Visual Dynamics, LLC v. Chaos Software LTD et al

Filing 66

OPINION AND ORDER that Motion in Limine Doc. 53 is GRANTED IN PART AND MOOT IN PART, and that Visual Dynamics' Motion in Limine Doc. 58 is DENIED IN PART AND MOOT IN PART. Signed by Honorable Timothy L. Brooks on February 12, 2018. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

PLAINTIFF/
COUNTER-DEFENDANT

VISUAL DYNAMICS, LLC

V.

CASE NO. 5:16-CV-5287
DEFENDANTS/
COUNTER-CLAIMANTS

CHAOS SOFTWARE LTD. and
CHAOS GROUP, LLC

OPINION AND ORDER

Currently before the Court are cross-Motions in Limine filed by Plaintiff/CounterDefendant Visual Dynamics, LLC ("Visual Dynamics") (Doc. 58) and Defendants/
Counter-Plaintiffs Chaos Software Ltd. and Chaos Group, LLC (collectively, "Chaos")
(Doc. 53), as well as the parties' respective briefs in support of and opposition to these
two Motions.

(Docs. 54, 59, 62, 63, 64).

Both of these Motions pertain to Visual

Dynamics' allegation that Chaos has destroyed or failed to preserve business records.
that Visual Dynamics believes would support its claim for tortious business interference.
Visual Dynamics seeks a spoliation instruction to the jury; Chaos opposes this request.
The Court just entered an Order dismissing Visual Dynamics' claims against
Chaos with prejudice on summary judgment. See Doc. 65. That would seem to make
both of these cross-Motions in Limine moot, since Visual Dynamics' claim for tortious
business interference will not be tried to the jury.
Importantly, Visual Dynamics does not request in its briefing on these crossMotions in Limine that the Court take any alleged spoliation of evidence into account when
ruling on the cross-motions for summary judgment. But the Court will construe Visual

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Dynamics' briefing on this spoliation issue as implicitly requesting such relief, to the extent
that rulings in Visual Dynamics' favor on the matter of spoliation might warrant
reconsideration of the Court's summary judgment ruling dismissing Visual Dynamics'
claims. The Court's ruling in that respect will be to deny Visual Dynamics' Motion in
Limine, and to grant Chaos's; thus, no reconsideration of the Court's summary judgment
ruling is warranted. The Court will explain why below.
Visual Dynamics first became aware of the potential spoliation issue on September
27, 2017, during the deposition of a former Chaos customer support technician. Counsel
for Visual Dynamics alerted counsel for Chaos of its concern on this matter six days later,
on October 2, 2017.

Counsel for Chaos responded on October 10, 2017.

Visual

Dynamics ·apparently found Chaos's response wanting, yet did not seek any court
intervention on the matter until filing its Motion in Limine on January 30, 2018.
The discovery cutoff date in this Court's Case Management Order was October
16, 2017, six days after Visual Dynamics received Chaos's response to its query on this
matter. See Doc. 17, p. 2. But Visual Dynamics did not move to extend the discovery
deadline, nor did it attempt to schedule a conference call with the Court to resolve the
discovery dispute, which the Case Management Order requires prior to the filing of any
motion to compel. See id. at 3. Nor, for that matter, did Visual Dynamics ever file a
motion to compel.
The deadline to file dispositive motions was October 30, 2017, nearly three weeks
after Visual Dynamics received Chaos's aforementioned response. See id. But Visual
Dynamics never sought any extension of that deadline either. Instead, Visual Dynamics
and Chaos simply filed their cross-motions for summary judgment on October 30, 2017;

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and the response and reply briefs for th ese motions were all filed by the end of the
following month , with th e matter of spoliation never being raised in any of those filings.
So to the extent that Visual Dynamics' briefing on this spoliation issue could be
construed as asking the matter to be considered in the Court's rulings on summary
judgment, the Court find s that Visual Dynamics would effectively be making an untimely
request for relief from the deadlines in the Case Management Order. Deadlines set in
the scheduling order "may be modified on ly for good ca use and with the judge's consent. "
Fed . R. Civ. P. 16(b)(4). "The primary measure of Rule 16's 'good cause' standard is the
moving party's diligence in attempting to meet th e case management order's
requirements." Bradford v. DANA Corp. , 249 F.3d 807, 809 (8th Cir. 2001 ). But nowhere
in Visual Dynamics' briefing does it provide any explanation for why it waited until after all
these deadlines had passed and all these motions and briefs had been filed in order to
seek such relief. In other word s, Visual Dynamics has shown no diligence with respect
to thi s spoliation issue. Thu s, good ca use is lacking here.
IT IS THEREFORE ORDERED that Chaos's Motion in Limine (Doc. 53) is
GRANTED IN PART AND MOOT IN PART, and that Visua l Dynamics' Motion in Limine
(Doc. 58) is DENIED IN PART AND MOOT IN PART.
IT IS SO ORDERED on this ~

ay of Febru

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