Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc. et al

Filing 183

ORDER by Judge James Ware denying 104 Motion in Limine; denying 105 Motion in Limine; denying 106 Motion in Limine; granting in part and denying in part 107 Motion in Limine; denying 108 Motion in Limine; denying 109 Motion in Limine; denying 110 Motion in Limine; granting 111 Motion in Limine; denying 112 Motion in Limine; denying 164 Motion in Limine; denying 165 Motion in Limine; denying 166 Motion in Limine; granting 175 Motion for Leave to File; denying 179 Motion in Limine; denying 180 Motion in Limine; granting 181 Motion in Limine (jwlc2, COURT STAFF) (Filed on 7/9/2009)

1 2 3 4 5 6 7 8 9 10 Louis Vuitton Malletier, S.A., Plaintiff, v.
For the Northern District of California

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NO. C 07-03952 JW ORDER RE: MOTIONS IN LIMINE

United States District Court

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Akanoc Solutions, Inc., et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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/ Presently before the Court are various Motions in limine by Defendants.1 The Court considers each in turn.2 1. Defendants' Motion in Limine No. 1 to preclude Plaintiff's lead counsel, J. Andrew

Coombs from offering any testimonial evidence (Docket Item No. 104) is DENIED as moot because Plaintiff has declared that it has no intention of calling Mr. Coombs as a witness. 2. Defendants' Motion in Limine No. 2 to exclude Internet material and testimony about

Internet material from third-party websites, printouts of those websites and information concerning the IP addresses of those websites (Docket Item No. 105) is DENIED as overbroad. This is without prejudice to Defendants to raise specific objections at trial.

The record does not reflect that Plaintiff has filed any in limine motions.

On July 6, 2009, Defendants filed a Motion for Leave to file three additional in limine motions. (Docket Item No. 175.) The Court finds good cause to GRANT Defendants leave and will also consider these Motions in this Order.

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3.

Defendants' Motion in Limine No. 3 to exclude all testimony about Defendants'

alleged reputation for hosting websites that specialize in counterfeiting activities and facilitating spamming operations (Docket Item No. 106) is DENIED because reputation evidence is exempted from the hearsay rule and this evidence concerns Defendant's knowledge of infringing activity on its servers, which is at issue in this case. 4. Defendants' Motion in Limine No. 4 to exclude all testimony about counterfeiting in China

(Docket Item No. 107) is DENIED to the extent that Defendants are seeking an exclusion of evidence of counterfeiting in China that directly relates to Plaintiff's case. However, it is GRANTED to the extent that Plaintiff seeks to introduce testimony about intellectual property infringement in China generally that is unrelated to the alleged infringement in this case. 5. Defendants' Motion in Limine No. 5 to exclude emails sent between Defendants and their

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customers discussing subsequent remedial measures (Docket Item No. 108) is DENIED because Plaintiff is not attempting to introduce the email evidence in an effort to show culpability but rather, to show Defendants' knowledge of and control over infringing content on its websites. This is without prejudice to Defendants to raise specific objections at trial. 6. Defendants' Motion in Limine No. 6 to exclude testimony about pinging internet domains

(Docket Item No. 109) is DENIED because the testimony about "pinging" is factual in nature and is not opinion testimony within the ambit of FRE 701. In addition, all the "pinging" at issue was done by Plaintiff's employees which gives them the requisite firsthand knowledge to offer testimony on this issue. 7. Defendants' Motion in Limine No. 7 to exclude evidence not previously disclosed in initial

and supplemental disclosures (Docket Item No. 110) is DENIED because Plaintiff represents that all the exhibits at issue have been produced to Defendants in this litigation. This is without prejudice to Defendants to raise objections to specific exhibits at trial. 8. Defendants' Motion in Limine No. 8 to redact all exhibit references to "ipcybercrime.com"

(Docket Item No. 111) is GRANTED because Plaintiff does not argue that the presence of the name "ipcybercrime.com" has any probative value while it does, however, appear that there is a 2

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substantial danger of unfair prejudice by unnecessarily linking Defendants' conduct to "cybercrime." 9. Defendants' Motion in Limine No. 9 to exclude testimony about the genuineness of the

goods offered by Plaintiff's witnesses Robert Holmes and Nikolay Livadkin (Docket Item No. 112) is DENIED because (1) Plaintiff states that Mr. Holmes has no intention of testifying as to the genuineness of the product and (2) Mr. Livadkin has been an employee of Plaintiff since 2002 and holds the title of "Anti-Counterfeiting Coordinator" and thus, has extensive experience in distinguishing counterfeit versions of Plaintiff's products. This is without prejudice to be renewed should the evidence at issue prove to be within the scope of expert testimony rather than percipient witnesses. 10. Defendants' Motion in Limine No. 10 to bar testimony and evidence of liability insurance

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(Docket Item No. 164) is DENIED since Plaintiff has not yet indicated any intent to introduce evidence of liability. This is without prejudice to be renewed should Plaintiff introduce such evidence at trial. 11. Defendants' Motion in Limine No. 11 to preclude Plaintiff from presenting non-

relevant evidence at trial (Docket Item No. 165) is DENIED as vague and overboard. This is without prejudice to raising specific objections at trial. 12. Defendants' Motion in Limine No. 12 to exclude Plaintiff from presenting a computer hard

drive containing data from five of Defendants' servers and certain computer data paths obtained by Plaintiff's expert (Docket Item No. 166) is DENIED because the evidence retrieved from Defendants' servers is highly relevant to Plaintiff's claims. 13. Defendants' Motion in Limine No. 13 to exclude the testimony of Joseph T. Murin

("Murin") and Phil Cooper ("Cooper") (Docket Item No. 179) is DENIED without prejudice to raising specific objections at trial if and when these witnesses are called. 14. Defendants' Motion in Limine No. 14 to exclude untimely trial exhibits (Docket Item No.

180) is DENIED because they are supplement productions pursuant to Fed. R. Civ. P. 26(e) and because this case involves claims of ongoing infringement. 3

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15.

Defendants' Motion in Limine No. 15 to preclude Plaintiff's expert witness from providing

additional testimony about actions or opinions not disclosed prior to his deposition (Docket Item No. 181) is GRANTED to the extent Plaintiff attempts to introduce testimony by Mr. Wilson regarding the results of experiments or investigations, and any opinions that were not disclosed prior to Mr. Wilson's deposition. This is without prejudice to Plaintiff to demonstrate to the Court that these were previously disclosed.

Dated: July 9, 2009 JAMES WARE United States District Judge

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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: Annie S Wang [e-mail] Brian S. Edwards [e-mail] David A. Gauntlett [e-mail] J. Andrew Coombs [e-mail] James A. Lowe [e-mail] Dated: July 9, 2009 Richard W. Wieking, Clerk By: /s/ JW Chambers Elizabeth Garcia Courtroom Deputy

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