United States District Court, N.D. Illinois, Eastern Division
October 14, 2004.
TELEWIZJA POLSKA USA, INC. a Delaware Corporation, Plaintiff,
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.
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
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
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) ("the cases interpreting Rule 37(b) clearly
establish that the Court should only issue sanctions pursuant to
Rule 37(b) for a violation of a court order regarding
The Court will grant Plaintiff's Motion, to the extent that
Plaintiff seeks to preclude Defendant from introducing evidence
that it refused to produce during discovery. But absent evidence
that Defendant's failure to produce the documents was in
violation of a court order, or was otherwise wilful, the Court
denies Plaintiff's Motion. In its Seventh Motion in limine, Plaintiff seeks to preclude
Defendant from introducing any evidence in support of its
affirmative defenses of waiver, estoppel, ratification,
assumption of the risk, failure to mitigate, and unclean hands.
Once again, Plaintiff bases its Motion, largely, upon its claim
that Defendant's evidence fails to raise a genuine issue of
material fact with regard to these claims. Because substantive
rulings should be reserved for substantive motions, Plaintiff's
Seventh Motion in limine is denied.
Similarly, Plaintiff's Eighth Motion in limine, seeking to
bar Defendant's affirmative defenses of estoppel, unclean hands,
and laches, is an attack on the substance of Defendant's
affirmative defenses, and is, therefore, denied.
Plaintiff's Ninth, Twelfth, and Thirteenth Motions in limine
seek to preclude any evidence in support of Defendant's
Thirteenth and Fifteenth Affirmative Defenses, and its Illinois
Uniform Deceptive Trade Practices Act Counterclaim, respectively.
These Motions are denied as moot, however, as Judge Guzman has
already granted Plaintiff's Motion to Strike these same
affirmative defenses and counterclaim. See Telewizja Polska USA,
Inc. v. Echostar Satellite Corp., No. 02 C 3293 (Sept. 1, 2004).
In its Tenth Motion in limine, Plaintiff moves for an Order
finding that Defendant is a public figure for purposes of its
counterclaims. The United States Supreme Court recognizes two classes of public figures: 1) those who are public figures for
all purposes; and 2) those who are public figures for a
particular public controversy. Gertz v. Robert Welch, Inc.,
418 U.S. 323, 342 (1974).
To determine whether an entity is a limited purpose public
figure, courts look to "the nature and extent of an individual's
participation in the particular controversy giving rise to the
defamation." Id. at 352. The Court disagrees that Defendant's
mere status as a satellite provider renders it a public figure.
Nevertheless, Plaintiff has demonstrated that Defendant has
sufficiently interjected its position on the controversy into the
public realm so as to warrant labeling it a public figure for
purposes of this defamation action.
After Plaintiff's programming was pulled from the air,
Defendant repeatedly ran a message promoting its version of the
events giving rise to the cancellation on the station formerly
broadcasting Plaintiff's shows. Defendant had the opportunity to
counter Plaintiff's alleged attacks on its reputation, as well as
to shape public opinion on the issue by directly addressing the
non-party individuals most interested in the controversy. Under
these circumstances, this Court is of the opinion that Defendant
is a limited purpose public figure. Therefore, Plaintiff's Tenth
Motion in limine is granted, in part. Plaintiff's Eleventh Motion in limine seeks to prevent
Defendant from introducing any evidence in support of its
fourteenth affirmative defense of mistake. Once again,
Plaintiff's attack on the substance of Defendant's affirmative
defense and the sufficiency of Defendant's evidence is better
left to a summary judgment motion. Notably, Judge Guzman denied
Plaintiff's Motion to Strike Defendant's Fourteenth Affirmative
Defense in his September 1, 2004 Memorandum Opinion and Order.
Telewizja Polska USA, Inc. v. Echostar Satellite Corp., No. 02
C 3293, at *10 (N.D. Ill. Sept. 1, 2004).
