INTERNATIONAL SWIMMING Case No. 18-cv-07394-JSC LEAGUE, LTD, Plaintiff, ORDER FOLLOWING PRETRIAL CONFERENCE AND RE: MOTIONS IN v. LIMINE WORLD AQUATICS, Re: Dkt. Nos. 483, 484, 485, 486, 487, 489, Defendant. 491, 492, 493, 495, 496
Jury trial is scheduled to commence on January 12, 2025. The Court held a pretrial conference with the parties on November 18, 2025. I. MOTIONS IN LIMINE A. Plaintiff’s Motions in Limine 1. Motion in Limine 1: To Limit Paul K. Meyer’s Testimony (Dkt. No. 485) Plaintiff seeks to limit the testimony of Defendant’s accounting and rebuttal expert, Paul K. Meyer, “to matters of accounting, and to exclude his repetition of record facts, speculation about state of mind, and vouching for World Aquatics’ other experts’ testimony.” (Dkt. No. 485 at 2.) As Mr. Meyer provides proper rebuttal testimony, the Court DENIES the motion. 2. Motion in Limine 2: To Preclude Evidence or Argument Concerning Konstantin Grigorishin’s Russian or Other Foreign Sanctions or Criminal Convictions (Dkt. No. 486) Plaintiff argues evidence or argument concerning Konstantin Grigorishin’s criminal or sanctions history is inadmissible to prove Mr. Grigorishin’s character or impeach his testimony. See Fed. R. Evid. 404(a), 609(a). Defendant contends it plans to “offer testimony and evidence evidence of future wrongdoing, but to prove ‘the falsity of [ISL’s] representation’ regarding damages as well as independent reasons for World Aquatics’ and sponsors’ conduct.” (Dkt. No. 486 at 13 (citation omitted).) Under Rule 404(b), “unless the evidence of other crimes tends only to prove propensity, it is admissible.” Boyd v. City & Cnty. of San Francisco, 576 F.3d 938, 947 (9th Cir. 2009) (cleaned up); see also Fed. R. Evid. 404(b)(2) (noting non-propensity purposes “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident”). Although Defendant states it does not intend to use Mr. Grigorishin’s background as propensity evidence, to this extent, Plaintiff’s motion is GRANTED. However, the motion is DENIED to the extent Plaintiff seeks to prohibit Defendant from using the information as evidence as to why Defendant and third parties may not have wanted to work with Plaintiff. The parties shall work together on how this evidence will be presented, that is, how much detail needs to be shared with the jury. 3. Motion in Limine 3: To Preclude Evidence or Argument That ISL Lacks Standing to Pursue Damages Due to Entities Through Which Funds Flowed (Dkt. No. 487) Plaintiff moves to preclude evidence or argument it “lacks standing to pursue its damages claims because its lost profits would have been earned by related entities and its increased expenses were incurred by entities with whom [it] has contractual relationships” because such evidence would be distracting and open the door to evidence related to its Second Motion in Limine. (Dkt. No. 487 at 2.) See Fed. R. Evid. 403. a. Ownership of Sponsors To the extent Plaintiff’s motion seeks to exclude evidence of the related ownership of supposed sponsors of ISL events, Plaintiff’s motion is DENIED. As Defendant argues:
ISL’s lost profit projections are based, in part, on a number of supposed ‘sponsorships’ ISL claims it secured in 2019. World Aquatics is entitled to present evidence regarding the various shell companies that were the source of those ‘sponsorships’ to show that ISL never actually secured legitimate sponsors, but rather relied on non-arm’s-length ‘sponsorships’ from entities affiliated with Mr. Grigorishin and ISL. . . . ISL cannot put forth evidence of sponsorship showing that those revenues actually came from Mr. Grigorishin’s shell companies. World Aquatics intends to demonstrate that, aside from Mr. Grigorishin’s entities, no actual sponsors were seriously interested in ISL’s event, even after ISL staged numerous events with top-tier swimmers. (Dkt. No. 487 at 9, 14-15.) b. Expenses Paid by Other Related Entities Plaintiff primarily seeks to preclude evidence and argument it lacks standing because its expenses were incurred by other entities. For the reasons discussed at the pretrial conference, the Court holds this portion of the motion in limine in abeyance pending supplemental briefing. Plaintiff shall file its brief by Tuesday, December 2, 2025, and Defendant shall file its response by Tuesday, December 16, 2025. B. DEFENDANT’S MOTIONS IN LIMINE 1. Motion in Limine 1: To Exclude Untimely and Undisclosed Merits Expert Testimony (Dkt. No. 489) Defendant seeks to prevent Plaintiff from introducing the opinions of Dr. Daniel Rascher, the Shields class certification and damages expert, as a merits expert on anticompetitive effects. Defendant argues because the Court ruled—and the Ninth Circuit affirmed—Plaintiff had missed the merits expert deadline, the law of the case prevents Plaintiff from using Dr. Rascher as a merits expert. However, the law of the case as Defendant defines it does not exist. The Ninth Circuit did affirm this Court’s ruling Plaintiff had missed the merits expert report deadline and could not disclose merits experts. (Dkt. No. 346 at 4, 7, 12; Dkt. No. 450 at 6-7.) However, the Court did not prohibit Plaintiff from using Dr. Rascher’s testimony as evidence of direct anticompetitive effects. Instead, the Court held Plaintiff had not identified sufficient evidence of direct anticompetitive effects, and wrote:
