Internmatch, Inc. v. Nxtbigthing, LLC et al

Filing 131

ORDER REGARDING MOTIONS IN LIMINE by Judge Jon S. Tigar denying 90 Motion in Limine; denying 97 Motion in Limine. (wsn, COURT STAFF) (Filed on 3/28/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

INTERNMATCH, INC.,

Case No. 14-cv-05438-JST

Plaintiff,
8
v.

ORDER REGARDING MOTIONS IN
LIMINE

9
10

NXTBIGTHING, LLC, et al.,

Re: ECF Nos. 90, 97

Defendants.

United States District Court
Northern District of California

11
12
Before the Court are Defendants Nxtbigthing, LLC and Chad Batterman’s motions in

13
14

limine (1) to exclude files produced by Homesite Insurance Company and (2) to exclude the

15

expert testimony of Joseph A. Greco, P.E.. ECF Nos. 90, 97. For the reasons set forth below, the

16

Court will deny both motions.

17

I.

18
19
20

Background
This is a trademark infringement case. The parties are familiar with the facts. The Court

recited the history of this litigation in a prior order, ECF No. 114, and will not repeat it here.
The present motions relate to Plaintiff InternMatch, Inc.’s earlier motion for terminating

21

sanctions for spoliation of evidence. ECF No. 63. In that motion, InternMatch accused

22

Defendants of intentionally destroying the electronic versions of the “evidence of use” documents

23

demonstrating Defendants’ alleged use of the disputed trademark. As part of its motion,

24

InternMatch included files produced by Defendant Chad Batterman’s insurer, Homesite Insurance

25

Company, and an expert report from Joseph A. Greco, P.E. After considering the parties’ briefs

26

and arguments, the Court found that Defendants spoliated evidence and determined that the

27

spoliation warranted an adverse jury inference against Defendants. See ECF No. 114.

28

On January 8, 2016, Defendants filed a motion in limine seeking to exclude the files

1

produced by Homesite Insurance Company. On January 14, 2016, Defendants filed a second

2

motion in limine seeking to exclude Greco’s testimony.

3

II.

Motion at ECF No. 90 Regarding Files Produced Pursuant to the Homesite Subpoena
On August 26, 2016, InternMatch deposed Defendant Chad Batterman. He testified that a

4

power surge destroyed his electronic devices and the relevant evidence of use documents stored on

6

the devices. See ECF No. 64-1, Keyes Decl., Ex. 1, Batterman Tr. 18:13–25, 112:14–23.

7

Batterman submitted an insurance claim regarding loss of the electronic devices with Homesite

8

Insurance Company. See id. 16:19–23, 18:6–19, 20:19–25. On day three of Batterman’s

9

deposition, counsel for InternMatch informed Batterman that InternMatch intended to issue a

10

subpoena to his insurance company. ECF No. 64-4, Keyes Decl. Ex. 4, Batterman Tr. 241:8–

11
United States District Court
Northern District of California

5

242:24.

12

On September 25, 2016, InternMatch provided Defendants notice of the subpoena. ECF

13

No. 92-1, Chevalier Decl., Ex. A. On September 29, 2015, InternMatch served the subpoena on

14

Homesite. ECF No. 79-2. Neither Homesite nor Defendants moved to quash the subpoena. Id. ¶

15

13; ECF No. 92-1, Ex. D. On October 14, 2015, InternMatch received the documents responsive

16

to the subpoena. ECF No. 64, Keyes Decl. ¶ 10.
Three months after InternMatch served its subpoena and received Homesite’s responsive

17
18

document production, Defendants filed this motion in limine to exclude Homesite’s files. ECF

19

No. 90.

20

A.

