Unigestion Holding, S.A. v. UPM Technology, Inc. et al

Filing 504

Opinion and Order on Motions in Limine and Other Objections. Signed on 10/28/2022 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

UNIGESTION HOLDING, S.A.,
d/b/a DIGICEL-HAITI,
Plaintiff,

Case No. 3:15-cv-185-SI
OPINION AND ORDER ON MOTIONS
IN LIMINE AND OTHER
OBJECTIONS

v.
UPM TECHNOLOGY, INC. and
DUY BRUCE TRAN,
Defendants.

Robert C.L. Vaughan, Cherine Smith Valbrun, Leah B. Storie, and Anisha Carla Atchanah,
KIM VAUGHAN LERNER LLP, One Financial Plaza, Suite 2001, Fort Lauderdale, FL 33394; Anne
M. Talcott, Kathryn E. Kelly, Andrew J. Lee, and Matthew R. Berry, SCHWABE, WILLIAMSON &
WYATT PC, 1211 SW Fifth Avenue, Suite 1900, Portland, OR 97204; and Kent D. Bressie,
HARRIS, WILTSHIRE & GRANNIS LLP, 1919 M Street, N.W., Washington, DC 20036. Of Attorneys
for Plaintiff.
Christopher W. Savage and Katherine D. Sheriff, DAVIS WRIGHT TREMAINE LLP, 1919
Pennsylvania Avenue NW, Suite 800, Washington, DC 20006; and Kathryn P. Salyer, Eleanor
A. DuBay, and Blake Van Zile, TOMASI SALYER MARTIN, 121 SW Morrison Street, Suite 1850,
Portland, OR 97204. Of Attorneys for Defendants.
Michael H. Simon, District Judge.
On January 18, 2022, the Court granted in part and denied in part the parties’ crossmotions for summary judgment. ECF 294. Among other things, the Court bifurcated and stayed

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all counterclaims asserted by Defendant UPM Technology, Inc. (UPM) against Plaintiff
Unigestion Holding, S.A., doing business as Digicel-Haiti, Inc. (Digicel-Haiti). The Court also
dismissed Digicel-Haiti’s allegations of fraud by affirmative misrepresentations, half-truths, or
omissions, leaving for trial only a single claim (with two counts), alleging fraud by active
concealment, in violation of Oregon common law. The Court ruled that this claim may proceed
to trial against UPM and its founder and Chief Executive Officer, Duy Bruce Tran. Id. On
October 4, 2022, the Court granted Digicel-Haiti’s motion to stay UPM’s counterclaims pending
resolution of issues by the Federal Communications Commission (FCC). ECF 442. The Court
has scheduled a jury trial on Digicel-Haiti’s two counts of fraud by active concealment to begin
on November 14, 2022. Now before the Court are the parties’ motions in limine, as well as other
evidentiary issues and objections. In this Opinion and Order, the Court resolves many of the
parties’ motions and objections. Any motion or objection not expressly resolved below is
reserved for trial or separate order.
For purposes of resolving these pretrial issues, the Court notes that it previously
concluded in its summary judgment decision (ECF 294) that Digicel-Haiti failed to show a
genuine dispute for trial regarding whether UPM made to Digicel-Haiti any affirmative
misrepresentations, half-truths, or omissions while under a duty to disclose, and whether UPM
“cloned” any SIM cards.1 The sole issue remaining for trial is whether Defendants employed

“SIM” is an acronym for “Subscriber Identity Module.” Each SIM card contains a
unique identification number and other information used to “authenticate” the card on a
telecommunication carrier’s network, enabling the card to be used to make calls. Typically, an
individual mobile phone user would purchase a SIM card to be used for making calls from a
specific mobile phone, or handset. The SIM card would often include a certain monetary value,
or “prepaid” amount, but could be recharged, or “topped off,” with new payments. If a carrier,
such as Digicel-Haiti, deactivated (or de-authenticated) a SIM card, that card could no longer be
used to make calls.
1

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human behavior simulation (HBS) software for the purpose of actively concealing the fact that
calls routed by UPM from the United States to Digicel-Haiti’s network in Haiti were not being
made by individual subscribers who were customers of Digicel-Haiti, and, if so, whether such
fraud by active concealment caused damage to Digicel-Haiti and, if so, in what amount.
I. BACKGROUND
Digicel-Haiti owns and operates a wireless telecommunications network in Haiti. UPM is
a telecommunications company based in Hillsboro, Oregon. In general, it is more expensive to
place an international call from the United States to Haiti than it is to place a local call within
Haiti, even when both calls end (or terminate) with a customer in Haiti on Digicel-Haiti’s
wireless network. Digicel-Haiti charges at least $0.23 (23 cents) per minute for international
calls from the United States to Haiti and approximately $0.09 (9 cents) per minute for local calls
within Haiti. In the telecommunications industry, making a phone call is also referred to as
“terminating” a call.
Plaintiff alleges that UPM terminated international calls on Digicel-Haiti’s network
without paying Digicel-Haiti’s rate for terminating international calls. Digicel-Haiti alleges that
UPM accomplished this by fraudulently concealing its activities, as explained more fully below.
Digicel-Haiti alleges two different ways that UPM circumvented Digicel-Haiti’s
international pricing. Digicel-Haiti calls these two methods “traditional bypass” and “Roam Like
You Are Home bypass,” or “RLYH bypass.” UPM uses the labels “in-country bypass” for the
first way and simply “Roam Like You Are Home service,” or just “RLYH,” for the second way.
For both methods, Digicel-Haiti alleges that UPM used a combination of
telecommunications technology and the Internet to “bypass” Digicel-Haiti’s international rate.
UPM allegedly did this by acquiring Digicel-Haiti’s SIM cards, which are small computer chips
often put in cell phones that allow a cellular device to access a cellular network. For example, if
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a phone has a Digicel-Haiti SIM card, then the Digicel-Haiti cellular network could recognize
that phone and card as valid and give it access to Digicel-Haiti’s wireless network in Haiti. UPM
used prepaid Digicel-Haiti SIM cards to access its wireless network. This means that UPM’s
calls would go through to Haiti only if the SIM card’s account had enough money to make the
call. When the money in an account ran out, a call could disconnect, even if the SIM card was
valid.
When a call originates in the United States and terminates in Haiti through DigicelHaiti’s network, it usually goes through one of Digicel-Haiti’s two “international switches”
located in the United States. These switches let Digicel-Haiti recognize that an international call
is coming through and charge $0.23 per minute for those calls. For traditional or in-country
bypass, UPM arranged for calls coming from the United States to avoid Digicel-Haiti’s
international switches. Instead, UPM used computer servers in Oregon that connected calls over
the Internet to UPM’s Gateway devices in Haiti. This use of the Internet is sometimes known as
“Voice over Internet Protocol,” or VoIP. When UPM sends a call to Haiti over the Internet, the
call arrives in Haiti at a device called a “Gateway.” Gateways are similar to wireless radios. They
transmit calls received in Haiti over the Internet from UPM’s servers in the United States directly
to Digicel-Haiti’s local cellular network. Gateways can make multiple calls at the same time.
Because UPM used these Gateways rather than Digicel-Haiti’s international switches, DigicelHaiti did not charge UPM the international rate of 23 cents per minute. Instead, Digicel-Haiti
registered these types of calls sent by UPM as local calls made entirely with Haiti and charged
them the local rate of about 9 cents per minute.
RLYH, or RLYH bypass, is different from traditional, or in-country, bypass. RLYH is a
special discount program. By paying a subscription fee, subscribers to the RLYH program can

