United States District Court, N.D. Illinois, Eastern Division
December 5, 2005.
TEAM PLAY, INC., P&P MARKETING, INC., & COSMODOG, LTD., Plaintiffs,
STEPHEN W. BOYER, d/b/a SKYBOY PRODUCTIONS, Defendant. v. SKYBOY PRODUCTIONS, INC., Defendant. STEPHEN W. BOYER, Counter-Plaintiff, v. TEAM PLAY, INC., P&P MARKETING, INC., & COSMODOG, LTD., Counter-Defendants.
The opinion of the court was delivered by: ELAINE BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Both sides have moved in limine for evidentiary rulings. The
purpose of a motion in limine is to exclude inadmissible evidence
that may confuse or prejudice a jury, but evidence should not be
so excluded unless it would clearly be inadmissible on all
potential grounds. Middlebury Corp. v. Hussmann Corp., No. 90 C
2744, 1993 WL 151290 (N.D. Ill., May 7, 2003) ("Evidentiary
rulings should be deferred until trial so that the questions of foundation,
competency, relevancy and potential prejudice may be resolved in
proper context."). The denial of a motion in limine does not
preclude a party from objecting to any evidence at trial or from
requesting a limiting instruction. Chesler v. Trinity
Industries, Inc., No. 99 C 3234, 2002 WL 1822918 (N.D. Ill.,
August 8, 2002).
1. Plaintiffs' motion to exclude evidence relating to the
April 18, 1996 letter of Mr. Boyer. The parties agree that
Skyboy started to work on the development of a video shooting
game for P&P in late 1995 pursuant to an oral agreement, that Mr.
Boyer and Mr. Pellegrini were the only two participants to the
discussions pursuant to which the agreement was reached, that
Skyboy completed its work under the oral agreement, and that P&P
made substantial payments to Skyboy in conformity with certain
terms of the agreement. They disagree as to whether the oral
agreement also contained a term requiring payment by P&P of
"33.3% of any revenues collected by P&P through the sale of any
ancillary products including, but not limited to, home video game
rights, film rights and sequels."
Mr. Boyer testified in deposition that on April 18, 1996,
feeling uncomfortable in the absence of a written agreement, he
wrote and mailed a letter to Mr. Pellegrini outlining the terms
of their oral agreement, which included the 33.3% royalty
provision. Mr. Pellegrini denies that he ever received the
letter. However, Mr. Boyer seeks to testify to the mailing of the letter. He also
wishes to adduce evidence, which plaintiffs have not disputed,
that in 1997 his attorneys sent a copy of the April 18, 1996
letter to P&P's attorneys. Mr. Boyer did not retain a hard copy
of the original letter, but testified that the hard drive of one
of his computers contains three electronic copies of the letter,
which of course are unsigned. Mr. Pellegrini never responded to
Plaintiffs argue for the exclusion of all evidence relating to
the April 18, 1996 letter on the following grounds: 1) the letter
is hearsay; 2) the letter does not fall within the exception to
the hearsay rule for records of regularly conducted activity,
because it was not made at or near the time of the events
recorded but was written to "memorialize an unusual incident with
the potential for future dispute"; 3) there are questions as to
the letter's authenticity; and 4) the probative value of the
letter is substantially outweighed by a danger of unfair
Plaintiffs argue that the fact that there are differences
between the three draft versions of the April 18, 1996 letter
found on the hard drive of Mr. Boyer's computer is evidence of
lack of authenticity of the document. I do not find that argument
compelling in the face of Mr. Boyer's reasonable explanation that
the differences are only in formatting, not substance, and are
attributable to changes in his word processing programs over the
years. Nor do I reach the question of its probative value being outweighed by the possibility of unfair prejudice. However, Mr.
Boyer contends that the oral contract between the parties was not
made until an unspecified date in late 1995. Even if the contract
was formed on the last day of 1995, the time lapse between the
making of the contract and the drafting of the letter was almost
four months. That is a sufficient period of time to remove it
from any exception to the hearsay rule based upon a theory of
spontaneous or contemporary utterance. Mr. Boyer contends that it
is not hearsay because it is a contract and cites cases which
have held that written contracts are not hearsay but verbal acts
to which legal consequences attach. Most, if not all, of those
cases, however, involve authenticated, contracts signed by the
parties. None involved a subsequent unilateral communication
made four months after the fact and containing a disputed term.
The letter does not constitute a contract. It is therefore
offered for the truth of the matter asserted in it and disputed
by plaintiff, namely, the terms of an agreement. Mr. Pellegrini
does not accuse Mr. Boyer of manufacturing evidence, nor do I,
but in the present state of the record plaintiffs are entitled to
exclude evidence of the April 18, 1996 letter. This does not rule
out the possibility that, at trial, the letter might become
admissible as a prior consistent statement, and I reserve ruling
on that potential issue. Mr. Boyer, is of course, free to give
testimony as to his version of the terms of the agreement between P&P and Skyboy without mentioning the letter on
his direct examination.
2. Plaintiffs' motion in limine to preclude defendants from
asking Fred Heyman about alleged drug use is granted. Defendants
do not even argue that they have evidence that Mr. Heyman either
used drugs or that, if he did, they have reason to believe he was
in any way impaired. Under defendants' theory, every witness in
every case could be asked if he had ever used drugs. Without
evidence that a particular witness' memory is impaired due to
drug use, there is no basis for such questions.
3. Defendants' motions in limine 1, 9, 11, 12, 16, 17, and 18
are denied. All are moot.
4. Defendants' motion in limine to exclude the expert testimony
of Ralph Oman is deferred until the pretrial conference. Some of
his testimony will probably be admissible, but some clearly is
5. Defendants' motion in limine to bar witnesses with greater
knowledge than Richard Troxel is denied. Plaintiffs do not intend
to call a Mr. Bykowski, and that argument is therefore moot.
Their motion in limine to bar Mr. Troxel from giving fact
testimony or expert opinion is also denied. The extent of his
testimony will be determined at trial, but defendants' arguments
are insufficient to warrant an order barring any testimony. 6. Defendants' motion in limine to bar exhibit 22 on the ground
that it is barred by FED. R. EVID. 408 is denied. There is no
evidence that this letter was an attempt at compromise.
7. Defendants' motions in limine 7 and 8 are denied. The
pleadings contradict defendants' assertions.
8. Consideration of defendants' motion in limine 10 is deferred
until the pretrial conference.
9. Defendants' motions in limine 13, 14, and 15 are denied as
moot in light of the exclusion from evidence of the letter on
which the motions are based.
© 1992-2005 VersusLaw Inc.