Legal Standard

21

The primary method for requesting that a non-party produce documents is by subpoena

22

under Federal Rule of Civil Procedure 45. Generally, “requests for production of documents and

23

things under Rule 45 constitute pre-trial discovery and must be served within the designated

24

discovery period.” nSight, Inc. v. PeopleSoft, Inc., No. 3:04CV3836MMC(MEJ), 2006 WL

25

988807, at *2–3 (N.D. Cal. Apr. 13, 2006) (citing Integra Lifesciences I, Ltd. v. Merck KGaA,

26

190 F.R.D. 556, 561–62 (S.D. Cal. 1999)); see also MedImmune, LLC v. PDL Biopharma, Inc.,

27

No. C08-05590 JF HRL, 2010 WL 1266770, at *1 (N.D. Cal. Apr. 1, 2010). Some courts have

28

found that Rule 45 subpoenas sought after the discovery cut-off are improper attempts to obtain
2

1

discovery beyond the discovery period. See, e.g., Rice v. United States, 164 F.R.D. 556, 557–59

2

(N.D. Okla. 1995) (quashing subpoenas duces tecum issued to third parties after close of discovery

3

because they were an improper attempt to engage in discovery after discovery cut-off); see also

4

F.T.C. v. Netscape Commc’ns Corp., 196 F.R.D. 559, 560–61 (N.D. Cal. 2000).

5

Subpoenas must issue from the court where the action is pending. Fed. R. Civ. P. 45(a)(2).

6

An attorney authorized to practice in the issuing court may issue and sign a subpoena. Fed. R.

7

Civ. P. 45(a)(3). Rule 45 authorizes nationwide service of a subpoena. Johnson v. Bay Area

8

Rapid Transit Dist., No. C-09-0901 EMC, 2014 WL 2514542, at *2 (N.D. Cal. June 4, 2014).

9
10

B.

Discussion

Nxtbigthing and Batterman seek to exclude insurance company documents produced by

United States District Court
Northern District of California

11

Homesite Insurance Company. ECF No. 90. Defendants argue that exclusion is warranted

12

because: (1) the subpoena was not timely served; (2) the subpoena was issued from the wrong

13

court by an attorney not licensed to practice before the issuing court, and (3) Homesite should not

14

have disclosed the file based on application of Pennsylvania’s privacy laws. ECF No. 90 at 6.

15

Defendants first argue that the subpoena was served after the discovery cut-off date in this

16

action and that the documents were also produced after the discovery cut-off date. Id. at 7. The

17

Court disposes of this argument because InternMatch timely served the subpoena before the fact

18

discovery cut-off date. The Court set fact discovery cut-off for September 30, 2015, ECF No. 45,

19

and InternMatch served the subpoena on September 29, 2015, ECF No. 79-2. See MedImmune,

20

LLC, 2010 WL 1266770, at *1 (“[W]ith certain exceptions not present here, Fed. R. Civ. P. 45

21

subpoenas constitute pretrial discovery that must be served within the specified discovery

22

period.”).

23

Defendants next argue that the subpoena was facially deficient because the subpoena was

24

issued by the wrong court and by an improper person. Rule 45(a)(2) requires that the subpoena

25

issue from the Northern District of California, but the subpoena issued from the District of

26

Massachusetts. See ECF No. 79-1, Ex. 1. Defendants further point out that, Lynnda McGlinn,

27

counsel for InternMatch, issued the subpoena but is not admitted to practice in the District of

28

Massachusetts. See ECF No. 92-1, Ex. B. InternMatch concedes that the subpoena was
3

1

“inadvertently issued out of the U.S. District Court for the District of Massachusetts,” but argues

2

that Defendants should have moved to quash the subpoena. ECF No. 105 at 6 n.4.

3

The Court agrees. Defendants had the opportunity to object to the subpoena by filing a

4

motion to quash before the date of production of the requested documents. Defendants explain it

5

would have been cost-intensive to seek separate, local counsel in Massachusetts and that in an

6

“analogous circumstance,” AT&T rejected a subpoena served by InterMatch. ECF No. 90 at 8–9.

7

However, “[a] party objecting to a subpoena must file a motion to quash the subpoena before . . .

8

the actual date of production of the requested documents, as is required by the Federal Rules.”

9

Moore v. Chase, Inc., No. 1:14-CV-01178-SKO, 2015 WL 4393031, at *6 (E.D. Cal. July 17,
2015). The subpoena identified October 12, 2015 as the production date. ECF No. 79-2, Ex. 1.

11
United States District Court
Northern District of California

10

That date passed without a motion to quash from Defendants, and they “cannot now attack the

12

subpoena’s validity” through this motion in limine. Moore, 2015 WL 4393031, at *6; see also

13

Anderson v. Abercrombie & Fitch Stores, Inc., No. 06CV991-WQH(BLM), 2007 WL 1994059, at

14

*8 (S.D. Cal. July 2, 2007). That AT&T might have declined to comply with an unrelated

15

subpoena is irrelevant.

