38 Films, LLC et al v. Yamano et al
ORDER granting in part and denying in part 82 Motion in Limine. Signed by District Judge Michael P. Mills on 11/6/17. (jtm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
38 FILMS, LLC, et al.
Civil Action No.: 3:16-cv-00198-MPM-RP
WENDY YAMANO, et al.
Now before the Court is plaintiffs’ Motion in Limine , defendants’ response, and
plaintiffs’ rebuttal. The motion is two fold: 1) it seeks to prohibit the defendants’ expert, Mitchell
Block, from offering legal conclusions and 2) it seeks to prohibit the introduction of or reference
to plaintiffs’ and other witnesses’ previous use of profanity. Defendants represent that they “have
no intention of eliciting legal opinion testimony from Mr. Block,” nor do they “oppose redaction
of the profanities so long as […] the unredacted statements are not robbed of their context and
This Court has previously held that “[t]he purpose of a motion in limine is to allow the trial
court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence.”
Harkness v. Bauhaus U.S.A., Inc., 2015 WL 631512, at *1 (N.D. Miss. Feb. 13, 2015) (internal
citations omitted). When ruling upon motions in limine, the Court notes that “[e]vidence should
not be excluded . . . unless it is clearly inadmissible on all potential grounds.”1 Id. (quoting Fair
v. Allen, 2011 WL 830291, at *1 (W.D. La. Mar. 3, 2011)) (emphasis added). Moreover,
See also U.S. v. Porter, 2016 WL 740393, at *3 (E.D. La. Feb. 25, 2016) (quoting Harris v.
City of Circleville, 2010 WL 816974, at *2 (S.D. Ohio Mar. 5, 2010)) (“[A] court should not
making a ruling in limine unless the moving party meets its burden of showing that the evidence
in question is clearly inadmissible.”) (emphasis added).
evidentiary rulings “should often be deferred until trial so that questions of foundation, relevancy
and potential prejudice can be resolved in proper context.” Rivera v. Salazar, 2008 WL 2966006,
at *1 (S.D. Tex. July 30, 2008) (citing Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708,
712 (6th Cir. 1975)). The Court also notes that the “[d]enial of a motion in limine does not
necessarily mean that all evidence contemplated by the motion will be admitted at trial. Denial
merely means that without the context of trial, the court is unable to determine whether the
evidence in question should be excluded.” Gonzalez v. City of Three Rivers, 2013 WL 1150003,
at *1 (S.D. Tex. Feb. 8, 2013) (quoting Hawthorne Partners v. AT&T Tech., Inc., 831 F.Supp.
1398, 1400 (N.D. Ill. 1993); Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d
443 (1984)). Finally, “[t]he purpose of motions in limine is not to re-iterate matters which are set
forth elsewhere in the Rules of Civil Procedure or Rules of Evidence, but, rather, to identify
specific issues which are likely to arise at trial, and which, due to their complexity or potentially
prejudicial nature, are best addressed in the context of a motion in limine.” Maggette v. BL
Development Corp., 2011 WL 2134578, *4 (N.D. Miss. May 21, 2011) (emphasis in original).
With this standard in mind, the Court turns to the substance of plaintiffs’ motion.
a) Excluding Legal Conclusions Offered by Expert Witnesses
As stated above, plaintiffs first request that the court exclude any testimony from
defendants’ expert witness, Mitchell Block, which appears to offer legal conclusions, “usurp[ing]
the jury’s role.” Specifically, plaintiffs seek to exclude any legal conclusions from Block relating
to “who owns the rights to digitized material” and “whether It’s Time infringes Undefeated’s
copyright.” In their rebuttal brief, plaintiffs ask the court to prohibit Block from using legal terms
such as “substantially similar” and “probatively similar,” as well as from offering any opinions
whatsoever regarding substantial similarity. Defendants assert that they do not intend to elicit any
“legal opinion” from Block; rather, defendants state that they intend to offer Block’s testimony to
“assist the jury in evaluating the factual similarities and dissimilarities between the two films” and
“to explain why both films necessarily include footage created by third parties.”
Regarding the testimony of expert witnesses, case law has noted that legal opinions or
conclusions must be excluded as improper. “Under Rule 704(a), ‘testimony in the form of an
opinion or inference otherwise admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact.’” United States v. Izydore, 167 F.3d 213, 218 (5th Cir. 1999)
(Internal citations omitted). However, that rule does not “allow a witness to give legal
conclusions.” Id. Other courts have held that “opinions regarding authorship, ownership, and
derivative works must be excluded as improper legal opinions.” Interplan Architects, Inc. v. C.L.
Thomas, Inc., 2010 U.S. Dist. LEXIS 107941 at *24 (S.D. Tex. 2010). The court in Interplan also
excluded expert testimony regarding the “substantially similar” aspects of two designs, given that
such testimony is a “legal conclusion.” Id. at *32.
Applying the relevant case law, the court agrees that legal opinions or conclusions provided
by Block are inadmissible. Further, any explanation by the witness regarding how the films are
“substantially similar” is a legal conclusion, and is also inadmissible. To limit Block from saying
“substantially similar” or “probatively similar,” however, goes further than the current case law
allows. Outside of the context of trial, the court is unable to predict every situation in which Block
may use the phrases “substantially similar,” “probatively similar,” or any variation of similar
words, so the court will not order in limine that Block be prevented from stating those words. The
court finds that the plaintiffs’ motion regarding prohibiting Block from giving legal conclusions,
including whether the films are substantially similar, is well taken. However, the request that Block
be prohibited from using the terms “substantially similar” or “probatively similar” is not granted
at this time.
b) Excluding Use of Profanity by Witnesses
Plaintiffs also contend that any evidence of prior use of profanity by the plaintiffs or by
other witnesses should not be referenced to or introduced as evidence. Plaintiffs do not contend
that the documents containing profanity are themselves inadmissible, but, rather, that the profanity
within the documents should be redacted and noted as inadmissible. Defendants do not object to
the profanity being redacted, so long as “the unredacted statements are not robbed of their context
and meaning.” FRE 403 states that “[t]he Court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair prejudice . . . [or] wasting time[.]”
FED. R. EVID. 403. The use of profanity by the plaintiffs or by any other witnesses has minimal
probative value and a high possibility of potential prejudice against the plaintiffs, and as such,
should be excluded. The court finds that the plaintiffs’ request is well taken.
Accordingly, it is hereby ORDERED that plaintiffs’ Motion in Limine  is
GRANTED in part and DENIED in part.
SO ORDERED, this the 6th day of November, 2017.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI
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