Predator International, Inc. v. Gamo Outdoor USA, Inc.

Filing 538

ORDER. Plaintiff's Motion In Limine No. 1 Re: Lou Riley 471 is GRANTED in part as set forth in the attached Order; Plaintiff's Motion In Limine No. 2 Re: Lee Phillips 472 is GRANTED in part as set forth in the attached Order; Plaintiff 's Motion In Limine No. 3 Re: Telephone Testimony for Regina Valladares 473 is DENIED; Plaintiff's Motion in Limine No. 4 Re: Telephone Testimony for Jennifer Apple, Now Jennifer Nunley 474 is DENIED; Plaintiff's Motion in Limine No. 5 Re: State Court Proceedings 475 is DENIED; Plaintiff's Motion In Limine No. 6 Re: Summaries 476 is DENIED; the exhibits cited therein are inadmissible at trial; Plaintiff's Motion in Limine No. 7 Re: Demonstrative Exhibits 477 is DENIED; the exhibits cited therein are inadmissible at trial; Plaintiff's Motion In Limine No. 9 Re: Pre-Judgment Interest 479 is DENIED; Plaintiff's Motion in Limine No. 10 Re: Damages 480 is DENIED. By Judge Philip A. Brimmer on 1/31/14.(pabsec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 09-cv-00970-PAB-KMT
PREDATOR INTERNATIONAL, INC., a Colorado corporation,
Plaintiff,
v.
GAMO OUTDOOR USA, INC., a Florida corporation,
Defendant.

ORDER

This matter is before the Court on Plaintiff’s Motion In Limine No. 1 Re: Lou Riley
[Docket No. 471] filed by plaintiff Predator International, Inc. (“Predator”); Plaintiff’s
Motion In Limine No. 2 Re: Lee Phillips [Docket No. 472]; Plaintiff’s Motion In Limine
No. 3 Re: Telephone Testimony for Regina Valladares [Docket No. 473]; Plaintiff’s
Motion in Limine No. 4 Re: Telephone Testimony for Jennifer Apple, Now Jennifer
Nunley [Docket No. 474]; Plaintiff’s Motion in Limine No. 5 Re: State Court Proceedings
[Docket No. 475]; Plaintiff’s Motion In Limine No. 6 Re: Summaries [Docket No. 476];
Plaintiff’s Motion in Limine No. 7 Re: Demonstrative Exhibits [Docket No. 477];
Plaintiff’s Motion In Limine No. 9 Re: Pre-Judgment Interest [Docket No. 479]; and
Plaintiff’s Motion in Limine No. 10 Re: Damages [Docket No. 480].
I. ANALYSIS
A. Testimony of Lou Riley (Docket No. 471)
Predator requests that the Court order defendant Gamo Outdoor U.S.A., Inc.

(“Gamo”) to call Lou Riley as a witness at trial (as opposed to introducing his deposition
testimony in his absence) or, in the alternative, permit Predator to take a videotaped
deposition of Mr. Riley at Gamo’s expense. Docket No. 471. In addition, Predator asks
that the Court strike the deposition testimony of Mr. Riley that Gamo has designated for
admission at trial on the basis that it is irrelevant. Id.
Gamo responds that a court order compelling it to call Mr. Riley as a witness is
not required as it intends to do so and that it has designated Mr. Riley’s deposition
testimony solely as a contingency in the event he is prevented from traveling by medical
problems. Docket No. 501 at 1-2. Gamo argues that Predator is not entitled to an
additional deposition of Mr. Riley since it has already deposed him twice. Id. at 2-3.
Gamo contends that the testimony it has designated is relevant to Gamo’s affirmative
defense to Predator’s copyright claim. Id. at 3-4.
First, the Court agrees that there is no need for an order compelling Mr. Riley to
appear at trial. Gamo listed him as a will-call witness in the Final Pretrial Order, Docket
No. 410 at 35, ¶ 6, and Gamo states its intention to call him as a live witness. Docket
No. 501 at 1.
Second, with respect to the request for a videotaped deposition of Mr. Riley,
Predator has already deposed Mr. Riley in April 2010. See Docket No. 471 at 2.
Predator states that “much has transpired since 2010 related to GAMO, most of which
is known to Lou Riley.” Id. However, Predator does not specify what has happened,
explain how it is relevant to this case, or offer any other argument in support of ordering
a third deposition of Mr. Riley, at Gamo’s expense. See Fed. R. Civ. P. 30(a)(2)(A)(ii)

