Oceans of Images Photography, Inc. v. Foster and Smith, Inc.

Filing 90

ORDER: Plaintiff's Motion in Limine to Exclude the Expert Testimony of Jeffrey Sedlik 71 is DENIED. Defendant's Motion in Limine to Exclude Evidence of F&S's Gross Revenue 80 is GRANTED. Plaintiff's Motion in Limine to Prec lude Defendant from Introducing Spreadsheets and Other Unidentified Information at Trial 75 is DENIED AS MOOT. Plaintiff's Motion in Limine to Exclude Excerpts of the Purchase Agreement 77 is DENIED. Defendant's Motion in Limine to Ex clude Evidence Obtained from the Wayback Machine 78 is DENIED without prejudice. The instant ruling with respect to 78 is a departure from what the Court stated on the record. Defendant's Motion in Limine to Preclude Evidence Relating to C laims and Damages Not Pleaded in Plaintiff's Complaint 79 is DENIED without prejudice to Defendant to take depositions on these additional claims. To the extent that the additional claims are not pleaded in the complaint, the Court grants Plaintiff's oral motion to amend the complaint to conform to the evidence. Signed by Judge James S. Moody, Jr on 5/20/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

OCEANS OF IMAGES
PHOTOGRAPHY, INC.,
Plaintiff,
v.

Case No. 8:11-cv-1160-T-30AEP

FOSTER AND SMITH, INC.,
Defendant.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon the parties’ motions in limine (Dkts. 71,
75 & 77-80). On May 20, 2013, the Court held a hearing on the motions in limine and heard
argument from counsel. For the reasons stated on the record, it is therefore ORDERED AND
ADJUDGED that:
1.

Plaintiff’s Motion in Limine to Exclude the Expert Testimony of Jeffrey Sedlik
(Dkt. 71) is DENIED.

2.

Defendant’s Motion in Limine to Exclude Evidence of F&S’s Gross Revenue
(Dkt. 80) is GRANTED.

3.

Plaintiff’s Motion in Limine to Preclude Defendant from Introducing
Spreadsheets and Other Unidentified Information at Trial (Dkt. 75) is DENIED
AS MOOT.

4.

Plaintiff’s Motion in Limine to Exclude Excerpts of the Purchase Agreement
(Dkt. 77) is DENIED.

5.

Defendant’s Motion in Limine to Exclude Evidence Obtained from the
Wayback Machine (Dkt. 78) is DENIED without prejudice to Defendant to
raise this objection at trial if Plaintiff does not authenticate the information as
stated in St. Luke’s Cataract and Laser Institute, P.A. v. Sanderson, 2006 WL
1320242 (M.D. Fla. May 12, 2006) and Telewizja Polska USA, Inc. v.
Echostar Satellite Corporation, 2004 WL 2367740 (N.D. Ill. Oct. 15, 2004).
The instant ruling with respect to Dkt. 78 is a departure from what the Court
stated on the record. After reviewing the St. Luke’s and Telewizja cases, the
Court agrees that the Wayback Machine evidence is not hearsay. However,
this evidence must be properly authenticated and Plaintiff will have to provide
testimony from an Internet Archive representative with personal knowledge
of the contents of the Internet Archive website with respect to any evidence
that cannot be authenticated through the testimony of Melissa Read.

6.

Defendant’s Motion in Limine to Preclude Evidence Relating to Claims and
Damages Not Pleaded in Plaintiff’s Complaint (Dkt. 79) is DENIED without
prejudice to Defendant to take depositions on these additional claims. To the
extent that the additional claims are not pleaded in the complaint, the Court
grants Plaintiff’s oral motion to amend the complaint to conform to the
evidence.
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DONE and ORDERED in Tampa, Florida on May 20, 2013.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2011\11-cv-1160.MILs.frm

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