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INTERNATIONAL SWIMMING Case No. 18-cv-07394-JSC LEAGUE, LTD, Plaintiff, ORDER FOLLOWING PRETRIAL CONFERENCE AND RE: MOTIONS IN v. LIMINE WORLD AQUATICS, Re: Dkt. Nos. 483, 484, 485, 486, 487, 489, Defendant. 491, 492, 493, 495, 496
Jury trial is scheduled to commence on January 12, 2025. The Court held a pretrial conference with the parties on November 18, 2025. I. MOTIONS IN LIMINE A. Plaintiff’s Motions in Limine 1. Motion in Limine 1: To Limit Paul K. Meyer’s Testimony (Dkt. No. 485) Plaintiff seeks to limit the testimony of Defendant’s accounting and rebuttal expert, Paul K. Meyer, “to matters of accounting, and to exclude his repetition of record facts, speculation about state of mind, and vouching for World Aquatics’ other experts’ testimony.” (Dkt. No. 485 at 2.) As Mr. Meyer provides proper rebuttal testimony, the Court DENIES the motion. 2. Motion in Limine 2: To Preclude Evidence or Argument Concerning Konstantin Grigorishin’s Russian or Other Foreign Sanctions or Criminal Convictions (Dkt. No. 486) Plaintiff argues evidence or argument concerning Konstantin Grigorishin’s criminal or sanctions history is inadmissible to prove Mr. Grigorishin’s character or impeach his testimony. See Fed. R. Evid. 404(a), 609(a). Defendant contends it plans to “offer testimony and evidence evidence of future wrongdoing, but to prove ‘the falsity of [ISL’s] representation’ regarding damages as well as independent reasons for World Aquatics’ and sponsors’ conduct.” (Dkt. No. 486 at 13 (citation omitted).) Under Rule 404(b), “unless the evidence of other crimes tends only to prove propensity, it is admissible.” Boyd v. City & Cnty. of San Francisco, 576 F.3d 938, 947 (9th Cir. 2009) (cleaned up); see also Fed. R. Evid. 404(b)(2) (noting non-propensity purposes “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident”). Although Defendant states it does not intend to use Mr. Grigorishin’s background as propensity evidence, to this extent, Plaintiff’s motion is GRANTED. However, the motion is DENIED to the extent Plaintiff seeks to prohibit Defendant from using the information as evidence as to why Defendant and third parties may not have wanted to work with Plaintiff. The parties shall work together on how this evidence will be presented, that is, how much detail needs to be shared with the jury. 3. Motion in Limine 3: To Preclude Evidence or Argument That ISL Lacks Standing to Pursue Damages Due to Entities Through Which Funds Flowed (Dkt. No. 487) Plaintiff moves to preclude evidence or argument it “lacks standing to pursue its damages claims because its lost profits would have been earned by related entities and its increased expenses were incurred by entities with whom [it] has contractual relationships” because such evidence would be distracting and open the door to evidence related to its Second Motion in Limine. (Dkt. No. 487 at 2.) See Fed. R. Evid. 403. a. Ownership of Sponsors To the extent Plaintiff’s motion seeks to exclude evidence of the related ownership of supposed sponsors of ISL events, Plaintiff’s motion is DENIED. As Defendant argues:
ISL’s lost profit projections are based, in part, on a number of supposed ‘sponsorships’ ISL claims it secured in 2019. World Aquatics is entitled to present evidence regarding the various shell companies that were the source of those ‘sponsorships’ to show that ISL never actually secured legitimate sponsors, but rather relied on non-arm’s-length ‘sponsorships’ from entities affiliated with Mr. Grigorishin and ISL. . . . ISL cannot put forth evidence of sponsorship showing that those revenues actually came from Mr. Grigorishin’s shell companies. World Aquatics intends to demonstrate that, aside from Mr. Grigorishin’s entities, no actual sponsors were seriously interested in ISL’s event, even after ISL staged numerous events with top-tier swimmers. (Dkt. No. 487 at 9, 14-15.) b. Expenses Paid by Other Related Entities Plaintiff primarily seeks to preclude evidence and argument it lacks