2

(a party must obtain leave of the court before deposing a witness who has already been
deposed, absent a stipulation by the parties); Myers v. Mid-West Nat’l Life Ins. Co., No.
04-cv-00396-LTB-KLM, 2008 WL 2410413, at *2 (D. Colo. June 11, 2008) (“as a
general rule, the court will not require a deponent to appear for a second deposition
without some showing of need or good reason for doing so . . . . scheduling a second
deposition of the same person without a showing of [reason] will generally support a
finding of annoyance and undue burden or expense”) (citing Cuthbertson v. Excel
Indus. Inc., 179 F.R.D. 599, 605 (D. Kan. 1998)). As Predator has not shown “need or
good reason” for scheduling a second deposition of Mr. Riley, the Court will deny this
request. See id.
Third, the deposition testimony that Gamo has designated concerns Predator’s
patent infringement claim and its conduct in litigating that claim. See Docket No. 471 at
1. Specifically, Gamo seeks to introduce Mr. Riley’s testimony that “Predator hid Lee
Phillips’ ownership interest in the ’893 Patent and fraudulently pursued patent
infringement litigation against Gamo.” Docket No. 501 at 3. Gamo contends that this
testimony is relevant to its affirmative defense of unclean hands. Id. at 4. Gamo goes
on to explain its theory that:
Predator intentionally misled Gamo and the Court by misrepresenting to the
Copyright Office that it was the owner of the copyrighted work, when, in fact,
Phillips and May were the owners. As Mr. Riley’s designated testimony from
Predator v. Phillips makes clear, Predator has a history of hiding Lee Phillips’
existence and also did this with Phillips’ patent ownership interest. In
December 2013, the Honorable Judge Charles M. Barton issued a 34 page
opinion resulting from a four day bench trial where the Colorado state court
in Predator v. Phillips found that Predator had fraudulently misled Gamo.
Similar to the patent ownership misrepresentations in the state court matter,
Predator intentionally omitted Phillips from the initial complaint in this matter
3

as a patent inventor. Predator also intentionally omitted Phillips from the
materials it submitted to the Copyright Office. Predator’s failure to
acknowledge Phillips as an author of the text at issue prevented the issue of
whether Predator is the owner of the copyrighted work from arising to Gamo
or to this Honorable Court. Mr. Riley’s designated testimony therefore is
directly relevant to Gamo’s affirmative defense of Predator’s unclean hands
and Predator’s request that it be stricken should be denied.
Docket No. 501 at 4. Gamo’s characterization of the designated portions of Mr. Riley’s
deposition indicates that it is not relevant to the matter at hand. While Predator’s
concealment of Mr. Phillips’ existence with respect to the copyright may be relevant to
Gamo’s defense of unclean hands, Predator’s conduct with respect to the patent is
separate and does not tend to show that Predator did or did not take certain actions
with respect to the copyright. See Purzel Video GmbH v. Smoak, No. 13-cv-01167WYD-MEH, --- F. Supp. 2d ----, 2014 WL 37269, at *6 (D. Colo. Jan. 6, 2014) (“In
copyright actions, the doctrine of unclean hands is only applied ‘where the wrongful acts
in some measure affect the equitable relations between the parties in respect of
something brought before the court for adjudication.’”) (citing Mitchell Bros. Film Grp. v.
Cinema Adult Theater, 604 F.2d 852, 863 (5th Cir. 1979)). Gamo may not introduce
evidence of Predator’s alleged inequitable conduct regarding the patent to support its
affirmative defense of unclean hands regarding Predator’s copyright claim. See id.; see
also Fed. R. Evid. 404(b).
B. Lee Phillips (Docket No. 472)
Predator asks the Court to strike Gamo’s designations of Mr. Phillips’ deposition
testimony on the basis that (1) Mr. Phillips is not unavailable within the meaning of
Federal Rule of Civil Procedure 32(a)(4) and (2) the portions of Mr. Phillips’ deposition

