Orchestrate HR Inc v. Trombetta et al

Filing 412

MEMORANDUM OPINION AND ORDER granting in part and denying in part 395 Motion in Limine; granting in part and denying in part 396 Motion in Limine; denying 407 Motion to Amend/Correct. (Ordered by Judge Keith Starrett on 1/20/2017) (chmb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ORCHESTRATE HR, INC. and
VIVATURE, INC.

PLAINTIFFS

v.

CIVIL ACTION NO. 3:13-CV-2110-KS

ANTHONY L. TROMBETTA, THE
BORDEN-PERLMAN INSURANCE
AGENCY, INC., KELLY MYERS, and
DAVE ICENEHOWER

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion In Limine [395] and Defendants’
Motion In Limine [396]. After considering the submissions of the parties, the record, and the
applicable law, the Court finds that both motions should be granted in part and denied in part.
I. LEGAL STANDARD
“Evidence should not be excluded in limine unless it is clearly inadmissible on all potential
grounds.” Rivera v. Salazar, No. C-04-552, 2008 WL 2966006, at *1 (S.D. Tex. July 30, 2008)
(citing Hawthorne Partners v. AT&T Tech., Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993).
Requests for broad in limine exclusions are better deferred until trial “so that questions of
foundation, relevancy and potential prejudice can be resolved in proper context.” Id. (citing
Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975)). Denial of a motion
in limine does not mean automatic admission at trial; rather, it “merely means that without the
context of trial, the court is unable to determine whether the evidence in question should be
excluded.” Id. (quoting Hawthorne, 831 F.Supp. at 1401).
Each party has moved for multiple categories of evidence to be excluded. The Court will
address each separately.

II. PLAINTIFFS’ MOTION IN LIMINE [395]
1.

Mention of this motion

Both parties have requested that reference to motions in limine be excluded, and the Court
will therefore grant Plaintiffs’ motion as to this point.
2.

Mention of testimony of absent and unavailable witnesses

Without this testimony before the Court, it is impossible to determine whether a hearsay
exception exists for any testimony of an unavailable witness. The motion will be denied as to this
issue.
3.

“Any statement which tends to inform or advise the jury, or the jury panel, of
the effect of their answers to the questions posed in the Court’s charge or any
instruction related thereto”1

The Court is unclear what Plaintiffs are asking be precluded and will therefore deny the
motion as to this point.
4.

Questions about preliminary matters

Plaintiffs ask that all parties not ask questions about preliminary matters in front of the
jury. Though the Court does not see how all such questions would be prejudicial, because
Defendants have agreed to approach the bench regarding such matters, the motion will be granted
with regards to this issue.
5.

Voir dire questions about following the law

Plaintiffs ask that parties be excluded from asking whether a member of the venire can
follow the law with respect to any issue that might arise during voir dire, as such questions are
“improper commitment questions.” The Court feels that it is more than relevant at the voir dire

Plaintiffs ask that “any party” be precluded from making such a statement. Like in every point in their Motion In
Limine [395], Plaintiffs merely give a conclusory statement that this type of statement and cite authority they claim
supports it. Here, they unhelpfully and erroneously cite Federal Rules of Civil Procedure 401-403, which the Court
assumes is meant to be Federal Rules of Evidence 401-403, as well as a case dealing with jury interrogatories.
1

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stage to ascertain whether a potential juror can follow the law in connection to a pertinent issue,
and the motion will be denied as to this point.
6.

Comments as to what the law should be

Plaintiffs ask that all comments as to what the law should be, be precluded from trial.
Obviously, questions of the law are outside of the purview of the jury, and no comment should be
made that undermines the Court’s instructions to the jury as to the law. The motion will therefore
be granted as to this issue.
7.

Comments that lead jury to believe there are facts they are not being told

Plaintiffs request that the Court preclude any comment, reference, or statement that might
lead the jury to believe that there are matters concerning this suit that are not being told to them.
This is an extremely broad request as any objection made at trial and in the presence of the jury
could potentially lead the jury to believe that they were not being told something. Because of its
overbreadth, the motion will be denied as to this point.
8.

Mention of mediation or settlement negotiations

Insofar as this point merely seeks enforcement of Federal Rule of Evidence 408, which
prohibits evidence of compromise negotiations in most cases, the motion will be granted in this
point. However, it will be denied in that the exceptions listed in Rule 408 will also be enforced.
9.

Mention of potential court review of verdict

Plaintiffs ask that all parties be precluded from mentioning to the jury that the Court could
review their verdict on motion or that an appellate court could review it on appeal. Because such
comments are highly irrelevant and inappropriate, the Court is sure that no party would attempt to
make them. However, as a precautionary measure, the motion will be granted on this issue.

