Baker v. Seaworld Entertainment, Inc. et al
Filing
506
Notice and ORDER Providing Tentative Ruling Re: Motions in Limine [Doc. Nos. 474 , 476 ]. Signed by Judge Michael M. Anello on 1/16/2020. (tcf) Modified text and regenerated NEF on 1/16/2020 (tcf).
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Case No.: 14cv2129-MMA (AGS)
LOU BAKER, individually and on behalf
of all others similarly situated,
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NOTICE AND ORDER PROVIDING
TENTATIVE RULINGS RE:
MOTIONS IN LIMINE
Plaintiff,
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v.
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SEAWORLD ENTERTAINMENT, INC.,
et al.,
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[Doc. Nos. 474, 476]
Defendants.
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On January 21, 2020 at 2:30 p.m., Lead Plaintiffs and Class Representatives
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Arkansas Public Employees Retirement System and Pensionskassen for Børne-Og
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Ungdomspædagoger (“Plaintiffs”) and Defendants SeaWorld Entertainment, Inc.
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(“SeaWorld”), James Atchison, James M. Heaney, Marc Swanson, and the Blackstone
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Group L.P. (collectively, “Defendants”) will appear before the Court for a pretrial
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conference and hearing on the parties’ motions in limine. See Doc. Nos. 474, 476. The
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parties move to file under seal certain documents and exhibits in connection with their
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respective motions in limine, and briefs in opposition thereto. See Doc. Nos. 471, 473,
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487, 488. The Court will address these motions to seal via a separate order after the
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pretrial conference. The Court advises counsel that the pretrial conference will not be a
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sealed hearing and counsel should tailor their arguments accordingly.
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In anticipation of the hearing, the Court issues the following tentative rulings on
the pending motions:
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PLAINTIFFS’ MOTIONS
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1.
The Court tentatively GRANTS Plaintiffs’ motion to bifurcate trial into two
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phases—one for class-wide questions of Defendants’ liability and the measure of
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damages (Phase One), and a second for Class member-specific individual issues (Phase
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Two). The Court tentatively finds that bifurcation promotes judicial economy and avoids
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prejudice. See Fed. R. Civ. P. 42(b). Counsel should be prepared to discuss the logistics
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of a bifurcated trial at the hearing.
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2.
The Court tentatively GRANTS IN PART and DENIES AS MOOT IN
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PART Plaintiffs’ motion to exclude evidence and argument concerning Plaintiffs and/or
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Class Counsel. The Court tentatively grants Plaintiffs’ motion to exclude evidence and
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argument concerning individual issues regarding Plaintiffs or other Class Members and
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the absence of Plaintiffs during Phase One. The Court tentatively finds that evidence or
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argument concerning individual issues and the absence of Plaintiffs is irrelevant during
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Phase One. The Court tentatively denies as moot Plaintiffs’ motion to exclude evidence
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or argument concerning Class Counsel and Plaintiffs’ involvement in other litigation, as
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Defendants maintain that they do not intend to introduce such evidence or argument at
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trial.
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3.
The Court tentatively DENIES AS MOOT IN PART and GRANTS IN
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PART Plaintiffs’ motion to exclude evidence and argument referencing attorney advice
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or involvement. The Court tentatively denies as moot Plaintiffs’ motion to the extent
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Plaintiffs seek to exclude evidence or argument concerning the substance of attorney-
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client communications relied upon in making the disclosures at issue in this action, as
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Defendants do not intend to rely on an advice of counsel defense by putting the substance
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of any legal advice at issue. The Court tentatively grants Plaintiffs’ motion to the extent
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Defendants introduce evidence or argument that: (i) lawyers were involved in the
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disclosure process; (ii) lawyers prepared, reviewed, or approved documents, statements
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or conduct at issue; or (iii) Defendants relied on the advice of counsel in making the
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disclosures at issue. The Court tentatively finds such evidence is irrelevant. Even if such
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evidence is marginally relevant, the Court tentatively finds that the probative value of this
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evidence is substantially outweighed by the danger of unfair prejudice.
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4.
The Court tentatively DENIES AS MOOT Plaintiffs’ motion to exclude
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evidence and argument concerning SeaWorld’s Special Committee Report. Defendants’
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third motion in limine seeks to exclude evidence of investigations by the SEC and DOJ
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related to SeaWorld’s disclosures regarding Blackfish. Because the Court tentatively
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grants Defendants’ third motion in limine—which is broader than the instant motion—the
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Court tentatively finds that Plaintiffs’ motion is moot.
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5.
The Court tentatively DENIES Plaintiffs’ motion to: (i) pre-admit certain
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materials into evidence1; and (ii) publish to the jury during opening statements any pre-
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admitted evidence. Absent a stipulation between the parties, the Court is not inclined to
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pre-admit materials into evidence. Additionally, it is the Court’s view that opening
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statements are not the time to try one’s case. Thus, the Court tentatively finds that it is
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inappropriate to publish pre-admitted evidence to the jury during opening statements.