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make calls to Haiti from the United States without paying international and roaming rates.
Instead, these customers can make calls to Haiti at the local per-minute rate. Digicel-Haiti
contends that RLYH is offered to customers in Haiti. UPM contends that RLYH is offered to
anyone with a Digicel-Haiti SIM card, whether in Haiti or in the United States. Digicel-Haiti
alleges that UPM obtained Digicel-Haiti’s SIM cards and enrolled some of those cards in
Digicel-Haiti’s RLYH program. UPM then used its computer servers to connect international
calls from the United States to Digicel-Haiti’s roaming partners in the United States. DigicelHaiti’s roaming partners in the United States are U.S. telecommunications carriers that provide
communications services in this country. With RLYH, Digicel-Haiti’s United States roaming
partners paid Digicel-Haiti the 23 cents per minute international termination rate for each RLYH
call, while UPM was charged 9 cents per minute for such calls. For RLYH, UPM contends that it
used Gateway radios in the United States, rather than Gateway radios in Haiti.
Digicel-Haiti sought to prevent companies like UPM from engaging in both traditional
bypass and RLYH bypass in Haiti. When Digicel-Haiti believed that one of its SIM cards was
being used in either of those ways, Digicel-Haiti would deactivate that card so that it could no
longer be used to make calls. UPM contends that after Digicel-Haiti would deactivate a SIM card
that it believed was being used for bypass, Digicel-Haiti generally would keep any money left
over in that SIM card’s account.
Most relevant to Digicel-Haiti’s claim of fraud by active concealment, Digicel-Haiti
alleges that UPM used special computer software, sometimes called “Human Behavior
Simulation” software (or HBS software), when placing calls from the United States to Haiti.
According to Digicel-Haiti, HBS software allowed UPM to mimic how real human beings make
calls. Allegedly, this software would control when each SIM card would be used to make a call,

