1 2 UNITED STATES DISTRICT COURT 3 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 4 5 SILVER FERN CHEMICAL, INC., a CASE NO. 2:23-cv-00775-TL Washington corporation, 6 ORDER ON MOTIONS IN Plaintiff, 7 v. LIMINE 8 SCOTT LYONS, an individual; TROY KINTO, an individual; KING HOLMES, an individual; 9 ROWLAND MORGAN, an individual; and AMBYTH CHEMICAL COMPANY, a 10 Washington corporation, 11 Defendants. 12 SCOTT LYONS, an individual, and KING 13 HOLMES, an individual, 14 Counterclaim Plaintiffs, 15 v. 16 SILVER FERN CHEMICAL, INC., a Washington corporation, SAM KING, an 17 individual, and LISA KING, an individual,
18 Counterclaim Defendants.
19 20 This matter is before the Court on Plaintiff’s Motion in Limine (Dkt. No. 210) and 21 Defendants’ Motions in Limine (Dkt. No. 212). Having considered all motions in limine, 22 Plaintiff’s response to Defendants (Dkt. No. 228), Defendants’ response to Plaintiff’s motion 23 // 24 // 1 (Dkt. No. 235), the relevant record, and finding oral argument unnecessary,1 see LCR 7(b)(4), 2 the Court rules on each motion as set forth in this Order. 3 I. BACKGROUND 4 The Court assumes familiarity with the facts of this case. See Dkt. No. 7 (Complaint
5 (Sealed)); Dkt. No. 180 at 2–6 (Order on Motion for Summary Judgment). 6 II. LEGAL STANDARD 7 “A motion in limine is a procedural mechanism to limit in advance testimony or evidence 8 in a particular area . . . so that admissibility is settled before attempted use of the evidence before 9 the jury.” United States v. Heller, 551 F.3d 1108, 1111–12 (9th Cir. 2009) (citation omitted). 10 While the Federal Rules of Evidence (“FRE”) do not explicitly permit motions in limine, they are 11 a part of a “district court’s inherent authority to manage the course of trials.” Luce v. United 12 States, 469 U.S. 38, 41 n.4 (1984). A motion in limine is ordinarily granted only if the evidence 13 at issue is inadmissible on all potential grounds; if not, the evidentiary ruling is better deferred 14 until trial, to allow for questions of foundation, relevancy, and prejudice to be resolved with the
15 appropriate context. E.g., United States v. Sims, 550 F. Supp. 3d 907, 912 (D. Nev. 2021). A 16 motion in limine should not be used to resolve factual disputes or weigh evidence. E.g., 17 Westboro Condo. Ass’n v. Country Cas. Ins. Co., No. C21-685, 2023 WL 1928170, at *1 (W.D. 18 Wash. Feb. 10, 2023). A court’s ruling on a pre-trial motion in limine is preliminary and can be 19 revisited at trial based on the facts and evidence as they are actually presented. See, e.g., City of 20 Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1070 (9th Cir. 2017) (noting a court may change 21 its in limine ruling at trial if testimony brings unanticipated facts to the court’s attention). 22 //
23 //
24 1 Oral argument was not requested for any of these motions in limine. 1 Because many of the Parties’ motions in limine reference Federal Rules of Evidence 401, 2 402, and 403, the Court lays out the three rules here: 3 FRE 401. Test for Relevant Evidence 4 Evidence is relevant if: (a) it has any tendency to make a fact more or less probable 5 than it would be without the evidence; and (b) the fact is of consequence in determining the action. 6 FRE 402. General Admissibility of Relevant Evidence 7 Relevant evidence is admissible unless any of the following 8 provides otherwise: • the United States Constitution; 9 • a federal statute; • these rules; or 10 • other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible. 11 FRE 403. Excluding Relevant Evidence for Prejudice, 12 Confusion, Waste of Time, or Other Reasons 13 The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the 14 following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting 15 cumulative evidence. 16 Exclusion under Rule 403 is discretionary, and the Ninth Circuit recognizes that “‘[r]elevant 17 evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing 18 probative value, which permits exclusion of relevant matter under Rule 403.’” Shuler v. City of 19 Los Angeles, 849 F. App'x 671, 673 (9th Cir. 2021) (quoting United States v. Hankey, 203 F.3d 20 1160, 1172 (9th Cir. 2000). See also Sidibe v. Sutter Health, 103 F.4th 675, 702 (9th Cir. 2024). 21 In short, evidence is generally admissible at trial if it is relevant, unless the probative value of 22 such evidence is substantially outweighed by such unwanted dangers as unfair prejudice or 23 misleading the jury. “Unfair prejudice” means “the possibility that the evidence will excite the 24 jury to make a decision on the basis of a factor unrelated to the issues properly before it.” Heyne 1 v. Caruso, 69 F.3d 1475, 1481 (9th Cir. 1995) (quoting Mullen v. Princess Anne Volunteer Fire 2 Co., 853 F.2d 1130, 1134 (4th Cir. 1988)). 3 III. DISCUSSION 4 The Court addresses each of Parties’ Motions in Limine in turn.