16

Finally, Defendants argue that Pennsylvania privacy laws should protect against disclosure

17

of Batterman’s electronically stored information. Title 18 of Pennsylvania Consolidated Statutes

18

Section 5742 requires that “A person or entity providing an electronic communication service to

19

the public shall not knowingly divulge to any person or entity the contents of a communication

20

while in electronic storage by that service . . . .” Defendants argue that Homesite did not consider

21

this Pennsylvania law when disclosing the “copies of electronic communications made between

22

itself and Batterman.” ECF No. 90 at 8.

23

As an initial matter, the Court notes that Defendants waived this argument by failing to

24

move to quash the subpoena. Moreover, Defendants have not established that Homesite qualifies

25

as an entity that provides an electronic communication service. Although Homesite

26

communicated with Batterman through email and kept copies of their electronic communications,

27
28
4

1

it did not provide an electronic communication service.1 Instead, Homesite “is more appropriately

2

characterized as a provider of [insurance] and a consumer of electronic communication services.”

3

In re Jetblue Airways Corp. Privacy Litig., 379 F. Supp. 2d 299, 307 (E.D.N.Y. 2005) (emphasis

4

added) (finding that an airline carrier’s online reservation system was not an “electronic

5

communication service” within the meaning of the federal Electronic Communications Privacy

6

Act); see also Crowley v. CyberSource Corp., 166 F. Supp. 2d 1263, 1270 (N.D. Cal. 2001)

7

(rejecting the argument that because Amazon, the online merchant, received e-mails from the

8

plaintiff, it provided an electronic communication service).
The Court, accordingly, denies the motion to exclude the Homesite Insurance Company

9
files.

11
United States District Court
Northern District of California

10

III.

Motion at ECF No. 97 Regarding Joseph Greco
As part of InternMatch’s motion seeking a terminating sanction, it also included an expert

12
13

report from Joseph A. Greco, a licensed professional engineer. See ECF No. 70-1. InternMatch

14

used Greco’s report to support its contention that Batterman fabricated the power surge. See ECF

15

No. 64 at 15–16. Greco’s report stated that power surges are rare events and that no abnormal

16

electrical activity occurred in Philadelphia on the day of the power surge. ECF No. 70-1, Ex. A at

17

5–6. Greco concluded:

18

Based on the results of my investigation and within a reasonable
degree of engineering and scientific certainty, I have concluded, due
to the total lack of supporting evidence to the contrary, there was no
power transient or surge that damaged or destroyed computers,
associated electronic equipment and electrical receptacles at the loss
location on the dates reported.

19
20
21
Id. at 7.
22

The Court did not rely on Greco’s expert report in finding that Batterman fabricated the

23
power surge and spoliated evidence. See ECF No. 114 at 13. However, the Court will consider
24

the motion in light of the possibility that InternMatch may seek to introduce Greco’s report at trial.

25
26
27
28

1

Defendants assert that AT&T applied section 5742 and rejected the subpoena. ECF No. 90 at 6.
The Court notes that AT&T, unlike Homesite, appears to provide an electronic communication
service because it offers Batterman the means and ability to communicate electronically.
5

1

A.

2

Federal Rule of Evidence 702 provides:

3

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods to
the facts of the case.

4
5
6
7
8
9

Legal Standard

Trial courts serve a “gatekeeping” role “to ensure the reliability and relevancy of expert
testimony.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (citing Daubert v.

11
United States District Court
Northern District of California

10

Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)). They should screen “unreliable nonsense

12

opinions, but not exclude opinions merely because they are impeachable.” City of Pomona v.

13

SQM North America Corp., 750 F.3d 1036, 1044 (9th Cir. 2014). The reliability test under Rule

14

702 and Daubert “is not the correctness of the expert’s conclusions but the soundness of his

15

methodology.” Id. “Shaky but admissible evidence is to be attacked by cross examination,

16

contrary evidence, and attention to the burden of proof, not exclusion.” Primiano v. Cook, 598

17

F.3d 558, 564 (9th Cir. 2010). The proponent of the expert testimony has the burden of proving

18

admissibility. Lust By & Through Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir.