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how long it stayed on calls, how often it made a call, and similar factors. Digicel-Haiti alleges
that UPM used this HBS software to try to avoid Digicel-Haiti’s efforts to detect and deactivate
SIM cards being used by UPM. In other words, Digicel-Haiti alleges that UPM used Human
Behavior Simulation software to commit fraud by actively concealing, or hiding, UPM’s bypass
and RLYH activities from Digicel-Haiti.
The Court has already ruled that bypass, by itself, is not fraud under Oregon law. Thus,
the only questions of alleged fraud in this trial are: (1) whether Defendants UPM and Mr. Tran
actively concealed their activities from Digicel-Haiti by using Human Behavior Simulation
software; (2) if they did, whether UPM’s use of HBS software caused harm to Digicel-Haiti; and
(3) if it did, what is a reasonable estimate of that harm, without speculating. Specifically, the first
question is whether UPM and Mr. Tran used Human Behavior Simulation software to mimic the
patterns of individual human callers to disguise the fact that they were a business using multiple
SIM cards and terminating multiple calls on Digicel-Haiti’s network. UPM and Mr. Tran deny
using HBS, and Digicel-Haiti alleges that they did.
II. MOTIONS IN LIMINE
A. Plaintiff’s Motions in Limine
Plaintiff has filed an amended set of twelve motions in limine. ECF 452. Defendants
responded (ECF 469), and Plaintiff replied (ECF 478). The Court addresses each motion as
follows.
1. Plaintiff’s MIL 1: DIGICEL-HAITI’S 2018 SERVER CRASH
RULING: GRANTED IN PART AND DENIED IN PART.
Digicel-Haiti experienced a server crash in 2018 that caused data saved on backup files to
become corrupted or otherwise inaccessible. Email communications archived in this server were
lost in this crash. After a diligent search, Digicel-Haiti retrieved some email communications
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from key people that were available on local machines. Digicel-Haiti moves to exclude any
mention of its server crash or speculation regarding what any purported missing documents
might have shown. Defendants do not oppose the motion to the extent that they will not ask
Plaintiff’s witnesses about missing emails. To this extent, the Court grants in part Plaintiff’s
MIL 1.
Defendants, however, explain that Plaintiff’s Call Detail Records (CDRs) and related
network data remain missing. Defendants ask the Court to instruct the jury: “You may, but are
not required to, draw an inference that by reason of the loss of the Call Detail Records and
related information, the lost evidence was unfavorable to Digicel-Haiti.” ECF 473 at 9
(Defendants’ Proposed Jury Instructions). Defendants neither contend nor present any evidence
that Digicel-Haiti “acted with the intent to deprive another party of the information’s use in the
litigation.” Fed. R. Civ. P. 37(e). Thus, pursuant to Rule 37(e)(2), as amended in 2015, the Court
may not “instruct the jury that it may or must presume the information was unfavorable to the
party.” Id. The cases cited by Defendants in support of their proposed jury instruction do not
address the 2015 amendment to Rule 37(e).
The Court finds that Digicel-Haiti’s loss of information prejudices Defendants in their
ability to present defenses on both liability and damages. Accordingly, Defendants may present
evidence and argument regarding Digicel-Haiti’s loss of information. The Court finds that
allowing Defendants to do so is a measure “no greater than necessary to cure the prejudice.” Fed.
R. Civ. P. 37(e)(1). To this extent, the Court denies in part Plaintiff’s MIL 1.
2. Plaintiff’s MIL 2: FEES IMPOSED BY THE HAITIAN GOVERNMENT
RULING: DENIED IN PART.
Plaintiff moves to exclude references to the Haitian government’s spending or its taxation
of international calls. The Court agrees that, in general, these issues are legally irrelevant.
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Defendants, however, argue that the Haitian government imposed a 5 cents per minute fee on
incoming international calls for which Digicel-Haiti charged a total of 23 cents per minute. On
October 27, 2022, during his Rule 702 hearing, Digicel-Haiti’s expert witness Charles Castel
confirmed this and explained that 5 cents per minute is a fee, not a tax, charged by the
government of Haiti. Defendants assert that the Haitian government does not impose this fee on
calls found to be terminated in Haiti through bypass. Thus, according to Defendants, they should
be permitted to argument that if Digicel-Haiti has been damaged by not being able to charge the
full 23 cent per minute international rate, only 18 cents per minute accurately reflects DigicelHaiti’s loss. The Court will allow Defendants to present this evidence in response to DigicelHaiti’s theory of damage.
3. Plaintiff’s MIL 3: DISMISSED INDIVIDUAL DEFENDANTS
RULING: GRANTED.
Plaintiff moves to exclude any reference to the dismissal of Defendants Tyler Allen,
Balthazar Ruiz, and Benjamin Sanchez. Defendants do not oppose this motion. The Court grants
Plaintiff’s MIL 3.
4. Plaintiff’s MIL 4: COMMUNICATIONS ACT OF 1934
RULING: GRANTED.
Plaintiff moves to exclude references to evidence that is relevant only to UPM’s
bifurcated and stayed counterclaims. Defendants do not oppose this motion. Defendants,
however, object to any blanket prohibition on Defendants’ ability to refer to the Communications
Act of 1934 and what Defendants contend are Plaintiff’s obligations under that law. Defendants
argue that Plaintiff must prove that it had a right under United States law to deactivate the SIM
cards that UPM was using. Defendants also argue that they have the right to argue that DigicelHaiti entered and was bound by an “implied-in-fact” contract that required Digicel-Haiti to
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permit UPM to use the SIM cards that it acquired. The Court disagrees. Whether Digicel-Haiti
violated United States by deactivating UPM’s SIM cards and even whether an implied-in fact
contract existed between Digicel-Haiti and UPM will be addressed after the FCC addresses the
issues that are the subject of the Court’s ruling on primary jurisdiction. The Court grants
Plaintiff’s MIL 4.
5. Plaintiff’s MIL 5: FCC POLICIES
RULING: GRANTED.
Plaintiff moves to exclude references to the FCC and its rules, regulations, and policies.
The Court agrees that these issues are legally irrelevant. Defendants, however, argue that
Digicel-Haiti must prove that UPM acted with fraudulent intent and that UPM’s awareness of
certain FCC policies that encouraged and even supported bypass tends to negate any inference of
UPM’s fraudulent intent. The Court disagrees with Defendants. The relevant intent issue is
whether Defendants had the intent to deceive or mislead Digicel-Haiti by using human behavior
simulation software. Even if Defendants believed that Digicel-Haiti had no legal right to
deactivate UPM’s SIM cards, that is irrelevant to the issue of whether Defendants intended to
deceive and mislead Digicel-Haiti so that Digicel-Haiti could not deactivate those cards.2 If
Defendants are correct about the illegality of Digicel-Haiti’s conduct, that can be addressed after
the FCC’s proceedings have concluded. The Court grants Plaintiff’s MIL 5.
6. Plaintiff’s MIL 6: OTHER LITIGATION INVOLVING PLAINTIFF
RULING: GRANTED.

The Court, however, is still considering whether Defendants’ belief that Digicel-Haiti’s
conduct was illegal might be relevant to Digicel-Haiti’s claim for punitive damages. If it is
relevant, then such evidence would be admissible for that limited purpose so long as DigicelHaiti seeks punitive damages. The parties have leave further to brief this question.
2