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10.

Arguments that the jury should place itself in a party’s position

Plaintiffs request that no argument or comment be made that the jury should place
themselves in a party’s position.

The Court finds that such arguments and comments are

inappropriate and will therefore grant the Motion In Limine [395] with respect to this point.
11.

Reference to any counsel’s conduct

Plaintiffs ask that any reference to any counsel’s conduct during this litigation be excluded.
This request is odd, though, because Plaintiffs vehemently argue that such conduct is relevant to
the jury’s determination of the reasonableness of their attorneys’ fees in their Response [401] to
Defendants’ Motion In Limine [396], as this is a jury issue under Texas law.2 Plaintiffs cannot
have it both ways.

The Court agrees that the conduct of all counsel is irrelevant in the

determination of liability and damages in this case and will grant Plaintiffs’ motion as to this issue.
However, it will be denied in that counsel’s conduct could be relevant to the reasonableness of
attorneys’ fees, but only in connection to the instances where attorneys’ fees have not already been
awarded.3
12.

Undisclosed evidence

Plaintiffs ask that any undisclosed evidence be excluded. Again, Plaintiffs argue for the
opposite in their Response [401] to Defendants’ motion. Under Federal Rule of Civil Procedure
37(c)(1), if a party fails to make a required disclosure under Rule 26(a) or (e), they are precluded
from using the information or witness at trial “unless the failure was substantially justified or is
harmless.” The Court will therefore grant in part and deny in part Plaintiffs’ request and exclude

The Court would note that, unless there is an objection by either party, any determination of reasonable attorneys’
fees or punitive damages will likely occur in a bifurcated proceeding.
3
Most of the instances of arguably bad conduct by counsel in this case have resulted in motions for sanctions or
motions to compel, for which attorneys’ fees were awarded. The Court will not allow the rehashing of these issues to
be done in front of a jury.
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any undisclosed evidence unless it was not required to be disclosed or unless the failure to disclose
was substantially justified or harmless.
13.

Statements about the burden of proof or the basic legal definitions

Plaintiffs request that any statements as to the law regarding burden of proof or other basic
legal definitions be precluded until the Court rules on the law applicable in this case. This is a
burdensome request, as the Court is not likely to issue any substantive statements on the law until
it instructs the jury and there are some statements of the law which are so basic and undisputed
that precluding them would be overbroad. Additionally, the Court will deliver burden of proof
during voir dire. The Court will deny the motion as to this point.
14.

Counsel’s opinion as to credibility of a witness

Plaintiffs ask that counsel be precluded from commenting as to their opinion of a witness’s
credibility. Though credibility of a witness is ultimately for the jury to decide, counsel is in no
way prohibited from disparaging that credibility in their opening statements or closing arguments.
Though there are, of course, some comments that could cross the line and be objectionable, the
Court is hesitant to issue a blanket ruling prohibiting “personal opinions” as to credibility. The
jury will be instructed that they alone are the judges of a witness’s credibility, and counsel for both
sides are urged to consider the appropriateness of their statements to the jury. However, the Court
finds that the motion as to this point should be denied.
15.

Comments that award can be reduced by the Court

Plaintiffs request that no comment be made to the jury that the Court can reduce their award
by motion as a matter of law. Again, though this is an obviously inappropriate comment that the
Court does not feel counsel for either side would make, the motion will be granted as to this issue
out of precaution.

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16.

Mention of or reference to legal opinions of the parties, counsel, or witnesses

Plaintiffs and Defendants have agreed that such legal opinions should be excluded, with
the exception of allowing Defendants’ reference to seeking legal opinions from Fox-Rothschild
and allowing Defendants to reference that witnesses invoked their Fifth Amendment rights
pursuant to advice of counsel. The motion will therefore be granted in part and denied in part
with respect to this issue, as agreed upon by the parties.
17.

Statements that the jury can base their verdict on anything but the evidence

Plaintiffs ask that the Court preclude any statement or comment implying that the jury can
base their verdict on anything but the evidence. Any such statement or comment would be
inappropriate and, though the Court does not believe either counsel would make them, the motion
will be granted as to this point as a precaution.
18.

Comments about timely service of trial exhibits

Plaintiffs request that no comment, statement, or question is made that might suggest that
trial exhibits were not timely exchanged as required by the Court. In the event that a trial exhibit
is not timely exchanged, though, and a party attempts to introduce such an exhibit, the Court will
not preclude opposing party from objecting. Defendants, however, have agreed that if this issue
comes up at trial, they will approach the bench and will not refer to it in open court. Because of
this agreement, the Court will grant the motion as to this issue.
19.