19

1996).

20

B.

21

Defendants do not attack Greco’s qualifications, but instead, contend that Greco’s

22

testimony is unreliable. ECF No. 97 at 4. InternMatch responds that Defendants’ basis for attack

23

goes to the weight of Greco’s report and not to its admissibility. ECF No. 107 at 9.

24

Discussion

In order to form the conclusion that no power surge occurred, Greco first noted that there

25

are two sources of power surges: severe weather conditions and physical disruptions to utility

26

poles. ECF No. 70-1 at 5–6. He then found that there were no records of severe weather

27

occurrences and no reports of such disturbances. Id. Next, Greco explained that given the

28

configuration of the residential electrical power distribution panel, a scenario where only four or
6

1

five electrical receptacles are affected is “highly unlikely.” Id. at 6–7. Finally, Greco highlighted

2

that Batterman testified that he had no supporting documentation to certify that an electrician saw

3

evidence of a power surge or replaced receptacles and that he did not retain the destroyed devices.

4

Id. at 7.
The primary thrust of Defendants’ argument is that Greco’s report must be excluded

5

because it is not sufficiently reliable, but this argument is based entirely on Greco’s not having

7

considered certain materials that Defendants’ expert, Dr. Tobias, did consider. These arguments

8

go to the weight, not the admissibility, of Greco’s testimony. A jury can decide how much weight

9

it deserves. See, e.g., Bergen v. F/V St. Patrick, 816 F.2d 1345, 1352 n.5 (9th Cir. 1987) opinion

10

modified on reh’g, 866 F.2d 318 (9th Cir. 1989) (“The relative weakness or strength of the factual

11
United States District Court
Northern District of California

6

underpinnings of the expert’s opinion goes to weight and credibility, rather than admissibility.”);

12

In re Toyota Motor Corp. Hybrid Brake Mktg., Sales Practices and Prods. Liab. Litig., No., MDL

13

10–02172, 2012 WL 4904412, at *3 (C.D. Cal. Sept. 20, 2012) (finding whether an expert’s

14

reasonable assumptions are true and whether his opinions should be accepted are issues going to

15

the weight of his testimony and report and not to their admissibility). At bottom, Defendants’

16

gripe with Dr. Greco’s report is that they disagree with his conclusions. This is not a basis for

17

exclusion under Daubert. See, e.g., Kennedy v. Collagen Corp., 161 F.3d 1226, 1230 (9th Cir.

18

1998) (“[j]udges in jury trials should not exclude expert testimony simply because they disagree

19

with the conclusions of the expert”); Apple, Inc. v. Samsung Elecs. Co., No. 11-CV-01846-LHK,

20

2012 WL 2571332, at *8 (N.D. Cal. June 30, 2012) (one party’s disagreement with opposing

21

party’s expert’s conclusions not a basis for exclusion under Daubert).

22

Defendants also take issue with Greco’s testimony because it “failed to consider the report

23

of the only electrician who actually physically performed work at the site.”2 ECF No. 97 at 5. As

24

the Court made plain in its prior order, a reasonable jury could conclude that no work was ever

25

performed, and that reports of its having been performed were fabricated. ECF No. 114 at 13–15.

26

For the same reasons, the jury might decide to disregard the report of the man who allegedly

27
2

28

Notably, this report was never disclosed to InternMatch during discovery and only later appeared
as an exhibit in Defendants’ expert rebuttal. ECF No. 78, Keyes Decl. ¶ 6
7

1
2

performed the work. It cannot be the grounds for exclusion that Greco did not consider the report.
In sum, there is no basis to exclude Greco’s testimony. Whatever shortcomings there

3

might be in that testimony can be open to “[v]igorous cross-examination, presentation of contrary

4

evidence, and careful instruction on the burden of proof.” Daubert, 509 U.S. at 596. Accordingly,

5

the Court denies Defendants’ motion to exclude the testimony of Joseph A. Greco, P.E.
CONCLUSION

6
7
8
9
10

The Court denies the motion to exclude the Homesite Insurance Company files and the
motion to exclude Joseph Greco’s testimony.
IT IS SO ORDERED.
Dated: March 28, 2016

United States District Court
Northern District of California

11
12
13

______________________________________
JON S. TIGAR
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8