In its Fourteenth Motion in limine, Plaintiff moves to
preclude Defendant from introducing any exhibits that it has
produced as translations performed by a company identified as
Transtelecom. The exhibits purport to transcribe emails from
unidentified individuals to Plaintiff's officers, in both the
original Polish text and English translations, provided by
Transtelecom. Plaintiff attacks the admissibility of the exhibits
on numerous fronts. The most persuasive attack goes to the
accuracy of the translations; the translations are obviously
inaccurate on their face.
The exhibits consist of email communications between two
alleged consumers and Plaintiff's President, Mr. B.M. Spanski.
Both consumers express their frustration, in Polish, with the
termination of the Polonia program. Mr. Spanski responded in kind, offering both individuals the identical response. Despite
the fact that Mr. Spanski gave the same response verbatim to
both individuals, Transtelecomm has translated the responses
Specifically, Transtelecomm interprets the first two sentences
of Mr. Spanski's response to a Ms. Barbara Malewicz as follows:
"Dish Network ordered us to give them full rights to distribute
TV Polonia in the United States. We could not agree to those
terms, nor will we agree to those terms, I am very sorry it has
come to this." Conversely, Transtelecomm interprets the first two
sentences of Mr. Spanski's identical response to "CAC2201" as
"Dish Network worked hard to reach an agreement with TV Polonia
US sales agent to allow to continue delivering television
channels into your homes. There are a lot of unhappy people with
Defendant offers no explanation for the obvious differences
between the translations, and the differences are significant. In
this case, Defendant has alleged that Plaintiff defamed it, in
part, by claiming that Defendant was demanding exclusive rights
to distribute TV Polonia. The translation of Mr. Spanski's
response to Ms. Malewicz strongly supports Plaintiff's claim,
while the translation of Mr. Spanski's response to CAC2201 is far
more benign. However, a party challenging the authenticity or accuracy of a
translation bears the burden of presenting a competing
translation, permitting the trier of fact to chose which version
to credit. United States v. Briscoe, 896 F.2d 1476, 1492
(7th Cir. 1990). In this case, Plaintiff has not offered a
competing translation of the emails. Defendant has, however,
substantially eased Plaintiff's burden in attacking the accuracy
of Defendant's translations.
Next, Plaintiff states that the inaccurate translations are
evidence of sanctionable conduct on Defendant's part. The Court
disagrees that the translations, standing alone, are sufficient
evidence of sanctionable conduct. The translations could be the
result of honest human error. There is simply not enough evidence
before the Court to sanction Defendant at this time.
Finally, "[a] judge is entitled to exclude unreliable
evidence." Dugan v. R.J. Corman R. Co., 344 F.3d 662, 669
(7th Cir. 2002). If the litigants were trying this case
before this Court, the Court would likely strike both
translations as being inherently unreliable. However, this close
decision is better left to the trial judge. Motion denied.
Plaintiff's Fifteenth Motion in limine seeks to bar Defendant
from introducing an exhibit to prove what Polska's website looked
like on various dates in 2001. The exhibit is potentially
damaging, as it purports to show Polska advertising DISH Network as a provider of T.V. Polonia on Polska's website
after the expiration of the contract period. Plaintiff contends
that the exhibit constitutes double hearsay, and, therefore,
Defendant should not be permitted to present the exhibit at
trial. The Court disagrees. "To the extent these images and text
are being introduced to show the images and text found on the
websites, they are not statements at all and thus fall outside
the ambit of the hearsay rule." Perfect 10, Inc. v. Cybernet
Ventures, Inc., 213 F. Supp. 2d 1146, 1155 (C.D.Cal. 2002)
(noting that the printouts of the website are admissible pursuant
to the best evidence rule.) Moreover, the contents of Polska's
website may be considered an admission of a party-opponent, and
are not barred by the hearsay rule. See Van Westrienen v.
Americontinental Collection Corp., 94 F. Supp. 2d 1087, 1109 (D.