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Plaintiff moves to exclude references to other, or “outside,” litigation involving DigicelHaiti or affiliated entities Digicel USA, Inc. (Digicel-USA) and Digicel Holding, Ltd. and their
corporate officers. Defendants do not oppose this motion on the condition that Plaintiff also is
precluded from referring to any outside litigation involving UPM or Mr. Tran. The Court grants
Plaintiff’s MIL 6. Neither party may refer to any other litigation regarding any other party
without prior leave of the Court.
7. Plaintiff’s MIL 7: PURCHASING SIM CARDS FROM DIGICEL-HAITI
RULING: GRANTED.
Plaintiff moves to exclude references or argument about UPM purchasing SIM cards
directly from Digicel-Haiti. Defendants do not oppose this motion. The Court grants Plaintiff’s
MIL 7.
8. Plaintiff’s MIL 8: BUYING RECHARGES, TOP-UPS, AND RLYH
RULING: GRANTED IN PART AND DENIED IN PART.
Plaintiff moves to exclude all evidence, references, and argument that UPM purchased
SIM cards, recharges/top-ups, and RLYH plans directly from Digicel-Haiti if “offered to support
Defendants’ First and Second Affirmative Defenses of Payment and Justification.” ECF 452 at 78. Digicel-Haiti explains that it “is concerned that in support of its first and second affirmative
defenses, Defendants will suggest or otherwise imply that UPM purchased the SIM cards directly
from Digicel-Haiti even though the record evidence is that no direct purchase from Digicel-Haiti
occurred.” Id. at 8. As the Court ruled in granting Plaintiff’s MIL 7, Defendants may not present
evidence or argument, or even imply, that UPM purchased SIM cards or recharges/top-ups
“directly” from Digicel-Haiti. The Court, however, will not preclude UPM from presenting
evidence or arguing that the only way for UPM to have sent calls using RLYH would be if UPM
first electronically enrolled a SIM card with Digicel-Haiti in its RLYH program. The Court also
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will not preclude UPM from presenting evidence or arguing that it is entitled to a credit against
any damages owed to Digicel-Haiti for the amounts that UPM paid but could not use after
Digicel-Haiti deactivated UPM’s SIM cards.
9. Plaintiff’s MIL 9: THIRD AFFIRMATIVE DEFENSE – UNCLEAN HANDS
RULING: GRANTED.
Plaintiff moves to exclude all references and argument to Defendants’ Third Affirmative
Defense of “unclean hands.” Plaintiff argues that “unclean hands” is an equitable defense that
presents questions for the Court, not the jury, citing Keystone Driller Co. v. Gen. Excavator Co.,
290 U.S. 240, 245-46 (1933). ECF 452 at 8-9. The Court agrees and grants Plaintiff’s MIL 9. As
previously noted, however, the Court will not preclude UPM from arguing that it is entitled to a
credit on any alleged damages owed to Digicel-Haiti for the amounts that UPM paid but could
not use after Digicel-Haiti deactivated UPM’s SIM cards, if there is evidence that Digicel-Haiti
kept all or some of the money received.
10. Plaintiff’s MIL 10: DIGICEL USA
RULING: GRANTED IN PART AND DENIED IN PART.
Plaintiff correctly notes that Digicel USA was dismissed from this litigation. See
ECF 188. Plaintiff argues that the Court should exclude any evidence regarding Digicel USA
“that solely supports Defendants’ unclean hands and illegality affirmative defenses” or UPM’s
stayed counterclaims. ECF 452 at 9-10. To this extent, the Court grants in part Plaintiff’s
MIL 10.
Defendants, however, note that they may refer to the existence or function of Digicel
USA in routing calls to Digicel-Haiti. Defendants also state they will not characterize Digicel
USA’s role in getting traffic from the United States to Haiti as “illegal” or “inappropriate.” To
this extent, the Court denies in part Plaintiff’s MIL 10.
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11. Plaintiff’s MIL 11: “MONOPOLY” AND “ANTI-COMPETITIVE”
RULING: GRANT IN PART AND DENIED IN PART.
Plaintiff moves to exclude any reference to the terms “monopoly,” “anticompetitive,” or
any similar words or expressions. Plaintiff asserts that these terms are irrelevant in the trial of
Digicel-Haiti’s claim of fraud by active concealment against UPM and Mr. Tran. In response,
Defendants state that Digicel-Haiti has a monopoly or near-monopoly on the provision of
telephone service in Haiti and has an absolute monopoly on getting calls to its own customers in
Haiti. According to Defendants, this fact is relevant to understanding why the FCC’s prohibition
on resale restrictions applies to Digicel-Haiti’s offering of RLYH service. The Court, however,
has ruled, including in this Opinion and Order, that the FCC’s rules, regulations, and policies are
not relevant to any of the issues to be tried in the November 14th trial.
Defendants also argue that Digicel-Haiti must prove that Defendants acted with
fraudulent intent and, to the extent that Defendants’ intent was related to or developed in the
context of Digicel-Haiti’s status as possessing market power, it would be inappropriate to
preclude testimony on that point. Although the Court agrees that Digicel-Haiti must prove
fraudulent intent, the fact that Digicel-Haiti has (or may have) monopoly power is irrelevant to
the question of whether Defendants acted with the requisite fraudulent intent to engage in active
concealment of their activities.
But Digicel-Haiti also seeks punitive damages. The Court will allow UPM’s witnesses to
testify about the reasons why they did what they did so that the jury may consider that evidence
in connection with Digicel-Haiti’s claim for punitive damages. This may include testimony about
how UPM viewed Digicel-Haiti and its pricing power and decisions. UPM, however, may not
inquire from Digicel-Haiti’s witnesses any information about Digicel-Haiti’s pricing power or
decisions for the purpose of corroborating that Digicel-Haiti may have held monopoly power or
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engaged in supra-competitive pricing. Although perhaps marginally relevant, any probative value
would be substantially outweighed by the risk of jury confusion or unfair prejudice to DigicelHaiti. Accordingly, the Court precludes such evidence and argument under Rule 403 except that
the Court will allow questioning of UPM’s personnel when relevant to UPM’s intentions.
12. Plaintiff’s MIL 12: J. GILLAN AND D. WOOD.
RULING: GRANTED.
Plaintiff moves to exclude the testimony of UPM’s expert witnesses Joseph Gillan and
Don Wood from testifying during the trial that is scheduled to begin on November 14, 2022.
Defendants do not oppose this motion. ECF 469 at 18. The Court grants Plaintiff’s MIL 12.
B. Defendants’ Motions in Limine
Defendants have filed an amended set of twelve motions in limine. ECF 461. Plaintiff
responded (ECF 485). The Court addresses each motion as follows
1. Defendants’ MIL 1: C. CASTEL, K. MCEWEN, AND P. CROSS
Defendants move to exclude all testimony from Plaintiff’s witnesses Charles Castel,
Kenneth McEwen, and Philip Cross, pursuant to Rule 702. On October 27, 2022, the Court held
a Daubert hearing regarding Plaintiff’s expert witness Charles Castel.
a. Standards Under Rule 702
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony.
It provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;

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(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
“Under Daubert and its progeny, including Daubert II,3 a district court’s inquiry into
admissibility is a flexible one.” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th
Cir. 2014) (citing Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th
Cir. 2013)). In evaluating proffered expert testimony, the trial court is “a gatekeeper, not a fact
finder.” Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (quotation marks omitted). “[T]he
trial court must assure that the expert testimony both rests on a reliable foundation and is relevant
to the task at hand.” Id. at 564 (quotation marks omitted). “Expert opinion testimony is relevant
if the knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable if
the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant
discipline.” Id. at 565 (quotation marks omitted). “Shaky but admissible evidence is to be
attacked by cross examination, contrary evidence, and attention to the burden of proof, not
exclusion.” Id. at 564. The judge must “screen the jury from unreliable nonsense opinions, but
not exclude opinions merely because they are impeachable.” City of Pomona, 750 F.3d at 1043
(quoting Alaska Rent-A-Car, 738 F.3d at 969). In short, “[t]he district court is not tasked with
deciding whether the expert is right or wrong, just whether his testimony has substance such that
it would be helpful to a jury.” Id. at 969-70 (alteration in original) (quoting Alaska Rent-ACar, 738 F.3d at 969-70).

3

Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995).