5 A. Plaintiff’s Motions in Limine 6 Plaintiff argues that Mr. King’s employment and departure from TRI International is 7 irrelevant to this case and will result in a mini-trial that confuses the jury. Dkt. No. 210 at 2–4. In 8 response, Defendants’ primary claim is that Mr. King’s usage of information gathered at TRI 9 International and brought to Silver Fern shows that he did not believe that that type of 10 information was confidential—the same type information Plaintiff now claims is confidential. 11 Dkt. No. 235 at 2. The Court agrees with Defendants that testimony about Mr. King’s prior 12 employment should be allowed at trial. 13 Under the Defend Trade Secrets Act (“DTSA”), a trade secret is: 14 all forms and types of . . . business . . . information, including patterns, plans, compilations, program devices, formulas, designs, 15 prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how 16 stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if[:] (A) the owner 17 thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic 18 value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another 19 person who can obtain economic value from the disclosure or use of the information 20 18 U.S.C. § 1839(3) (citation modified). The parties dispute both prongs of the inquiry, and they 21 will both involve factual disputes that will need to be decided by the jury. See, e.g., Multifab, Inc. 22 v. Zweiger, No. C19-6164, 2020 WL 2614736, at *3 (W.D. Wash. May 22, 2020) (“While the 23 definition of a trade secret is a matter of law under the Uniform Trade Secrets Act, RCW 24 1 19.108.010(4), the determination in a given case whether specific information is a trade secret is 2 a factual question.”) (citing Ed Nowogroski Ins., Inc. v. Rucker, 137 Wn.2d 427, 436, 971 P.2d 3 936 (1999)). 4 Defendants provide that Mr. King stated in his deposition: (1) that he does not believe
5 that TRI’s customer relationship management program was a trade secret; (2) that when he left 6 TRI International, he began calling former TRI customers; and (3) that “probably 50 percent” of 7 Silver Fern’s initial business were customers that he worked with when he was at TRI. Dkt. 8 No. 235 at 5–6. What Mr. King believes about the customer information from TRI International 9 is relevant in the present case because it tends to make it less likely that the customer information 10 the Defendants used at Ambyth, deriving from Silver Fern, is a trade secret. This is of 11 consequence to Plaintiff’s claim under the Defend Trade Secrets Act. This information will not 12 cause confusion for the jury, because what Mr. King believes is or is not a trade secret will assist 13 the jury in making a decision as to the claims in question. 14 The Court also finds Mr. King’s prior employment relevant to Defendants’ affirmative
15 defense under the doctrine of unclean hands. The doctrine of unclean hands “bars relief to a 16 plaintiff who has violated conscience, good faith or other equitable principles in his prior 17 conduct, as well as to a plaintiff who has dirtied his hands in acquiring the right presently 18 asserted.” Dollar Sys., Inc. v. Avcar Leasing Sys., Inc., 890 F.2d 165, 173 (9th Cir. 2010); see 19 also Trade Assocs., Inc. v. Fusion Techs., Inc., No. C09-5804, 2011 WL 1485491, at *2 (W.D. 20 Wash. Apr. 18, 2011) (citing Seller Agency Council, Inc. v. Kennedy Ctr. for Real Est. Educ., 21 Inc., 621 F.3d 981, 986 (9th Cir. 2010)). Further, to ensure fairness, courts may invoke the 22 doctrine of unclean hands when a party attempts in bad faith to use an alleged trade secret to 23 control its competitors’ conduct. MEECO Mfg. Co., Inc. v. Imperial Mfg. Grp., No. C03-3061,