Comments that a witness was not properly disclosed

Similarly, because Defendants have agreed that any disclosure issue regarding witnesses
will be addressed by approaching the bench, the Court will grant the motion as to Plaintiff’s
request this issue as well.

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20.

Comments about nondisclosed expert opinions

For the same reasons as above, see supra Part II.19, the motion will be granted as to this
point by agreement.
21.

Use of exhibits or deposition testimony during opening or voir dire

Parties have agreed not to publish, display, quote, or read from any exhibit or deposition
testimony during voir dire or opening statements. Because of this agreement, the Court will grant
Plaintiffs’ motion as to this issue.
22.

Comments about video depositions

Plaintiffs ask that any comments about the editing of video depositions be precluded at
trial. The Court agrees that such comments should not be made to the jury and will grant the
motion as to this point.
23.

Demonstrative aids during voir dire

Demonstrative aids are not typically allowed in voir dire, and Defendants have given no
reason why an exception should be made in this case. As such, the motion will be granted as to
this issue.
24.

Mention of other lawsuits

Plaintiffs asks that mentions of other lawsuits involving the parties or their affiliates or
owners be excluded, arguing that any such reference would be more prejudicial than probative.
The operative question under Federal Rule of Evidence 403, though, is whether any probative
value is substantially outweighed by potential prejudice. Plaintiffs have not attempted to argue
this, and, because one of the allegedly defamatory statements concerns accusations of
embezzlement and fraud, the Court finds that these lawsuits may in fact have substantial probative
value. The motion will therefore be denied as to this issue.

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25.

References to dicta in this Court’s orders

Plaintiffs request that any mention of dicta from this Court’s orders be precluded from trial
as more prejudicial than probative. Plaintiffs once again fail to argue the correct standard under
Rule 403, which requires the risk of unfair prejudice to substantially outweigh probative value.
Even had they correctly argued this point, though, the Court would still be hesitant to issue such a
ruling. The docket in this action is extensive, and the Court has issued many orders. It is
impossible to ascertain the probative value, if any, of any dicta that might have been in these
orders, and therefore impossible to make a judgment at this point in time whether that probative
value would be substantially outweighed by prejudice to the opposing party. As such, Plaintiffs’
motion will be denied as to this issue.
26.

Audits done by Administrative Concepts, Inc.

Plaintiffs argue that the audits done by Administrative Concepts, Inc., and any reference to
them, should be excluded from trial as inadmissible hearsay. However, the contents of these audits
are admissible, provided that all of the requirements of Federal Rule of Evidence 803(6) are met,
as Arch Insurance’s records of regularly conducted activity.4 Furthermore, the fact that audits took
place at the direction of Arch is not hearsay as defined by Rule 801, as reference to the audits
would not be offered to show the truth of their contents but rather that Arch directed an audit of
Plaintiffs’ work and made an independent decision. As such, the Plaintiffs’ motion will be denied
as to this point.

Rule 803(6) does not, as Plaintiffs argue, require Defendants to submit to them or the Court a “business records
affidavit” prior to the introduction of the evidence.
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III. DEFENDANTS’ MOTION IN LIMINE [396]
Defendants have filed a Motion to Amend/Correct [407] their Motion In Limine [396].
Because this motion was filed after Plaintiffs’ Response [401], the Court does not find that it
should be considered and will accordingly deny it.
1.

Evidence of future lost income

Defendants argue that evidence of future lost income must be excluded from trial as they
are special damages which should have been specifically pleaded as required by Federal Rule of
Civil Procedure 15. As Rule 15 deals with amended and supplemental pleadings, the Court
assumes Defendants mean Federal Rule of Civil Procedure 9, which requires special damages to
be specifically pleaded. However, Defendants have given the Court no authority that would
establish that future lost income in this instance would necessarily be classified as special damages.
In contrast, Plaintiffs have offered authority that lost profits could be viewed as direct damages, as
losses on the contract itself, or consequential damages. See Mood v. Kronos Prods., Inc., 245
S.W.3d 8, 12 (Ct. App. Tex. 2007). As the burden is on Defendants as the movants to demonstrate
that these damages are special damages in the instant case, the Court will deny their motion as to
this point.
2.

Evidence of gross negligence of Trombetta

Defendants ask that evidence or argument that Defendant Anthony Trombetta committed
any act of gross negligence be excluded as Plaintiffs have not properly pleaded any cause of action
based on gross negligence. Plaintiffs have, however, pleaded a cause of negligence against
Trombetta, as well as a claim for punitive damages in connection with all of his causes of action.
As punitive damages can only be awarded for a negligence claim if there is gross negligence, 5

5

Under Texas law, punitive damages can only be awarded in cases of fraud, malice, or gross negligence. Tex. Civ.
Prac. & Rem. Code § 41.003. Malice and fraud are not present in a negligence claim.