4

designated by Gamo are not relevant to trial. Docket No. 472 at 1-2. Gamo responds
that it intends to call Mr. Phillips as a live witness, but has designated his deposition
testimony in case he is unable to appear. Docket No. 502 at 2. Gamo says that Mr.
Phillips lives more than one hundred miles from the courthouse. Id. Gamo contends
that the designated testimony is relevant insofar as it relates to the “creation,
publication, and ownership of the copyrighted work.” Id. Gamo states that “Mr. Phillips
will testify that he and Tom May authored the copyrighted text prior to the incorporation
of Predator and that as a result, no work for hire exists and that they (and not Predator)
are the creators of the copyrighted work.” Id. at 2-3.
Predator asserts that Gamo “should be made to subpoena Lee Phillips to trial
rather than use his deposition since he is located within the State of Colorado.” Docket
No. 516 at 1 (citing Fed. R. Civ. P. 45(c)(1)(B)). There is no basis for this request.
First, if Mr. Phillips’ appearance at trial is of importance to Predator, Predator
could have listed him as a witness and procured his appearance at trial by issuing its
own subpoena. Second, deposition testimony is admissible under Rule 32(a)(4)(B) if
the “witness is more than 100 miles from place of hearing or trial . . . unless it appears
that the witness’s absence was procured by the party offering the deposition,” even if
the witness lives within the state and would thus be subject to a subpoena under Rule
45. See Fed. R. Civ. P. 32(a)(4)(D). There is no evidence to support Predator’s
professed belief that “GAMO is seeking to procure Phillips’ absence because GAMO
does not want him to personally appear,” Docket No. 472 at 2, ¶ 4, especially in light of
Gamo’s stated intention to call Mr. Phillips as a live witness. Accordingly, this request
will be denied.
5

The designated portions of Mr. Phillips’ deposition testimony discuss the
development of Predator’s polymer-tipped pellet, obtaining United States Patent No.
6,526,893 (the “’893 Patent”) for the pellet, incorporating Predator as a company,
Predator’s initial marketing and sales efforts, the use of the color red in Predator’s
pellets, the assignment of rights in the ’893 Patent to Predator, and litigation over the
’893 Patent. See generally, Docket Nos. 472-1 and 472-2. The development of the
pellet design, the application for and approval of the ’893 Patent, and the subsequent
dispute over the ’893 Patent are not relevant to this trial. See Docket No. 526 at 2. The
incorporation of Predator by Mr. Phillips is relevant only insofar as it lays a foundation
for his subsequent testimony regarding marketing Predator’s pellet. However, Mr.
Phillips’ involvement in designing marketing materials for the pellet is relevant to both of
Predator’s claims, since it relates to Predator’s ownership of the copyright.
Accordingly, the designated deposition testimony of Mr. Phillips will be stricken
as irrelevant, except for the following portions: Docket No. 472-1 at 7 to 12, 24, 35 to
36, 51 to 56 (Phillips dep., at 3, l.9 to 9, l.6; 21, ll.16-24; 34, l.3 to 35, l.13; 64, l.1 to 69,
l.21).
C. Testimony of Jennifer Apple and Regina Valladares (Docket Nos. 473
and 474)
Predator requests leave to introduce the testimony of Regina Valladares and
Jennifer Apple by telephone. Docket Nos. 473 and 474. As a basis for this request,
Predator states that it is unable to compel either witness to attend trial because they live
on the east coast, that it has not taken the deposition of Ms. Valladares, and that Ms.
Apple is employed and the mother of three young children. Docket No. 473 at 2, ¶ 3
6

(“Predator has offered expenses if [Ms. Valladares] flew to Denver. She declined.”);
Docket No. 474 at 2, ¶ 1 (“While [Ms. Apple] is willing to attend trial voluntarily if
Predator pays her travel expenses and reimburses her for lost time at work, she has
recently advised that it may be difficult for her to travel depending on circumstances.”).
Predator states that Ms. Valladares is expected to testify that, “sometime prior to
her departure in September 2008, Lou Riley walked around the office and showed
people a red-tipped pellet stating that GAMO intended to produce that pellet. She is
also expected to testify that Lou Riley told her that he was going to China to get the
pellet manufactured.” Docket No. 473 at 2, ¶ 1. Predator states that Ms. Apple will
testify that:
she took orders from Lou Riley, that Lou Riley drove her to shopping centers
where she could copy pellet descriptions, that she prepared the artwork for
the Red Bull (prior name to Red Fire), that she told Lou Riley that it was
outright plagiarism, and that she knew that Lou Riley and two other
employees were going to China to have the Red Bull pellet manufactured.
Docket No. 474 at 2, ¶ 2.
First, Predator’s characterization of the anticipated testimony of both witnesses
does not demonstrate the relevance of such testimony since the design and
manufacture of the Red Fire pellet is not at issue in this case.1 See Docket No. 526 at
2.
Second, Rule 43(a) provides that a witness may testify “in open court by
contemporaneous transmission from a different location” upon a showing of “good
cause in compelling circumstances.” The Advisory Committee Notes stress that the