24 2005 WL 8172680, at *7 (W.D. Wash. May 26, 2005). . 1 Here, testimony about Mr. King’s prior employment is relevant because his previously 2 stated alleged past actions, as well as his beliefs about those past actions, may be seen as 3 inconsistent with Silver Fern’s allegations against Defendants. Therefore, Mr. King’s alleged 4 past actions and beliefs are relevant as to whether Silver Fern violated good faith or equitable
5 principles in its employee’s prior conduct and dirtied its hands . In tandem, Mr. King’s alleged 6 past actions, and the litigation currently brought, is relevant and can be presented under an 7 unclean hands affirmative defense. 8 Therefore, the Court DENIES Plaintiff’s motion to exclude testimony regarding Sam 9 King’s prior employment. 10 B. Defendants’ Motions in Limine
11 1. Defendants’ Motion to Exclude the Court’s Order on Motion for Sanctions and Motion to Seal, as well asAny Testimony and Argument Regarding the 12 Court’s Order.
13 Defendants move to exclude the Court’s Order on Motion for Sanctions and Motion to 14 Seal. Dkt. No. 212. Defendants argue the ruling is irrelevant under Federal Rule of Evidence 401 15 and, even if it is found to be relevant, it should be excluded under FRE 403, because any 16 potential probative value is substantially outweighed by unfair prejudice. See Dkt. No. 212 at 7– 17 8. In response, Plaintiff argues that the Court should reserve ruling on Plaintiff’s right to question 18 Defendants about the sanction at trial because otherwise, “the jury would be left with the 19 impression that Defendants could submit false statements to the Court without consequence.” 20 Dkt. No. 228 at 3. 21 The Court’s Order on Motion for Sanctions and Motion to Seal and whether there were 22 consequences are not relevant at trial, because such evidence does not make Plaintiff’s claims 23 any more or less probable. See e.g. Jelinek v. Am. Nat’l Prop. & Cas. Co., No. C15-00779, 2019 24 1 WL 5425254, at *2 (W.D. Wash. Oct. 23, 2019); see also, e.g., Wilson v. Hartford Ins. Co. of the 2 Midwest, No. C10-933, 2011 WL 2670199, at *4 (W.D. Wash. July 7, 2011). 3 Furthermore, even if the Court were to find the prior ruling relevant, the ruling would be 4 barred under FRE 403, because any probative value would be substantially outweighed by unfair
5 prejudice and might mislead the jury. See, e.g., Bastidas v. Good Samaritan Hosp. LP, No. C13- 6 04388, 2017 WL 1345604, at *1 (N.D. Cal. Apr. 12, 2017). If the jury were to hear about a 7 ruling the Court made, especially in relation to the credibility of a witness, the jurors would 8 likely defer to the Court rather than evaluate the credibility and evidentiary testimony from the 9 witness themselves. The Court is unconvinced by Plaintiff’s argument that if mentioning of the 10 sanction were disallowed, it would leave the jury with the impression that Defendants can submit 11 false statements without consequence. Dkt. No. 228 at 3. Rather, the jury would see that a 12 consequence of a false statement is the witness’s being confronted by the statement and having 13 the witness’s credibility put into issue during cross examination at trial. 14 Therefore, the Court GRANTS the Defendants’ motion to exclude the Court’s Order on
15 Motion for Sanctions and Order on Motion to Seal. 16 2. Defendants’ Motion to Exclude Paragraph 14 of Defendant King Holmes’s Declaration 17 18 In a signed declaration, Defendant Holmes stated, “Any of the deals I’ve put together 19 after moving to Ambyth are a result of customers reaching out to me to request we continue our 20 relationship.” Dkt. No. 29 ¶ 14 (King Holmes Declaration). The Court later found that this 21 statement was an intentional misrepresentation. Dkt. No. 151 at 5. Defendants move to exclude 22 this statement, stating it is not relevant under FRE 402 and, even if relevant, it is barred by FRE 23 403. Dkt. No. 212 at 9. Plaintiff rightly argues that this statement is relevant because it is a 24 falsehood on a key issue in this case—Defendants’ alleged solicitation of Silver Fern’s 1 customers using confidential information, and the fact that Defendant Holmes was willing to lie 2 to the Court, both go to Defendant Holmes’s credibility. Dkt. No. 228 at 2. See also Fed. R. Evid. 3 608(b). Defendants also concede that the statement may be allowed as impeachment evidence 4 under FRE 613(b). Dkt. No. 212 at 9. Defendants do not offer any satisfactory reason that the
