Enovsys LLC v. AT&T Mobility LLC

Enovsys LLC v. AT&T Mobility LLC

Opinion

CIVIL MINUTES - GENERAL

Proceedings: (In Chambers) Order re: Motions in Limine

Having reviewed and considered all the briefing [*2]  filed with respect to the following Motions in Limine ("Motions"),¹ the Court concludes that oral argument is not necessary to resolve the Motions. See Fed. R. Civ. P. 78; Local Rule 7-15; Willis v. Pac. Mar. Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001). IT IS ORDERED THAT:

Plaintiff's Motions In Limine

1. Plaintiff's Motion in Limine No. 1 (Document No. 416) to Exclude the Testimony of Dr. William Wecker is denied. Plaintiff seeks to exclude the rebuttal testimony of Dr. Wecker under Federal Rule of Evidence 402, 403, 702, and 703, and Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). (See PMIL No. 1 at 1-2). Dr. Wecker's report rebuts the opinion of plaintiff's damages expert, Russell Parr. (See id.). Enovsys argues that AT&T, in its discovery responses, represented that it was "'impossible' to determine either location based services ('LBS') data traffic or LBS data revenue," but that Dr. Wecker's opinion relies on data regarding actual data traffic, rather than estimates. (See id.). In particular, Dr. Wecker relies on documents from Telenav. (See id. at 2-3). Enovsys further argues that Dr. Wecker's analysis is flawed, for instance, because it relies heavily on July 2013 data. (See id. at 2-5).

The Court is not persuaded by plaintiff's arguments. First, Dr. Wecker's analysis is consistent with AT&T's representations regarding its discovery responses, because AT&T relies on third [*3]  party documents from Telenav. (See PMIL No. 1 at 11). Thus, Dr. Wecker's analysis does not rely on improperly withheld materials. As for plaintiff's relevance argument, Dr. Wecker's report rebuts plaintiff's damages analysis, and is therefore relevant under Fed. R. Evid. 402. Moreover, the probative value of Dr. Wecker's opinion is not "substantially outweighed" by the danger of unfair prejudice, confusion, misleading the jury, delay, waste of time, or the needless presentation of cumulative evidence. See Fed. R. Evid. 403. As for plaintiff's remaining arguments, while there may be flaws in Dr. Wecker's analysis, Enovsys is free to attack Dr. Wecker's opinion in trial through "[v]igorous cross-examination [and] presentation of contrary evidence." Palmisano v. Olin Corp., 2005 U.S. Dist. LEXIS 48006, 2005 WL 6777560, at *8 (N.D. Cal. June 24, 2005).

2. Plaintiff's Motion in Limine No. 2 (Document No. 417) to Exclude the Testimony of Itamar Simonson is denied. Plaintiff seeks to exclude the expert testimony of Mr. Itamar Simonson ("Simonson") under Federal Rule of Evidence 402, 403, 702, and 703, and Daubert. (See PMIL No. 2 at 1). Simonson's opinion is based on his customer survey of AT&T wireless users, based on the value of various mobile device features. (See id.; Omnibus Declaration of Bruce G. Chapman in Support of Plaintiff's Motions in Limine ("Chapman Decl."), [*4]  Exh. N) ("Simonson Survey"). In general, Simonson's report provides survey information regarding the value of features related to location based services, (see Simonson Survey at 5-6), and is therefore relevant under Rule 402. Moreover, the probative value of Simonson's opinion is not "substantially outweighed" by the danger of unfair prejudice, confusion, misleading the jury, delay, waste of time, or the needless presentation of cumulative evidence. See Fed. R. Evid. 403.

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