1

The Court’s previous Order addresses in greater detail the relevance of Ms.
Apple’s anticipated testimony. See Docket No. 536.
7

“importance of presenting live testimony in court cannot be forgotten. The very
ceremony of trial and presence of the factfinder may exert a powerful force of
truthtelling.” Accordingly, transmission “cannot be justified merely by showing that it is
inconvenient for the witness to attend the trial.” Fed. R. Civ. P. 43(a), Advisory
Committee Notes. “Good cause” is easiest to show on the basis of “unexpected
reasons, such as accident or illness,” and more difficult to establish when a party could
“reasonably foresee the circumstances offered to justify transmission of testimony.” Id.;
see also Eller v. Trans Union, LLC, 739 F.3d 467, 478 (10th Cir. 2013) (“Courts most
frequently allow remote testimony in special circumstances, such as where a vital
witness would be endangered or made uncomfortable by appearing in a courtroom.”).
Predator has not established “good cause” within the meaning of Rule 43. The
only basis for Predator’s request is the inconvenience of the witnesses. This is
insufficient, especially in this case, where Predator was aware of their location in
advance of trial and was not surprised by “unexpected reasons” for their unavailability.
See Fed. R. Civ. P. 43(a), Advisory Committee Notes; see also Docket No. 474 at 2,
¶ 1 (“Predator was able to locate [Ms. Apple] and take her deposition on May 21,
2010.”); Docket No. 517 at 1-2 (“Predator finally made contact with [Ms. Valladares] on
or about December 12, 2013.”). Accordingly, these motions will be denied.
D. State Court Proceedings (Docket No. 475)
Predator requests that the Court instruct the jury on the litigation over the ’893
Patent that the parties pursued in state court. Docket No. 475. Predator states that,
”[d]uring the trial of this case, the issue of the patent will come up. The jury will wonder

8

why the case before it is not a patent infringement case. None of this is relevant to the
case.” Docket No. 475 at 4. However, Predator contends that a jury instruction is
necessary to “satisfy [the jury’s] expected curiosity” on the matter. Id.
First, a jury instruction is usually an inappropriate means of apprising a jury of
facts, especially facts that are not stipulated. Second, since Predator concedes that the
patent litigation is not relevant to this trial, giving such an instruction would be more
likely to confuse the jury than to head off inappropriate speculation. Accordingly, the
Court will deny this motion.
E. Admissibility of Summaries (Docket No. 476)
Predator requests an order stating that “its exhibits containing summaries are
evidence in this case upon a showing that the underlying evidence has been admitted
or furnished to the other party.” Docket No. 476 at 1. In addition, it specifically
identifies a number of exhibits that it contends fall within this category. Id.
A party may “use a summary, chart, or calculation to prove the content of
voluminous writings . . . that cannot be conveniently examined in court. The proponent
must make the originals or duplicates available for examination or copying . . . by other
parties at a reasonable time and place.” Fed. R. Evid. 1006. “Before a summary is
admitted, the proponent must lay a proper foundation as to the admissibility of the
material that is summarized and show that the summary is accurate.” Needham v.
White Labs. Inc., 639 F.2d 394, 403 (7th Cir. 1981). The decision to admit a summary
into evidence falls within the discretion of the trial court. Daniel v. Ben E. Keith Co., 97
F.3d 1329, 1334-35 (10th Cir. 1996).

9

Predator does not lay a foundation for these exhibits in its motion. See Docket
No. 520 at 3 (“Predator intends to lay a foundation with respect to these exhibits to the
extent not stipulated by GAMO. The Court should order that Predator’s summaries are
admissible upon proper authentication.”). The Court in its discretion will deny
Predator’s request for a conditional ruling of admissibility, subject to a proper foundation
being provided at trial, as it is unclear what purpose such a ruling would serve. See
Needham, 639 F.2d at 403; Daniel, 97 F.3d at 1334-35.
In opposing Predator’s motion, Gamo raises a number of separate objections to
the exhibits, namely, that they are irrelevant or contain impermissible legal argument.
Docket No. 506. Predator relies on Just In Case Business Lighthouse, LLC v. Murray,
2013 WL 3778184, at *10 (Colo. App. July 18, 2013), in which the appellate court
upheld the admission of summaries where the trial court had found that the case was
sufficiently complicated that the plaintiff required “some method to demonstrate to the
jury how it all comes together . . . otherwise the jury is never going to understand this.”
There is no basis for concluding that this case, which involves only two claims based on
a single, limited sequence of events, will be too complicated for the jury to understand
absent numerous summaries of the evidence. The Court rules on Gamo’s objections to
specific exhibits as follows:

10

Exhibit No.

