GN Netcom Inc. v. Plantronics Inc.

Filing 496

MEMORANDUM ORDER regarding decisions on motions in limine and additional disputes in the pretrial order. Signed by Judge Leonard P. Stark on 10/2/17. (ntl)

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IN THE UNITED STATES'DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

GN NETCOM, INC.,
Plaintiff,

v.

C.A. No. 12-1318-LPS

PLANTRONICS, INC.,
Defendant.
MEMORANDUM ORDER

At Wilmington this 2°d day of October, 2017, having reviewed the proposed pretrial
order and exhibits to it (D.I. 490) ("PTO"), IT IS HEREBY ORDERED that:
1.

Plaintiff GN Netcom, Inc. 's ("GN" or "Plaintiff') motion in limine ("MIL") No. 1,

to preclude certain expert evidence, is DENIED. The Court is not persuaded that the timing or
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nature of the evidence in dispute was improper; in arly event, the circumstances (including as
measured by application of the Pennypack fact~rs) do not warrant the exclusion sought.
2.

GN's MIL No. 2, to preclude evidence or arguments concerning exclusive dealing

arrangements in other industries, is DENIED. Defendant Plantronics, Inc. ("Plantronics" or
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"Defendant") agrees not to argue or suggest that just because exclusive dealing arrangements ·are
lawful in some markets that they are lawful in the rel¢vant market. The purposes for which
Plantronics proposes to draw comparisons to other markets are relevant and the probative value
is not substantially outweighed by the competing concerns of Fed. R. Evid. 403. GN may
propose a jury instruction - to the effect that behavior which might otherwise comply with
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antitrust law may be impermissibly exclusionary wh~n practiced by a monopolist - should it

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believe one is warranted to reduce the risk of juror confusion.
3.

The Court will rule on ON's MIL No. 3, to preclude evidence of Don Houston's

punishment as a result of spoliating evidence, in connection with addressing ON's objection to
Plant!onics' use of Mr. Houston's deposition testimony (see PTO Ex. 13

if 1), and in connection

with resolving how spoliation will be presented at trial.
4.

Plantronics' MIL No. 1, to preclude certain testimony of ON's expert Professor

Elhauge, is DENIED. The Court already denied Plantronics' Daubert motion to strike the
entirety ofElhauge's proposed testimony. (See D.I. 405; D.I. 482) Plantronics provides no
persuasive basis for why the Court should reevaluate its decision. Defendant's new contention
that counsel's statement about the number of PODs ~which misstated Plaintiffs expert's actual
number- should be treated as a binding judicial admission is unavailing. See Anderson v. C.LR.,
698 F.3d 160, 167 (3d Cir. 2012) ("[T]o be binding, judicial admissions must be unequivocal.").
5.

Plantronics' MIL No. 2, to exclude evidence regarding the "relevant market," is

DENIED. To a substantial extent, this motion, too, asks the Court to reconsider its earlier
decision to deny Plantronics' Daubert motion to strike the entirety of Elhauge' s proposed
testimony, for no persuasive reason. The evidence at issue in the motion is relevant and its
probative value is not substantially outweighed by the competing concerns of Rule 403. Nor is
the Court persuaded that the timing of ON' s disclosures has so unfairly prejudiced Plantronics as
to warrant the relief sought.
6.

Plantronics' MIL No. 3, to exclude certain evidence and argument relating to

document production or spoliation of evidence, is DENIED WITHOUT PREJUDICE to renew
after the Court rules on how spoliation is to be handled at trial. The Court observes that "ON
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does not anticipate arguing or presenting evidence to the jury on any of those topics" identified in
Plantronics' motion. (D.L 490-11at63of69) However, GN properly "reserves the right to
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argue and/or present evidence as to any of the [identified] topics in cross-examination should
Plantronics' direct examination open the door to such evidence." (Id.) Should GN feel the "door
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has been opened," it must first provide notice to Pla11tronics and the Court if it intends to use
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such evidence on cross-examination, and Plantronics may then renew its objections.
Having identified additional disputes in the P TO, IT IS FURTHER ORDERED that:
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When disclosing deposition testimony intended to be presented before the jury,
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the parties shall also indicate whether! (if to be played as opposed to read) they
will play "subtitles" depicting the text as well, and the other side shall indicate
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whether it objects to the subtitles.
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Plantronics' proposals (PTO at 12) th?-t the parties exchange demonstrative
exhibits for opening and objections t~ereto at 7:00 and 10:00 p.m. the night before
opening statements is ADOPTED.

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Having reviewed the PTO, and given the Court's familiarity with the disputed
issues to be presented to the jury, the parties are each allocated a total of twelve
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(12) hourn for their trial presentationsi given how the Court calculates time. Trial
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will be held, subject to the parties' tiJe limits, between 8:30 a.m. and 4:30 p.m.
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on October 11, 12, 13, 16, 17, and 18JI Counsel shall appear at 8:30 a.m. each _
morning; the jury will be available at 9:30 on October 11 and 9:00 on each
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succeeding day.

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Provided that the parties jointly propose an instruction for the Court to read to the
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jury, the Court will, as the parties request, instruct the jury not to give
consideration to confidentiality designations on certain exhibits. (PTO at 16)
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The proposed juror questionnaire (PTO Ex. 15) is APPROVED, provided the
parties contact the Court's jury administrator and comply with any instruction and
guidance given to them by her. Voir dire, which will take place in the courtroom
at sidebar, will involve limited, if any, follow-up by counsel.

BLE LEONARD P. STARK
UNITED STATES DISTRICT JUDGE

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