Liveperson, Inc. v. 24/7 Customer, Inc.

Filing 618

ORDER RE CERTAIN MOTIONS IN LIMINE AND DISPUTED JURY INSTRUCTIONS by Judge Jon S. Tigar(Entered by Judge Jon S. Tigar) (Filed on 9/15/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LIVEPERSON, INC.,
Plaintiff,

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v.

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[24]7.AI, INC.,
Defendant.

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United States District Court
Northern District of California

Case No. 17-cv-01268-JST
ORDER RE CERTAIN MOTIONS IN
LIMINE AND DISPUTED JURY
INSTRUCTIONS
Re: ECF No. 571, 572, 574, 608

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Following are the Court’s rulings on certain motions in limine and disputed jury

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instructions that were discussed, but not ruled upon, at the September 13, 2019, pretrial

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conference:

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LivePerson’s Motion in Limine No. 1 to Exclude Argument, Evidence, or Testimony that

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LivePerson Rules Present in [24]7’s System are Deactivated. This motion is granted. The Court

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finds that [24]7 failed to disclose its contention that it deactivated LivePerson’s rules even though

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it was under an obligation to do so. At minimum, [24]7 should have made this disclosure in its

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Supplemental Responses to LivePerson’s Questions Regarding Use of the Alleged Trade Secrets.

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See ECF No. 567-6. [24]7 suggests that it met any obligation of disclosure because it already

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disclosed that it ceased using, or migrated away from, LivePerson’s rules. See, e.g., ECF No. 586

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at 6-7 (arguing that [24]7’s discovery responses “support [24]7, showing that [24]7 disclosed that

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use of LivePerson rules was temporary and that [24]7 ceased using LivePerson’s rules”). This

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argument is not persuasive. The act of removing rules one’s from software is different from

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deactivating those rules: a deactivated rule may still be present in the software. Thus, by

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disclosing that [24]7 ceased using LivePerson’s rules, [24]7 did not disclose that it had deactivated

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them.

[24]7’s Motion In Limine No. 3 To Exclude Arguments Relating to [24]7’s Use of Alleged

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Trade Secrets Beyond the Chat Implementations at Specific Customers to Which the Alleged

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Trade Secrets Relate. This motion is denied. The extent to which [24]7’s alleged

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misappropriation of LivePerson’s trade secrets enabled [24]7 to build its chat platform, if any, is

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an issue for the jury to decide. Motions in limine are not an appropriate means to resolve factual

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disputes or weigh evidence. Sec. & Exch. Comm'n v. Sabrdaran, No. 14-CV-04825-JSC, 2016

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WL 7826653, at *2 (N.D. Cal. Oct. 20, 2016).
[24]7’s Motion in Limine No. 4 to Exclude Evidence and Arguments Relating to [24]7 Not

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Using a Clean Room. This motion is denied. Under Rule 401’s broad standard of relevance for
admissibility purposes, e.g., United States v. Miranda-Uriarte, 649 F.2d 1345, 1353 (9th Cir.

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United States District Court
Northern District of California

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1981), evidence that [24]7 did not use a clean room is relevant because there will be testimony that

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such lack of use was not commercially reasonable, and the absence of a clean room made

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misappropriation of trade secrets more likely. “Relevance is not a strict test.” United States Equal

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Employment Opportunity Comm'n v. Placer ARC, 147 F. Supp. 3d 1053, 1062 (E.D. Cal. 2015).

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The Court also finds no unfair prejudice to [24]7. See Fed. R. Evid. 403.
Special Jury Instruction No. 1. The Court will include LivePerson’s suggested phrase,

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“where the components of the combination are publicly known.” The Court will not include, for

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now, either LivePerson’s suggested sentence, “Another example is where one knowingly uses

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access provided for one purpose to accomplish a different purpose,” or [24]7’s suggested sentence,

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“Another example is where one knowingly exceeds the scope of authorized access by

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misrepresenting the nature of its use to the party providing the information.” Either party may

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request that its suggested sentence, or an alternative version, be given at the end of the trial. Such

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request should be made sufficiently far in advance that each side can support its position with

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written authority.

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Punitive Damages. The Court will not include either party’s suggested language.

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IT IS SO ORDERED.

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Dated: September 15, 2019
_______ ______________________________
JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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