5 evidence would be unfairly prejudicial such that any prejudice would substantially outweigh its 6 probative value. 7 Finally, Defendants request that if the Court admits paragraph 14 of Defendant Holmes’s 8 declaration, then they should be allowed to present evidence of Defendant Holmes’s truthful 9 character under FRE 608(a). Dkt. No. 212 at 9. Plaintiffs do not respond to this request. Should 10 Plaintiff choose to attack Defendant Holmes’s character for truthfulness under FRE 608, then it 11 will open the door to Defendant Holmes’s being allowed to offer evidence of his truthful 12 character under FRE 608(a). 13 Therefore, the Court DENIES Defendants’ motion to exclude paragraph 14 of Defendant 14 Holmes’s declaration. The Court RESERVES ruling on Defendants’ motion to admit evidence of
15 Defendant Holmes’s truthful character under FRE 608(a). 16 3. Defendants’ Motion to Exclude Evidence, Testimony, and Argument Regarding Ryecon Chemical LLC 17 18 Defendants argue that any evidence, testimony, or argument about Ryecon Chemical 19 LLC (“Ryecon”) is not relevant under FRE 401. Dkt. No. 212 at 9–10. Further, Defendants argue 20 that even if the evidence is relevant, it is inadmissible under FRE 403, because any potential 21 probative value is substantially outweighed by the risk of confusing the issues, misleading the 22 jury, and wasting time. Id. at 10. In general, Plaintiff claims that Defendant Holmes breached his 23 duty of loyalty and confidentiality to Silver Fern. Dkt. No. 219 at 2 (Pretrial Statement). More 24 specifically, Plaintiff responds to this motion by arguing that because Defendant Holmes 1 diverted away Silver Fern business to Ryecon (the company founded by Holmes’s wife), his 2 dealings with Ryecon are relevant to his duty of loyalty and confidentiality and prove that he 3 exhibited a pattern of misconduct. Dkt. No. 228 at 3–4. 4 Evidence that Defendant Holmes allegedly diverted opportunities and relationships away
5 from Silver Fern to his wife’s company, Ryecon, for personal benefit, is relevant. Plaintiff 6 alleges that Defendant Holmes breached his duty of loyalty and confidentiality to Silver Fern by 7 stealing trade secrets to be used at Ambyth, as well as by diverting business from Silver Fern to 8 Ambyth. Another instance of Holmes’s breaching his duty of loyalty and confidentiality while 9 employed at Silver Fern by diverting business to Ryecon does makes the allegations of diverting 10 business from Silver Fern to Ambyth more likely. Diverting business from Silver Fern to 11 Ambyth is of consequence, because it goes to proving breach of loyalty and confidentiality. 12 The evidence is also admitted as another act under FRE 404(b)(2). Specifically, showing 13 the jury evidence of another act of diverting business from Silver Fern for personal gain can be 14 used to show a pattern, plan, or course of conduct by Defendant Holmes of diverting business
15 from Silver Fern. 16 Defendants claim that any probative value is substantially outweighed by the risk of 17 confusing the issues, misleading the jury, and wasting time. Evidence related to Ryecon will not 18 confuse or mislead the jury, because it will be brief testimony about another act being used to 19 prove a pattern, plan, or course of conduct by Defendant Holmes. Furthermore, the evidence will 20 not waste time, because it provides evidence of another act similar to the allegations in the 21 present case. 22 Therefore, the Court DENIES Defendants’ motion to exclude evidence, testimony, and 23 argument regarding Ryecon.