Predator’s
Argument or Exhibit
Title

Gamo’s Argument

192

“timeline which will
assist the jury in
piecing together the
relevant evidence in
a chronological
manner,” Docket No.
520 at 1

Irrelevant

This exhibit is
inadmissible. Many
of the entries are not
relevant as they do
not pertain to the
alleged copyright
infringement or
CCPA violation.
Other entries are
quotes from source
documents, which
are not appropriate
for a summary.
There is no indication
that the underlying
evidence is too
voluminous to be
“conveniently
examined in court.”
See Fed. R. Evid.
1006.

193

“truncated timeline
for the same
purpose” as Exhibit
No. 192, Docket No.
520 at 1

Irrelevant

Same ruling as
above. In addition,
this exhibit contains
improper legal
conclusions.

194

“graphic timeline
reflecting the
occurrence of events
over the five year
span involved in this
trial,” Docket No. 520
at 1

Irrelevant

Same ruling as
above.

11

Ruling

196

Selected Discovery
Responses by GAMO
and GAMO Spain

“improper, attorneycreated work product
that does not fall
within the parameters
of admissible
evidence,” Docket
No. 506 at 3

The index on the first
page of this exhibit is
inadmissible as it
constitutes legal
argument. The Court
makes no ruling
regarding the
admissibility of the
attached discovery
responses, except to
note that this is not a
summary exhibit, but
rather a composite
exhibit.

197

“facts admitted by
GAMO and GAMO
Spain in various
pleadings as
indicated and are
appropriate for
presentation to the
jury,” Docket No. 520
at 3

“improper, attorneycreated work product
that does not fall
within the parameters
of admissible
evidence,” Docket
No. 506 at 3

This exhibit is
inadmissible. Many
of the entries are not
relevant as they do
not pertain to the
alleged copyright
infringement or
CCPA violation.
Other entries involve
alleged admissions of
Gamo Outdoor
Spain, which is not a
party to this case.
There is no indication
that the underlying
evidence is too
voluminous to be
“conveniently
examined in court.”
See Fed. R. Evid.
1006. Admitting this
exhibit would be
premature in any
event since much of
this evidence may be
cumulative.

12

198

“facts previously
found by the Court
which are relevant
and admissible to
show the sequence
of events,
background
information, and bad
faith,” Docket No.
520 at 1-2

Irrelevant

Inadmissible. The
Court has not
determined any facts
for purposes of this
trial. That is the role
of the jury. Any
suggestion by an
attorney or witness
during trial to the
effect that the Court
has already
determined certain
facts is improper.

199

Summary of Gamo
Short Period Sales

Irrelevant

This exhibit is
inadmissible. It
pertains solely to
Predator’s alleged
actual damages,
which are not at issue
in this trial. See
Docket No. 526 at 3.

203

Database Summary
of GAMO PolymerTipped Pellet Sales
2009-2013

Irrelevant

Same ruling as
above.

205

GAMO Profits
Through June 30,
2013 According to
Predator

Irrelevant

Same ruling as
above.

212

Summary of GAMO
Gross Margin
Percentages per
Summarized
Financial Information
for Sales and
Projections

Irrelevant

Same ruling as
above.

13

213

Summary of GAMO
Projections for Red
Fire, Performance
Pellets, Blue Flame
and Glow Fire Sales
and Actual Sales of
Polymer Pellets
(PBA) to Extent
Known

Irrelevant

Same ruling as
above.

215

Predator Database
Summary of Polymag
Sales, Costs and
Gross Margin 2007June 30, 2013

Irrelevant

Same ruling as
above.

220

Predator’s Sales to
its Four Largest
Customers 2007 June 30, 2013

Irrelevant

Same ruling as
above.

226

Summary of
Predator’s Sales of
Non-Polymer-Tipped
JSB Pellets 20092013 (From Ex. 225)

Irrelevant

Same ruling as
above.

