Tech Data Corporation et al v. AU Optronics Corporation et al

Filing 130

ORDER denying 107 Motion to Enforce the Court's Order Concerning Pretrial Exchanges and Request for Expedited Treatment. Signed by Magistrate Judge Julie S. Sneed on 9/24/2015. (OZW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TECH DATA CORPORATION and TECH
DATA PRODUCT MANAGEMENT, INC.,
Plaintiffs,
v.

Case No: 8:11-cv-2454-T-33JSS

AU OPTRONICS CORPORATION, et al.,
Defendants.
___________________________________/
ORDER ON DEFENDANTS’ MOTION TO ENFORCE THE COURT’S ORDER
CONCERNING PRETRIAL EXCHANGES
THIS MATTER is before the Court on the Motion to Enforce the Court’s Order
Concerning Pretrial Exchanges and Request for Expedited Treatment (Dkt. 107) (“Motion”) filed
by Defendants Chi Mei Optoelectronics Corporation, Chi Mei Optoelectronics USA, Inc., CMO
Japan Co., Ltd., and HannStar Display Corporation (collectively, “Defendants”).

Upon

consideration, the Motion is denied for the reasons stated below.
BACKGROUND
This case, which was filed on October 28, 2011, was part of a Multi-District Litigation
(“MDL”). On November 25, 2011, the case was transferred to the United States District Court for
the Northern District of California for coordinated or consolidated pretrial proceedings. On March
9, 2015, the case was remanded to this District. Trial is currently set for January 2016 and may
last approximately four weeks.
On July 30, 2015, the parties filed a Joint Motion for Order Adopting Pretrial Disclosure
Deadlines (Dkt. 81) (“Joint Motion”). In the Joint Motion, the parties set forth a proposed schedule
for handling pretrial issues related to the exchange of deposition designations, witness lists, and

exhibit lists. Specifically, the parties agreed to exchange lists of witnesses they anticipate they
“will use” and “may use” by July 31, 2015. The parties stated that they would exchange deposition
designations for “will use” witnesses only and would meet and confer and propose a procedure for
handling deposition designations for “may use” witnesses. The parties agreed to exchange
affirmative deposition designations by July 31, 2015, counter-designations and objections by
September 18, 2015, responses to objections and objections to counter-designations by October
23, 2015, and responses to objections to counter-designations by November 6, 2015.
Similarly, the parties agreed to exchange lists of exhibits they anticipate they “will use”
and “may use.” The parties stated that they would initially exchange PDF exhibit files and
objections and responses for “will use” exhibits only and would meet and confer and propose a
procedure for handling objections to “may use” exhibits. Plaintiff agreed to submit its lists of “will
use” and “may use” exhibits by July 31, 2015 and PDF files of “will use” exhibits by August 7,
2015. Defendants agreed to submit their lists of “will use” and “may use” exhibits by August 21,
2015 and PDF files of “will use” exhibits by August 28, 2015. Plaintiff agreed to submit lists of
any additional “will use” and “may use” exhibits by September 25, 2015, and Defendants agreed
to submit their lists of additional exhibits by October 16, 2015. The parties agreed to exchange
objections to “will use” exhibits by October 16, 2015 and responses to objections by November
20, 2015.1
The Court issued an endorsed order granting the Joint Motion and adopting the parties’
proposed pretrial disclosure deadlines (“Endorsed Order”). On July 29, 2015, Plaintiff served
Defendants with its initial exhibit list, which included 2,855 “will use” exhibits, and its initial

1

At a status conference with District Judge Covington on April 2, 2015, the parties suggested to the Court that, after
the parties conclude the meet and confer process regarding the exhibit and witness lists, they will present their positions
to the Court for rulings on objections prior to trial.

