COPIC Insurance Company v. Wells Fargo & Company et al
Filing
550
ORDER ON PENDING MOTIONS. 441 Wells Fargo's Motion to Request Use of Confidential Juror Questionnaire is denied. 420 Wells Fargo's Motion for Bifurcation is denied. 386 Wells Fargo's Motion in Limine to Exclude Evidence Relating to Wells Fargo's Net Worth or Resources is denied. 382 Wells Fargo's Motion in Limine to Preclude COPIC from Using All Exhibits Attributing Statements to, and Deposition Testimony of, Messrs. Stumpf and Kovacevich is granted. 402 COPIC& #039;s Motion in Limine to Preclude Evidence Relating to Hypothetical Losses in a Different Securities Lending Program is granted. 418 Wells Fargo's Motion in Limine to Exclude Evidence Relating to the Wells Fargo Advantage Funds Money Market Funds is denied. 410 COPIC's Motion in Limine to Preclude All Evidence of Post-Breach Market Developments is denied without prejudice. Ruling is reserved on 434 Wells Fargo's Motion in Limine to Exclude Improper Damage Theories of Exper t Mitchell Hoffman. 423 COPIC's Motion in Limine to Preclude Evidence of Wells Fargo Participants in the Securities Lending Program is denied without prejudice. 387 Wells Fargo's Motion in Limine to Exclude Evidence Relating to WCRA Wor kers' Lawsuit is granted with respect to the introduction of any evidence regarding the outcome of the WCRA litigation and denied without prejudice to other trial objections. 416 COPIC's Motion in Limine to Preclude All Evidence of Invest ments Outside of the Securities Lending Program is denied without prejudice. 390 Wells Fargo's Motion in Limine to Preclude COPIC from Introducing News Articles During Trial is granted. 411 COPIC's Motion in Limine to Preclude Evidence Regarding Other (Non-Wells Fargo) Securities Lending Programs is denied without prejudice. 432 Wells Fargo's Motion in Limine to Exclude Opinion Testimony of Laurence Freed is granted. 409 COPIC's Motion in Limine to Preclude Evidence o r Argument that Wells Fargo did not owe Fiduciary Duty is granted in party and denied without prejudice in part. 437 Wells Fargo's Motion in Limine Regarding Public Safety of Arizona is denied without prejudice. By Judge Walker D. Miller on 5/2/11. (mnf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Walker D. Miller
Civil Action No. 09-cv-00041-WDM-BNB
COPIC INSURANCE COMPANY,
Plaintiff,
v.
WELLS FARGO BANK, N.A.,
Defendant.
ORDER ON PENDING MOTIONS
Miller, J.
This case is before me on various motions filed by Defendant Wells Fargo Bank,
N.A. (“Wells Fargo”) and Plaintiff COPIC Insurance Company’s (“COPIC”). For the reasons
stated on the record and as set forth below, the motions are denied and granted as follows:
1.
Wells Fargo's Motion to Request Use of Confidential Juror Questionnaire
(ECF No. 426/441 [public entry])
Denied as the subject matter of this litigation is not that sensitive and areas of
concern are adequately covered by normal voir dire.
2.
Wells Fargo’s Motion for Bifurcation (ECF No. 420)
Motion is denied. The issue is procedural under Erie R.R. v. Tompkins, 304 U.S.
64 (1938) and is governed by federal law, in particular Fed. R. Civ. P. 42(a), rather than
Minn. Stat. § 549.20. Bifurcation consumes more scarce judicial resources and any
prejudice concerns can be addressed through instructions.
3.
Wells Fargo’s Motion in Limine to Exclude Evidence Relating to Wells
Fargo’s Net Worth or Resources (ECF No. 386)
Denied. Net worth may be relevant to the reliance issue. Appropriate instructions
should avoid prejudice.
4.
Wells Fargo’s Motion in Limine to Preclude COPIC from Using All Exhibits
Attributing Statements to, and Deposition Testimony of, Messrs. Stumpf and
Kovacevich (ECF No. 382)
Neither man is a party in the litigation. The motion is granted as to the plaintiff’s
case in chief on the grounds that these individuals do not have personal knowledge of the
matters in dispute. This ruling is without prejudice to use of the evidence for rebuttal or
impeachment, if appropriate.
5.
COPIC’s Motion in Limine to Preclude Evidence Relating to Hypothetical
Losses in a Different Securities Lending Program (ECF No. 402)
Granted. COPIC’s claim is that Wells Fargo represented that collateral would be
invested in conservative money market-type investments; accordingly, these types of
accounts, not the performance of other securities lending programs, would provide the
appropriate benchmark for determining COPIC’s alleged losses.