227

Predator’s Interest
Damages on Lost
Post-Q3 Trendable
Sales vs. Actual
Sales

Irrelevant

Same ruling as
above.

14

230

“summary for
GAMO’s many
infringements which
will be of benefit to
the jury,” Docket No.
520 at 3

“improper, attorneycreated work product
that does not fall
within the parameters
of admissible
evidence,” Docket
No. 506 at 3

This exhibit is
inadmissible. The
title of this exhibit
contains inadmissible
legal conclusions.
The phrase
“unsurpassed
performance” is not
at issue in this case.
There is no indication
that the underlying
evidence is too
voluminous to be
“conveniently
examined in court.”
See Fed. R. Evid.
1006.

231

“summaries of
GAMO’s infringement
by website
description,
packaging
description, conduct
after the stipulated
injunction,” Docket
No. 520 at 3

“improper, attorneycreated work product
that does not fall
within the parameters
of admissible
evidence,” Docket
No. 506 at 3

The summary on the
first page of this
exhibit appears to be
admissible. Gamo’s
objection is
overruled. The
remainder of the
exhibit is not a
summary, but a
compilation.

232

“summaries of
GAMO’s infringement
by website
description,
packaging
description, conduct
after the stipulated
injunction,” Docket
No. 520 at 3

“improper, attorneycreated work product
that does not fall
within the parameters
of admissible
evidence,” Docket
No. 506 at 3

The summary on the
first page of this
exhibit appears to be
admissible. Gamo’s
objection is
overruled.

15

233

“summaries of
GAMO’s infringement
by website
description,
packaging
description, conduct
after the stipulated
injunction,” Docket
No. 520 at 3

“improper, attorneycreated work product
that does not fall
within the parameters
of admissible
evidence,” Docket
No. 506 at 3

The summary on the
first page of this
exhibit appears to be
admissible. Gamo’s
objection is
overruled.

234

Summary of Website
Descriptions for
Polymag (Predator)
and Red Fire
(GAMO) Posted by
Other Companies

Irrelevant

The Court reserves
ruling on this exhibit
in order to determine
its relevancy when
offered.

235

Summary of Exhibits
Relating to Google
Data on Infringement
by Third Parties

Irrelevant

The Court reserves
ruling on this exhibit
in order to determine
its relevancy when
offered.

236

“summary of e-mails
relating to GAMO’s
efforts to remove
infringement on the
internet showing its
unwillingness to tell
people the truth,”
Docket No. 520 at 3

“improper, attorney-

This exhibit is
inadmissible. There
is no indication that
the underlying
evidence is too
voluminous to be
“conveniently
examined in court.”
See Fed. R. Evid.
1006.

237

Summary of Some
Exhibits Relevant to
GAMO’s Red Fire
Pellet Marketing
Program May 2008 January 2010

Irrelevant

This exhibit is
inadmissible. There
is no indication that
the underlying
evidence is too
voluminous to be
“conveniently
examined in court.”
See Fed. R. Evid.
1006.

16

238

“summary of
marketing facts which
will be helpful to the
jury in understanding
what happened,”
Docket No. 520 at 3

“improper, attorneycreated work product
that does not fall
within the parameters
of admissible
evidence,” Docket
No. 506 at 3

This exhibit is
inadmissible. Many
of the entries are not
relevant as they do
not pertain to the
alleged copyright
infringement or
CCPA violation.
Other entries are
quotes from source
documents, which
are not appropriate
for a summary.
There is no indication
that the underlying
evidence is too
voluminous to be
“conveniently
examined in court.”
See Fed. R. Evid.
1006.

239

Summary of Exhibit
90 Relating to
GAMO’s
Development of the
Blue Flame and Glow
Fire Pellets

“improper, attorneycreated work product
that does not fall
within the parameters
of admissible
evidence,” Docket
No. 506 at 3

This exhibit is
inadmissible. It
contains quotes from
source documents,
which are not
appropriate for a
summary. It is not
relevant as it does
not pertain to the
alleged copyright
infringement or
CCPA violation.

17

240

“summary of the
officers and directors
and employees of
GAMO which will
assist the jury in
placing and putting
witnesses in context
in connection with
their role in GAMO
which indirectly
affects their credibility
and GAMO’s
credibility,” Docket
No. 520 at 2

Irrelevant

The Court reserves
ruling on this exhibit
in order to determine
its relevancy when
offered.