Plaintiff then contends that the exhibit has not been properly
authenticated.*fn1 Attached to the exhibits is an affidavit
from Ms. Molly Davis, verifying that the Internet Archive Company
retrieved copies of the website as it appeared on the dates in
question from its electronic archives. Plaintiff labels the
Internet Archive an unreliable source and claims that Defendant
has not, therefore, met the threshold requirement for authentication.
Federal Rule of Evidence 901 "requires only a prima facie
showing of genuineness and leaves it to the jury to decide the
true authenticity and probative value of the evidence." U.S. v.
Harvey, 117 F.3d 1044, 1049 (7th Cir. 1997). Admittedly, the
Internet Archive does not fit neatly into any of the
non-exhaustive examples listed in Rule 901; the Internet Archive
is a relatively new source for archiving websites. Nevertheless,
Plaintiff has presented no evidence that the Internet Archive is
unreliable or biased. And Plaintiff has neither denied that the
exhibit represents the contents of its website on the dates in
question, nor come forward with its own evidence challenging the
veracity of the exhibit. Under these circumstances, the Court is
of the opinion that Ms. Davis' affidavit is sufficient to satisfy
Rule 901's threshold requirement for admissibility. Plaintiff is
free to raise its concerns regarding reliability with the jury.
Finally, Plaintiff asserts that Ms. Davis is an undisclosed
expert witness and that her affidavit authenticating the exhibits
should be barred. The Court rejects Plaintiff's assertion that
Ms. Davis is offering an opinion, expert or otherwise, and
rejects Plaintiff's argument. Plaintiff's Fifteenth Motion in
limine is denied.
In its Sixteenth Motion in limine, Plaintiff asks that
Defendant be prohibited from introducing any evidence that statements other than those alleged in its Second Amended
Counterclaim are defamatory.
Plaintiff contends that courts in the Northern District employ
the precise language requirement in defamation actions.
Vantassell-Matin v. Nelson, 741 F. Supp. 698, 707-08 (N.D. Ill.
1990). The precise language requirement ensures that the opposing
party has notice of the words alleged to be defamatory in forming
its responsive pleadings. Id.
However, at least one court in this district has questioned the
propriety of employing the judicially-created precise language
rule, given Rule 8's liberal notice pleading requirement. In
Socorro v. IMI Data Search Inc., Judge Kennelly issued a
thorough and well reasoned opinion tracing the roots of the
precise language rule to nonbinding precedent from the Eighth
Circuit. No. 02 C 8120, 2003 WL 1964269, at *3 (N.D. Ill. April
28, 2003). Judge Kennelly further notes that "an allegation is
considered `specific enough' if it permits the defendant to
understand the specific nature of the claim and form a responsive
pleading." Id. citing Cozzi v. Pepsi-Cola Gen. Bottlers Inc.,
No. 96 C 7228, 1997 WL 312048, at *5 (N.D. Ill. June 6, 1997)
(stating that "courts in this district . . . have held that the
defamatory language need not be quoted verbatim").
For example, in Harding v. Rosewell, 22 F. Supp.2d 806, 818
(N.D. Ill. 1998), the court found that once a case proceeds beyond the pleading stage, the appropriate inquiry is whether the
opposing party had notice of the defamatory remarks. The court
noted that "[t]he defendants, through discovery, have been given
all the notice required of the alleged defamatory statements."
Similarly, in the case at bar, the pleading stage has long
since past; discovery is now closed. While Plaintiff asserts (but
does not explain) prejudice, the Court is of the opinion that
Plaintiff was given sufficient notice of the alleged defamatory
remarks through the discovery process. And the "new" remarks that
Defendant seeks to rely upon in support of its defamation
counterclaim, like the two statements identified in Defendant's
Second Amended Counterclaim, all arise from the parties' falling
out over their attempts to renew their contract. Under these
circumstances, the Court finds that it would be inappropriate to
bar evidence of the allegedly defamatory statements not
specifically identified in Defendant's Second Amended
Counterclaim. Plaintiff's Sixteenth Motion in limine is denied.