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witness list, which included 44 “will call” deposition witnesses. For those “will call” deposition
witnesses, Plaintiff identified 115,598 lines of deposition designations.
Defendants objected to the breadth of Plaintiff’s lists, and the parties conferred.
Subsequently, on August 21, 2015, Plaintiff served amended witness and exhibit lists. In its
amended witness list, Plaintiff included 1,655 “will use” exhibits and 24 “will call” deposition
witnesses and identified 78,000 lines of deposition designations. The parties agreed to extend the
deadline for Defendants to file objections and counter-designate responsive testimony from
September 18, 2015 to October 16, 2015.
On August 28, 2015, Defendants filed the instant Motion, requesting that the Court order
Plaintiff to limit its “will use” evidence to no more than 650 exhibits and 33,000 lines of deposition
testimony. Defendants also requested an expedited briefing schedule. Plaintiff objects to both
requests.
APPLICABLE STANDARDS
Pursuant to Federal Rule of Civil Procedure 26, prior to trial, each party must provide to
the other parties the name of each witness, “separately identifying those the party expects to present
and those it may call if the need arises” and designating those witnesses whose testimony will be
presented by testimony. Fed. R. Civ. P. 26(a)(3)(A)(i), (ii). Each party must also identify each
exhibit, “separately identifying those items the party expects to offer and those it may offer if the
need arises.” Fed. R. Civ. P. 26(a)(3)(A)(iii).
“[D]istrict courts have the power to control, ‘within limits,’ the presentation of evidence.”
Ulysse v. Waste Mgmt., Inc. of Fla., No. 14-10548, 2015 WL 3684225, at *3 (11th Cir. June 16,
2015) (per curiam) (quoting Geders v. United States, 425 U.S. 80, 86 (1976)).2 This includes the

2

In Ulysse, the appellant contended that the district court’s order limiting the number appellant’s witnesses and
requiring the appellant to file an amended exhibit list was an abuse of discretion. Id. at *3. The court noted that the

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discretion to limit the amount of cumulative evidence. Chapa v. United States, 261 F. 775, 776
(5th Cir. 1919);3 see Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.”).
ANALYSIS
Defendants move to enforce the Court’s Endorsed Order adopting the parties’ pretrial
disclosure deadlines and specifically request that the Court limit the number of exhibits and lines
of deposition testimony that Plaintiff “will use” at trial. In support of their Motion, Defendants
refer to the number of exhibits and lines of deposition testimony used during the trials of other
cases that were part of the same MDL. Defendants contend that because the plaintiffs in other
cases ultimately used fewer exhibits and deposition testimony than Plaintiff in this case has
presently identified, Plaintiff’s pretrial disclosures should be limited to “reasonable figures that
actually approximate the anticipated scope of evidence at trial.”
Plaintiff, though, was not a party to the prior trials and the plaintiffs in those cases were
represented by different counsel. Plaintiff bears the burden of proving that Defendants violated
the Sherman Act, 15 U.S.C. § 1, and may do so in accordance with its own trial strategy. Plaintiff
identified the exhibits and witnesses that it “will” or “may” use, in accordance with Rule 26 and
the procedures and deadlines set forth in the Joint Motion, which the Court approved. The Joint
Motion did not specify any limitations on the number of exhibits or witnesses that a party could

appellant’s objection was premature, because he was “unable to show prejudice or any effect on his substantial rights
from the order because the case has not yet gone to trial.” Id.
3

In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as
precedent the decisions the former Fifth Circuit rendered prior to October 1, 1981.

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identify as “will use” evidence; nor did the Court set forth any limitations in its Endorsed Order
granting the Joint Motion. As such, it appears that Plaintiff has complied with the terms of the
Endorsed Order.
Additionally, although the Court has discretion to control the presentation of evidence, it
would be premature for the Court to make any rulings limiting Plaintiff’s evidence at this stage.
Plaintiff may be prejudiced if its proposed trial evidence is limited on the basis of mere numbers,
when neither Plaintiff nor its counsel participated in the prior cases. See Green Const. Co. v.
Kansas Power & Light Co., 1 F.3d 1005, 1014 (10th Cir. 1993). Further, neither party provided
the Court with copies of the pretrial disclosures that are at issue in the Motion, so the Court cannot
determine whether any of the proposed exhibits or witness testimony are cumulative or irrelevant,
such that it may be appropriate to limit Plaintiff’s “will use” materials. Nonetheless, the parties
agreed to a process for making such objections, which the Court endorsed, and the parties may
raise such objections when appropriate. Accordingly, it is
ORDERED:
1.

Defendants’ Motion to Enforce the Court’s Order Concerning Pretrial Exchanges

is DENIED.
2.

Defendants’ Request for Expedited Treatment is DENIED as moot.

DONE and ORDERED in Tampa, Florida on September 24, 2015.

Copies furnished to:
Counsel of Record

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