standing because its expenses were incurred by other entities. For the reasons discussed at the pretrial conference, the Court holds this portion of the motion in limine in abeyance pending supplemental briefing. Plaintiff shall file its brief by Tuesday, December 2, 2025, and Defendant shall file its response by Tuesday, December 16, 2025. B. DEFENDANT’S MOTIONS IN LIMINE 1. Motion in Limine 1: To Exclude Untimely and Undisclosed Merits Expert Testimony (Dkt. No. 489) Defendant seeks to prevent Plaintiff from introducing the opinions of Dr. Daniel Rascher, the Shields class certification and damages expert, as a merits expert on anticompetitive effects. Defendant argues because the Court ruled—and the Ninth Circuit affirmed—Plaintiff had missed the merits expert deadline, the law of the case prevents Plaintiff from using Dr. Rascher as a merits expert. However, the law of the case as Defendant defines it does not exist. The Ninth Circuit did affirm this Court’s ruling Plaintiff had missed the merits expert report deadline and could not disclose merits experts. (Dkt. No. 346 at 4, 7, 12; Dkt. No. 450 at 6-7.) However, the Court did not prohibit Plaintiff from using Dr. Rascher’s testimony as evidence of direct anticompetitive effects. Instead, the Court held Plaintiff had not identified sufficient evidence of direct anticompetitive effects, and wrote:
Putting aside that [Dr. Rascher] is a damages rather than merits expert, he (unsurprisingly) provides no testimony that disputes the evidence ISL did not need FINA to sponsor top-tier international swimming competitions. (Dkt. No. 419 at 19.) However, the Ninth Circuit reversed this Court’s summary judgment order because “Plaintiffs have raised a triable dispute under the rule of reason through direct evidence of anticompetitive effects.” (Dkt. No. 450 at 8.) So, contrary to Defendant’s insistence, this Court and the Ninth Circuit never ruled any party could not call at trial existing and properly-disclosed experts used in connection with class certification. Furthermore, Defendant had a full opportunity to challenge Dr. Rascher. The Court therefore DENIES the motion. Dr. Rascher may testify consistent with—but not beyond—his report, to the extent relevant to an issue in the case. 2. Motion in Limine 2: To Exclude Argument and Evidence Regarding the European Commission’s Case Against the International Skating Union (Dkt. No. 491) Defendant seeks to exclude any evidence of the European Commission (“EC”) proceedings against the International Skating Union (“ISU”) as irrelevant and unfairly prejudicial. See Fed. R. Evid. 402, 403. However, as Plaintiff argues, Defendant’s discussions about the EC’s ISU proceedings are relevant to show Defendant understood its invocation of GR 4 was a threat to swimmers and national federations, and national federations understood it similarly. This evidence also rebuts Defendant’s defense it did not invoke GR 4 to threaten federations or swimmers. So, the discussions may help Plaintiff show Defendant’s anticompetitive intent and purpose. See Sidibe v. Sutter Health, 103 F.4th 675, 686, 693 (9th Cir. 2024) (explaining evidence of intent “can often be important to prove that a defendant ‘intentionally engaged in conduct’ constituting a per se violation,” and “anticompetitive purpose is an essential element of the rule of reason analysis” (citations omitted)). So, Defendant’s motion is DENIED to the extent the evidence is relevant to evaluating Defendant’s intent and its and its alleged co-conspirators’ understanding of the effect of GR 4 and may be used for that purpose. The parties shall meet and confer on the evidence Plaintiff intends to offer and an appropriate limiting instruction, to the extent Defendant believes one is warranted. 3. Motion in Limine 3: To Exclude Improper Propensity Evidence Concerning the World Swimming Association, the World High Diving Association, the World Open Water Swimming Association, Oceanman and Other Entities (Dkt. No. 492) Defendant seeks to exclude any evidence, testimony, or argument concerning other third- party entities and aquatics competitions as inadmissible propensity evidence, as well as irrelevant and unfairly prejudicial. Plaintiff cites evidence related to the World Swimming Association’s Ring of Fire, World High Diving Federation, World Open Water Swimming Association, and OceanMan competitions which supports an inference Defendant knew GR 4 could be used to threaten athletes and national federations and intended to threaten them by invoking it; the national federations would have interpreted the invocation as a threat; and Defendant had a modus operandi of invoking GR 4 to harm competitors. (Dkt. No. 