MALIBU MEDIA, LLC v. DOE

Filing 227

ORDER - ON DEFENDANTS' MOTIONS IN LIMINE; The Court DENIES Defendants' first through seventh motions in limine. [Dkts. 170, 172, 173, 175, 176, 177 & 179.] This order, however, shall be without prejudice to Defendants' right to challenge the testimony or Plaintiff's witnesses through specific objections at the April 30, 2015 evidentiary hearing. Signed by Magistrate Judge Mark J. Dinsmore on 04/14/2015. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MALIBU MEDIA, LLC,
Plaintiff,
vs.
KELLEY TASHIRO,
N. CHARLES TASHIRO,
Defendants.
______________________________________
Jonathan LA Phillips,
Movant.

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No. 1:13-cv-00205-WTL-MJD

ORDER ON DEFENDANTS’ MOTIONS IN LIMINE
This matter comes before the Court on Defendants’ first through seventh motions in
limine. [Dkts. 170, 172, 173, 175, 176, 177 & 179.] For the following reasons, the Court
DENIES Defendants’ motions.
I.

Background

Malibu Media, LLC (“Plaintiff”) sued Charles and Kelley Tashiro (“Defendants”),
alleging that Defendants had used a BitTorrent client to infringe Plaintiff’s copyrights by
uploading and/or downloading Plaintiff’s copyrighted movies. [Dkt. 124 (Second Am. Compl.).]
During discovery, Plaintiff moved for sanctions against Defendants on the grounds that
Defendants had perjured themselves and had spoiled evidence by deleting files from Defendants’
computer hard drives. [Dkts. 130 & 159.] The Court subsequently scheduled Plaintiff’s motion
for an evidentiary hearing before the undersigned Magistrate Judge. [Dkts. 165 & 167.] In

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advance of the hearing, Defendants filed seven motions in limine, [Dkts. 170, 172, 173, 175,
176, 177 & 179], all of which are now fully briefed.
II.

Discussion

District courts have broad discretion in ruling on motions in limine. Jenkins v. Chrysler
Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). The purpose of such motions is “to prevent the
risk of jury confusion or prejudice[.]” Intermatic Inc. v. Toeppen, No. 96 C 1982, 1998 WL
102702, at *3 (N.D. Ill. Feb. 28, 1998). A motion in limine should not be granted unless it
appears that the evidence is “‘clearly inadmissible on all possible grounds.’” Casares v. Bernal,
790 F. Supp. 2d 769, 775 (N.D. Ill. 2011) (quoting Anglin v. Sears, Roebuck & Co., 139
F.Supp.2d 914, 917 (N.D.Ill.2001)). “Accordingly, in some instances it is best to defer rulings
until trial, where decisions can be better informed by the context, foundation, and relevance of
the contested evidence within the framework of the trial as a whole.” Id.
A. First Motion in Limine
Defendants’ first motion in limine seeks to preclude Tobias Fieser and Michael Patzer
from testifying at the evidentiary hearing. [Dkt. 170 at 1.] Defendants assert that both men will
testify as experts, but that Plaintiff violated Fed. R. Civ. P. 26(a)(2) by not properly disclosing
their identity or proposed testimony. [Dkt. 171 at 1.]
At this point, it is unclear whether either proposed witness is an expert whose identity
Plaintiff was required to disclose. Both men have previously submitted declarations indicating
that they are employees or independent contractors of the company Plaintiff hired to investigate
Defendants’ alleged acts of infringement. [Dkt. 5-1 (Decl. of Tobias Fieser, February 4, 2013);
Dkt. 73-13 (Decl. of Michael Patzer, February 5, 2014).] It is thus uncertain whether they will
testify about matters that require expert qualifications or whether they will instead simply report
on matters they observed during the course of their employment. As such, the Court will only be
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able to rule definitively on the matter after their testimony has been developed in the context of
the hearing. See Casares, 790 F. Supp. 2d at 775.
In addition, allowing Plaintiff to develop the testimony will not prejudice Defendants. As
noted above, the purpose of a motion in limine is to protect the jury from confusion or
inadmissible evidence. See, e.g., Intermatic, 1998 WL 102702, at *3. Because the evidentiary
hearing in this case will occur before the Magistrate Judge—without a jury—the current
proceedings present no such concerns. The Court accordingly DENIES Defendants’ first motion
in limine. [Dkt. 170.]
B. Second Motion in Limine
Plaintiff indicated in its list of potential witnesses that Brittany Snook will testify “that
Malibu Media, LLC owns the copyrights to the works at issue.” [Dkt. 169.] Defendants’ second
motion in limine, [Dkt. 172], seeks to preclude Snook from testifying on the grounds that her
testimony is irrelevant. [Id. at 1.]
Plaintiff asserts that Ms. Snook’s testimony is relevant to the prejudice it suffered as a
result of Defendants’ alleged discovery misconduct, and again, the Court cannot definitively rule
on this contention without evaluating the full extent of Ms. Snook’s testimony in the context of
the evidentiary hearing. See Casares, 790 F. Supp. 2d at 775. If Ms. Snook’s testimony is
relevant, then the Court will consider it; if it is not relevant, then the Court will simply disregard
it. See, e.g., Eli Lilly & Co. v. Teva Parenteral Medicines, Inc., No. 1:10-CV-01376-TWP-DKL,
2013 WL 3936210, at *1 (S.D. Ind. July 29, 2013) (“[W]here, as here, the proceeding is a bench
trial, the court has leeway to provisionally admit testimony or evidence and to disregard later if,
upon reflection, it should have been excluded.”). The Court therefore DENIES Defendants’
second motion in limine.