Plaintiff seeks to bar Defendant from introducing a redacted
email to an unknown recipient from Telewizja's President, B.M.
Spanski in its Seventeenth Motion in limine. Plaintiff claims
that the document should not be admitted because it has not been
authenticated, among other reasons. Defendant counters that Mr. Spanski authenticated the email by identifying it in his
deposition. A review of the relevant deposition testimony belies
Defendant's assertion. Mr. Spanski acknowledged that the email
contained his email address, and little more. He neither
recognized the email, nor remembered sending it. Because the
document has not been authenticated, Plaintiff's Seventeenth
Motion in limine is granted.
II. Defendant's Motions In Limine
Defendant has filed an astounding 38 Motions in limine; very
few warrant serious discussion. In half of its motions, Defendant
is seeking little more than acknowledgment that it has correctly
recited the Federal Rules of Evidence. Plaintiff apparently
agrees that Defendant has succeeded in this limited regard,
stating that it has no objection to Defendant's Motions in
limine Nos. 1, 2, 6, 8, 10, 14, 15, 16, 17, 20, 21, 23, 24, 25,
26, 27, 29, 33, and 36.
Motion in limine No. 34 (which "claims surprise" as to
matters, causes of action, theories of recovery, etc. that
Plaintiff hasn't specifically identified) seeks to preclude
precisely nothing, while Motion No. 38 (a catch-all provision
referencing all of the "matters listed above") seeks to preclude
almost everything. Both Motions are denied.
Defendant's Third Motion in limine seeks to preclude
Plaintiff's counsel and witnesses from referencing any statement of the law, other than that regarding the burden of proof and the
basic legal definitions. Plaintiff does not object to the Motion,
but asks that it exclude the Seventh Circuit's holding in
Telewizja Polska USA, Inc. v. EchoStar Satellite Corp., No.
02-4332, 2003 WL 21579968, at *2-3 (7th Cir. Sept. 10, 2003).
Plaintiff does not suggest how, precisely, it would like to
introduce the Seventh Circuit's opinion into evidence. Of course,
it would be inappropriate for a witness to testify as to the
contents of the Seventh Circuit's decision. The interpretation of
the contract is the province of the court, not the jury;
accordingly, the jury does not require assistance from the
Seventh Circuit in interpreting and evaluating the scope of the
parties' agreement. The Motion is granted.
Defendant's Motions in limine Nos. 4, 5, and 18 contend that
any reference to prior verdicts, lawsuits, or claims against it
is impermissible, pursuant to Federal Rule of Evidence 401
(defining relevant evidence), Rule 402 (stating that relevant
evidence is generally admissible), and 403 (noting that relevant
evidence should not be admitted if it is unduly prejudicial).
Similarly, In Motions 28, 30, 31, and 32, Defendant seeks to
exclude evidence of collateral bad acts or character evidence,
citing Rule 404.
Plaintiff correctly notes however, that where a movant places
its character at issue, evidence of reputation or specific instances of conduct may be admitted to prove character.
Fed.R.Evid. 405(a) and (b). A movant may put its character at issue by
filing a claim for defamation, "where injury to reputation must
be proven." Johnson v. Pistelli, No. 95 C 6424, 1996 WL 587554,
at *3, n. 5 (N.D. Ill. Oct. 8, 1996).
In this case, Defendant has filed a defamation counterclaim. To
the extent that Plaintiff demonstrates at trial that evidence of
other claims or lawsuits involving Defendant, or of Defendant's
collateral bad acts bears upon its character and reputation, that
evidence may be admissible. See Schafer v. Time, Inc.,
142 F.3d 1361, 1370 (11th Cir. 1998). Because such evidence may be
admissible at trial, upon a proper showing by Plaintiff, motions
in limine Nos. 4, 5, 18, 28, 30, 31, and 32 are denied.
