On May 18, 2012, the court heard argument on the parties' respective motions in limine. (ECF 167.) Ronald Kohut and Stephen Lau appeared for defendant AT&T Mobility, LLC; John Zarian appeared for plaintiff Gen. Charles Yeager. The court granted plaintiff's motion 4 (ECF 132), but otherwise resolves the parties' motions as discussed below, and defers ruling on the motions not mentioned below until trial.
The motions have been decided based on the record presently before the court. Each ruling is made without prejudice and is subject to proper renewal, in whole or in part, during trial. If a party wishes to contest a pretrial ruling, it must do so through a proper motion or objection, or otherwise forfeit appeal on such grounds. See FED. R. EVID. 103(a);
Tennison v. Circus Circus Enters., Inc., 244 F.3d 684, 689 (9th Cir. 2001) ("Where a district court makes a tentative in limine ruling excluding evidence, the exclusion of that evidence may only be challenged on appeal if the aggrieved party attempts to offer such evidence at trial." (alteration, citation and quotation omitted)).
I. Plaintiff's Motions in limine
A. Motion to Exclude Witness Tina Brown (ECF 129)
Plaintiff moves to exclude (1) several exhibits related to AT&T's emergency preparedness, (2) witness Tina Brown and (3) testimony related to AT&T's advertising costs in 2006. AT&T states it will not introduce one of the challenged exhibits and it will not introduce its advertising costs. The disputed testimony and exhibits center on the hurricane season of 2005 and its effects on the Gulf South in order to show the context of the press release at issue in this litigation. At the hearing, the court denied this motion on the condition the parties set an expedited schedule for the deposition of Ms. Brown. The parties have failed to do so.
"If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." See R & R Sails, Inc. v. Insur. Co. of Penn., 673 F.3d 1240, 1246 (9th Cir. 2012); FED. R. CIV. P. 37(c). Defendant gave all of its proposed exhibits to plaintiff at the Final Pretrial Conference in October. Defendant argues that its failure to provide earlier disclosure is harmless because this litigation has always centered on the nature of the press release as it related to the 2005 hurricane season. Plaintiff objects that he would have pursued discovery differently had defendant's disclosure been properly made and moreover, if discovery is reopened, plaintiff would pursue his own new discovery. At hearing, the court found the presentation of Ms. Brown's testimony and the exhibits would be harmless if plaintiff was offered the opportunity to depose Ms. Brown prior to trial. The court ordered the parties to identify a location and time for Ms. Brown's deposition to occur. Because the parties could not agree on a schedule, the court imposes one. If defendant wishes to preserve its right to call Ms. Brown as a witness, she shall be made available for deposition no later than Thursday, May 31, 2012, at a location of plaintiff's choosing.
B. Motion to Exclude Evidence of Other Lawsuits (ECF 131)
Plaintiff has moved to exclude evidence of other lawsuits as evidence of plaintiff's litigiousness. Defendant contends that other lawsuits are relevant because they relate to an essential element of plaintiff's claims, that plaintiff possesses a protected right in his name. See Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir. 2011) (noting that to prevail, plaintiff must prove it has a protectible ownership interest in the mark). According to defendant, these other actions show that plaintiff has assigned his protected interest in his name to a third party. Plaintiff counters that the other actions are irrelevant because Gen. Yeager's rights to control his publicity are not seriously disputed.
Defendant provides a complaint from 2011 in another action filed by Gen. Yeager wherein he pleads that "Gen. Yeager has assigned and/or is assigning some or all of his rights, title and interest in his name, image and trademarks to [co-plaintiff]." (ECF 147-1 at 4). Defendant provides another complaint where Gen. Yeager is a co-plaintiff with The General Chuck Yeager Foundation in his Lanham Act and trademark claims. (ECF 147-2.) That complaint does not explain what rights The General Chuck Yeager Foundation has, but it does assert that "Gen. Yeager has taken steps to utilize and protect his name identity and image." (Id. at 5.) Defendant also provides an unpublished California Court of Appeal opinion, which recounts the acrimonious fight over assets between members of Gen. Yeager's family wherein the court declined to address whether Gen. Yeager's "life story" rights are personal or whether they are owned by a separate corporate entity, which owns his biography. (ECF 147-3.)
Defendant claims these documents are relevant to show that Gen. Yeager may not be the sole owner of the rights in his "life story" and therefore may not be entitled to prosecute this action. Federal Rule of Evidence 401 defines relevant evidence as that which "has any tendency to make a fact more or less probable than it would be without the evidence; and  the fact is of consequence in determining the action." The documents identified by defendant are of questionable relevance. The latter two in particular, do not make any fact more or less probable.
Whatever probative value admission of these cases may present, such probative value "is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, [or] wasting time." FED. R. EVID. 403. Plaintiff's motion is granted.
C. Motion to Exclude Evidence Controverting Early Findings (ECF 134) Earlier in this litigation, defendant moved for summary judgment on its affirmative defense that the press release at issue does not constitute "commercial speech." (ECF 48.) The court denied defendant's motion, finding the press release in fact did constitute commercial speech. (See ECF 66 at 10-11, 13.) Plaintiff now seeks to exclude any evidence or argument controverting that finding as violating "law of the case doctrine." "Under the 'law of the case' doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case." United States v. Bad Marriage, 439 F.3d 534, 538 (9th Cir. 2006). A denial of a motion for summary judgment does not become law of the case. Dessar v. Bank of America Nat. Trust and Sav. Ass'n, 353 F.2d 468, 470 (9th Cir. 1965).
However, determining whether speech is protected or not is a question of law. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65 (1983); Connick v. Myers, 461 U.S. 138, 148 n.7, 150 n.10 (1983). The court has already addressed this issue at length in its summary judgment order and its denial of defendant's motion for reconsideration. If no new facts could affect the court's earlier findings, the presentation to the jury may be streamlined to dispense with potentially confusing and irrelevant argument. Portsmouth Square v. Shareholders Protective Comm., 770 F.2d 866, 868-69 (9th Cir. 1985) ("If the pretrial conference discloses that no material facts are in dispute and that the undisputed facts entitle one of the parties to judgment as a matter of law," the court ...