241

“summary of GAMO
Spain’s international
patent papers which
show that GAMO
Spain initiated its
efforts to copy the
Polymag pellet with
its Red Bull or Red
Fire pellet in March
2008, and knew of
the Polymag patent.”
Docket No. 520 at 2.

Irrelevant

This exhibit is
inadmissible. It is not
relevant as it does
not pertain to the
alleged copyright
infringement or
CCPA violation.

242

“summary of the
annual reports of the
Florida Secretary of
State showing the
changes in officers . .
. . It is relevant to
Predator’s argument
that GAMO
developed a plan
following the
acquisition by MCH
Equity of GAMO
Spain and its
aggressive plan to
increase profits at the
expense of others.”
Docket No. 520 at 2.

Irrelevant

Same ruling as
above.

18

243

“summary of the
Secretary of State
reports with respect
to SW47 Corp, the
corporation owned by
Francisco Casas
Salva who offices
with GAMO but is the
inventor for GAMO
Spain,” Docket No.
520 at 2

Irrelevant

Same ruling as
above.

244

“summary of some
exhibits relevant to
GAMO’s deceptive
trade practices taken
from other exhibits,”
Docket No. 520 at 3

“improper, attorneycreated work product
that does not fall
within the parameters
of admissible
evidence,” Docket
No. 506 at 3

This evidence is
inadmissible because
it constitutes legal
argument. See
United States v. Bray,
139 F.3d 1104, 1110
(6th Cir. 1998) (the
information in a
summary may not be
“embellished by or
annotated with the
conclusions of or
inferences drawn by
the proponent”).

245

“selection of various
exhibits evidencing
confusing and will be
helpful to the jury,”
Docket No. 520 at 2

Irrelevant

This exhibit is
inadmissible. It
contains quotes from
source documents,
which are not
appropriate for a
summary. There is
no indication that the
underlying evidence
is too voluminous to
be “conveniently
examined in court.”
See Fed. R. Evid.
1006.

19

246

“summary of GAMO’s
Red Fire weight
changes which
reinforces its copying
Predator’s Polymag
pellet despite mixed
performance
information received
by it relating to the
weight of the Red
Fire pellet. It is
relevant to copying
and bad faith.”
Docket No. 520 at 3

“improper, attorneycreated work product
that does not fall
within the parameters
of admissible
evidence,” Docket
No. 506 at 3

This exhibit is
inadmissible. It is not
relevant as it does
not pertain to the
alleged copyright
infringement or
CCPA violation.

247

“summary of GAMO’s
litigation with respect
to Crosman and
Heckler,” Docket No.
520 at 2

Irrelevant

This evidence is
inadmissible. See
Docket No. 526 at 13.

249

Summary of Exhibit
84 Relating to
GAMO’s
Perofrmance Pellet
Orders from GAMO
Spain April 1, 2009 June 26, 2009

Irrelevant

This exhibit is
inadmissible. Many
of the entries are not
relevant to as they do
not pertain to the
alleged copyright
infringement or
CCPA violation.
There is no indication
that the underlying
evidence is too
voluminous to be
“conveniently
examined in court.”
See Fed. R. Evid.
1006.

250

Summary of Exhibit
84 Relating to
GAMO’s Red Fire
Pellet Orders from
GAMO Spain
November 13, 2008 September 2, 2009

Irrelevant

Same ruling as
above.

20

251

“relevant to the
credibility of GAMO
and its parent
company GAMO
Spain and to GAMO’s
bad faith,” Docket
No. 520 at 2

Irrelevant

This exhibit is
inadmissible. It
concerns pellet
design and not
packaging copy. It is
not relevant as it
does not pertain to
the alleged copyright
infringement or
CCPA violation.

252

Summary of Exhibit
71 Relating to
Predator’s
Prospective Business
Relationship with
Crosman

Irrelevant

This exhibit is
inadmissible. It is not
relevant as it does
not pertain to the
alleged copyright
infringement or
CCPA violation.

253

Summary of Exhibit
69 Relating to
Predator’s
Prospective Business
Relationship with
Wal-Mart

Irrelevant

Same ruling as
above.

254

Predator Damage
Calculations

Irrelevant

This exhibit is not
admissible. It
pertains solely to
Predator’s alleged
actual damages,
which are not at issue
in this trial. See
Docket No. 526 at 3.

