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) ...