1 2 3 6 7 ALFA CONSULT SA, Case No. 21-cv-00812-BLF
8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART MOTIONS IN LIMINE FILED BY ALFA CONSULT 10 TCI INTERNATIONAL, INC., SA AND TCI INTERNATIONAL, INC. 11 Defendant. Re: ECF Nos. 109, 110, 111, 112
12 13 On November 2, 2023, the Court held a pretrial conference in this action, during which it 14 issued oral rulings on Plaintiff Alfa Consult SA’s (“Alfa”) Motion in Limine No. 1 and Defendant 15 TCI International, Inc.’s (“TCI”) Motions in Limine Nos. 1–3. The Court here expands upon those 16 oral rulings. 18 In its sole motion in limine, Alfa moves to exclude all evidence of or reference to the 19 proceedings Alfa brought in Iraq to contest the Iraqi Communications Media Commission’s 20 (“CMC”) award to the Al Zaman Group (“AZG”) of a spectrum monitoring system project 21 (“CMC Project”). See Alfa MIL 1, at 1, ECF No. 111. Alfa notes that the Iraqi proceedings at 22 issue include (1) Alfa’s formal objection to the CMC’s award of the project to AZG; and (2) 23 Alfa’s litigation against the CMC in Iraq challenging its award to AZG of the project, which 24 resulted in two judgments by Iraqi courts—including Iraq’s highest court—upholding the CMC’s 25 decision to exclude Alfa from bidding on the CMC Project. See id.; see also Opp’n to Alfa MIL 26 1, at 2, ECF No. 121. 27 Alfa argues that the Court should exclude evidence related to the Iraqi proceedings on the 1 probative value of the evidence is substantially outweighed by the dangers of unfair prejudice to 2 Alfa, confusing the issues, and wasting time, see id. at Rule 403; and that any Iraqi court orders, 3 findings, and judgments constitute inadmissible hearsay, see id. at Rule 802. See Alfa MIL 1, at 4 3–5. TCI counters that evidence of Alfa’s formal objection to the CMC and its unsuccessful 5 litigation against the CMC in Iraq—including the Iraqi courts’ judgments upholding the CMC’s 6 decision to exclude Alfa—is relevant to the issues of causation and damages; that any prejudicial 7 effect can be reasonably mitigated by the Court; and that the evidence is admissible for the non- 8 hearsay purpose of establishing the legal effect of the Iraqi judgments on Alfa’s disqualification 9 from the 2018 CMC Project and Alfa’s legal status with the CMC. See Opp’n to Alfa MIL 1, at 10 2–5. The chief item of discussion during oral argument on this motion in limine was the 11 admissibility of the Iraqi courts’ judgments against Alfa in the Iraqi litigation. 12 1. Relevance 13 As the Court stated during the parties’ oral argument on this motion, the legal effect of the 14 Iraqi courts’ judgments on Alfa’s ability to be considered as a bidder for the 2018 CMC Project is 15 highly relevant to the elements of causation and damages. “Evidence is relevant if: (a) it has any 16 tendency to make a fact more or less probable than it would be without the evidence; and (b) the 17 fact is of consequence in determining the action.” Fed. R. Evid. 401. The CMC’s decision to 18 disqualify Alfa from the 2018 CMC Project—as upheld by the Iraqi courts—is evidence of an 19 intervening causal event, and is therefore relevant under Rule 401. See Daubert v. Merrell Dow 20 Pharms., Inc., 509 U.S. 579, 587 (1993) (noting Rule 401’s “liberal” standard for relevance). 21 2. Hearsay 22 The Court agrees with Alfa that any discussion of the facts and reasoning supporting the 23 Iraqi courts’ judgment constitutes inadmissible hearsay. See United States v. Sine, 493 F.3d 1021, 24 1036 (9th Cir. 2017) (“A court judgment is hearsay ‘to the extent that it is offered to prove the 25 truth of the matters asserted in the judgment.’”) (quoting United States v. Boulware, 384 F.3d 794, 26 806 (9th Cir. 2004)). However, TCI asserts that it does not seek to offer the Iraqi judgments for 27 the truth of the matters asserted therein, but rather to establish the legal effect of the judgments. 