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TELEWIZJA POLSKA USA, INC v. ECHOSTAR SATELLITE CORPORATION

October 14, 2004.

TELEWIZJA POLSKA USA, INC. a Delaware Corporation, Plaintiff,
v.
ECHOSTAR SATELLITE CORPORATION, a Colorado corporation, Defendant.



The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Currently before the Court are Plaintiff's 17 Motions in Limine and Defendant's 38 Motions in Limine. The Court will address each party's Motions in turn.

DISCUSSION

  A Motion in Limine should be granted only if the evidence clearly is not admissible for any purpose. See Hawthorne Partners v. AT & T Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D.Ill. 1993). Generally, motions in limine are disfavored. Instead of barring evidence before trial, the preferred practice is to resolve questions of admissibility as they arise. See Scarboro v. Travelers Ins. Co., 91 F.R.D. 21, 22 (E.D.Tenn. 1980). By deferring evidentiary rulings until trial, courts can properly resolve questions of foundation, relevancy, and prejudice. See Hawthorne Partners, 831 F.Supp. at 1401. I. Plaintiff's Motions in Limine

  Plaintiff has filed seventeen separate motions in limine. A number of those motions attack the propriety of allowing Defendant to proceed with several affirmative defenses, based upon the evidence produced — or not produced — during discovery. Because a motion in limine is not the appropriate vehicle for addressing the strength of the evidence or the substance of a complaint, See Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1362 (7th Cir. 1996), the Court denies these motions in a fairly cursory manner.

  In its First Motion in limine, Plaintiff argues that Defendant should be prohibited from arguing that it was entitled to sell subscriptions after the parties' contract was terminated. Plaintiff notes that in Polska USA, Inc. v. Echostar, No. 02-4332, 2003 WL 21579968, (7th Cir. July 7, 2003), the Seventh Circuit reversed the district court's conclusion that the only permissible interpretation of the parties' contract permitted Defendant to sell subscriptions during the post-termination period. In reversing the dismissal of Plaintiff's breach of contract claim, the Seventh Circuit stated that the more natural reading of the parties' contract prohibited Defendant from selling subscriptions to the Polska programming after it received Plaintiff's notice of termination. Plaintiff asserts that the law of the case doctrine bars Defendant from arguing that its conduct (ie, selling subscriptions after the termination of the contract) was permissible, because the Seventh Circuit has held otherwise.

  Law of the case is a judicially created doctrine that seeks to limit repeated appeals of issues that have already been decided. Gertz v. Welch, 680 F.2d 527 (7th Cir. 1982). While a district court is not free to disregard an appellate ruling, the court may rule on issues not directly decided on appeal. Id. at 532 (noting that the law of the case doctrine is not an "immutable rule," depriving the court of jurisdiction over an issue, but is rather a prudential limitation.)

  In this case, the Seventh Circuit found that Plaintiff's Complaint stated a cognizable breach of contract claim. On September 1, 2004, Judge Guzman issued a Memorandum Opinion and Order, finding that Defendant was, nevertheless, "free to argue that it had the right to [sell subscriptions during the post-termination period] because the contract did not explicitly forbid its conduct." Telewizja Polska USA, Inc. v. Echostar Satellite Corp., No. 02 C 3293 (N.D. Ill. Sept. 1, 2004). Because Judge Guzman has decided that the Seventh Circuit's ruling does not prevent Defendant from arguing that its conduct is authorized under the parties' contract, the Motion is denied.

  Next, Plaintiff seeks to exclude evidence and testimony supporting Defendants's counterclaim for tortious interference with prospective economic advantage, in its Second Motion in limine. Plaintiff argues that Defendant should be precluded from presenting such evidence, because Defendant failed to produce any evidence in support of its tortious interference claim. The Court agrees that Defendant should not be permitted to introduce evidence at trial that it refused to produce during discovery. However, the Court finds that Plaintiff's argument here — that the evidence that Defendant has produced is insufficient to support a claim for tortious interference — is better reserved for a summary judgment motion. KRW Sales Inc. v. Kristel Corp., No. 93 C 4377, 1994 WL 75522, at *1 (N.D. Ill. Mar. 8, 1994) (motions in limine should be utilized for resolving evidentiary, not substantive, disputes). Plaintiff's Second Motion in limine is denied.