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Plaintiffs have pleaded gross negligence, even if they did not specifically state the term in their
complaint. As such, Defendants’ motion will be denied as to this issue.
3.

Evidence of defamatory statements by specific colleges

Defendants ask that any evidence of allegedly defamatory statements made to the following
colleges be excluded as they were not revealed in an appropriate deposition under Federal Rule of
Civil Procedure 30(b)(6): Union College, Youngstown State University, Delta State University,
Tiffin University, Cleveland State University, Christopher Newport University, University of
Louisiana-Lafayette, Samford University, Glenville State University, and Valdosta State
University. Plaintiffs argue that Defendants are attempting to bind them to their corporate
representative’s deposition. The Court does not read Defendants’ motion this way. Instead,
Defendants are attempting to bind Plaintiffs to those defamatory statements that were testified to
in any deposition under Rule 30(b)(6). The Court finds that this is an appropriate limitation.
Though the depositions of representatives from the listed schools, if they took place, are not before
the Court for review, we will grant Defendants’ motion with respect to those schools that were
not deposed and those that were but whose representatives did not testify to any defamatory
statements. We will deny it as to those of the listed schools which Plaintiffs can show were
deposed and whose representatives did testify to defamatory statements.
4.

Evidence of future damages calculated using market share analysis or similar

Defendants ask that any testimony or reference to future damages as a market share analysis
or similar analysis be excluded as not timely disclosed and as inadmissible under Southwestern
Energy Production Co. v. Toby Berry-Helfand and Gery Muncey, 491 S.W.3d 699 (Tex. 2016).
To the extent that this type of analysis was not timely disclosed, it will be excluded at trial under
Federal Rule of Civil Procedure 37(c)(1) unless the failure to disclose was substantially justified

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or harmless. In that respect, the Court will grant in part and deny in part Defendants’ motion as
to this issue. However, insomuch as the motion seeks to object to an expert opinion that has been
timely disclosed as inadmissible under Southwestern Energy, the Court will deny the motion as
all challenges to expert opinions were due April 14, 2016.6
5.

Undisclosed opinion testimony of Bass

Defendants ask that Muzzy Bass, designated as an expert by Plaintiffs, be precluded from
offering previously undisclosed opinion testimony. Plaintiffs argue that some such undisclosed
opinions were not required to be disclosed in a supplement. Without these opinions before the
Court, it is impossible to tell if they were required to be disclosed in a supplement under Federal
Rule of Civil Procedure 26(e). However, if they were, Rule 37(c)(1) instructs the Court to exclude
them unless the failure to disclose was substantially justified or harmless. Accordingly, the Court
will grant in part and deny in part Defendants’ motion under this point. It will be granted in
that those opinions which should have been properly disclosed in a supplement will be excluded
unless the failure to disclose was substantially justified or harmless. It will be denied as to those
opinions for which a supplement was not necessary or for which the failure to disclose was
substantially justified or harmless.
6.

Undisclosed evidence of damages

Defendants request that undisclosed evidence of damages for a number of categories be
excluded from trial, including the following: Trombetta contract damages, revenue from billing
student health centers, revenue from billing for counseling, revenue from other billing, and revenue
from re-pricing for years after 12-13. Federal Rule of Civil Procedure 26(a)(1)(A)(iii) required

6

Though the deadline to depose expert witnesses was extended to May 17, 2016, it does not appear that the deadline
for challenges to expert witnesses was extended. Regardless, the deadline expired months ago and will not be revived
on the eve of trial.

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Plaintiffs to provide Defendants with “a computation of each category of damages . . . [and] the
documents or other evidentiary material . . . on which each computation is based.” Importantly,
such disclosures are required to be made “without awaiting a discovery request,” making
Plaintiffs’ arguments that Defendants never sought this evidence inconsequential. Fed. R. Civ. P.
26(a)(1)(A). Under Rule 37(c)(1), failure to make this disclosure is grounds for exclusion unless
the failure was substantially justified or harmless. Defendants have not shown that their failure
was substantially justified, and the Court cannot find that the failure to disclose the documentation
underlying calculations of damages to be harmless. Therefore, the Court will grant Defendants’
motion as to this point, and any damages calculations in the listed categories which are based on
documentation not disclosed to Defendants will be excluded.
7.

Bass’s opinion that “Plaintiffs’ damage models, in this case, are reasonable
and supportable”

The Court will further grant in part and deny in part Defendants’ request that Bass’s
opinion that “Plaintiffs’ damage models, in this case, are reasonable and supportable.” Bass will
be allowed to give such an opinion, but only to those damage models which do not include the
excluded damages as outlined above.
8.