492 at 12-14.) The Court agrees with Plaintiff these are non-propensity purposes for which the evidence is admissible. See Fed. R. Evid. 404(b)(2) (explaining evidence of prior conduct “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident”); see also United States v. Izatt, 480 F. App’x 447, 450 (9th Cir. 2012) (affirming admission of evidence “relevant to show modus operandi”); Movie 1 & 2 v. United Artists Commc’ns, Inc., 909 F.2d 1245, 1250 (9th Cir. 1990) (noting admission of evidence “to demonstrate previous anti-competitive conduct by defendant”). Defendant’s motion is DENIED to the extent Plaintiff seeks to use evidence concerning third party entities and aquatics competitions for non-propensity purposes. 4. Motion in Limine 4: To Exclude Argument and Evidence Regarding World Aquatics’ Alleged “Threats” to Swimmers (Dkt. No. 493) Defendant seeks to exclude evidence or testimony arguing Defendant made “threats” to swimmers regarding sanctions or their Olympic eligibility because “there is no evidence of any actual communications between World Aquatics and swimmers related to ISL,” so any purported evidence would be inadmissible hearsay. (Dkt. No. 493 at 4.) Plaintiff argues evidence of Defendant’s threats is not hearsay because it will not be offered for its truth, but rather to show Defendant’s legally actionable conduct and the statements’ effect on the national federation and swimmer recipients. See United States v. Lopez, 913 F.3d 807, 826 (9th Cir. 2019) (“An out-of- court statement is not hearsay if offered for any purpose other than the truth of whatever the statement asserts . . . [e.g.,] for the purpose of establishing what effect it had on the listener.” (citations omitted)); see also Bergene v. Salt River Project Agric. Imp. & Power Dist., 272 F.3d 1136, 1142 (9th Cir. 2001) (finding threat was not hearsay because it was not offered to show employer “in fact would deny the promotion” but instead to show employer’s “claimed rationale . . . was a pretext”). In addition, Defendant only specifically identifies and objects to Katinka Hosszu’s interrogatory responses, which Plaintiff does not intend to introduce into evidence. So, the Court DENIES the motion. Pending before the Court are three administrative motions, filed November 10, 2025, to consider whether another party’s material shall be sealed: (1) Plaintiff’s motion regarding material designated as confidential by Wasserman and USA Swimming, (Dkt. No. 484); (2) Defendant’s motion regarding material designated as confidential by the swimmer plaintiffs in Shields, (Dkt. No. 495); and (3) Defendant’s motion regarding material designated as confidential by USA Swimming, (Dkt. No. 496). Under the Local Rules, when a party seeks to file under seal any material designated as confidential by another party, the submitting party must file an administrative motion for a sealing order. See N.D. Cal. Civ. L.R. 79-5(f). “Within 7 days of the motion’s filing, the Designating Party must file a statement and/or declaration” specifically stating the applicable legal standard and reasons for keeping the confidential documents under seal. Id. at 79-5(f)(3). “A failure to file a statement or may result in the unsealing of the provisionally sealed document without further notice.” Id. As Wasserman, USA Swimming, and the Shields plaintiffs have not responded to the motions to justify the sealing of this information, the Court DENIES the administrative motions to consider whether another party’s or non-party’s information should be sealed. A. Plaintiff’s Late Disclosure of Cyndi Gallagher Defendant objects to the inclusion of Cyndi Gallagher, a swimming coach and former ISL coach, on Plaintiff’s witness list. According to Defendant, Plaintiff first disclosed Ms. Gallagher when exchanging its proposed witness list on October 31, 2025, on which it included Ms. Gallagher “for twenty minutes of limited testimony concerning her experience with swimmers and ISL coaching.” (Dkt. No. 490 at 11.) “Compliance with [Federal Rule of Civil Procedure 26(a)(1)’s] disclosure requirements is (citation omitted). Absent a showing of substantial justification or harmlessness, the witness should be stricken from the witness list and precluded from testifying at trial. See id. (citing Fed. R. Civ. P. 37(c)(1)). As Defendant argues, Plaintiff’s “untimely disclosure of Ms. Gallagher . . . is not harmless, because [Defendant] was deprived the opportunity to seek information from [her] or depose her during discovery.” (Dkt. No. 490 at 10.) And the Court is not persuaded by Plaintiff’s argument Ms. Gallagher’s late inclusion is justified because, in light of the Shields settlement, “swimmers who