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Further, a court must assess an expert’s reasoning or methodology, using, when
appropriate, criteria such as testability, publication in peer-reviewed literature, known or
potential error rate, and general acceptance. See Estate of Barabin v. AstenJohnson, Inc., 740
F.3d 457, 463-64 (9th Cir. 2014) (en banc). But these factors are “meant to be helpful, not
definitive, and the trial court has discretion to decide how to test an expert’s reliability as well as
whether the testimony is reliable, based on the particular circumstances of the particular case.”
Primiano, 598 F.3d at 564 (citations and quotation marks omitted).
The test “is not the correctness of the expert’s conclusions but the soundness of his
methodology.” Primiano, 598 F.3d at 564 (quotation marks omitted). “The objective of
[Daubert’s gatekeeping requirement] is to ensure the reliability and relevancy of expert
testimony. It is to make certain that an expert, whether basing testimony upon professional
studies or personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 149. When
an expert meets the threshold established by FRE 702, the expert may testify and the fact finder
decides how much weight to give that testimony. Primiano, 598 F.3d at 565. Challenges that go
to the weight of the evidence are within the province of a fact finder, not a trial court judge. City
of Pomona, 750 F.3d at 1044. “A district court should not make credibility determinations that
are reserved for the jury.” Id.
b. Charles Castel
The Court finds that Mr. Castel, an economist, is qualified by experience, training, and
education to provide expert testimony regarding an appropriate damages model in this case.
Mr. Castel opines that an appropriate damage model here involves taking a Gateway device,
(1) assuming an appropriate capacity; (2) discounting that capacity by an appropriate reduction
to reflect that it does not operate at full capacity one hundred percent of the time; (3) assuming
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the number of minutes per day that it would be used; (4) assuming the number of days, weeks, or
months used; (5) assuming an appropriate loss rate per minute; and (6) assuming an appropriate
consideration for whether and how long HBS software was used. Giving his opinion on such a
damage model is within his expertise and will be helpful to the jury. Further, Mr. Castel may be
asked by Plaintiff’s counsel to “assume” certain numbers for this model and the results yielded,
if there is a good faith basis to believe that admissible evidence supporting those assumptions
will be presented to the jury at trial. Mr. Castel may not, however, disclose to the jury any
inadmissible hearsay or otherwise act as a conduit for the disclosure of otherwise inadmissible
evidence to be presented to the jury.
In addition, Mr. Castel has an alternative damage model based on why he contends are
assumptions about UPM’s market share. As discussed on the record during the Daubert hearing,
however, Mr. Castel has misunderstood or misstated those assumptions, which derive from
UPM’s stayed counterclaims under the Communications Act. In connection with those
counterclaims, UPM’s expert witness Mr. Don Wood opined about the incremental financial loss
to UPM caused by Digicel-Haiti preventing UPM from reselling Digicel-Haiti’s RLYH service
in the United States. See ECF 358-3 at 2, ¶ 9 (Expert Report of Don J. Wood). According to Mr.
Wood, if Digicel-Haiti would not have interfered with UPM’s ability to resell RLYH services in
the United States, Mr. Wood assumes that UPM would have achieved a market share of 15
percent in 2014, increasing by five percent each calendar year through 2021. Id. at 3, ¶ 13. That,
however, is not the same as UPM’s “market share” resulting from either in-country bypass or
RLYH without interference by Digicel-Haiti. Thus, Mr. Castel’s alternative damage model based
on Mr. Wood’s report is not reliable and is excluded.

PAGE 16 – OPINION AND ORDER

c. Kenneth McEwen
The Court finds that Mr. McEwen, a telecom engineer, is qualified by experience,
training, and education to provide expert testimony explaining the basics of how bypass works in
general, from an telecommunications or engineering perspective. He may not, however, refer to
bypass generally as “fraud” or “illegal.” He also may not testify about what bypassers “typically”
do, as he has not shown an adequate foundation for that knowledge. Thus, it would be
speculation. Similarly, Mr. Ewen has testified in deposition that he has no specific knowledge
about what UPM has done or how UPM operates. Thus, he may not provide that testimony
because it would be speculation. He may, however, be asked to assume certain facts and then
explain the consequences if those assumptions are correct, provided there is a good faith basis to
believe that admissible evidence supporting those assumptions will be presented to the jury at
trial. Mr. McEwen may not, however, disclose to the jury any inadmissible hearsay or otherwise
act as a conduit for the disclosure of otherwise inadmissible evidence to be presented to the jury
d. Philip Cross
In response to Defendants’ motion in limine to exclude Plaintiff’s expert witness Philip
Cross, Plaintiff states that “Mr. Cross has been offered as a rebuttal expert to [Defendants’ expert
witness] Mr. Gillan.” ECF 485 at 9. Plaintiff adds that “Mr. Cross’s testimony and expert
opinions are only necessary to the extent that Defendants attempt to submit to the jury the
opinions of its proposed economist, Mr. Gillan.” Id. (emphasis in original). Defendants,
however, did not oppose Plaintiff’s Motion in Limine No. 12 to exclude the testimony of
Mr. Gillan. See Ruling on Plaintiff’s MIL 12, supra. Accordingly, neither Mr. Gillan nor
Mr. Cross will testify at the trial commencing November 14, 2022.
2. Defendants’ MIL 2: M. BOUTE AND G. LABORDE AND LAY OPINIONS
RULING: GRANTED IN PART.
PAGE 17 – OPINION AND ORDER

Defendants object to Plaintiff presenting “lay opinion” testimony outside of the scope of
Rule 701 of the Federal Rules of Evidence. Defendants also object to Plaintiff’s witness Maarten
Boute testifying about “Haitian law” and how the law of Haiti affects Digicel-Haiti. The Court
agrees with Defendants. The law of Haiti is not relevant to any of the issues at the trial that
begins November 14, 2022. This testimony is excluded unless Defendants “open the door” at
trial to its admission.
Defendants also object to Plaintiff’s witness Gerard Laborde testifying about DigicelHaiti’s “obligations to serve the public” and the licensing, franchising, and authorizations from
the Haitian Government. Again, the Court agrees with Defendants. Digicel-Haiti’s obligations to
serve the public and its licensing, franchising, and authorizations from the Haitian Government
are not relevant to this lawsuit. This testimony will be excluded unless Defendants “open the
door” at trial to its admission.
Defendants also object to any lay witnesses called by Plaintiff using words like “illegal,”
“unlawful,” “fraud,” “fraudulent,” “misrepresentation,” “concealment” or the like to describe
UPM’s conduct. The Court agrees, in general, except regarding the use of the words
misrepresentation or concealment. The only issue of fraud remaining in this case is Plaintiff’s
allegation that Defendants engaged in fraud by active concealment by using human behavior
simulation software. Because the use of that software involves “specialized knowledge within
the scope of Rule 702,” it does not fall within the scope of lay opinion testimony. See Fed. R.
Evid. 701. Accordingly, Plaintiff’s lay witnesses may not use these terms to describe
Defendants’ conduct generally, especially Defendants’ bypass activities. The Court grants in part
Defendants’ MIL 2. Plaintiff’s counsel, however, may use these terms in opening statement to
describe what counsel believes the evidence at trial will show, as well as in closing argument,