Arguments that Borden-Perlman, Myers, or Icenhower have committed gross
negligence or an intentional tort

Defendants argue that any argument or reference to Borden-Perlman, Kelly Myers, or Dave
Icenhower having committed an act of gross negligence or an intentional tort be excluded. While
negligence has not been pleaded against any of these defendants, all of them have at least one
intentional tort pending against them. As such, the Court will grant in part and deny in part
Defendants’ motion on this issue. It is granted in that gross negligence should be excluded as to
these defendants. It is denied in that there are intentional torts pending against them.

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9.

Opinions of Wood

Defendants argue that specific opinions of Scott Wood, Plaintiffs’ expert, should be
excluded as the bases of those opinions were not disclosed to them. This is a challenge to Wood’s
expert report that should have been brought as a Daubert motion or motion to exclude.7 As these
types of challenges were due months ago, the Court will not allow them now on the eve of trial.
The Motion In Limine [396] will therefore be denied as to this issue.
10.

Invocation of the Fifth Amendment by Myers, Icenhower, or any defendant

During their depositions, Myers and Icenhower invoked the Fifth Amendment in response
to questions related to recorded meeting with representative from Arch Insurance.8 Plaintiffs argue
that there is no prejudice in commenting on these invocations because there is no constitutional
problem with such comments.

While there may not be a constitutional problem, though,

Defendants are correct that comments about invoking the Fifth Amendment could be unfairly
prejudicial to them under Federal Rule of Evidence 403 because of the necessary implication of
criminal activity. The only probative value of the invocations by Myers and Icenhower appears to
be for impeachment purposes.

The Court finds that the risk of prejudice to Defendants

substantially outweighs this probative value and will grant the motion with respect to this issue.
Any reference to Defendants’ prior invocations of the Fifth Amendment will be excluded under
F.R.E. 403. However, should Plaintiffs be able to show that this evidence is more probative, such
as if Defendants “refuse[] to answer questions at trial or answer[] questions differently at trial,”

Though Defendants contend that this argument was previously brought in Plaintiffs’ Motion to Strike [307], the
Court reads it as a new argument. Regardless of whether it was brought previously, it will not be allowed now.
8
New Jersey, the state Defendants live and work, has a one-party consent wiretapping law. Pennsylvania, where the
meeting took place, has a two-party wiretapping law. In recording this meeting, then, Defendants may have run afoul
of Pennsylvania criminal law.
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the Court is willing to reconsider this ruling. See Harrel v. DCS Equip. Leasing Corp., 951 F.2d
1453, 1464-65 (5th Cir. 1992).
11.

Use or mention of the recording of the meeting on May 16, 2013

Defendants argue that the recording of the meeting on May 16, 2013, which involved
Borden-Perlman, Arch Insurance, and ACI, should be excluded as prejudicial, irrelevant, and
violative of Pennsylvania law. The contents of the recording are relevant under Federal Rule of
Evidence 401, as it contains allegedly defamatory statements made by agents of Borden-Perlman.
While the Court recognizes that the creation of the recording and its potential violation of
Pennsylvania criminal law might be unfairly prejudicial to Defendants, the recording itself is not.
The Court therefore does not find that exclusion of any use or mention of the recording is
appropriate and will deny Defendants motion as to this point.
12.

Argument that the jury should treat all colleges the same and that evidence
concerning one applies to them all

Defendants ask that the Court exclude any argument that the jury should treat all of the
relevant colleges the same and that any evidence concerning one college applies to all the relevant
colleges. Defendants are correct that Plaintiffs bear the burden at trial of proving their claims and
damages separately as to each school. For example, Plaintiffs cannot use evidence that Defendants
made a defamatory statement to one school to show that the same statement effected another
school’s decision to not do business with them unless they first connect that statement to that
school. The Court will therefore grant Defendants’ motion with respect to this point.
13.

Damages evidence regarding schools other than Rider University, University
of Arkansas-Pine Bluff, and the University of Southern Indiana

Defendants ask that Plaintiffs be precluded from offering any damages evidence other than
those connected to Rider University, University of Arkansas-Pine Bluff, and the University of

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Southern Indiana. This is based on a misreading of the Court’s previous Order [372], which
dismissed the tortious interference of contract claims against Borden-Perlman with respect to all
other schools. However, there are other claims pending against Defendants for which damages
from other schools could be considered. As such, the Court will deny Defendants’ Motion In
Limine [396] as to this issue.
14.