1 the matters asserted within, is not hearsay. See Fed. R. Evid. 801(c)(2). 2 3. Rule 403 Balancing 3 The Court agrees with Alfa that the Iraqi judgments themselves, if admitted, would be 4 unfairly prejudicial, likely to confuse the jury, and a waste of time, such that these dangers would 5 substantially outweigh the probative value of the judgments. See Fed. R. Evid. 403. The 6 judgments are multi-page documents containing facts and reasoning that the jury might consider 7 for their truth as evidence in the present case, in spite of any limiting instruction the Court might 8 provide. See, e.g., Grace v. Apple, Inc., No. 17-cv-00551, 2020 WL 227404, at *2 (N.D. Cal. Jan. 9 15, 2020) (“Indeed, a ‘jury is likely to give a prior verdict against the same defendant more weight 10 than it warrants. The admission of a prior verdict creates the possibility that the jury will defer to 11 the earlier result and thus will, effectively, decide a case on evidence not before it.’”) (citation 12 omitted). However, evidence of the mere fact of the existence of the Iraqi judgments upholding 13 the CMC’s decision to disqualify Alfa from bidding on the 2018 CMC Project is not of the sort 14 that might play on a juror’s sympathies or inflame any passions, confuse the issues, waste time, or 15 otherwise tend to have an adverse effect on Alfa beyond tending to prove facts relevant to the 16 issues of causation and damages. See, e.g., In re Pac. Fertility Ctr. Litig., No. __, 2021 WL 17 1054374, at *5 (N.D. Cal. Mar. 19, 2021) (“[T]hat evidence is potentially damaging is not itself a 18 basis to exclude it. Under Federal Rule of Evidence 403, the test is whether it is more prejudicial 19 than probative.”) (citations omitted). 20 4. Conclusion 21 Based on the reasoning above, the Court will grant in part and deny in part Alfa’s motion 22 in limine to exclude evidence of proceedings it instituted in Iraq related to the CMC’s award of the 23 2018 CMC Project to AZG. Evidence of the existence of the Iraqi judgments—and potentially the 24 face pages of the judgment documents, depending on their contents—will not be excluded; i.e., the 25 Court will deny the motion with respect to the judgment itself. The Court will otherwise grant the 26 motion, so that evidence consisting of the text of the Iraqi judgments, for example, will be 27 excluded. The Court urges the parties to meet and confer and add a stipulated fact regarding this 1 ameliorate any remaining concerns regarding prejudice. 3 TCI filed three motions in limine. See ECF Nos. 109, 110, 112. Alfa opposed all three 4 motions. See ECF Nos. 116–18. The Court considers each of TCI’s motions in turn. 5 A. TCI’s Motion in Limine No. 1 to Exclude Evidence Concerning Alleged Unlawful Influence 6 In its first motion in limine, TCI moves to exclude certain exhibits included on Alfa’s 7 exhibit list—namely, Exhibits 30–32, 34–37, 39–40, 42–43, 45–47, 83–86, 95, 98, and 135—that 8 TCI asserts will be offered in support of the position that TCI and/or AZG allegedly engaged in 9 unlawful influence of the CMC, received confidential information from the CMC, or otherwise 10 engaged in improper conduct to cause Alfa’s disqualification or elimination from the 2018 CMC 11 Project or overall blacklisting. See TCI MIL 1, at 1, ECF No. 109; Decl. of Gregory C. Ulmer ¶ 2, 12 ECF No. 109-1.