PAGE 18 – OPINION AND ORDER

regarding the specific issue of whether Defendants engaged in fraud by active concealment by
using human behavior simulation software. Also, the Court will be flexible if Plaintiff’s
witnesses use the terms “misrepresentation” or “concealment” when discussing UPM’s alleged
use of HBS software.
3. Defendants’ MIL 3: DISMISSED CLAIMS
RULING: GRANTED IN PART AND DENIED IN PART.
Defendants move to exclude all references relating to the various claims that have been
dismissed. Plaintiff may not refer to claims alleging: (1) fraud by affirmative misrepresentation,
half-truth, or omission; or (2) any purported misuse of registration forms or Digicel-Haiti’s
Distribution Contract for Electronic Recharge. To the extent, however, that Defendants seek to
exclude all references and evidence relating to Defendants’ alleged scheme to avoid international
calling rates by engaging in active concealment by using human behavior simulation software,
the Court will reserve ruling and instead address any specific objection made at trial to a specific
question, answer, or argument. Similarly, Defendants move to exclude all reference to any
purported “cloning” of SIM cards. Here, much will likely depend on the context and the precise
phrasing of the question. Accordingly, the Court will reserve ruling on that issue and address any
specific objection made at trial.
4. Defendants’ MIL 4: “ILLEGAL” PURCHASE OF SIM CARDS, ETC.
RULING: GRANTED.
Defendants move to prohibit Digicel-Haiti from eliciting testimony, offering evidence or
argument, or otherwise contending that UPM illegally or illegitimately purchased SIM cards,
illegally or illegitimately “topped them up,” or illegally or illegitimately enrolled those cards in
Plaintiff’s RLYH program. The includes any evidence or argument that Defendants’ conduct was

PAGE 19 – OPINION AND ORDER

“illegal” or “illegitimate” in Haiti, which the Court prohibits. The Court grants Defendants’
MIL 4. See also Court’s ruling on Defendants’ MIL 2.
5. Defendants’ MIL 5: SHIPMENTS TO HAITI AND WIRE TRANSFERS
RULING: DENIED.
Defendants move to exclude all reference, including evidence, testimony, and argument,
related to UPM’s shipping of items between UPM in Oregon and its agents in Haiti, and
Defendants’ wire transfers between UPM and its agents in Haiti. Defendants argue that such
evidence is inadmissible under Rule 404(b)(1). Such evidence, however, is admissible under
Rule 404(b)(2) for the purpose of proving motive, intent, and absence of mistake. Upon timely
request by Defendants, the Court will give an appropriate limiting instruction regarding this
evidence, and Defendants are invited to submit an appropriate limiting instruction for the Court’s
consideration.
6. Defendants’ MIL 6: OTHER INVESTIGATIONS AND THIRD PARTIES
RULING: GRANTED IN PART.
According to Defendants, Digicel-Haiti contends that certain third parties had
investigated UPM’s bypass activities in Haiti. These third parties include an entity known as
“Shields Crime & Security Consultants” (Shield CSC), the Haitian police, and the Haitian
telecommunications regulator CONATEL. Defendants state that no percipient fact witnesses
appear on Digicel-Haiti’s witness list and thus any testimony about what anyone from these third
parties may have done, seen, or discovered must necessarily be inadmissible hearsay, if offered
for the truth of the matters asserted. Defendants offer, as an example, the description in DigicelHaiti’s witness statement that Mr. Laborde will discuss the investigations of Shield CSC and
local Haitian police, including what they found. Defendants assert that none of Digicel-Haiti’s
witnesses claim to have been personally involved in these activities, thus making their testimony
PAGE 20 – OPINION AND ORDER

dependent on inadmissible hearsay. Defendants move in limine to exclude such evidence. The
Court will not allow Digicel-Haiti to present evidence or argument that bypass generally in
illegal or fraudulent.
In response, Digicel-Haiti argues that “[t]o the extent that Defendants seek to challenge
the admissibility of specific testimony or exhibits, such challenges should be raised at the
appropriate time—trial.” ECF 485 at 15. This would allow Digicel-Haiti the opportunity to “lay
appropriate foundation” for admissibility. Id. at 16. Digicel-Haiti adds that certain documents are
“self-authenticating.” Id. at 15.
The Court defers ruling on Defendants’ objections to exhibits and will wait to rule on
specific objections to specific questions, answers, or exhibits until after the proponent has had a
reasonable opportunity to lay a foundation for admissibility. The Court, however, reminds the
parties of the following Federal Rules of Evidence:
1.
Other than what may be allowed under Rule 703, “[a]
witness may testify only if evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the
matter.” Fed. R. Evid. 602.4
2.
If facts or data upon which an expert witness bases an
opinion are otherwise inadmissible, “the proponent of the opinion
may disclose them to the jury only if their probative value in
helping the jury evaluate the opinion substantially outweighs their
prejudicial effect.” Fed. R. Evid. 703. (This is the reverse of
Plaintiff asserts that “[p]ersonal knowledge can also be obtained ‘though participation in
the business’ day-to-day affairs,’” citing United States v. Kerley, 784 F.3d 327, 337 (6th Cir.
2015). ECF 485 at 10 n.4. That case, however, does not allow a person who works for a business
to testify with free rein about whatever factual material that person may have learned from others
at the business. Instead, the case simply supports the rather unremarkable conclusion that “courts
have permitted witnesses to give lay opinion testimony about a business’s policies, practices, or
procedures, based on an after-the-fact review or analysis of documents or facts, if the witness’s
testimony derived from personal knowledge gained through participation in the business’s dayto-day affairs.” Kerley, 784 F.3d at 337 (emphasis added). Thus, Digicel-Haiti’s witnesses Boute
and Laborde likely will be allowed to testify about Digicel-Haiti’s “policies, practices, or
procedures” to the extent such testimony is relevant.
4