Punitive damages, fraud, malice, or gross negligence

Defendants ask that all evidence or argument regarding punitive damages, fraud, malice,
or gross negligence be excluded. Because punitive damages are still pending against Anthony
Trombetta, the motion will be denied with respect to arguments or evidence of punitive damages,
fraud, malice, or gross negligence against him.
Though Defendants are correct in that the Court dismissed the punitive damages claims
against Borden-Perlman, Kelly Myers, and Dave Icenhower for Plaintiffs failure to adduce
evidence of malice or fraud, Plaintiffs are also correct in that the Court found Defendants failed to
meet their burden on their affirmative defense in showing that they acted without malice. (See
Order [372] at pp. 17, 26-27.) This leaves evidence of malice relevant to Defendants’ affirmative
defense. As such, the Court will grant in part and deny in part Defendants’ motion as to BordenPerlman, Myers, and Icenhower. It will be granted in that evidence of punitive damages, fraud,
and gross negligence will be excluded. It is denied in that evidence of malice will not be
excluded.9

Plaintiffs are advised, however, that even if they are able to introduce evidence of malice at trial to defeat Defendants’
affirmative defense to their defamation claim, punitive damages will not be available against Borden-Perlman, Myers,
or Icenhower as the claim for punitive damages has already been dismissed with prejudice.
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15.

Treating Orchestrate HR, Inc., and Vivature, Inc., as the same

Defendants argue that Plaintiffs should be precluded for arguing that Orchestrate HR, Inc.,
and Vivature, Inc., should be treated the same and that any damages suffered by one is evidence
of damages for the other. Orchestrate and Vivature are two separate legal entities and are both
separate plaintiffs in this action. It is elementary that each plaintiff must prove its own damages.
Though elements of each plaintiff’s damages may overlap, this requirement remains. Orchestrate
and Vivature are separate entities, and Plaintiffs will not be allowed to use them interchangeably.
However, because damages to one could be evidence of damages to another, the Court will not
issue a blanket ruling stating that Plaintiffs cannot make such an argument. Defendants’ Motion
In Limine [396] will therefore be granted in part and denied in part with respect to this issue. It
is granted in that Plaintiffs are required to prove damages for each of the plaintiffs specifically
and are to refrain from using Orchestrate and Vivature interchangeably. It is denied in that
evidence of damages to one may possibly be used as evidence of damages to the other where
damages overlap.
16.

Testimony, evidence, or reference to attorneys’ fees without segregating by
cause of action

Defendants ask that any testimony, evidence, or reference to attorneys’ fees that have not
been segregated by cause of action be excluded. Under Texas law, “[u]nsegregated attorney’s fees
for the entire case are some evidence of what the segregated amount should be.” Tony Guillo
Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006) (citing Stewart Title Guar. Co. v.
Sterling, 822 S.W.2d 1, 12 (Tex. 1991)). As such, Defendants’ motion will be denied as to this
point.

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17.

Trombetta’s admission of perjury

Defendants seek to have excluded from evidence Anthony Trombetta’s admission of
perjury in his deposition, as they claim the definition given to him was not the correct definition
of perjury. Prior statements made by a defendant are proper impeachment evidence. Any
misconceptions about Trombetta’s statements can be addressed on re-direct. The Court does not
find that these statements should be excluded despite any potential “bullying” tactics by counsel
during the deposition as they are statements made by Trombetta. As such, the Motion In Limine
[396] will be denied as to this point.
18.

References to depositions with pending objections

Defendants ask that Plaintiffs be precluded from making references to depositions, in
particular portions opining that statements made by others were “lies” or perjury, before the
objections to those depositions are ruled upon by the Court. Ordinarily, the Court would issue
rulings as to these objections in advance of trial. However, given the many depositions parties
intend to introduce at trial, this may not be feasible. The Court will therefore grant Defendants’
motion with respect to this point and prohibit all parties from commenting on any portion of a
deposition to which a pending objection has been made until such a time when the Court rules on
that objection.
19.

Trombetta’s spoliation of evidence

Defendants request the Court preclude Plaintiffs from arguing that Anthony Trombetta
spoliated evidence.

Plaintiffs do not object to the exclusion of spoliation and its legal

ramifications. The motion will therefore be granted with respect to this point.10

10

This ruling does not preclude evidence that Trombetta deleted emails or otherwise destroyed evidence.

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20.

Trombetta hiding or destroying documents belonging to Plaintiffs

Defendants ask that any testimony or reference that Anthony Trombetta hid or destroyed
contracts or documents belonging to Plaintiffs because no evidence has been presented that these
acts were committed. The Court is unsure which contracts or documents Trombetta is alleged to
have hid or destroyed that belonged to Plaintiffs other than the emails they argue he deleted, for
which there appears to be evidence. Because the Court is not sure what it would be excluding, the
motion will be denied as to this point. Defendants are welcome to re-urge this point, though, if
and when it becomes relevant at trial.
21.