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However, counsel should be prepared to discuss at the hearing the extent to which the
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parties seek to use demonstrative aids during their opening statements.
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6.
The Court tentatively DENIES AS MOOT Plaintiffs’ motion to exclude
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evidence and argument concerning claims or defendants that have been dismissed, and
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any claims or legal theories that Plaintiffs have abandoned, modified, or never asserted in
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this case, as Defendants do not intend to offer any such evidence or argument at trial.
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7.
The Court tentatively DENIES Plaintiffs’ motion to preclude live witnesses
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Certain materials Plaintiffs seek to pre-admit are the subject of Defendants’ motions in limine,
which the Court addresses below.
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from testifying in Defendants’ case-in-chief who were not made available for live
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testimony in Plaintiffs’ case-in-chief. The Court tentatively finds that Plaintiffs’ motion
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is premature at this stage. However, counsel should be prepared to discuss this issue in
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greater detail at the hearing.
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8.
The Court tentatively GRANTS IN PART and DENIES IN PART
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Plaintiffs’ motion to exclude evidence and argument concerning Defendants’ ability to
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pay or aggregate damages. The Court tentatively grants Plaintiffs’ motion to exclude
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evidence or argument concerning Defendants’ ability to pay a damages award, as
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Defendants do not oppose this aspect of Plaintiffs’ motion. The Court tentatively denies
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Plaintiffs’ motion to exclude any reference at trial to aggregate damages as overbroad.
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Defendants do not intend to offer a precise calculation of the potential aggregate recovery
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at trial. However, the Court tentatively finds that Defendants should not be precluded
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from explaining that the total recovery of the class will be larger than the single-digit per-
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share figure calculated by Plaintiffs’ expert.
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9.
The Court tentatively DENIES Plaintiffs’ motion to prohibit counsel from
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communicating ex parte with sworn witnesses about his or her testimony until it is
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completed. The Court tentatively finds that a ban on attorney-witness communications
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about their testimony is premature at this stage. The parties may raise specific concerns
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at trial, if necessary.
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10.
The Court tentatively GRANTS IN PART and DENIES IN PART
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Plaintiffs’ motion to prohibit any party from disputing or otherwise objecting to the
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authenticity of materials that party produced during discovery. The Court tentatively
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grants Plaintiffs’ motion, as Defendants indicate that they are willing to stipulate to the
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authenticity of documents that SeaWorld created and produced in discovery. The Court
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tentatively denies Plaintiffs’ motion with respect to documents Defendants produced but
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did not create.
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DEFENDANTS’ MOTIONS
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The Court tentatively DENIES Defendants’ motion to exclude evidence
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concerning public statements not pleaded in Plaintiffs’ Second Amended Complaint
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(“SAC”). The Court tentatively finds that this evidence is relevant. Additionally, the
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Court tentatively finds that the probative value of this evidence is not substantially
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outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury,
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undue delay, or wasting time.
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2.
The Court tentatively DEFERS ruling on Defendants’ request to require
Plaintiffs to provide the full text of each challenged statement along with sufficient
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context for each challenged statement. The Court tentatively finds that the statements
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must be moved into evidence in full, as required by Federal Rule of Evidence 106.
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However, the scope of Defendants’ request is unclear. Plaintiffs claim that Defendants’
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concerns can be addressed through a stipulation between the parties to pre-admit the
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documents containing the false statements at issue and publish them to the jury in full.
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Counsel should be prepared to discuss any such stipulation to pre-admit the documents
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containing the false statements at the hearing.
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3.
The Court tentatively GRANTS Defendants’ motion to exclude evidence of
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government investigations by the SEC and DOJ related to SeaWorld’s disclosures
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regarding Blackfish, as Plaintiffs generally do not oppose Defendants’ motion. Plaintiffs
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can raise specific arguments regarding this subject if Defendants “open the door” at trial.
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4.
The Court tentatively GRANTS IN PART and DENIES IN PART
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Defendants’ motion to preclude Plaintiffs from: (i) introducing testimony from Fred
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Jacobs concerning his state of mind regarding the August 2013 statements; and (ii)
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arguing that Jacobs’ state of mind can be imputed to SeaWorld in evaluating the
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company’s liability for the August 29, 2013 statement. The Court tentatively grants
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Defendants’ motion with respect to imputation and tentatively finds that Jacobs’ scienter
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cannot be imputed to SeaWorld. See Janus Capital Grp., Inc. v. First Derivative
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Traders, 564 U.S. 135 (2011); SEC v. City of Victorville, No. CV13-00776 JAK (DTBx),
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2018 WL 3201676 (C.D. Cal. Jan. 24, 2018). However, the Court tentatively denies
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Defendants’ motion regarding Jacobs’ state of mind and finds that such testimony is
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relevant. Further, the Court tentatively finds that the probative value of Jacobs’ state of
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mind testimony is not substantially outweighed by the danger of unfair prejudice. The
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Court tentatively finds that a limiting instruction will be appropriate at trial.
