Viasphere International , Inc v. Vardaryan

Filing 152

ORDER by Magistrate Judge Howard R. Lloyd re Parties' Motions in Limine 128 , 129 , 131 , 136 , and 137 . (hrllc2, COURT STAFF) (Filed on 2/24/2014)

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1 2 3 4 5 6 7 NOT FOR CITATION 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court Northern District of California 11 12 VIASPHERE INTERNATIONAL, INC., Case No. 5:12-cv-01536 HRL Plaintiff, 13 ORDER RE PARTIES’ MOTIONS IN LIMINE v. 14 15 ARAM VARDANYAN, [Re: Dkt. Nos. 128-129, 131, 136, 137] Defendant. 16 17 As discussed at the February 18, 2014 Final Pretrial Conference, and upon consideration of 18 the parties’ respective moving and responding papers, the court rules on their motions in limine as 19 follows: 20 Plaintiff’s Motion in Limine No. 1 to “Exclude Reference to or Evidence not Produced in 21 Discovery” is GRANTED as to any documents, witnesses, or testimony not disclosed in 22 discovery, except as may be relevant for impeachment purposes only. Fed. R. Civ. P. 23 26(a)(1)(A)(i). Parties are not allowed to use evidence they did not disclose in discovery, unless 24 the failure to disclose was substantially justified or is harmless. Fed. R. Civ. P. 37(c); Yeti by 25 Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Vardanyan has not 26 convincingly demonstrated that his failure to disclose his proposed trial Exhibit Nos. 360 and 361 27 28 1 in discovery was substantially justified or harmless. 1 Plaintiff’s Motion in Limine No. 2 to “Exclude any Reference to Defendant’s 2 3 Counterclaim or Complaint in the Related Case” is GRANTED. Fed. R. Evid. 402, 403. Defendant’s Motion in Limine No. 1 to “Exclude any Evidence not Previously Identified 4 5 in Plaintiff’s Initial Disclosures or Produced During Discovery” is GRANTED as to any 6 documents, witnesses, or testimony not disclosed in discovery, except as may be relevant for 7 impeachment purposes only. Fed. R. Civ. P. 26(a)(1)(A)(i). As for the specific witnesses raised 8 in this motion: The motion is granted as to Gagik Kirakosyan. Viasphere has not convincingly 9 demonstrated that the failure to disclose him in discovery was substantially justified or harmless. Fed. R. Civ. P. 37(c); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th 11 United States District Court Northern District of California 10 Cir. 2001). Viasphere will, however, be permitted to present Kirakosyan solely for impeachment, 12 assuming he legitimately may be presented for that purpose. The motion is denied as to Hrant 13 Vardanyan, Sargis Sargsyan, Alexandr Hovhannisyan, Levon Atovmyan, and Georgi Danielyan 14 because these witnesses were disclosed in plaintiff’s initial disclosures or otherwise through the 15 discovery process. The record presented shows that Vardanyan either did not bother to conduct 16 discovery of these witnesses or failed to follow proper procedures in seeking such discovery. 17 However, affidavits from witnesses who do not appear for testimony may not be used at trial, 18 except as may be relevant for impeachment. 19 Defendant’s Motion in Limine Nos. 2 and 3 both seek to preclude Viasphere from offering 20 into evidence the “Employment, Confidential Information, Invention Assignment, and Arbitration 21 Agreement” (Employment Agreement). Both motions will be denied. Although the document 22 23 24 25 26 27 28 1 Thus far, defendant’s proposed exhibits 360 and 361 are the only ones that have been identified to the court as not having been produced in discovery. Vardanyan says that all of his other exhibits were previously produced. Plaintiff says that, aside from the documents it produced itself, it cannot be sure because Vardanyan did not Bates-number his document production. Nor did he provide plaintiff (or the court) with a copy of his proposed exhibits. As discussed at the pretrial conference, the parties’ lead counsel are to meet-and-confer in person here for the purpose of sorting out what defendant’s other proposed exhibits are; whether they were produced in discovery; and whether or not there are any objections to them---and then advise the court accordingly no later than May 20, 2014 so that any issues properly may be resolved at the further pretrial conference scheduled for May 27, 2014. 2 1 was not alleged in plaintiff’s First Amended Complaint, there is no dispute that Viasphere 2 produced the Employment Agreement multiple times in discovery and that both sides conducted 3 discovery as to that document. While the parties dispute the authenticity of the document, issues 4 as to authenticity are factual matters for the jury to decide. Each side may present its evidence 5 accordingly. 6 7 8 9 SO ORDERED. Dated: February 24, 2014 ______________________________________ HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 5:12-cv-01536-HRL Notice has been electronically mailed to: 2 Ara Aroustamian 3 Helene Anastasia Simvoulakis 4 Kevin John Murphy 5 Sonia Sanjit Shah 6 ara@lawaa.com hsimvoulakis@pahl-mccay.com, ssamayoa@pahl-mccay.com kmurphy@adrservices.org sshah@pahl-mccay.com, tmeek@pahl-mccay.com Stephen Donald Pahl spahl@pahl-mccay.com, tmeek@pahl-mccay.com 7 Varand Vartanian Varand@lawaa.com 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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