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C. Third Motion in Limine
Defendants’ third motion in limine, [Dkt. 173], seeks to exclude the introduction of
portions of the deposition of the Rule 30(b)(6) representative from Defendants’ ISP provider. [Id.
at 1.] Defendants contend that Plaintiff disclosed only that it would introduce “select portions” of
the deposition, rendering it impossible for Defendants to determine in advance “what else
Plaintiff should be required to offer up ‘that in fairness should be considered with the part
introduced.’” [Id. ¶ 2 (quoting Fed. R. Civ. P. 32(a)(6)).] Defendants also argue that the
deposition touched on irrelevant issues. [Id. ¶ 3.]
These arguments are baseless. Plaintiff did not merely disclose that it may introduce
“select portions” of the deposition; rather, it stated it may introduce “[s]elect portions from the
deposition of [the ISP’s] 30(b)(6) representative proving that Defendant was assigned the subject
IP address at the relevant time and that Defendant was sent DMCA notices notifying her of
copyright infringement traced to her internet account.” [Dkt. 169 at 2 (emphasis added).]
Plaintiff’s disclosure thus informed Defendants of the specific topics that the deposition
testimony would address, facilitating Defendants’ efforts to locate any portions of the deposition
“that in fairness should be considered with the part” that Plaintiff introduced. Fed. R. Civ. P.
32(a)(6). This is especially true because, as Plaintiff notes, Defendants’ attorney “was present at
the deposition and possesses a copy of the deposition transcript,” [Dkt. 195 at 1], such that
Defendants should have little difficulty reviewing the deposition for any portion that should be
introduced pursuant to Fed. R. Civ. P. 32(a)(6).
Defendants’ relevance objection is equally unavailing. Portions of the deposition could
strengthen the underlying infringement claim against Defendants, [see Dkt. 173 at 2], which
could indicate that Defendants had a strong motive to lie or destroy evidence to escape liability

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for such infringement. The deposition is thus potentially relevant to the motion for sanctions. In
addition, even if portions of the deposition do prove irrelevant, the Court, as noted, may simply
disregard those portions. See Eli Lilly, 2013 WL 3936210, at *1. The Court accordingly
DENIES Defendants’ third motion in limine. [Dkt. 173.]
D. Fifth Motion in Limine
Defendants’ fifth motion in limine, [Dkt. 176], seeks to exclude PCAP 1 evidence
indicating that infringing activity was conducted via Defendants’ IP address. [Id. at 1].
Defendants assert that such evidence is irrelevant to the spoliation and perjury issues to be
addressed at the hearing. [See id.]
As explained above, the Court will determine the relevance of the proposed evidence in
the context of the hearing as a whole. See Casares, 790 F. Supp. 2d at 775. If the evidence is
relevant, the Court will consider it; if not, then the Court will disregard it. See Eli Lilly, 2013 WL
3936210, at *1. Defendants’ motion is accordingly DENIED.
E. Sixth Motion in Limine
Defendants’ sixth motion in limine, [Dkt. 177], seeks to preclude Plaintiff’s proposed
expert witness—Patrick Paige—from testifying about the software used to investigate
Defendants’ alleged infringing activity. [Id. at 1.] Defendants argue that Paige is not qualified as
an expert to testify on such matters. [Dkt. 178 at 2.]
Under the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), the district court is to act as a “‘gatekeeper’ for expert testimony, only
admitting such testimony after receiving satisfactory evidence of its reliability.” Dhillon v.