were class plaintiffs [a]re no longer available to testify.” (Id. at 11.) The Court therefore STRIKES Ms. Gallagher from the witness list. B. Motion for an Order Requesting Mr. Grigorishin’s Admission to the United States (Dkt. No. 483) Plaintiff filed an unopposed administrative motion for a Court order requesting U.S. Customs and Border Protection grant Konstantin Grigorishin temporary admission to the United States to testify at trial, pursuant to 8 U.S.C. § 1182(d)(5)(A) and 8 C.F.R. § 212.5(a). (Dkt. No. 483.) Plaintiff relies on cases in which courts issued such orders for a criminal defendant’s witnesses. See United States v. Saipov, 412 F. Supp. 3d 295, 303 (S.D.N.Y. 2019); United States v. Theresius Filippi, 918 F.2d 244, 246 (1st Cir. 1990). Plaintiff does not cite any civil case in which a court has issued such an order, much less an order for a plaintiff’s witness. So, the Court DENIES the motion. C. Testimony via Live Video Plaintiff asks the Court to allow two witnesses, Konstantin Grigorishin and Artem Nitz, to testify at trial via live video. (Dkt. No. 490 at 12.) “At trial, the witnesses’ testimony must be taken in open court unless” an exception applies. See Fed. R. Civ. P. 43(a). “For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” Id. Plaintiff explains Mr. Nitz is prohibited from leaving Ukraine because he may be conscripted into the armed forces. Defendant does not object to Mr. Nitz’s video testimony, as “being unable to leave the country of his residence due to wartime restrictions is the type of exception to in-person testimony to which Rule 43(a) is intended to apply: unexpected circumstances that are out of the witness’s control.” (Dkt. No. 490 at 14.) The Court GRANTS Plaintiff’s request for Mr. Nitz to testify via video. Mr. Grigorishin’s “inability to lawfully enter the United States [would] constitute[] good cause in compelling circumstances to justify” testimony via video, especially as his deposition was conducted remotely. See Monserrate v. K.K. Machine Co. Inc., No. 10-3732 (TLM), 2013 WL 1412194, at *1 (E.D.N.Y. Apr. 8, 2013). However, Plaintiff has not shown Mr. Grigorishin “ha[s] pursued and [] been denied a visa to the United States.” See El-Hadad v. United Arab Emirates, 496 F.3d 658, 669 (D.C. Cir. 2007). The Court holds Plaintiff’s request for Mr. Grigorishin to testify via video in abeyance pending evidence he applied for and failed to obtain a visa to enter the United States. A. Jury Questionnaires The Jury Office anticipates providing counsel and the Court with completed jury questionnaires by Wednesday, January 7, 2026. The Court will identify hardship excuses from the surveys, and the parties shall meet and confer as to whether they agree on any additional excuses. Court will not excuse any jurors in advance of voir dire without the parties’ agreement. The Court will hold a hearing via Zoom video on Thursday, January 8, 2026 at 4 p.m. to discuss excuses. B. Jury Selection and Trial Schedule Jury selection will begin Monday, January 12, 2026 at 8:30 a.m. Each side will have 20 minutes for voir dire and is allowed three peremptory challenges. Eight jurors will be seated. Opening statements and the first witness will follow, as time allows, after a 45-minute lunch break and concluding around 3:00 p.m. On Tuesday, January 13, 2026, trial will be conducted from 8:30 a.m. to 3:00 p.m. No trial will be conducted on Wednesday, January 14, 2026. On Thursday, January 15, 2026, trial will be conducted from 8:30 a.m. to 1:30 p.m. On Friday, January 16, 2026, trial will be conducted from 8:30 a.m. to 3:00 p.m. Given the federal holiday, no trial will be conducted on Monday, January 19, 2026. On Tuesday, January 20, 2026, trial will be conducted from 8:30 a.m. to 3:00 p.m. On 1 a.m. to 1:30 p.m. On Friday, January 23, 2026, trial will be conducted from 8:00 a.m. to 3:00 p.m. 2 On days when trial is conducted until 3:00 p.m., there will be 15-minute breaks in the 3 morning and afternoon and a 45-minute break for lunch. On days when trial is conducted until 4 1:30 p.m., there will be two 15-minute breaks. 5 Counsel should arrive by 8:00 a.m. each morning to address matters outside presence of 6 the jury. 7 C. Time Limits 8 Each side has 14 hours for direct and cross-examination. This time does not include 9 opening and closing statements; each side has 45 minutes for its opening statement, and the Court 10 will disclose closing statement time limits later. 11 This Order disposes of Docket Nos. 483, 484, 485, 487, 489, 491, 492, 493, 495, and 496. 13 Dated: November 20, 2025
15 ne ACQUELINE SCOTT CORLE = 16 United States District Judge
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