Deman Data Systems, LLC et al v. Schessel et al

Filing 650

ORDER denying 595 Motion in Limine re source code. Signed by Judge Susan C Bucklew on 1/15/15. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DEMAN DATA SYSTEMS,
LLC, ET AL.,
Plaintiffs,
v.

Case No. 8:12-cv-2580-T-24 EAJ

MARC S. SCHESSEL, ET AL.,
Defendants.
____________________________
MARC S. SCHESSEL, ET AL.,
Counter-Plaintiffs,
v.
DEMAN DATA SYSTEMS,
LLC, ET AL.,
Counter-Defendants.
________________________________/

ORDER
This cause comes before the Court on Plaintiffs’ Motion in Limine (Doc. No 595)
regarding unproduced source code. Defendants oppose the motion. (Doc. No. 625). The Court
addressed this motion during the January 14, 2015 pretrial conference. As explained below, the
motion is denied.
I. Background
This case involves the breakdown of a business relationship. The following twelve
claims remain among the parties: (1) violation of the Computer Fraud and Abuse Act, (2)
misappropriation of trade secrets, (3) enforcement of the Restrictive Covenants Agreement, (4)

civil theft, (5) tortious interference by Defendants, (6) civil conspiracy, (7) breach of paragraph 9
of the Employment Agreement (8) failure to repay promissory notes, (9) breach of loyalty, (10)
breach of the Operating Agreement, (11) unpaid wages, and (12) tortious interference by DDS
and FSS.
II. Motion in Limine
Plaintiffs move to exclude evidence of, and references to, the use of source code in
version 1.1.0.118 of Defendants’ software application by any other unproduced versions of
Defendants’ application. Plaintiffs base this argument on their contention that other source code
versions were requested but not produced by Defendants, and as a result, Defendants cannot rely
on anything beyond what they produced.
The Court is not aware of the specific discovery requests that were made, and as such, the
Court cannot conclude that Defendants failed to produce something that they were required to
produce. As such, the Court denies Plaintiffs’ request to exclude evidence of, and references to,
the use of source code in version 1.1.0.118 of Defendants’ software application by any other
unproduced versions of Defendants’ application.
Plaintiffs also ask the Court to prohibit Todd Bennett from testifying at trial that some of
the source code in version 1.1.0.118 is used by other versions of Defendants’ software
application. Plaintiffs argue that Todd Bennett was not disclosed as an expert in this case, and
Todd Bennett’s testimony regarding Defendants’ source code would be expert testimony. The
Court is not persuaded by this argument, as Todd Bennett’s testimony would seem to be more
akin to that of a treating physician—he is testifying to historic facts regarding how he created
Defendants’ source code. However, the Court will allow Plaintiffs to raise an objection at trial to

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Todd Bennett’s specific trial testimony and to explain why such specific testimony is, in
Plaintiffs’ view, an expert opinion.
III. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs’ Motion in Limine (Doc.
No 595) regarding unproduced source code is DENIED.
DONE AND ORDERED at Tampa, Florida, this 15th day of January, 2015.

Copies to:
Counsel of Record

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