The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on: (1) Plaintiff Design Ideas, Ltd.'s (Design Ideas) Motion in Limine to Exclude Defendant Things Remembered, Inc. (Things Remembered) from Referring to Plaintiff's Actual Damages (d/e 55) (Motion 55); (2) Plaintiff's Motion in Limine to Preclude Defendant from Presenting Evidence, Cross Examination, or Argument Referring to Attorneys' Fees or Plaintiff's Fee Arrangement (d/e 56) (Motion 56); (3) Plaintiff's Motion in Limine to Preclude Defendant from Presenting Evidence, Cross Examination, or Argument Pertaining to Settlement Discussions Before the Jury (d/e 57) (Motion 57); (4) Plaintiff's Motion in Limine to Preclude Defendant from Presenting Evidence, Cross Examination, or Argument Pertaining to Issues Decided on Summary Judgment (d/e 58) (Motion 58); (5) Plaintiff's Motion in Limine to Preclude Defendant from Presenting Evidence, Cross Examination or Argument Referencing Unrelated Copyright Disputes or Litigation Before the Jury (d/e 60) (Motion 60); (6) Plaintiff's Motion in Limine to Exclude Defendant's Damages Expert Regarding Certain Matters Disclosed in His Expert Report as Well as Any Mention of Defendant's Trademarks (d/e 63 & 75) (Motion 75); (7) Plaintiff's Motion in Limine to Exclude Defendant's Proposed Demonstrative Aids/Trial Exhibits 2 and 3 (d/e 66 & 74) (Motion 74); (8) Defendant's Motion in Limine to Exclude Evidence Regarding an Agency Relationship with AMC (d/e 59) (Motion 59); (9) Defendant's Motion in Limine to Exclude Evidence of Engraving Revenue (d/e 61) (Motion 61); and (10) Defendant's Motion in Limine to Exclude Evidence Regarding Kathleen Kraus (d/e 62) (Motion 62). For the reasons set forth below, Motions 55, 56, 57, 58, and 60, are ALLOWED, Motion 75 is ALLOWED in part and DENIED in part, and Motions 59, 61, 62 and 74 are DENIED. The Court will address the Motions in order.
MOTIONS 55, 56, 58, and 60 Things Remembered does not object to these Motions. The Motions are therefore allowed.
Motion 57 is allowed. Design Ideas asks the Court to bar evidence of settlement discussions. Things Remembered argues that it intends to present evidence of settlement discussions to prove its affirmative defenses of laches and equitable estoppel. Specifically, Things Remembered wants to present evidence that: (1) in September 2004, Design Ideas first asserted to Things Remembered that Things Remembered's Flower Candle Basket infringed on Design Ideas' copyright; (2) the parties' attorneys corresponded regarding this matter for the next nine months; (3) the last letter from Design Ideas' attorney was May 10, 2005, to which Things Remembered's attorney responded by letter dated June 9, 2005; and (4) a letter from Design Ideas dated May 18, 2006, was the last communication to Things Remembered regarding this matter before this action was filed on March 16, 2007.
Defendant's Opposition to Plaintiff's Motion in Limine to Exclude Defendant from Presenting Evidence, Cross Examination or Argument Pertaining to Settlement Discussions Before the Jury (d/e 78), at 2-3.
Settlement discussions are not admissible to prove liability for, invalidity of, or amount of a claim. Fed. R. Evid. 408(a). Things Remembered's defenses of laches and estoppel address the issue of Things Remembered's liability for Design Ideas' claim. Things Remembered, therefore, is barred from presenting evidence of settlement discussions for this purpose. Things Remembered has not identified any other purpose for using the settlement discussions. Motion 57 is, therefore, allowed and Things Remembered is barred from presenting evidence of settlement discussions.*fn1
Motion 59 is denied. Things Remembered asks the Court to bar evidence that Associated Merchandising Corporation (AMC) had an agency relationship with Things Remembered. Things Remembered states that it bought the alleged infringing product, the Flower Candle Basket, from AMC. Motion 59, at 1. Design Ideas states that AMC was Things Remembered's agent in the transactions. Plaintiff's Response to Defendant's Motion in Limine to Exclude Evidence Regarding an Agency Relationship with AMC (d/e 77), at 2-5. The relationship between AMC and Things Remembered, therefore, may be relevant and disputed. The Court will not bar evidence of this relationship at this time.
Things Remembered is concerned about the testimony of a former AMC employee named Christina Sun. Things Remembered argues that if evidence of the relationship between the two companies is admitted, then the jury will attribute to Things Remembered certain statements that Sun made in her deposition. Things Remembered does not identify the statements at issue. The Court, therefore, cannot evaluate the potential prejudice. Furthermore, the request is over broad. Things Remembered's concerns about Sun's testimony, if valid, would justify limiting her testimony, not barring all evidence of the relationship between the two businesses. The Motion is denied.
Motion 61 is denied. Things Remembered moves to bar Design Ideas from presenting evidence of engraving revenue. Design Ideas is seeking disgorgement of Things Remembered's profits. To recover disgorgement of profits, Design Ideas has the burden to prove gross revenues, and then, Things Remembered has the burden to prove deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
17 U.S.C. § 504(b). Design Ideas may present evidence of the revenue from engraving Flower Candle Baskets if Design Ideas can show a nexus between the infringement of its copyright and the revenues from the engraving of the infringing products. See Taylor v. Meirick, 712 F.2d 1112, 1121 (7th Cir. 1983). At this point, the Court cannot determine whether Design Ideas can ...