Nuance Communications, Inc. v. International Business Machines Corporation

Filing 227

ORDER granting 208 Motion in Limine. AND NOW, this 13th day of February, 2020, after considering IBM's Motion to Strike Hearsay Testimony (ECF No. 208), IBM's Memorandum of Law in Support of Motion to Strike Hearsay Testimon y (ECF No. 209), Nuance's Memorandum of Law in Opposition to Motion to Strike Hearsay Testimony (ECF No. 219), and IBM's Motion to File Reply in Support of Motion to Strike Hearsay Testimony (ECF No. 222), it is hereby ORDERED that IB M's Motion to Strike Hearsay Testimony (ECF No. 208) is GRANTED. It is FURTHER ORDERED that consistent with Nuance's Letter (ECF No. 221), the Declaration of Jeanne McCann is STRICKEN. (Signed by Judge Eduardo C Robreno on 2/13/2020) (mro)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Nuance Communications, Inc.,
Plaintiff
v.
International Business
Machines Corporation,
Defendant.

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CIVIL ACTION
NO. 16-5173

ORDER

AND NOW, this 13th day of February, 2020, after
considering IBM’s Motion to Strike Hearsay Testimony (ECF No.
208), IBM’s Memorandum of Law in Support of Motion to Strike
Hearsay Testimony (ECF No. 209), Nuance’s Memorandum of Law in
Opposition to Motion to Strike Hearsay Testimony (ECF No. 219),
and IBM’s Motion to File Reply in Support of Motion to Strike
Hearsay Testimony (ECF No. 222), it is hereby ORDERED that IBM’s
Motion to Strike Hearsay Testimony (ECF No. 208) is GRANTED. 1 It

1

IBM moves to exclude three statements by Nuance’s witnesses (Ricci,
Bloom, and McCann) in their direct testimony declarations, arguing that the
statements are hearsay. All three statements are the same in that the
witnesses are testifying that other people told them that IBM had assured
these other people that Nuance would be receiving updates. These statements
constitute hearsay within hearsay. The witnesses want to testify about what
someone else said (first out of court statement) that IBM said (second out of
course statement). Nuance argues that the statements are not hearsay under
Rule 801(d)(2) and are not hearsay because they are not offered for the truth
of the matter asserted, and it also argues that the exceptions in Rules
803(3) and 804(b)(1) render the statements admissible.
Hearsay within hearsay is admissible only “if each part of the combined
statements conforms with an exception to the rule.” Fed. R. Evid. 805. While
some of Nuance’s arguments render IBM’s statements (i.e. one portion of the
hearsay within hearsay) admissible, none of the arguments render the other
individuals’ statements admissible, thus each of the three combined
statements are inadmissible.

is FURTHER ORDERED that consistent with Nuance’s Letter (ECF No.
221), the Declaration of Jeanne McCann is STRICKEN.

AND IT IS SO ORDERED.

/s/ Eduardo C. Robreno
EDUARDO C. ROBRENO,
J.

Most of Nuance’s arguments only solve half of the hearsay within
hearsay problem in these statements. Beginning with Rule 801(d)(2), IBM’s
statements are considered not hearsay by this rule, but the statements made
by others, unaffiliated with IBM, are not affected by this Rule. Similarly,
while the statements made by IBM are not offered for the truth of the matter
asserted—they are offered only to prove that the statements were made—the
statements made by other individuals are offered to prove the matter asserted
because the statements assert what IBM allegedly said and they are offered to
prove that IBM indeed said what the statements claim IBM said. Last, the Rule
803(3) exception renders IBM’s statements admissible because they are
statements about what IBM intended to do, but it does not render the
statements of the other individuals admissible because these are statements
about the individuals’ memories or beliefs. See United States v. Cardascia,
951 F.2d 474, 487 (2d Cir. 1991) (“The exclusion of ‘statement[s] of memory
or belief [proffered] to prove the fact remembered or believed’ is necessary
to prevent the exception from swallowing the hearsay rule.” (alterations in
original)).
And Nuance’s Rule 804(b)(1) argument does not apply here because none
of the statements offered are statements made during a deposition or other
testimony. See United States v. Jackson, 335 F.3d 170, 176 (2d Cir. 2003)
(“Under Rule 804(b)(1), an unavailable witness's testimony from a prior
hearing or proceeding is not barred by the hearsay rule . . . .”).

2