Expert opinions of Bass

Defendants argue for the exclusion of certain expert opinions of Muzzy Bass. Challenges
to expert opinion testimony were due months ago. The Court will not entertain such challenges
now on the eve of trial. The motion will therefore be denied as to this issue.
22.

Expert opinions of Wood

Similarly, Defendants also argue for the exclusion of certain expert opinions of Scott
Wood. For the same reasons, the Motion In Limine [396] will be denied as to this point.
23.

Reference to any counsel’s conduct

Defendants seek to exclude all reference to any alleged litigation misconduct, including the
numerous discovery disputes and sanctions during the course of this litigation. Discovery disputes
are not relevant to any issue to be decided by the jury, and any relevance they may have for
impeachment purposes are substantially outweighed by the risk of unfair prejudice. Defendants’
conduct during the litigation will therefore be excluded under Federal Rules of Evidence 401 and
403.

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Furthermore, as stated above, see supra Part II.11, the Court agrees that the conduct of all
counsel in this case is irrelevant in the determination of liability and damages, and Defendants’
motion will also be granted as to this issue. However, it will be denied in that counsel’s conduct
could be relevant to the reasonableness of attorneys’ fees, but only in connection to the instances
where attorneys’ fees have not already been awarded.11
24.

Defendants’ opposition to a jury trial

Plaintiffs have stated that they have no objection to the exclusion of Defendants’ opposition
to a trial by jury, provided Defendants are precluded from arguing that Plaintiffs did not want a
judge to decide the case. By agreement, then, the Court will grant Defendants’ motion with
respect to this point, and neither side will be permitted to comment on the other’s preferred
factfinder.
25.

References that Defendants “stole” information or income

Defendants argue that Plaintiffs should be prohibited from saying that they “stole”
information or income as there is no accusation or evidence of theft. This is a semantic argument
that is not a proper basis for exclusion at this stage. Their Motion In Limine [396] will therefore
be denied as to this point.
26.

Reference to the first affidavit of Myers

Defendants seek to exclude any reference to the first affidavit of Kelly Myers as it was
subsequently amended. Prior statements are proper impeachment evidence. Any clarification of
these statements can be addressed on proper re-direct. As such, Defendants’ Motion In Limine
[396] will be denied as to this affidavit.

11

Again, most of the instances of arguably bad conduct by counsel in this case have resulted in motions for sanctions
or motions to compel, for which attorneys’ fees were awarded. The Court will not allow the rehashing of these issues
to be done in front of a jury.

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27.

Previous motions and rulings

As Plaintiffs argue, previous motions and rulings in this case could be relevant to a
determination of reasonable attorneys’ fees.

However, there are some motions for which

attorneys’ fees have already be awarded. As such, the Court will grant the Motion In Limine [396]
as to this point with respect to those motions where attorneys’ fees have already been granted. It
will be denied, however, as to the attorneys’ fees in connection to other motions. Parties are
advised, though, that the relevancy of the previous motions and orders in this case is limited to a
determination of reasonable attorneys’ fees and will not be admitted for any other purpose.
28.

Trombetta’s sexual relationship with Hope Parker

Parties agree to exclude any evidence of Anthony Trombetta’s sexual relationship with
Hope Parker.
29.

Sandra Liser’s professional conduct

Sandra Liser’s professional conduct during this litigation, like the conduct of all counsel in
this case, is irrelevant in the determination of liability and damages, and Defendants’ motion will
also be granted as to this issue. However, it will be denied in that counsel’s conduct could be
relevant to the reasonableness of attorneys’ fees, but only in connection to the instances where
attorneys’ fees have not already been awarded.12
30.

Reference to Liser’s first affidavit

Plaintiffs have agreed to this point of Defendants’ motion, and the Court will grant it as
agreed.

12

Again, most of the instances of arguably bad conduct by counsel in this case have resulted in motions for sanctions
or motions to compel, for which attorneys’ fees were awarded. The Court will not allow the rehashing of these issues
to be done in front of a jury.

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31.

Maldonado affidavit

Defendants argue that the affidavit of David Maldonado must be excluded from evidence
as hearsay. Plaintiffs do not attempt to argue that this affidavit is not hearsay, but state that their
experts are allowed to offer opinions based on hearsay and to disclose hearsay for the purpose of
sworn testimony. Though “[a]n expert is permitted to disclose hearsay for the limited purpose of
explaining the basis for his expert opinion,” he is not allowed to offer it “as general proof of the
truth of the underlying matter.” Fox v. Taylor Diving & Salvage Co., 694 F.2d 1349, 1356 (5th
Cir. 1983). To the extent that Plaintiffs are attempting to offer the Maldonado affidavit for the
truth of the underlying matter, Defendants’ motion will be granted as to this point, as it is hearsay
to which no exception applies. To the extent that Plaintiffs’ experts will be permitted to use it “for
the limited purpose of explaining the basis” for their opinions, it will be denied.
32.

