United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION & ORDER
M. Parker United States Magistrate Judge.
matter is before the court on a motion in limine to preclude
defendants from presenting evidence of deductible expenses
and/or off-setting items. (ECF Doc. No. 72) Plaintiff seeks
to exclude defendants' use at trial of any evidence, of
deductible expenses, deductions, or allocations under §
504(b) that was not specifically identified payment in
Defendant Petros's Supplemental Response to
Plaintiff's Interrogatory No. 9. Defendant opposes the
motion to exclude. The parties have consented to my
motion in limine is not well taken and will be DENIED.
has filed several motions related to the expense evidence
defendants produced in discovery. In this motion in limine,
plaintiff requests that the court preclude defendants from
presenting evidence, eliciting testimony, or in any way
mentioning, directly or indirectly the following:
1) Summaries or charts of deductible expenses and/or
off-setting items pursuant to 17 U.S.C. § 504(b),
including Petros' Overhead Expense Summaries, J/C Detail
Reports, Work Order History Re-Prints; and
2) Any evidence of deductible expenses and/or off-setting
items pursuant to 17 U.S.C. § 504(b) other than those
payment records already specifically identified by Defendants
in Petros' Supplemental Response to Plaintiff's
Interrogatory No. 9 by individual bates number.
plaintiff's motion in limine is a restatement of
arguments previously raised in plaintiff's motion to
exclude under Rule 37 (ECF Doc. No. 70). Plaintiff also argues
that Federal Rule of Evidence 1006 precludes
“summaries” of information and that evidence of
defendants' expenses should be excluded from trial on
respond that they produced job cost detail reports
(“J/C reports”) and other expense evidence that
are not “summaries” of information created for
litigation, but were reports made in the regular course of
business. They cite case law holding that computer data
compiled in the ordinary course of business and presented in
computer printouts prepared for trial is admissible under
Rule 803(6). U-Haul Int'l v. Lumbermens Mut. Cas.
Co., 576 F.3d 1040, 1043-44 (9th Cir. 2009).
plaintiff argues, the Federal Rules of Evidence and the
Federal Rules of Civil Procedure do not explicitly authorize
motion in limine practice, but the United States Supreme
Court has noted that the practice of ruling on such motions
“has developed pursuant to the district court's
inherent authority to manage the course of trials.”
Luce v. U.S., 469 U.S. 38, 41 (1984). The purpose of
a motion in limine is to allow the court to rule on issues
pertaining to evidence in advance of trial in order to avoid
delay, and ensure an even-handed and expeditious trial.
See United States v. Brawner, 173 F.3d 966, 970
(6th Cir. 1999).
is ongoing in this case; the deadline to finish is April 1,
2017. Defendants have produced underlying documentation of
their expenses for the relevant time period. They represent
that they are unaware of any other evidence. They further
represent that they are in the process of calculating their
direct and overhead expenses in preparation for the August
26(a)(3), Fed. R. Civ. P., requires a party to make pretrial
disclosures of the documents or exhibits the party expects to
offer at trial and those it may offer if the need arises.
Fed.R.Civ.P. 26(A)(iii). "… Unless otherwise
directed by the court, these disclosures must be made at
least 30 days before trial." Id. "Unless
the court orders otherwise, all disclosures under Rules
26(a)(1) through (3) must be made in writing, signed, and
served." Fed.R.Civ.P. 26(a)(4).
previously indicated in the court's order denying
plaintiff's motion to exclude under Rule 37, the court
declines to exclude evidence of defendants' expenses
based on an argument that defendants failed to produce
evidence. Defendants represent that they have produced all
their records and are in the process of finalizing their
calculation of their costs for each house at issue. The court
also declines to issue a prospective order ruling that
defendants may not use summary reports, should such be
created before trial. Defendants are in the process of
analyzing the produced expense records so that they will be
able to intelligibly argue their deductible expenses at
trial. This is not a case involving defendants who have
produced only litigation-created summaries of their expenses
and have refused to produce the underlying evidence. Instead,
defendants have produced computer-generated summaries that
are kept in the ordinary course of business. Such records are
not governed by Fed.R.Evid. 1006. At this time, plaintiff has
not set forth a valid reason for excluding evidence of
defendants' expenses at trial.
motion in limine (ECF ...