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)

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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

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