Affidavit of Lengle

Defendants make the same argument for the affidavit of Tim Lengle. Plaintiffs argue that
Lengle’s affidavit is admissible under Federal Rule of Evidence 1006 as a summary of his
deposition testimony. The Court knows of no precedent stating that a single deposition can be said
to fall under F.R.E. 1006’s requirement of a “voluminous writing[], recording[], or photograph[]
that cannot be conveniently examined in court.” Furthermore, Plaintiffs have not shown that
Lengle’s deposition is so long that it cannot be offered itself without an affidavit summarizing it.
Plaintiffs cannot, therefore, defeat the hearsay problems with this affidavit through F.R.E. 1006.
To the extent that the affidavit is being offered for the truth of its contents, the Court will grant
the Motion In Limine [396] as to this point, as it is hearsay to which no exception applies. To the
extent that Plaintiffs’ experts will be permitted to use it “for the limited purpose of explaining the
basis” for their opinions, it will be denied.

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33.

Affidavit of Shelton

Defendants and Plaintiffs make identical arguments concerning the affidavit of Thomas C.
Shelton as they do about the affidavit of Lengle. For the same reasons, the Court will grant the
Motion In Limine [396] as to this point, as it is hearsay to which no exception applies. To the
extent that Plaintiffs’ experts will be permitted to use it “for the limited purpose of explaining the
basis” for their opinions, it will be denied.
34.

Affidavit of Davenport

Parties make similar arguments as to the affidavit of Robert Davenport. For the same
reasons, the Court will grant the Motion In Limine [396] as to this point, as it is hearsay to which
no exception applies. To the extent that Plaintiffs’ experts will be permitted to use it “for the
limited purpose of explaining the basis” for their opinions, it will be denied.
35.

Revised video deposition testimony

Defendants ask that reference to any timely revised video deposition testimony be
excluded. While this Court takes a broad approach in allowing the revising of deposition
testimony, as a safeguard, it allows for the original answers to be read at trial. Reilly v. TXU Corp.,
230 F.R.D. 468, 490 (N.D. Tex. 2005). As such, Defendants’ Motion In Limine [396] will be
denied as to this point.
36.

Any alleged violation of the agreed temporary injunction

Plaintiffs have no objection to the exclusion of any alleged violation of Defendants’ part
of the agreed temporary injunction, provided that Defendants are not allowed to reference any
alleged violation of Plaintiffs’ part. The Court will therefore grant Defendants’ motion as to this
point, and no party shall be allowed to reference any alleged violation by the opposing party of the
agreed temporary injunction.

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37.

Undisclosed documents

As stated above, see supra Part II.12, under Federal Rule of Civil Procedure 37(c)(1), if a
party fails to make a required disclosure under Rule 26(a) or (e), they are precluded from using the
information or witness at trial “unless the failure was substantially justified or is harmless.” The
Court will therefore grant in part and deny in part Defendants’ request and preclude any
undisclosed documents unless they were not required to be disclosed or unless the failure to
disclose was substantially justified or harmless.
38.

Displaying or discussing documents not in evidence

Defendants ask that the Court prohibit the displaying or discussing of the contents of any
document not admitted into evidence or whose admissibility is not agreed to by the parties.
Plaintiffs object to this point insofar as it would prohibit their experts from discussing inadmissible
evidence for the limited purpose of explaining the basis of their opinion. The Court agrees that no
evidence should be displayed or discussed in front of the jury unless it has been admitted to
evidence, but also recognizes that experts are allowed to discussed inadmissible evidence for this
limited purpose. The Motion In Limine [396] as to this point will therefore be granted in part
and denied in part accordingly.
39.

References to motions in limine

Both parties agree that no reference should be made to motions in limine, and the Court
will therefore grant Defendants’ motion as to this point.
IV. CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiffs’ Motion In Limine
[395] is granted in part and denied in part as outlined above.

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IT IS FURTHER ORDERED AND ADJUDGED that Defendants’ Motion In Limine [396]
is granted in part and denied in part as outlined above.
IT IS FURTHER ORDERED AND ADJUDGED that Defendants’ Motion to
Amend/Correct [407] is denied.
SO ORDERED AND ADJUDGED, on this, the 20th day of January, 2017.
s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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