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1 2 3 6 7 ALFA CONSULT SA, Case No. 21-cv-00812-BLF
8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART MOTIONS IN LIMINE FILED BY ALFA CONSULT 10 TCI INTERNATIONAL, INC., SA AND TCI INTERNATIONAL, INC. 11 Defendant. Re: ECF Nos. 109, 110, 111, 112
12 13 On November 2, 2023, the Court held a pretrial conference in this action, during which it 14 issued oral rulings on Plaintiff Alfa Consult SA’s (“Alfa”) Motion in Limine No. 1 and Defendant 15 TCI International, Inc.’s (“TCI”) Motions in Limine Nos. 1–3. The Court here expands upon those 16 oral rulings. 18 In its sole motion in limine, Alfa moves to exclude all evidence of or reference to the 19 proceedings Alfa brought in Iraq to contest the Iraqi Communications Media Commission’s 20 (“CMC”) award to the Al Zaman Group (“AZG”) of a spectrum monitoring system project 21 (“CMC Project”). See Alfa MIL 1, at 1, ECF No. 111. Alfa notes that the Iraqi proceedings at 22 issue include (1) Alfa’s formal objection to the CMC’s award of the project to AZG; and (2) 23 Alfa’s litigation against the CMC in Iraq challenging its award to AZG of the project, which 24 resulted in two judgments by Iraqi courts—including Iraq’s highest court—upholding the CMC’s 25 decision to exclude Alfa from bidding on the CMC Project. See id.; see also Opp’n to Alfa MIL 26 1, at 2, ECF No. 121. 27 Alfa argues that the Court should exclude evidence related to the Iraqi proceedings on the 1 probative value of the evidence is substantially outweighed by the dangers of unfair prejudice to 2 Alfa, confusing the issues, and wasting time, see id. at Rule 403; and that any Iraqi court orders, 3 findings, and judgments constitute inadmissible hearsay, see id. at Rule 802. See Alfa MIL 1, at 4 3–5. TCI counters that evidence of Alfa’s formal objection to the CMC and its unsuccessful 5 litigation against the CMC in Iraq—including the Iraqi courts’ judgments upholding the CMC’s 6 decision to exclude Alfa—is relevant to the issues of causation and damages; that any prejudicial 7 effect can be reasonably mitigated by the Court; and that the evidence is admissible for the non- 8 hearsay purpose of establishing the legal effect of the Iraqi judgments on Alfa’s disqualification 9 from the 2018 CMC Project and Alfa’s legal status with the CMC. See Opp’n to Alfa MIL 1, at 10 2–5. The chief item of discussion during oral argument on this motion in limine was the 11 admissibility of the Iraqi courts’ judgments against Alfa in the Iraqi litigation. 12 1. Relevance 13 As the Court stated during the parties’ oral argument on this motion, the legal effect of the 14 Iraqi courts’ judgments on Alfa’s ability to be considered as a bidder for the 2018 CMC Project is 15 highly relevant to the elements of causation and damages. “Evidence is relevant if: (a) it has any 16 tendency to make a fact more or less probable than it would be without the evidence; and (b) the 17 fact is of consequence in determining the action.” Fed. R. Evid. 401. The CMC’s decision to 18 disqualify Alfa from the 2018 CMC Project—as upheld by the Iraqi courts—is evidence of an 19 intervening causal event, and is therefore relevant under Rule 401. See Daubert v. Merrell Dow 20 Pharms., Inc., 509 U.S. 579, 587 (1993) (noting Rule 401’s “liberal” standard for relevance). 21 2. Hearsay 22 The Court agrees with Alfa that any discussion of the facts and reasoning supporting the 23 Iraqi courts’ judgment constitutes inadmissible hearsay. See United States v. Sine, 493 F.3d 1021, 24 1036 (9th Cir. 2017) (“A court judgment is hearsay ‘to the extent that it is offered to prove the 25 truth of the matters asserted in the judgment.’”) (quoting United States v. Boulware, 384 F.3d 794, 26 806 (9th Cir. 2004)). However, TCI asserts that it does not seek to offer the Iraqi judgments for 27 the truth of the matters asserted therein, but rather to establish the legal effect of the judgments. 1 the matters asserted within, is not hearsay. See Fed. R. Evid. 801(c)(2). 