6.
Wells Fargo’s Motion in Limine to Exclude Evidence Relating to the Wells
Fargo Advantage Funds Money Market Funds (ECF No. 418)
Denied for the same reason. This ruling is without prejudice to other trial objections.
7.
COPIC’s Motion in Limine to Preclude All Evidence of Post-Breach Market
Developments (ECF No. 410)
Denied without prejudice to other trial objections. Although the proper measure of
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damages has not yet been determined as a legal issue, COPIC had a duty to mitigate and
the improved performance of the relevant securities could be a factor.
8.
Wells Fargo’s Motion in Limine to Exclude Improper Damage Theories of
Expert Mitchell Hoffman (ECF No. 399/434 [public entry])
I will reserve ruling on this motion pending further argument from the parties and
determination of the legal issues regarding the proper measure of damages in these
circumstances. Both parties are invited to submit statements of position, not to exceed 10
pages, by 9:00 a.m. on Monday, May 2, 2011 regarding the proper measure of damages
should plaintiff succeed in establishing liability. Argument shall be heard on these issues
at 3:00 p.m. on the same day.
9.
COPIC’s Motion in Limine to Preclude Evidence of Wells Fargo Participants
in the Securities Lending Program (ECF No. 423)
Denied without prejudice to other trial objections. In deciding whether to preclude
evidence under Fed. R. Civ. P. 37(c)(1), I apply the principles of Woodworker’s Supply, Inc.
v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). I conclude the prejudice
or surprise is not great. COPIC was aware of this material before the close of discovery
and had the opportunity to cure either the non-disclosure or the late disclosure before
discovery closed. It does not appear that introducing the evidence will significantly disrupt
the trial as it goes to an issue that is somewhat collateral to the primary liability questions.
I see no evidence of bad faith or willfulness, particularly in the absence of a motion to
compel.
10.
Wells Fargo’s Motion in Limine to Exclude Evidence Relating to WCRA
3
Lawsuit1 (ECF No. 387)
Granted with respect to the introduction of any evidence regarding the outcome of
the WCRA litigation.
Otherwise, I deny the motion without prejudice to other trial
objections. If such evidence is relevant and appropriate, it may be admitted. Bates
numbers from the previous litigation do not need to be redacted. The parties may offer
appropriate instructions for the jury regarding how to consider evidence from another
proceeding.
11.
COPIC’s Motion in Limine to Preclude All Evidence of Investments Outside
of the Securities Lending Program (ECF No. 416)
Evidence that COPIC was a “sophisticated” investor may be relevant and so I deny
the motion without prejudice to other trial objections.
12.
Wells Fargo’ Motion in Limine to Preclude COPIC from Introducing News
Articles During Trial (ECF No. 390)
The motion is granted with respect to the plaintiff’s case in chief. I am concerned
that some of this evidence is cumulative and collateral to the primary issues in the litigation.
This ruling is without prejudice to the possible use, if appropriate, of such evidence for
rebuttal or impeachment.
13.
COPIC’s Motion in Limine to Preclude Evidence Regarding Other (Non-Wells
Fargo) Securities Lending Programs (ECF No. 411)
The motion is denied without prejudice to other trial objections. Because COPIC has
asserted a negligence claim, such evidence may be relevant to the standard of care.
1
Workers' Compensation Reinsurance Assoc. v. Wells Fargo Bank, N.A., No.
62-cv-08-10825 (2d Jud. Dist., Minn.)
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14.
Wells Fargo’s Motion in Limine to Exclude Opinion Testimony of Laurence
Freed (ECF No. 394/432 [public entry])
The motion is granted to the extent Mr. Freed opines on the applicable legal
standard or on Wells Fargo’s state of mind.
15.
COPIC’s Motion in Limine to Preclude Evidence or Argument that Wells
Fargo did not owe Fiduciary Duty (ECF No. 409)
Wells Fargo owed a fiduciary duty in its role as COPIC’s agent. The scope of the
agency and of those duties, however, have yet to be determined either as issues of law or
fact. Therefore, I grant the motion in part and deny without prejudice in part.
16.
Wells Fargo’s Motion in Limine Regarding Public Safety of Arizona (ECF No.
413/437 [public entry])
The motion is denied without prejudice to other trial objections. This evidence could
be relevant to several issues including COPIC’s contentions that it was injured by Wells
Fargo’s failure to disclose the shortfall and by the alleged different treatment of participants.
DATED at Denver, Colorado, on May 2, 2011.
BY THE COURT:
s/ Walker D. Miller
United States Senior District Judge
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