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5.
The Court tentatively DENIES Defendants’ motion to exclude the
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PulsePoint and Initiative custodian of records declarations and underlying documents.
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The Court tentatively finds that the declarations establish the documents attested to are
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business records under Federal Rule of Evidence 803(6) and were executed by qualified
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witnesses under Federal Rule of Evidence 902(11).
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The Court tentatively GRANTS Defendants’ motion to exclude two MKM
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surveys and a “media mix analysis” prepared by Initiative to the extent such reports are
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offered for their truth. The Court tentatively finds that these third-party market research
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reports do not qualify as statements of an opposing party under Federal Rule of Evidence
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801(d)(2)(D).
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7.
The Court tentatively DEFERS ruling on Defendants’ motion to exclude
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public and social media correspondence to the extent offered for the truth of the matters
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asserted therein. The Court tentatively finds that any analysis of whether consumer
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communications and social media posts fall within hearsay exceptions must be conducted
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on a case-by-case basis.
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8.
The Court tentatively GRANTS Defendants’ motion to preclude Plaintiffs
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from playing Blackfish, excerpts thereof, or the trailer to the jury. The Court tentatively
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finds that even if marginally relevant, the danger of unfair prejudice substantially
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outweighs any probative value the film or trailer may have. The Court is inclined to
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order the parties to prepare a joint statement regarding the film that can be read to the
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jury at trial.
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9.
The Court tentatively DEFERS ruling on Defendants’ motion to exclude
evidence of animal treatment, trainer injury, and workplace safety issues. The Court
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tentatively finds Defendants’ motion is vague and overbroad. Defendants acknowledge
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that the jury should not be prevented from understanding in general terms the subject
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matter of Blackfish or the allegations that formed the basis of the Blackfish-related
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publicity. This information could include reference to animal treatment, trainer injury,
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and workplace safety issues. However, consistent with the Court’s tentative ruling
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regarding Defendants’ eighth motion in limine, the Court tentatively finds that the
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probative value of evidence of animal treatment, trainer injury, and workplace safety
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issues that goes beyond providing context for the jury, even if marginally relevant, is
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substantially outweighed by the danger of unfair prejudice.
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10.
The Court tentatively DENIES Defendants’ motion to exclude evidence of
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alleged investigation or surveillance of animal rights groups. The Court tentatively finds
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that this evidence is relevant. Additionally, the Court tentatively finds that the probative
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value of this evidence is not substantially outweighed by the danger of unfair prejudice.
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11.
The Court tentatively GRANTS Defendants’ motion to exclude evidence or
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argument regarding Defendants’ current financial condition, net worth, and/or
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profitability, as Plaintiffs do not oppose this aspect of Defendants’ motion. Plaintiffs
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claim that to the extent Defendants also seek to exclude evidence of any Defendant’s
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financial condition, net worth, and/or profitability during the Class Period, Plaintiffs
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oppose Defendants’ motion. However, it does not appear to the Court that Defendants
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seek to exclude evidence of any Defendant’s financial condition during the Class Period.
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12.
The Court tentatively DEFERS ruling on Defendants’ motion to exclude
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evidence of alleged post-Class Period Blackfish impacts. The scope of Defendants’
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motion is unclear at this stage. Additionally, the Court tentatively finds that any analysis
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of relevancy and/or prejudice concerning such evidence must be conducted on a case-by-
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case basis.
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As these rulings are tentative, the Court looks forward to the oral arguments of
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counsel.
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MISCELLANEOUS MATTERS
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Upon review of the parties’ pretrial disclosures and memoranda of contentions of
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fact and law, the Court requests counsel also be prepared to discuss the following at the
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hearing:
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Plaintiffs’ objection to all new evidentiary materials Defendants added to their first
and second amended disclosures after the December 6, 2019 deadline;
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The number of exhibits sought to be introduced at trial and related objections. The
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Court is inclined to order the parties to meet and confer to: (i) reduce the number
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of exhibits on the parties’ exhibit lists; and (ii) resolve as many of the outstanding
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objections to witnesses, exhibits, and proposed use of deposition testimony as
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possible. After participating in the meet and confer, the Court is inclined to order
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the parties to provide a joint status report setting forth each side’s remaining
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objections. The Court will likely set an additional pretrial status hearing to resolve
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the remaining objections;
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Sealed documents and/or witness testimony at trial. It is the Court’s view that
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exhibits and testimony admitted at trial should be public, unsealed, and not
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otherwise restricted from public access. See Richmond Newspapers, Inc. v.
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Virginia, 448 U.S. 555, 580 n.17 (1980);
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A procedure for dismissing prospective jurors in advance of jury selection based
upon their questionnaire responses; and
Keeping track of time at trial and the use of a “chess clock.”
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IT IS SO ORDERED.
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Dated: January 16, 2020
________ ____________________
HON. MICHAEL M. ANELLO
United States District Judge
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