Jordan et al v. Dominick's Finer Foods, LLC

Filing 335

ORDER Signed by the Honorable John Robert Blakey on 8/4/2015. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Michael Jordan, et al.,
Plaintiffs,
v.
Dominick’s Finer Foods, et al.,

Case No. 10 C 407
Judge John Robert Blakey

Defendants.
ORDER
This matter comes before the Court on the parties’ Proposed Pretrial Order
[204], Defendants’ motion to use a special jury questionnaire [315], Defendants’
motion to compel production of the unredacted Nike contract [321], Defendants’
addendum to the Proposed Pretrial Order [324], the parties’ proposed jury
instructions [325], the parties’ positions concerning the public disclosure of the
terms of Plaintiff’s agreements [326], the Intervenors’ motion for a protective order
[328], and upon argument presented at the Pretrial Conference held on August 3,
2015. For the reasons announced on the record during the Conference and for the
additional reasons provided in this Order, the Court rules as set forth below.
I.

Case Statement

In light of the inability of the parties to agree on a case statement, the Court
will give the following case statement – based primarily off of attachment (b) to the
Proposed Pretrial Order [204]: “Plaintiff Michael Jordan brings this lawsuit against
Defendants Dominick's Finer Foods, LLC and Safeway Inc. for the unauthorized use
of Mr. Jordan's identity in a full page ad in a 2009 Sports Illustrated Presents
Jordan: Celebrating a Hall of Fame Career commemorative magazine. This Court
has already determined that Defendants are liable under the Illinois Right of
Publicity Act for using Mr. Jordan's identity without his consent. The only
remaining issue is to determine what damages, if any, shall be provided to
Plaintiff.” This case statement will be given during jury selection.
II.

Stipulations

Any stipulated facts agreed to by the parties shall be entered during trial via
the procedure outlined at the Pretrial Conference.

III.

Witness List

The witness lists presented by the parties in attachment (d) to the Proposed
Pretrial Order [204] are accepted without objection. The parties shall file an
updated witness list on or before 8/5/15. That list shall include all witness that will
or may testify at trial in any manner, including via live testimony or deposition
testimony.
IV.

Exhibits

The parties’ objections to each other’s exhibit list are taken under
advisement. The Court will rule on the admissibility of exhibits as they are
introduced into evidence at trial. At trial, the parties must authenticate and lay a
foundation for all exhibits unless the opposing party agrees to allow entry of that
exhibit into evidence without laying a foundation or proving authenticity.
V.

Deposition Designations

The parties’ objections to deposition designations set out in the Proposed
Pretrial Order [204] are taken under advisement. All objections regarding
deposition designations will be resolved as they come up at trial.
VI.

Opening Statements

The parties shall each have thirty minutes for their opening statement. The
parties are reminded that the opening statements must be supported in good faith
by evidence that the parties expect will come out at trial. The Court will resolve
any issues regarding improper opening statements via objection at trial. As
explained at the Pretrial Conference, the Defendants may use exhibit DEX 1
(DOM130-132) as part of their opening statement.
VII.

Plaintiff’s Planned Use of any Monetary Recovery

Plaintiffs may not introduce evidence or argument regarding what Plaintiff
intends to do with any monetary recovery he receives in this matter. If the
Plaintiffs believe that, based on Defendants’ arguments or evidence at trial, they
possess a proper basis to introduce this evidence, they must first raise the issue at
side bar or outside the presence of the jury.
VIII. Plaintiff’s Proposed Trial Accommodations
Plaintiff’s request for certain trial security accommodations is taken under
advisement.
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IX.

Jury Selection Questions

Questioning at jury selection will proceed as set forth at the Pretrial
Conference. As explained, each party will receive thirty minutes to question each
panel of jurors. The jury that sits for this case will consist of twelve jurors and two
alternates. Defendants’ motion to use a special jury questionnaire [315] is denied.
X.

Jury Instructions and Verdict Forms

The parties’ proposed Jury Instructions and Verdict Form [325] are taken
under advisement. In addition to its usual pretrial jury instructions, the Court will
give the parties’ Agreed Instructions Nos. 1 and 4, with some minor modifications as
noted during the Pretrial Conference. All other issues regarding jury instructions
will be addressed at the charge conference during trial. If the parties wish to file
any additional briefing regarding jury instructions, they must do so on or before
8/10/15. After that time, the parties may file additional proposed instructions if
needed, but no further briefing will be permitted absent leave of court.
XI.

Preemptory Challenges

At jury selection, the Plaintiffs will be allowed five preemptory challenges
and the Defendants will be allowed five preemptory challenges. The challenges
shall be exercised as explained at the Pretrial Conference.
XII.

Defendants’ Motion to Compel Unredacted Nike Contract [321]

Defendants’ motion to compel production of the unredacted Nike contract
[321] is taken under advisement. Either the Plaintiffs or Intervenor Nike shall file
redacted and unredacted versions of the Nike Contract with the Court via the
Court’s proposed order inbox on or before 8/5/15 for an in camera inspection.
Information regarding this Court’s proposed order inbox is available on the Court’s
webpage. If the parties prefer, they may instead deliver the redacted and
unredacted versions of the contract to chambers by hand before 5:00 p.m., on 8/5/15.
Based on the representations of the parties that the unredacted contract will be
made available for viewing by Defendants’ counsel this week, the Court will address
any remaining issues regarding this motion on the day of jury selection on 8/11/15.
XIII. The Intervenors’ Motion for Protective Order [328]
The Intevenors’ motion for a protective order [328] is taken under
advisement. As previously ordered [313], the parties are to meet and confer
regarding which provisions from the disputed contracts will be relied upon at trial
and made public, and which provisions should be redacted. The parties shall
submit a filing detailing their progress in this regard by 5:00 p.m. on 8/10/15. The
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Court requires a Word document or Excel spread sheet containing: (1) the lines and
paragraphs (or specific text if feasible) of the contracts that Defendants plan to put
into evidence; (2) Defendants’ summary justification for using those sections of the
contracts; (3) whether Plaintiffs or Intervenors object to the use of the specific
sections; and (4) the summary basis of any objections. The meet and confer process
and the resulting filing shall address not only the contracts with the Intervenors,
but all disputed contracts that Defendants plan to put into evidence. Defendants
shall produce their proposal by Thursday 8/6/15, and the Plaintiffs/Intervenors shall
respond by Friday 8/7/15. The Court will address any outstanding issues regarding
this motion on the day of jury selection on 8/11/15.
XIV. Case Schedule
The Court will instruct the jury that the trial is expected to last until 8/20/15
at the latest. Jury selection in this matter will begin at 11:00 a.m., on 8/11/15 in
Courtroom 1725. If the parties have additional matters to bring before the Court at
that time, they should contact Chambers as soon as possible and those matters will
be addressed either before or after jury selection. For the duration of the
proceeding, the Court will sit the jury promptly at 10:30 a.m., and if the parties
wish to discuss any pending issues, they shall inform the Court that an earlier
arrival is necessary such that all issues can be resolved prior to seating the jury on
time. Should the parties wish to arrive early for setup at any time throughout the
trial, they are advised that the Court will have its normal 9:45 a.m. call Monday
through Thursday. Any in Court preparation by the parties should take the Court’s
schedule into consideration.
Dated: August 4, 2015
Entered:

____________________________
John Robert Blakey
United States District Judge

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