24 1 4. Defendants’ Motion to Exclude Declarations of Bobbie Knight, Esther Kannenberg, and Karen Zell, and Exhibits Attached Thereto 2 3 Defendants argue that these declarations are hearsay (Dkt. No. 212 at 10–11), while 4 Plaintiff argues that the Court should reserve ruling because, while they do not plan to use the 5 declarations for substantive evidence at trial, they may use them for refreshing a witness’s 6 recollection, a recorded recollection, or for cross examination (Dkt. No. 228 at 4). The Court 7 agrees that the declarations are hearsay, but that they also may be used for other purposes in trial, 8 such as refreshing recollection, as a recorded recollection, or for impeachment purposes. 9 Therefore, the Court RESERVES ruling on Defendants’ motion to exclude declarations of 10 Bobbie Knight, Esther Kannenberg, and Karen Zell, and exhibits attached thereto. 11 5. Defendants’ Motion to Exclude Declaration of Sam King and Exhibits Attached Thereto 12 13 For the same reasons stated in section III.B.4., the Court RESERVES ruling on Defendants’ 14 motion to exclude the declaration of Sam King and exhibits attached thereto. 15 6. Defendants’ Motion to Exclude Declaration of Scott Polus and Exhibits Attached Thereto 16 17 For the same reasons stated in section III.B.4., the Court RESERVES ruling on Defendants’ 18 motion to exclude the declaration of Scott Polus and exhibits attached thereto. However, because 19 Silver Fern does not include Mr. Polus in its Pretrial Statement (Dkt. No. 219 at 11–14), the 20 Court will hear argument from Plaintiff on admissibility of the declaration under FRE 804(b)(1), 21 should Plaintiff seek to introduce it. 22 7. Defendants’ Motion to Exclude Silver Fern Lay Witness Michael Gutierrez 23 Plaintiff represents that Scott Polus is unavailable to testify at trial and could not be 24 compelled to appear. Dkt. No. 228 at 5. As a result, Plaintiff intends to call Michael Gutierrez as 1 a witness, to offer the same testimony that Mr. Polus would have offered. Id. at 5–6. Defendants 2 argue that Mr. Gutierrez should be excluded under Federal Rules of Civil Procedure (“FRCP”) 3 26 and 37, as well as FRE 602 and 701. Dkt. No. 212 at 12–16. Plaintiff requests the Court 4 reserves on ruling, asserting the request is premature. Dkt. No. 5–6.