In Motions in limine Nos. 7, 11, 12, and 13, Defendant
asserts that evidence of its size, power, net worth, assets, or
wealth is irrelevant and, even if relevant, would be unduly
prejudicial. See Fed.R. Evid. 402 and 403. In its
counterclaims, however, Defendant has alleged that Plaintiff
defamed it and otherwise caused it damage by claiming that
Defendant is a "monopoly" and has otherwise asserted its powerful
market position to bully Plaintiff. Evidence of Defendant's
market strength and wealth would likely be relevant in defending
against such a claim. To the extent that Defendant places its wealth and/or power at issue, it may open the door to evidence on
the issue. Therefore, the motions are denied.
Defendant's Ninth Motion in limine seeks to prohibit inquiry
into its communications with its attorneys. While privileged
communications that have not been waived will remain off limits,
Defendant's request captures non-privileged communications with
counsel, as well as instances where the privilege has been
waived. See, e.g., C&F Packing Co., Inc. v. IBP, Inc., No. 93 C
1601, 1997 WL 619848 (N.D. Ill. Sept. 30, 1997). As such,
Defendant's Ninth Motion in limine is denied.
Defendant also seeks to prevent Plaintiff from commenting on
Defendant's failure to produce a witness, if, in fact, Defendant
fails to produce a witness at trial. Permitting or prohibiting
attorneys from commenting on its opponents failure to call a
witness rest soundly within the discretion of the trial judge.
U.S. v. Simpson, 974 F.2d 845, 848 (7th Cir. 1992). Because
a ruling on the issue is best reserved for trial, Defendant's
Nineteenth Motion in limine is Denied.
Defendant then asks the Court to prevent Plaintiff from
introducing new theories of damages, as well as previously
undisclosed damage calculations. Plaintiff counters that granting
the motion would eliminate the flexibility required to
potentially modify its damages calculations to meet the evidence
introduced at trial. The Court grants Defendant's Twenty-second Motion in limine in part, barring Plaintiff from introducing at
trial any evidence concerning a source of damages that it has
failed to disclose. However, to the extent that Plaintiff must
modify its damages calculations in light of the evidence
presented or rulings made at trial, the Motion is denied.
Defendant's Thirty-fifth Motion in limine seeks to bar any
reference to the substance of statements of potential witnesses
until trial. The Court notes, however, that traditionally,
attorneys have referenced potential witnesses and testimony
during opening argument and that granting Defendant's Motion
would prevent the parties from doing so. Defendant's Thirty-fifth
Motion in limine, therefore, is denied.
Finally, Defendant's Thirty-seventh Motion in limine requests
that Plaintiff be prevented from mentioning that it seeks
disgorgement damages from Defendant's profits. Defendant argues
that disgorgement is not a valid remedy in a breach of contract
action, because the terms of the contract governs the parties'
relationship. See Conseco Group Risk Mgmt. Co. v. Ahrens Fin.
Sys. Inc., No. 00 C 5467, 2001 WL 219627, at *6 (N.D. Ill. Mar.
Plaintiff does not dispute Defendant's assertion, but notes
that it brought the unjust enrichment claim which would give
rise to a disgorgement remedy in the alternative to the breach
of contract claim. As Judge Guzman has not dismissed Plaintiff's unjust enrichment claim, it would be inappropriate at this stage
of the proceedings to preclude Plaintiff from mentioning
disgorgement damages. Therefore, Defendant's Motion in limine
37 is denied.
As set forth above, the Court grants Plaintiff's Seventeenth
Motion in limine, and grants in part Plaintiff's Sixth and
Tenth Motions in limine. The Court denies Plaintiff's remaining
Motions in limine.
With respect to Defendant's Motions, the Court grants Motions
in Limine Nos. 1, 2, 3, 6, 8, 10, 14, 15, 16, 17, 20, 21, 23,
24, 25, 26, 27, 29, 33, and 36, as Plaintiff has not objected to
these Motions. The Court denies Defendant's Motions in Limine
Nos. 4, 5, 7, 9, 11, 12, 13, 18, 19, 28, 30, 31, 32, 35, 37 and