  Plaintiff seeks to exclude evidence and testimony supporting Defendant's defamation counterclaim, because Defendant has allegedly failed to produce sufficient evidence in support of this claim. Plaintiff is again seeking a substantive ruling on the sufficiency of Defendant's evidence. The Court denies Plaintiff's Third Motion in limine.

  In Motion in limine 4, Plaintiff claims that, because one of Defendant's officers acknowledged that Defendant was withholding revenue payments, Plaintiff's alleged statement that Echostar was "scamming" Polska was not defamatory. Plaintiff is asking the Court to weigh the evidence and determine whether Defendant has enough evidence in support of its defamation counterclaim to warrant a trial. Because Plaintiff is improperly seeking a ruling on the substance of Defendant's defamation claim, Motion in limine 4 is denied.

  Plaintiff seeks to prevent Defendant from introducing at trial amendments to the deposition testimony of Mr. Michael Schwimmer. Federal Rule 30(e) allows a witness to review his deposition transcript and make "`any changes in form or substance'" to the answers. Hawthorne Partners v. AT & T Technologies, Inc., 831 F.Supp. 1398, 1406 (N.D. Ill. 1993) (quoting Lugig v. Thomas, 89 F.R.D. 639, 641 (N.D. Ill. 1981)). The witness must provide a specific reason for each change made; a blanket, conclusory explanation is insufficient. However, "[a] witness can make changes that contradict the original answers, and the reasons given need not be convincing." Hawthorne, 831 F. Supp. at 1406. Courts usually allow such amendments, and stress the fact that these changes can be inquired into on cross examination. Hawthorne, 831 F.Supp. at 1407; Sanford v. CBS, Inc., 594 F.Supp. 713, 715 (N.D. Ill. 1984) (noting that courts typically are reluctant to strike these changes.)

  In the instant case, Mr. Schwimmer is not seeking to directly contradict his deposition testimony, but rather to "explain" or put into context answers given during his deposition. See, e.g., Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000) (noting that, while it seems dubious to permit a deponent to change his testimony from what he said to what he meant to say via subsequent affidavit, Rule 30(e) clearly permits the practice.) While Mr. Schwimmer has offered the identical explanation for each requested change, it is not for the Court "to examine the sufficiency, reasonableness or legitimacy of the reasons for the change" — that is reserved for the trier of fact. Lugtig, 89 F.R.D. at 641. Plaintiff is free to explore the distinctions between Mr. Schwimmer's deposition testimony and amended testimony at trial. Motion in limine 5 is denied.

  In Motion in limine 6, Plaintiff seeks to prevent Defendant from introducing evidence and testimony relating to Defendant's lost profits and lost business. Plaintiff asserts that the evidence is inadmissible, because Defendant failed to produce relevant tax returns, evidence of lost subscription sales, and other responsive evidence. Defendant counters that it has produced all relevant, non-privileged evidence, and notes that Plaintiff's reliance upon Illinois state caselaw is misplaced.

  Defendant's failure to produce its tax returns and other requested evidence prevents Defendant from introducing such evidence at trial. However, there is no rule stating that a tax return is the exclusive method for proving damages or lost business. The issue of whether Defendant will be unable to establish damages absent this evidence should be addressed in a summary judgment motion.

  The cases relied upon by Plaintiff are readily distinguishable, as they involved an Illinois procedural rule not applicable in the instant case, see Hawkins v. Wiggins, 415 N.E.2d 1179 (Ill. App. 1980); Smith v. P.A.C.E., 753 N.E.2d 353 (Ill.App. 2001) (both applying Illinois Supreme Court Rule 237(b)), or a court-imposed sanction for failing to comply with a court's discovery order, pursuant to Federal Rule 37, see Govas v. Chalmers, 965 F.2d 298 (7th Cir. 1992), which cannot be invoked in the instant case, because there has been no court order compelling discovery. See FineLine Distributors, Inc. v. Rymer Meats, Inc., No. 93 C 5685, 1994 WL 376283, at *4 (N.D. Ill. July 15, 1994) ...


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