5 Federal Rule of Civil Procedure 26(a)(1)(A)(i) provides that a party must provide to the 6 other party “the name and, if known, the address and telephone number of each individual likely 7 to have discoverable information—along with the subjects of that information—that the 8 disclosing party may use to support its claims or defenses, unless the use would be solely for 9 impeachment.” Further, FRCP 37(c)(1) states, “If a party fails to provide information or identify 10 a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or 11 witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was 12 substantially justified or is harmless.” Here, Plaintiff has disclosed Mr. Gutierrez late; they 13 identified him as a witness more than a year after the close of discovery. See Dkt. No. 63. While 14 Plaintiff notes that FRCP 37 provides exceptions to the rule regarding failure to identify a
15 witness, the exceptions—that the failure was substantially justified or is harmless—do not apply 16 here. The failure is not substantially justified, because Mr. Polus was Plaintiff’s witness, and 17 Plaintiff should have been able to determine both his availability for trial, and that he was outside 18 subpoena powers, much earlier. Plaintiff provides no information as to why they disclosed so late 19 that Mr. Polus was not available and was outside of subpoena powers. Furthermore, the failure is 20 not harmless, because while Plaintiff claims that Mr. Gutierrez’s testimony will be the same as 21 Mr. Polus’s testimony, Defendants never had the opportunity to confirm as much, because they 22 never had the opportunity to depose Mr. Gutierrez. 23 Therefore, the Court GRANTS Defendants’ motion to exclude Silver Fern lay witness
24 Michael Gutierrez. 1 8. Defendants’ Motion to Exclude Silver Fern’s Investment in Development of a Trade Secret 2 3 Defendants assert that Sam King was unable to provide Defendants with a quantifiable 4 number as to the “very substantial” investments Silver Fern makes to bring the right manufacture 5 to its customers, and Plaintiff did not provide a specific dollar amount when Defendants 6 requested annualized costs. Dkt. No. 212 at 16–17. Defendants now move to exclude Silver 7 Fern’s investments in trade secrets under FRCP 37(c) and assert that any testimony provided by 8 Sam King would be speculation. Id. at 17. 9 In response, Plaintiff argues that the investment in trade-secret information goes directly 10 to an element it will have to prove at trial, that Mr. King’s testimony is well within the bounds of 11 FRE 701, and that if Defendants believed Plaintiff’s supplemental discovery responses were 12 insufficient, the proper remedy would have been a motion to compel. Dkt. No. 228 at 6–7. 13 The Court agrees with Plaintiff that Defendants should have filed a motion to compel. 14 Under FRCP 37(a)(1), “a party may move for an order compelling disclosure or discovery.”
15 Here, Defendants assert that they never received the information they requested from Plaintiff, 16 despite having raised the issue during meet and confers. Dkt. No. 212 at 17. However, Plaintiff 17 clearly stated it would not respond to Defendants’ request. Id. The next logical step would have 18 been to move to compel the information, not wait until motions in limine to request that the 19 Court exclude the information. 20 Additionally, the Court agrees with Plaintiff that Mr. King’s potential testimony is 21 admissible under both FRE 602 and 701. Given the nature of Mr. King’s role at Silver Fern, it is 22 logical that his testimony about substantial investments in trade secrets is rationally based on his 23 perception. That he could not provide a quantification off the top of his head (see Dkt. No. 212 at
24 17) does not mean he cannot do so at all after reviewing the appropriate documentation or 1 information. As the CEO, he can discuss the investments his company makes in trade secrets. 2 This testimony would not be speculative, provided that he offers details about these investments. 3 Further, testimony about the nature of these investments is helpful for the jury to determine a fact 4 at issue, because in order to determine if the information allegedly stolen was trade secrets,
