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BladeRoom Group Ltd. v. Facebook, Inc.

United States District Court, N.D. California, San Jose Division

March 23, 2018

BLADEROOM GROUP LIMITED, et al., Plaintiffs,
FACEBOOK, INC., et al., Defendants.

          ORDER RE: MOTIONS IN LIMINE RE: DKT. NOS. 595, 597, 598, 601-606, 608-611, 614, 616, 618, 620, 622, 624

          EDWARD J. DAVILA United States District Judge.

         Presently before the court are motions in limine. These matters are suitable for decision without oral argument, and as such, the parties should avoid arguing or rearguing them at the upcoming pretrial conference. Civ. L.R. 7-1(b). These rulings remain in effect throughout all phases of the trial, but may be revised by the court at any time.


         A. Plaintiffs' Motions

         Having considered the parties' moving and responding papers, the court rules as follows as to Plaintiffs' motions:

         1. Plaintiffs' first motion to exclude Defendants from presenting any evidence, testimony or argument regarding any trade secrets no longer being asserted or “dropped, ” the timing and sufficient particularity of the trade secret disclosures including the prior summary judgment ruling on Trade Secret 9, and any role Plaintiffs' experts had in narrowing the asserted trade secrets (Dkt. No. 603) is GRANTED.

         Under Federal Rule of Evidence 401, evidence is relevant if: “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Under Federal Rule of Evidence 403, relevant evidence can be excluded “if its probative value is substantially outweighed by a danger of . . . confusing the issues, ” or if it misleads the jury, causes undue delay, or wastes time.

         The court reads this motion to request the exclusion of references at trial to the fact that Plaintiffs reduced the number of trade secrets they assert in this action, and grants it to that extent. Any such evidence on that topic is irrelevant, and its probative value is substantially outweighed by its potential to mislead the jury. But as another court has noted, “[p]recluding references to this fact does not preclude references to the previously asserted claims themselves” to the extent that information is otherwise relevant and not excludable on another basis. Fujifilm Corp. v. Motorola Mobility LLC, No. 12-cv-03587-WHO, 2015 WL 12622055, *3 (N.D. Cal. Mar. 19, 2015)

         The documents referenced in the motion must be excluded for the same reason. Plaintiffs' Identification of Trade Secrets pursuant to California Civil Procedure Code § 2019.210, discovery rulings, summary judgment orders, and the August 9th letter are each irrelevant because the jury will not be charged with deciding the sufficiency of Plaintiffs' trade secret disclosures during this litigation. That issue has been raised and decided by the court several times already, and there is no evidentiary value to these documents outside of potentially misleading and confusing the jury.

         Furthermore, these documents are not relevant to show the “credibility” of any representation by Plaintiffs that they owned trade secrets at the time of any alleged misappropriation or breach of a non-disclosure agreement. Each document was created on a date subsequent to any accused conduct, and as such cannot make Plaintiffs' representations they owned trade secrets years prior - during the relevant period of accused conduct - any more or less probable.

         2. Plaintiffs' second motion to preclude Defendants from using the deposition testimony of Bill Mazzetti for any purpose under Federal Rule of Civil Procedure 32(a)(3), and from referring to Mazzetti as Plaintiffs' managing agent executive, director, employee, or officer (Dkt. No. 604) is GRANTED.

         Federal Rule of Civil Procedure 32(a)(3) permits an adverse party to “use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee . . . .” Mazzetti testified at deposition that he is the Senior Vice President and Chief Engineer for Rosendin Electric. Since there is no evidence to show Mazzetti was Plaintiffs' officer, director, managing agent or designee when he was deposed, his deposition cannot be used under Rule 32(a)(3).

         3. Plaintiffs' third motion to exclude evidence, testimony, or argument relating to Marco Margarelli's SY-MOD-CHASIS-8x360.dwg “chasis” drawing being created before August, 2012 (Dkt. No. 614) is DENIED.

         Federal Rule of Civil Procedure 26(e) requires parties to supplement or correct disclosures or discovery responses unless “the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” In turn, Federal Rule of Civil Procedure 37(c)(1) provides that “[i]f 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.” Once a Rule 26 violation is shown, the exclusion of evidence is “automatic and mandatory” (Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996); Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011)), unless the party facing sanctions proves “that its failure to disclose the required information was substantially justified or is harmless.” R&R Sails, Inc. v. Ins. Co. of the State of Pa., 673 F.3d 1240, 1246 (9th Cir. 2012).

         Here, a Rule 37(c) exclusion sanction is not justified because Plaintiffs have not established that Defendants failed to provide or supplement their discovery responses with Magarelli's drawing or its embedded information; to the contrary, Defendants actually produced the evidence in its native format. That Plaintiffs did not access the electronic file it in a program capable of revealing the “created” date advocated by Defendants is beside the point.

         Moreover, the probative value of this evidence is outweighed by any prejudice to Plaintiffs, particularly since Plaintiffs can cross-examine Magarelli concerning the drawings, and when he allegedly created them, at trial.

         4. Plaintiffs' fourth motion to exclude Defendants from presenting any evidence, testimony, or argument relating to any alleged breach of or alleged failure to perform by Plaintiffs under the non-disclosure agreements between Plaintiffs and Defendants (Dkt. No. 605) is GRANTED IN PART and DENIED IN PART.

         Facebook represents it will not use evidence alleging that Plaintiffs' breached the non-disclosure agreement to support an unclean hands defense (which defense was removed by summary judgment in any event) and will stipulate to make no mention of Plaintiff's “breach or failure to perform or use Paul Rogers' testimony for that purpose.” For its part, the Emerson Defendants do not oppose this motion with respect to excluding evidence relating to Plaintiffs' breach of the non-disclosure agreement. This motion is granted to extent consistent with Defendants' representations and offer to stipulate.

         However, the court agrees with Defendants that the requested order, to exclude “any evidence . . . or argument relating to any alleged breach of or alleged failure to perform by Plaintiffs” is overbroad. Since evidence “relating” to any alleged breach or failure to perform may be relevant to other issues, the motion is otherwise denied.

         5. Plaintiffs' fifth motion to exclude Defendants from presenting any evidence, testimony, or argument regarding Plaintiffs' supposed plan to sue Facebook for patent infringement, including but not limited to all evidence or argument regarding “Project Bob” (Dkt. No. 606) is GRANTED.

         Facebook contends the “Project Bob” evidence is relevant to contract formation. Specifically, Facebook states that “Plaintiffs' motivations for entering into the [non-disclosure agreement], and thereafter pursuing Facebook's business via receipt of extensive amounts of Facebook's confidential data center design information, are relevant to contract formation and the overarching dispute, and therefore, for the jury to understand.” It appears based on this statement and the related footnote that Facebook intends to introduce “Project Bob” evidence to support an argument that Plaintiffs had an undisclosed intention to obtain Facebook's confidential information and then use ...

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