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A PCAP is an electronic record of an interaction between devices sending data over a network. [See Dkt. 198 at 3.]
As Plaintiff explains, a PCAP is “analogous to a video recording” in that it contains a record of a given event. [Id.]
Thus, a PCAP might contain a record showing that a portion of Plaintiff’s copyrighted work was sent to another
device via Defendants’ internet connection. [See id.]

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Crown Controls Corp., 269 F.3d 865, 869 (7th Cir. 2001). When, however, the testimony at
issue is presented to a judge, rather than a jury, the importance of this “gatekeeping” role
diminishes. In re Salem, 465 F.3d 767, 777 (7th Cir. 2006) (“Where the gatekeeper and the
factfinder are one and the same—that is, the judge—the need to make such decisions prior to
hearing the testimony is lessened.”). In such cases, the “court can hear the evidence and make its
reliability determination during, rather than in advance of, trial,” and the court “does not err in
admitting the evidence subject to the ability later to exclude it or disregard it if it turns out not to
meet the standard of reliability established by Rule 702.” Id.
The Court in this matter will follow the approach described in Salem. As such, the Court
will assess the qualifications of Plaintiff’s expert and the reliability of his methodology at the
hearing. See id.; see also 3600 Michigan Co. v. Infra-Metals, Co., No. 207-CV-367 PPS, 2010
WL 1088452, at *2 (N.D. Ind. Mar. 19, 2010) (“I will allow 3600 Michigan to present Vale’s
opinion testimony at trial, and allow Infra to vigorously cross-examine Vale and present contrary
evidence, before determining whether the testimony is entitled to some consideration, or whether
it should be excluded as irrelevant, unreliable, or both.”); Barna v. United States, 183 F.R.D.
235, 239 (N.D. Ill. 1998) (“As noted earlier, motions in limine to strike party experts are of less
importance in bench trials. I will be better able to assess Mr. Ridenour’s expertise at trial.”). The
Court at this time accordingly has no need to prohibit Mr. Paige from testifying, and Plaintiff’s
sixth motion in limine, [Dkt. 177], is DENIED.
F. Fourth and Seventh Motions in Limine
Defendants’ fourth motion in limine, [Dkt. 175], seeks to exclude introduction of
testimony from “Defendant’s deposition of Tobias Fieser and Michael Patzer regarding
Plaintiff’s investigator’s infringement detection process.” [Id. ¶ 2.] Ultimately, however,

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Defendants did not depose Fieser or Patzer, [see id.], and there is no deposition testimony to
exclude. The Court thus DENIES AS MOOT Plaintiff’s fourth motion in limine. [Dkt. 175.]
Defendants’ seventh motion in limine, [Dkt. 179], seeks to exclude “the invoice of
Patrick Paige.” [Id. at 1.] In response, Plaintiff agreed that it “will not introduce the invoice.”
[Dkt. 199 at 1.] The Court accordingly DENIES AS MOOT Plaintiff’s seventh motion in
limine. [Dkt. 179.]
III.

Conclusion

For the reasons described above, the Court DENIES Defendants’ first through seventh
motions in limine. [Dkts. 170, 172, 173, 175, 176, 177 & 179.] This order, however, shall be
without prejudice to Defendants’ right to challenge the testimony or Plaintiff’s witnesses through
specific objections at the April 30, 2015 evidentiary hearing.

Date: 04/14/2015

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Distribution:
Jonathan LA Phillips
[e-mail]
Jason H. Cooper
LIPSCOMB, EISENBERG & BAKER, PL
[e-mail]
Michael K. Lipscomb
LIPSCOMB, EISENBERG & BAKER, PL
[e-mail]
Paul J. Nicoletti
NICOLETTI LAW, PLC
[e-mail]
Jonathan LA Phillips
SHAY KEPPLE PHILLIPS, LTD
[e-mail]
Erin Kathryn Russell
THE RUSSELL FIRM
[e-mail]

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