5 Plaintiff must prove, among other elements, that the information derived independent economic 6 value. Wash. Pattern Jury Instruction (“WPI”) 351.02. 7 Therefore, the Court DENIES Defendants’ motion to exclude testimony about Silver Fern’s 8 investment in the development of trade secrets. 9 9. Defendants’ Motion to Exclude Evidence, Testimony, and Argument Regarding Defendants’ Alleged Deleted Emails 10 11 Defendants argue that because Plaintiff never provided the emails that Defendants 12 allegedly deleted, and because Plaintiff’s witnesses do not have personal knowledge of the 13 contents of these emails, Plaintiff should be precluded from offering evidence, testimony, and 14 argument as to the deleted emails. See Dkt. No. 212 at 18–19. Plaintiff responds by arguing that: 15 (1) Defendant Holmes admitted to deleting emails and Plaintiff has a right to elicit testimony 16 regarding same; (2) Defendants should have filed a motion to compel, if they wanted the content 17 of the emails; (3) the Best Evidence Rule does not require production of the original document 18 any time the document is referenced, but rather when its contents are being offered; and (4) this 19 evidence is not confusing under FRE 403. Dkt. No. 228 at 7–8. 20 The Court agrees that evidence of the fact that the emails were deleted is admissible. 21 First, Plaintiff makes clear that it intends to elicit the fact that these emails were deleted from 22 Defendant Holmes, who admitted to deleting the emails. Although Plaintiff also intends to elicit 23 the fact of the deleted emails from other Silver Fern witnesses, these witnesses do not need
24 personal knowledge of the actual content of the emails, only knowledge that the emails were 1 deleted. In other words, the evidence it seeks to introduce is the conduct surrounding the emails, 2 not the content of the emails. As such, FRE 1002 does not bar that type of testimony. Fed. R. 3 Evid. 1002 (“An original writing, recording, or photograph is required in order to prove its 4 content unless these rules or a federal statute provides otherwise”) (emphasis added); see also
5 Persian Gulf Inc. v. BP W. Coast Prods. LLC, 632 F. Supp. 3d 1108, 1130 (S.D. Cal. 2022). 6 Second, as stated in Section III.B.8 supra, if Defendants believed they needed to see the actual 7 emails, then when their efforts to get the content of the emails was unsuccessful, Defendants 8 should have filed a motion to compel. See Fed. R. Civ. P. 37(a)(1). Lastly, there is no risk that 9 the jury would confuse the issues if they heard that these emails were deleted. This is a 10 straightforward concept, and the jury will be able to give proper weight to its relation to the 11 claims at hand. 12 Therefore, the Court DENIES Defendants’ motion to exclude evidence, testimony, and 13 argument regarding Defendants’ alleged deleted emails. 14 10. Defendants’ Motion to Exclude Evidence Not Produced During Discovery Regarding Silver Fern’s Forensic Investigation of Defendants’ Emails and 15 Any Testimony and Argument Thereof
16 Defendants argue: (1) that invoices Silver Fern provided to Defendants from Consilio are 17 hearsay; (2) that even if admitted, such invoices are evidence under the Computer Fraud and 18 Abuse Act (“CFAA”), and testimony should be limited to these invoices because they are the 19 only materials Silver Fern produced regarding the cost of investigation; and (3) that any 20 testimony about alleged costs should be excluded if there is no documentation of such cost. Dkt. 21 No. 212 at 19. Plaintiff argues that Defendants never moved to compel this information, and that 22 Lisa King has personal knowledge of the information and should be allowed to testify about it. 23 Dkt. No. 228 at 9. 24 1 Insofar as this motion refers to evidence only intended to be used for Plaintiff’s claim 2 under CFAA, the issue is moot, because Plaintiff notified Defendants and the Court that it is no 3 longer pursuing a CFAA claim. Dkt. No. 230 at 25. Therefore, Defendants’ motion on this issue 4 is DENIED AS MOOT.