2 3. Rule 403 Balancing 3 The Court agrees with Alfa that the Iraqi judgments themselves, if admitted, would be 4 unfairly prejudicial, likely to confuse the jury, and a waste of time, such that these dangers would 5 substantially outweigh the probative value of the judgments. See Fed. R. Evid. 403. The 6 judgments are multi-page documents containing facts and reasoning that the jury might consider 7 for their truth as evidence in the present case, in spite of any limiting instruction the Court might 8 provide. See, e.g., Grace v. Apple, Inc., No. 17-cv-00551, 2020 WL 227404, at *2 (N.D. Cal. Jan. 9 15, 2020) (“Indeed, a ‘jury is likely to give a prior verdict against the same defendant more weight 10 than it warrants. The admission of a prior verdict creates the possibility that the jury will defer to 11 the earlier result and thus will, effectively, decide a case on evidence not before it.’”) (citation 12 omitted). However, evidence of the mere fact of the existence of the Iraqi judgments upholding 13 the CMC’s decision to disqualify Alfa from bidding on the 2018 CMC Project is not of the sort 14 that might play on a juror’s sympathies or inflame any passions, confuse the issues, waste time, or 15 otherwise tend to have an adverse effect on Alfa beyond tending to prove facts relevant to the 16 issues of causation and damages. See, e.g., In re Pac. Fertility Ctr. Litig., No. __, 2021 WL 17 1054374, at *5 (N.D. Cal. Mar. 19, 2021) (“[T]hat evidence is potentially damaging is not itself a 18 basis to exclude it. Under Federal Rule of Evidence 403, the test is whether it is more prejudicial 19 than probative.”) (citations omitted). 20 4. Conclusion 21 Based on the reasoning above, the Court will grant in part and deny in part Alfa’s motion 22 in limine to exclude evidence of proceedings it instituted in Iraq related to the CMC’s award of the 23 2018 CMC Project to AZG. Evidence of the existence of the Iraqi judgments—and potentially the 24 face pages of the judgment documents, depending on their contents—will not be excluded; i.e., the 25 Court will deny the motion with respect to the judgment itself. The Court will otherwise grant the 26 motion, so that evidence consisting of the text of the Iraqi judgments, for example, will be 27 excluded. The Court urges the parties to meet and confer and add a stipulated fact regarding this 1 ameliorate any remaining concerns regarding prejudice. 3 TCI filed three motions in limine. See ECF Nos. 109, 110, 112. Alfa opposed all three 4 motions. See ECF Nos. 116–18. The Court considers each of TCI’s motions in turn. 5 A. TCI’s Motion in Limine No. 1 to Exclude Evidence Concerning Alleged Unlawful Influence 6 In its first motion in limine, TCI moves to exclude certain exhibits included on Alfa’s 7 exhibit list—namely, Exhibits 30–32, 34–37, 39–40, 42–43, 45–47, 83–86, 95, 98, and 135—that 8 TCI asserts will be offered in support of the position that TCI and/or AZG allegedly engaged in 9 unlawful influence of the CMC, received confidential information from the CMC, or otherwise 10 engaged in improper conduct to cause Alfa’s disqualification or elimination from the 2018 CMC 11 Project or overall blacklisting. See TCI MIL 1, at 1, ECF No. 109; Decl. of Gregory C. Ulmer ¶ 2, 12 ECF No. 109-1. TCI argues that the Court granted summary judgment on all of Alfa’s claims to 13 the extent they were based on a causation theory of unlawful influence, and that the exhibits at 14 issue (1) are irrelevant to Alfa’s remaining claims for breach of contract and breach of the implied 15 covenant of good faith and fair dealing and (2) should be excluded under Rule 403 because the 16 danger of confusing issues, misleading the jury, and causing unfair prejudice to TCI substantially 17 outweighs their probative value. See TCI MIL 1, at 2–5. Alfa responds that it has no intention of 18 introducing any evidence in violation of the Court’s summary judgment order; that the evidence is 19 relevant to Alfa’s claim for breach of the implied covenant of good faith and fair dealing and is not 20 unfairly prejudicial, misleading, or confusing; and that TCI’s motion to exclude is premature 21 because it is based on “the false assumption that such exhibits will be introduced for an improper 22 purpose.” See Opp’n to TCI MIL 1, at 1–5, ECF No. 116. 23 As the Court noted at oral argument, the same evidence Alfa used in support of its 24 unlawful influence theory may be relevant to its attempt to show that TCI breached the covenant 25 of good faith and fair dealing by engaging in bad faith conduct. Accordingly, the exhibits 26 identified by TCI may be admissible for the limited purpose of establishing bad faith, although 27 they are not admissible to establish unlawful influence. See Order Re Summ. J. 24–25, ECF No. 1 104. The Court is unable to draw the line of admissibility without context for Alfa’s submission 2 of the exhibits, and will therefore defer ruling on this motion in limine as to each exhibit unless 3 and until the exhibit is offered during trial. 