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Bosch v. Ball-Kell

February 21, 2007

BARBARA BOSCH, PLAINTIFF,
v.
SUSAN BALL-KELL AND DONALD RAGER, DEFENDANT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

This matter is now before the Court on the Motions in Limine filed by both parties. Each motion will be addressed in turn.

1. Plaintiff's Motion in Limine No. 1 to Bar Testimony Regarding Any Advice of Counsel Defense [#83]

Plaintiff argues that although Defendants have not pled "advice of counsel" as an affirmative defense, they alluded to conversations with University counsel regarding the legality of copying her teaching materials in their depositions. Counsel then objected to questioning on these statements on the basis of attorney-client privilege. Plaintiff then inquired further and was told that Defendants would not rely on advice of counsel they may have received as a defense to the charge of copyright infringement.

Defendants concede that they will not offer an "advice of counsel" defense. However, they indicate that their respective states-of-mind are relevant to their defense that they acted in good faith at all times and that their state-of-mind may properly be based on counsel's advice without divulging what the advice actually was. This distinction was recognized by the Third Circuit in Rhone-Poulenc Rorer, Inc. v. Home Indemnity Company, 32 F.3d 851, 863 (3rd Cir. 1994), where the court noted that advice from counsel does not necessarily become in issue simply because the advice might affect the party's state of mind in a relevant manner.

Thus, in a patent suit, where an infringer is alleged to have acted willfully, the advice of the infringer's lawyer may be relevant to the question of whether the infringer acted with a willful state of mind. However, the advice of the infringer's counsel is not placed in issue, and the privilege is not waived unless the infringer seeks to limit its liability by describing that advice and by asserting that he relied on that advice.

Id. The Seventh Circuit adopted the Third Circuit's reasoning generally In Garcia v. Zenith Electronics Corp., 58 F.3d 1171, 1175 (7th Cir. 1995).

The Court finds that so long as Defendants do not cross the boundary lines set forth in Rhone-Poulenc, the have not violated their agreement to not assert an advice of counsel defense. Accordingly, Plaintiff's motion is granted to the extent that Defendants will be held to their agreement to not introduce an advice of counsel defense, and denied to the extent that it seeks to prohibit the limited reference to counsel's advice as part of establishing state-of-mine that is permitted under Rhone-Poulenc and Garcia.

2. Plaintiff's Motion in Limine No. 2 to Bar Testimony of Doctors Dennis Crnkovich and Michelle Hines [#84]

Plaintiff argues that the testimony of these two treating physicians was taken as part of the discovery on her claim for intentional infliction of emotional distress. As the Court previously granted summary judgment in favor of Defendants on that claim and there are no claims for emotional damages remaining in the case, Plaintiff argues that such testimony is not relevant to the claims of direct and contributory infringement being presented at trial.

The Court is unable to resolve this evidentiary dispute prior to trial. Although the Court agrees that the lack of any claim for emotional damages makes the testimony of Plaintiff's treating physicians appear to be less relevant, Plaintiff has indicated that she will testify regarding Defendants' conduct leading up to her resignation from the University and suggest that she was constructively discharged. To the extent that she does so, she may open the door to the presentation of evidence refuting her allegations and providing the Defendants' reasons for having taken the actions that they did. It is unclear to what extent Plaintiff's mental condition at the time factored into these decisions.

Accordingly, the most that the Court can do at this point is to indicate that the first order of business on the morning of trial will be to request Plaintiff to make a specific offer of proof as to the testimony that she is planning to present in this regard. The Court will then request that Defendants make a specific offer of proof as to the evidence that they would like to offer in response. The Court will then determine whether the door has been opened far enough to allow the evidence proffered by Defendants.

3. Plaintiff's Motion in Limine No. 3 to Bar Testimony by Deposition of Witnesses Within the Subpoena Power of this Court [#85]

In the proposed Final Pretrial Order, Defendants have listed Ali Noorjehan, Roberta Egan, and Dr. Dennis Crnkovich as witnesses who may testify by deposition. As these witnesses reside within 100 miles of the courthouse, Plaintiff relies on Fed. R. Civ. P. 32(a)(3) as support for her assertion that any testimony from these individuals may not be presented by deposition. Rule 32(a)(3) provides:

The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

Plaintiff argues that Noorjehan, Egan, and Crnkovich do not meet the criteria under subsections A, B, or C and that Defendants have not asked the Court to make a finding that subsections D or E apply.

Defendants agree that it is improper to use deposition testimony if a witness is within the subpoena power of the Court and concede that the Motion should be granted, with the qualification that the deposition testimony of any witness can be used if the witness is otherwise unavailable pursuant to Rule 32(a)(3)(E). Accordingly, the Motion will be granted. However, if Defendants are intending to argue that one or more of these witnesses meets the criteria for unavailability under this Rule, they must file a pleading presenting this issue immediately.

4. Plaintiff's Motion in Limine No. 4 to Bar Admission of Evidence of Plaintiff's Income After Her Resignation from UICOM-P [#86]

Plaintiff seeks to bar evidence indicating that she accepted a faculty position at Florida Atlantic University with a salary of $150,000, which is more than 40% higher than her last salary at UICOM-P as irrelevant to any of the issues in the copyright case. Specifically, she asserts that neither actual nor statutory damages are computed with reference to a copyright owner's salary or net worth. Actual damages are based on lost sales or licensing opportunities, while statutory damages (which Plaintiff has indicated are being sought here) allow a jury to select an amount of compensation within a specified range to vindicate an owner's rights and for deterrence. Defendants respond that such evidence is relevant to refute her claims that she was essentially constructively discharged and to show the true motivation for her resignations from the University.

Like the evidence regarding Plaintiff's mental condition and the testimony of her treating physicians, this dispute cannot be resolved prior to trial. Depending on the offers of proof presented, the Court will then determine whether evidence regarding Plaintiff's Income after her resignation will be allowed.

5. Defendants' Combined Motion in Limine, and Memorandum of Law in Support Thereof, to Exclude Certain Exhibits and Witnesses Proffered by Plaintiff and to Remove Evidence from Protective Order [#88]

Defendants have filed a 13-part Motion in Limine seeking to exclude certain witness testimony, evidence, and arguments. ...


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