F. Admissibility of Demonstrative Exhibits (Docket No. 477)
Predator seeks an order “authorizing the admission of Predator’s demonstrative
exhibits into evidence when properly authenticated subject to a proper jury instruction.”

21

Docket No. 477 at 1. Predator identifies a number of specific exhibits2 that it contends
would fall within the scope of such an order and characterizes these exhibits as “charts
[] prepared by the Microsoft Excel spreadsheet program using summarized data
furnished either by GAMO or Predator.” Id. It states that these “demonstrative charts
are pedagogical in nature,” “offered to assist the jury in evaluating the evidence in the
case,” and “admissible under F.R.E. 1006.” Id. at 2. The Court assumes that when
Predator seeks the “admission” of these demonstrative exhibits, it refers solely to their
being displayed to the jury, not that the jury would have them during deliberation.
Gamo argues that the charts Predator seeks to admit pertain solely to damages
and are thus inadmissible at trial. Docket No. 507 at 1. Predator does not dispute that
these exhibits are intended only to support its entitlement to damages. The Court’s
review of these exhibits confirms this conclusion.3 See Docket No. 507. Accordingly,
these exhibits are not relevant and are not admissible as demonstrative exhibits. See
Docket No. 526 at 3.
G. Pre-Judgment Interest and Damages (Docket Nos. 479 and 480)
Predator requests an order that it is “entitled to pre-judgment interest on its
copyright damage claim if that claim is available,” Docket No. 479 at 1, and an order
that “its damage calculation exhibit . . . is consistent with applicable law and that all

2

This motion is brought with respect to Exhibit Nos. 194-95, 204, 206-11, 214,
216-19, and 221-24.
3

Exhibit No. 195, a Gamo organizational chart, does not necessarily pertain to
damages, but its relevance to this litigation is unclear and, in any case, there is no
indication that the evidence on which it is based is too voluminous to present in court.
See Fed. R. Evid. 1006.
22

evidence in furtherance of such damage calculations is relevant and admissible.”
Docket No. 480 at 1. Both motions are predicated upon Predator’s ability to seek actual
damages on its copyright infringement claim. See Docket No. 479 at 1; Docket No. 480
at 1 n.1. Since Predator is not entitled to seek actual damages on its copyright
infringement claim, see Docket No. 526 at 3, these motions will be denied.
II. CONCLUSION
For the foregoing reasons, it is
ORDERED that Plaintiff’s Motion In Limine No. 1 Re: Lou Riley [Docket No. 471]
filed by plaintiff Predator International, Inc. is GRANTED in part. The designated
deposition testimony of Mr. Riley is stricken to the extent it relates solely to the parties’
state court patent litigation. It is denied in all other respects. It is further
ORDERED that Plaintiff’s Motion In Limine No. 2 Re: Lee Phillips [Docket No.
472] is GRANTED in part. The designated deposition testimony of Mr. Phillips is
stricken, except for the following portions: Docket No. 472-1 at 7 to 12, 24, 35 to 36, 51
to 56 (Phillips dep., at 3, l.9 to 9, l.6; 21, ll.16-24; 34, l.3 to 35, l.13; 64, l.1 to 69, l.21). It
is further
ORDERED that Plaintiff’s Motion In Limine No. 3 Re: Telephone Testimony for
Regina Valladares [Docket No. 473] is DENIED. It is further
ORDERED that Plaintiff’s Motion in Limine No. 4 Re: Telephone Testimony for
Jennifer Apple, Now Jennifer Nunley [Docket No. 474] is DENIED. It is further
ORDERED that Plaintiff’s Motion in Limine No. 5 Re: State Court Proceedings
[Docket No. 475] is DENIED. It is further

23

ORDERED that Plaintiff’s Motion In Limine No. 6 Re: Summaries [Docket No.
476] is DENIED. The exhibits cited therein are inadmissible at trial. it is further
ORDERED that Plaintiff’s Motion in Limine No. 7 Re: Demonstrative Exhibits
[Docket No. 477] is DENIED. The exhibits cited therein are inadmissible at trial. It is
further
ORDERED that Plaintiff’s Motion In Limine No. 9 Re: Pre-Judgment Interest
[Docket No. 477] is DENIED. It is further
ORDERED that Plaintiff’s Motion in Limine No. 10 Re: Damages [Docket No.
480] is DENIED.

DATED January 31, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

24