PAGE 21 – OPINION AND ORDER

Rule 403’s exclusion of otherwise relevant and admissible
evidence.)
3.
“Hearsay within hearsay is not excluded by the rule against
hearsay if each part of the combined statements conforms with an
exception to the rule.” Fed. R. Evid. 805.
In summary, the Court will not allow Digicel-Haiti to present evidence or argument that
bypass is generally considered fraudulent or illegal. To the extent that Digicel-Haiti incurred
expenses attempting to prevent the use of HBS software as part of a bypass program and seeks to
recover those expenses as damages, the Court will not preclude that evidence or argument.
7. Defendants’ MIL 7: ACTIVITIES IN OTHER COUNTRIES OR TIMES
RULING: GRANTED IN PART AND DENIED IN PART, AS EXPLAINED.
Defendants move to exclude any evidence regarding UPM’s business model, practices,
policies, or conduct in jurisdictions other than Haiti. Defendants argue that such matters are
irrelevant. The Court agrees. In addition, even if there were some modest probative value of such
evidence, perhaps related to punitive damages, it would be substantially outweighed by the
danger of confusing the issues, misleading the jury, and wasting time. If Digicel-Haiti were to
present evidence of what UPM was doing in other countries, then UPM likely would want to
present evidence refuting, distinguishing, or explaining what it was doing in other countries. This
could lead to multiple minitrials far afield from the core of this case. Pursuant to Rule 403, the
Court limits the trial evidence here to Defendants’ actions in Haiti as well as in the United States
or elsewhere that affected Digicel-Haiti in Haiti.
Defendants similarly move to exclude any evidence regarding UPM’s alleged conduct in
Haiti “outside the time periods at issue in this case,” arguing that such evidence also is irrelevant.
ECF 461 at 29. Defendants contend that, based on UPM’s evidence, the only relevant time
periods are: August 2011 through March 2012 and March through October 2014. In response,

PAGE 22 – OPINION AND ORDER

Digicel-Haiti contends that the relevant timeframe of the alleged fraud at issue in “2011-2015.”
ECF 485 at 16. The Court will not exclude otherwise admissible evidence of Defendants’ actions
affecting Haiti between 2011 and 2015. Whether Defendants’ only relevant actions took place
between August 2011 through March 2012 and March through October 2014 appears to be
disputed by the parties and should be addressed with admissible evidence at trial.
8. Defendants’ MIL 8: ROAMING AGREEMENTS
RULING: DEFFERRED.
Defendants move to exclude all evidence, testimony, and argument regarding the
roaming agreements between Digicel-Haiti and its third-party roaming partners on the ground
that Plaintiff refused to produce copies of those agreements during discovery. In response,
Digicel-Haiti states that it has no intention of discussing the “financial and contractual details of
its individual roaming agreements with third-party carriers.” ECF 485 at 17. Instead, DigicelHaiti explains that it merely intends to present testimony regarding what roaming agreements are
and how they work to facilitate international calling. Id. The Court defers ruling on this motion
in limine and will wait until trial to rule on specific objections to specific questions, answers, or
exhibits.
9. Defendants’ MIL 9: “BYPASS” IN THE CONTEXT OF RLYH
RULING: DENIED.
Defendants move to exclude Plaintiff from using the term “bypass” when referencing
UPM’s activities regarding Plaintiff’s RLYH program. In response, Plaintiff states that “bypass”
refers to bypassing higher call rates. The Court will allow each party to define “bypass” as that
party shows the evidence will support.
10. Defendants’ MIL 10: PUNITIVE DAMAGES
RULING: RULING RESERVED FOR JURY INSTRUCTIONS.
PAGE 23 – OPINION AND ORDER

Defendants move to limit any evidence or argument regarding punitive damages to
actions that UPM allegedly took in Oregon, are illegal in Oregon, and that harmed Digicel-Haiti.
The Court will not address this issue in the context of a motion in limine. Instead, the Court will
appropriately instruct the jury on punitive damages if they remain at issue in the case.
11. Defendants’ MIL 11: EXCLUSION OF WITNESSES
RULING: GRANTED.
The Court will exclude witnesses consistent with Rule 615. Each entity party may have
one representative who is not excluded, and the Court will not exclude a party’s outside expert
witnesses.
12. Defendants’ MIL 12: STATEMENTS OF COUNSEL’S KNOWLEDGE
RULING: GRANTED.
Counsel may not suggest to the jury counsel’s personal knowledge of the facts or express
counsel’s personal opinions of the testimony, facts, credibility of witnesses, or justice of the case.
III. DEPOSITION DESIGNATIONS
Plaintiff has designated excerpts from the depositions of Tyler Allen and Baltazar Ruiz.
Mr. Allen lives in the Portland area and is employed by UPM. He also was employed by UPM
when his deposition was taken on October 29, 2021. Mr. Ruiz also lives in the Portland area. He
was formerly employed by UPM and had already left UPM when his deposition was taken on
October 15, 2021. Defendants object to Plaintiff’s designation of deposition excerpts from these
two depositions being read to the jury in lieu of live testimony. Defendants argue that these two
witnesses are not “unavailable,” as that term is used in Rule 32(a)(4) of the Federal Rules of
Civil Procedure. In reply, Plaintiff states that it filed deposition designations out of an abundance
of caution if either witness does not appear to present live testimony at trial. ECF 475 at 2.
Plaintiff adds that UPM has agreed to accept service of witness subpoenas on behalf of these two
PAGE 24 – OPINION AND ORDER

individuals. Id. at 2 n.1. Thus, the Court anticipates that these two witnesses will not be
unavailable for trial.
IV. TRIAL EXHIBITS
A. Plaintiff’s Trial Exhibits
Plaintiff’s amended trial exhibit list identifies approximately 400 potential trial exhibits.
ECF 448. Defendants object to every one of Plaintiff’s proposed exhibits. ECF 466. The Court
reserves ruling on Plaintiff’s exhibits until trial. The Court, however, reminds the parties of the
following Federal Rules of Evidence, which may have relevance to Plaintiff’s Exhibits 400
(Haitian police report and confession of Macéus Outger), 405 (news release from Conatel), and
406 (news story from Haitilibre dated August 23, 2014):
1.
“Hearsay within hearsay is not excluded by the rule against
hearsay if each part of the combined statements conforms with an
exception to the rule.” Fed. R. Evid. 805.
2.
A record or statement of a public office may be admissible
in a civil case if it sets out “factual findings from a legally
authorized investigation.” Fed. R. Evid. 803(8)(A)(iii) (emphasis
added). In addition, “[e]ntries in a police report based on an
officer’s observation and knowledge may be admitted, but
statements attributed to other persons are clearly hearsay, and
inadmissible under the common law exception to the hearsay
rule[.]” Colvin v. United States, 479 F.2d 998, 1003 (9th Cir.
1973).
3.
When a declarant is unavailable, a statement may be
admissible if it is a statement that “a reasonable person in the
declarant’s position would have made only if the person believed it
to be true because, when made, it was so contrary to the declarant’s
proprietary or pecuniary interest or had so great a tendency to
invalidate the declarant’s claim against someone else or to expose
the declarant to civil or criminal liability.” Fed. R.
Evid. 804(b)(3)(A). However, “[w]hether a statement is in fact
against interest must be determined from the circumstances of each
case. Thus a statement admitting guilt and implicating another
person, made while in custody, may well be motivated by a desire
to curry favor with the authorities and hence fail to qualify as

