12 13 14 23. These instructions will also be The parties shall hold a settlement conference by September 30, 2013. The parties promptly shall notify the Court if a settlement is reached. Dated this 25th day of July, 2013. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-

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