5 11. Defendants’ Motion to Exclude Plaintiff’s Expert Neil Beaton’s Report and Attachment Thereto 6 7 Defendants move to exclude Neil Beaton’s report, arguing that it is inadmissible hearsay. 8 Dkt. No. 212 at 20. Plaintiff requests that the Court reserve ruling, stating it isn’t seeking to 9 admit the report as substantive evidence, but rather that portions thereof may be used for 10 impeachment, refreshing recollections, or other permissible uses. The Court agrees with Plaintiff. 11 Whether portions of the report will be admissible depends on how they are presented at trial. 12 Therefore, the Court RESERVES ruling on Defendants’ motion to exclude Neil Beaton’s 13 report. 14 12. Defendants’ Motion to Exclude Testimony from Expert Witness Lorraine Barrick Regarding Calculations Conducted by Plaintiff’s Expert Neil Beaton 15 16 Defendants move to exclude portions of Lorraine Barrick’s report to prove the matters 17 discussed in the report are true, as these would be hearsay. Dkt. No. 212 at 21. In response, 18 Plaintiff requests the Court reserve ruling, arguing that it is entitled to cross examine Ms. Barrick 19 on portions of her report when appropriate for impeachment, or rebuttal under FRE 703 and 705. 20 Dkt. No. 228 at 10. Plaintiff is not intending to admit the full report. Whether portions of Ms. 21 Barrick’s report are admissible depends on how testimony plays out at trial. 22 Therefore, the Court RESERVES ruling on Defendants’ motion to exclude testimony from 23 Ms. Barrick regarding calculations conducted by Mr. Beaton. 24 1 13. Defendants’ Motion to Exclude Correspondence Between the Parties’ Counsel 2 3 The Court needs additional information from the Parties on this motion. The Parties 4 should be prepared to discuss further details on their arguments on this motion at the Pretrial 5 Conference. Therefore, the Court RESERVES ruling on Defendants’ motion to exclude 6 correspondence between the Parties’ counsel. 7 IV. CONCLUSION 8 Accordingly, the Court ORDERS as follows: 9 (1) The Court DENIES Plaintiff’s motion to exclude testimony regarding Sam 10 King’s prior employment (Dkt. No. 210 § I). 11 (2) The Court GRANTS the Defendants’ motion to exclude the Court’s Order 12 on Motion for Sanctions and Order on Motion to Seal (Dkt. 13 No. 212 § III.1.). 14 (3) The Court DENIES Defendants’ motion to exclude King Holmes’s
15 declaration. The Court RESERVES ruling on Defendants’ motion to admit 16 evidence of Defendant Holmes’s truthful character under FRE 608(a) 17 (Dkt. No. 212 § III.2.). 18 (4) The Court DENIES Defendants’ motion to exclude evidence, testimony, and 19 argument regarding Ryecon (Dkt. No. 212 § III.3.). 20 (5) The Court RESERVES ruling on Defendants’ motion to exclude declarations 21 of Bobbie Knight, Esther Kannenberg, and Karen Zell, and exhibits 22 attached thereto (Dkt. No. 212 § III.4.). 23 //
24 // 1 (6) The Court RESERVES ruling on Defendants’ motion to exclude the 2 declaration of Sam King and exhibits attached thereto (Dkt. No. 212 § 3 III.5.). 4 (7) The Court RESERVES ruling on Defendants’ motion to exclude the
5 declaration of Scott Polus and exhibits attached thereto (Dkt. No. 212 § 6 III.6.). 7 (8) The Court GRANTS Defendants’ motion to exclude Silver Fern lay witness 8 Michael Gutierrez. (Dkt. No. 212 § III.7.). 9 (9) The Court DENIES Defendants’ motion to exclude testimony about Silver 10 Fern’s investment in the development of trade secrets. (Dkt. 11 No. 212 § III.8.). 12 (10) The Court DENIES Defendants’ motion to exclude evidence, testimony, and 13 argument regarding Defendants’ alleged deleted emails. (Dkt. No. 212 § 14 III.9.).
15 (11) The Court DENIES AS MOOT Defendants’ motion to exclude the evidence 16 not produced in discovery. (Dkt. No. 212 § III.10.). 17 (12) The Court RESERVES ruling on Defendants’ motion to exclude Neil 18 Beaton’s report. (Dkt. No. 212 § III.11.). 19 (13) The Court RESERVES ruling on Defendants’ motion to exclude testimony 20 from Ms. Barrick regarding calculations conducted by Mr. Beaton. (Dkt. 21 No. 212 § III.12.). 22 // 23 //
24 // ] (14) The Court RESERVES ruling on Defendants’ motion to exclude 2 correspondence between the Parties’ counsel. (Dkt. No. 212 § III.13.). 3 4 Dated this 20th day of November, 2025.
6 Tana Lin 7 United States District Judge
8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24