PAGE 25 – OPINION AND ORDER

against interest.” Fed. R. Evid. 804 Notes of Advisory Committee
on Proposed Rules (emphasis added).
B. Defendants’ Trial Exhibits
Defendants’ trial exhibit list identifies approximately 150 potential trial exhibits.
ECF 457. Plaintiff objects to all but one of Defendants’ proposed exhibits. ECF 484. (Plaintiff’s
failure to object to Defendants’ Ex. 652 may have been inadvertent.) The Court reserves ruling
on Defendants’ exhibits until trial.
V. LAY WITNESSES
A. Plaintiff’s Lay Witnesses
Plaintiff has identified the following five lay witnesses to be called at trial: Tyler Allen,
Maarten Boute, Gerard Pierre Laborde, Baltazar Ruiz, and Bruce Tran. ECF 445. Defendants
object on two grounds. First, Defendants state that the witness statements are insufficiently
specific to be a fair narrative statement summarizing the substance of a witness’s testimony.
ECF 467. Second, Defendants assert that the proposed testimony from Maarten Boute and
Gerard Laborde contain inadmissible material. Id. Regarding Defendants’ first objection, the
Court will follow its Civil Trial Management Order. ECF 191. Specifically,
Testimony at trial will be limited to the material fairly summarized
in the witness statement, absent a showing of good cause for the
omission, balanced against any prejudice to the opposing party. If
an issue is not fairly and accurately disclosed, the Court may
exclude that portion of the witness’s direct examination, even
though that issue may have been fully revealed during that
witness’s deposition.
ECF 191 at 2. Regarding Defendants’ second objection, the Court will rule at trial on any timely
objections to inadmissible testimony.

PAGE 26 – OPINION AND ORDER

B. Defendants’ Lay Witnesses
Defendants have identified the following three lay witnesses to be called at trial: Bruce
Tran, Daniel Romero, and Tyler Allen. ECF 459. Plaintiff objects to the disclosed testimony of
Mr. Tran and Mr. Romero, arguing that the witness statements reflect inadmissible testimony.
ECF 481. The Court will rule at trial on any timely objections to inadmissible testimony.
Plaintiff also objects to the inclusion of Mr. Romero as a lay witness in this matter.
Plaintiff states that “in its interrogatory responses, UPM described Mr. Romero’s role and
knowledge in this case as merely ‘activating and recharging the SIM cards UPM used in
connection with resale of Digicel-Haiti.’” ECF 481 at 4, citing ECF 483-1 at 2. Plaintiff argues:
Now UPM seeks to have Mr. Romero testify well beyond the task
of activating and recharging SIM cards to previously undisclosed
topics including UPM’s SIM management software, UPM’s
objectives in utilizing SIM cards, Digicel-Haiti’s efficiency in
detecting and deactivating SIM cards used by UPM, and the
cost/benefit analysis UPM employed in maximizing the use of SIM
cards while minimizing their detection by Digicel-Haiti. Because
UPM failed to disclose any of these core topics as within Mr.
Romero’s knowledge prior to filing its witness statements, it
should be precluded from presenting his testimony on these topics
at trial.
ECF 481 at 4-5. Plaintiff then requests:
If the Court is inclined to allow Mr. Romero’s testimony, Digicel
Haiti respectfully requests that Defendants confirm that Mr.
Romero was personally asked to produce documents consistent
with the discovery taken in this matter and that those documents
were provided to Digicel Haiti. Digicel Haiti also requests that the
Court order Defendants make Mr. Romero available for deposition
within the next two weeks.
Id. at 5.
In response, Defendants states
[I]n response to an interrogatory, UPM identified Mr. Romero as
an individual who had personal knowledge of the relevant facts.
Indeed, UPM stated that Mr. Romero's job title was “SIM
PAGE 27 – OPINION AND ORDER

Manager.” Later, Digicel-Haiti identified Mr. Romero as an
individual who Digicel-Haiti wanted to depose. Counsel for the
parties communicated extensively by email regarding the various
depositions, including arranging for Mr. Romero's deposition.
However, after UPM offered to make Mr. Romero available,
Digicel-Haiti for whatever reason abandoned its attempt to depose
him.
ECF 493 at 8 (footnotes omitted).
Plaintiff is correct that in response to Plaintiff’s First Set of Interrogatories, served in
2020, Defendants stated about Mr. Romero: “Mr. Romero was a contractor to UPM, in charge of
activating and recharging the SIM cards UPM used in connection with resale of Digicel-Haiti
services.” ECF 494 at 8. That is a far cry from what Defendants now disclose they intend to elicit
from Mr. Romero on direct examination. See ECF 459 at 20-21. Among other things, Defendants
now disclose regarding Mr. Romero that:
c.
He will testify that UPM did not configure its SIM
management software to mimic or simulate human behavior. To
the contrary, it configured the software to randomly select a SIM
and then place calls over that SIM essentially continuously until
the SIM was cut off by Digicel-Haiti.
d.
He will testify that UPM’s objective regarding SIM
management was to complete as many calls as possible using a
SIM before it was cut off. He will testify that while he did not
know what processes Digicel-Haiti used to identify UPM’s SIMs,
Digicel-Haiti was extremely efficient at identifying and cutting off
the SIMs. This fact made it impractical for UPM to try to manage
the calling pattern associated with any SIMs, because any delay in
making use of a SIM created too much risk that the SIM would be
cut off while it still had substantial funds in its account. Instead, as
noted above, UPM’s SIM management software was configured to
send as many calls as possible, one after another, using a given
SIM.
Id. at 21. The Court will allow Mr. Romero to testify at trial provided that Defendants promptly
make Mr. Romero available to Plaintiffs for deposition.

PAGE 28 – OPINION AND ORDER

VI. CONCLUSION
IT IS SO ORDERED.
DATED this 28th day of October, 2022.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 29 – OPINION AND ORDER