4 B. TCI’s Motion in Limine No. 2 to Exclude the Opinions of Alfa’s Expert Haider Ala Hamoudi 5 In its second motion in limine, TCI moves to exclude the opinions of Alfa’s expert, Haider 6 Ala Hamoudi, related to Iraqi public contracting, bidding, and blacklisting laws as irrelevant, 7 prejudicial, misleading, and confusing. See TCI MIL 2, at 1, ECF No. 110. TCI states that it 8 anticipates, based on Alfa’s proposed jury instructions, that Alfa will use Mr. Hamoudi’s opinions 9 to instruct the jury on Iraqi law, and that Mr. Hamoudi’s opinions improperly apply the law to the 10 facts. See id. at 2–5. Alfa responds that it does not intend to introduce any testimony or opinions 11 from Mr. Hamoudi at trial, and that the jury instruction at issue “is intended to provide the jury 12 helpful context on the procedures for public contracts and blacklisting in Iraq.” Opp’n to TCI 13 MIL 2, at 1, ECF No. 117. 14 Because Alfa does not intend to offer Mr. Hamoudi’s testimony or opinion to the jury, 15 there is no evidence for the Court to consider excluding. Whether the Court chooses to consider 16 Mr. Hamoudi’s expert report in evaluating a contested jury instruction is not properly the subject 17 of a motion in limine. Accordingly, the Court will deny this motion based on the understanding 18 that Alfa does not intend to offer Mr. Hamoudi’s testimony or opinion to the jury. 19 C. TCI’s Motion in Limine No. 3 to Exclude Reference to the Absence of Ray 20 Minhas as a Witness at Trial 21 Lastly, TCI moves to exclude reference to or an adverse inference from the absence of Ray 22 Minhas—a former TCI employee who was the Regional Director for the Middle East and North 23 Africa at the time of the tender for the 2018 CMC Project—as a trial witness. See TCI MIL 3, at 24 1, ECF No. 112. TCI argues that Mr. Minhas’s absence is irrelevant; Alfa cannot meet the 25 requirements for a missing witness instruction; and reference to Mr. Minhas’s absence would be 26 unfairly prejudicial to TCI and mislead and confuse the jury. See id. at 1–2. Alfa responds that 27 Mr. Minhas played a central role in TCI’s decision to team with AZG in bidding for the 2018 1 elements for a missing witness inference are not satisfied; and that any such comment would not 2 be unfairly prejudicial to TCI. See Opp’n to TCI MIL 3, at 2–4, ECF No. 118. Further, Alfa 3 asserted during oral argument that it would not make any reference to Mr. Minhas’s absence in its 4 opening statement, and requested that the Court refrain from constraining Alfa’s closing argument 5 at this juncture by deferring resolution of this motion in limine. TCI responded that there will be 6 no change in circumstances over time, so that there is no reason for deferral. 7 It is the Court’s understanding that Alfa is not seeking a missing witness instruction, 8 although Alfa states that it does not concede that the elements for such an instruction are not 9 satisfied here. See Opp’n to TCI MIL 3, at 3 n.1. Rather, the parties’ dispute is in essence 10 whether Alfa may make arguments regarding Mr. Minhas’s absence during its closing argument. 11 Alfa’s ability to reference Mr. Minhas’s absence will depend not only on the Court’s resolution of 12 this motion, but also on whether there is enough evidence in the record to support any comment 13 Alfa might make about Mr. Minhas’s absence. It appears that Mr. Minhas’s name may appear on 14 various emails that may be introduced at trial, and that evidence may suggest that he had a 15 significant role at the time of the events relevant to Alfa’s claims. See Opp’n to TCI MIL 3, at 2 16 (citing as examples Exhibits 30, 32, 35, and 86). The Court will accordingly defer ruling on this 17 motion until the parties are prepared to make their closing arguments. 19 Based on the foregoing, the Court hereby ORDERS as follows: 20 1. Alfa’s Motion in Limine No. 1, ECF No. 111, is DENIED IN PART, such that TCI 21 may introduce evidence of the fact of the Iraqi court judgments upholding the 22 CMC’s decisions, and potentially the face pages of the judgment documents, and 23 otherwise GRANTED. 24 2. The Court DEFERS ruling on TCI’s Motion in Limine No. 1, ECF No. 109, 25 regarding the exclusion of Exhibits 30–32, 34–37, 39–40, 42–43, 45–47, 83–86, 95, 26 98, and 135, until each exhibit is offered at trial. 27 3. TCI’s Motion in Limine No. 2, ECF No. 110, is DENIED based on Alfa’s 1 at trial. 2 4. The Court DEFERS ruling on TCI’s Motion in Limine No. 3, ECF No. 112, until 3 the parties are prepared to make their closing arguments. 4 6 Dated: November 8, 2023 7
Beth Labson Freeman 9 United States District Judge 10 11 12
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