Case 2:15-cv-01274-JRG-RSP Document 390 Filed 01/13/17 Page 1 of 14 PageID #: 29178
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`
`
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`Case No. 2:15-CV-01274-JRG-RSP
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`BLITZSAFE TEXAS, LLC,
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`
`
`
`
`Plaintiff,
`
`
`v.
`
`HONDA MOTOR CO., LTD., AMERICAN
`HONDA MOTOR CO., INC., HONDA OF
`AMERICA MANUFACTURING, INC.,
`HONDA MANUFACTURING OF
`ALABAMA, LLC, HONDA
`MANUFACTURING OF INDIANA, LLC,
`
`
`
`ORDER ON MOTIONS IN LIMINE
`
`
`
`Defendants.
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`
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`
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`Before the Court are the parties’ motions in limine. The Court held a pretrial conference on
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`January 11-12, 2017. For the reasons explained at the hearing, the Court rules as follows. A party
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`must approach the bench before introducing evidence or argument in the presence of the jury about
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`the subject matter of a motion in limine that has been granted.
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`
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`PLAINTIFF’S MOTIONS IN LIMINE (DKT. 331)
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`1. MIL No. 1: Motion to Preclude the Use of Derogatory, Disparaging, and/or Pejorative
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`References About Blitzsafe:
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`GRANTED with the exception that Defendants are not precluded from attempting to
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`establish that Blitzsafe is a “company that doesn’t make anything” or a “company that doesn’t sell
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`anything.”
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`
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`Case No. 2:15-CV-01274-JRG-RSP
`
`
`
`
`
`
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`BLITZSAFE TEXAS, LLC,
`
`
`
`
`
`Plaintiff,
`
`
`v.
`
`HONDA MOTOR CO., LTD., AMERICAN
`HONDA MOTOR CO., INC., HONDA OF
`AMERICA MANUFACTURING, INC.,
`HONDA MANUFACTURING OF
`ALABAMA, LLC, HONDA
`MANUFACTURING OF INDIANA, LLC,
`
`
`
`ORDER ON MOTIONS IN LIMINE
`
`
`
`Defendants.
`
`
`
`
`
`
`Before the Court are the parties’ motions in limine. The Court held a pretrial conference on
`
`January 11-12, 2017. For the reasons explained at the hearing, the Court rules as follows. A party
`
`must approach the bench before introducing evidence or argument in the presence of the jury about
`
`the subject matter of a motion in limine that has been granted.
`
`
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`PLAINTIFF’S MOTIONS IN LIMINE (DKT. 331)
`
`1. MIL No. 1: Motion to Preclude the Use of Derogatory, Disparaging, and/or Pejorative
`
`References About Blitzsafe:
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`GRANTED with the exception that Defendants are not precluded from attempting to
`
`establish that Blitzsafe is a “company that doesn’t make anything” or a “company that doesn’t sell
`
`anything.”
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`
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`1
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`Case 2:15-cv-01274-JRG-RSP Document 390 Filed 01/13/17 Page 2 of 14 PageID #: 29179
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`2. MIL No. 2: Defendants Are Estopped from Re-Litigating Issues Instituted by The PTAB:
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`DENIED.
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`3. MIL No. 3: Defendants Should Not Be Permitted to Reference Pending, But Not Yet
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`Instituted IPRs Filed by Honda, Nissan, Kia, Or Toyota:
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`GRANTED. Defendants are directed to approach the bench before introducing specific
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`statements made by Blitzsafe during IPR regarding what is or is not covered by the asserted claims.
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`While such statements are not hearsay, they may be properly excludable under Rule 403 if they
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`are affected by the differing claim constructions employed by the PTAB.
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`4. MIL No. 4: Motion to Exclude Testimony Regarding Ira Marlowe’s Past Litigations
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`(Ventura, Fischer, Kiryashov):
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`GRANTED as to the fact that there was previous litigation. The parties are not precluded
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`from presenting relevant testimony or argument concerning the underlying disputes.
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`5. MIL No. 5: Disparaging The United States Patent and Trademark Office:
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`GRANTED. Defendants are not precluded from criticizing the result reached by the Patent
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`Office in this case.
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`6. MIL No. 6: Defendants Should Not Be Permitted to Refute Testimony that Defendants Did
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`Not Produce Source Code for Their Accused Products to Blitzsafe:
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`DENIED.
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`7. MIL No. 7: Defendants Should Not Be Permitted to Present Evidence that Any Product of
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`AAMP Was Licensed by AAMP Under the ’786 Patent:
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`CARRIED with the related Partial Motion for Summary Judgment Regarding Marking.
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`2
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`Case 2:15-cv-01274-JRG-RSP Document 390 Filed 01/13/17 Page 3 of 14 PageID #: 29180
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`* * *
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`VOLKSWAGEN’S MOTIONS IN LIMINE (DKT. 330)
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`1. Motion in Limine to Preclude Blitzsafe from Asserting that VWGOA Was Required to but
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`Did Not Produce Source Code:
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`GRANTED-IN-PART. Plaintiff’s expert is not precluded from testifying that source code
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`was not available to him but is precluded from testifying that Volkswagen failed to produce source
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`code.
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`2. Motion in Limine to Preclude Blitzsafe from Presenting a Theory of Infringement Under
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`the Doctrine of Equivalents:
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`GRANTED-BY-AGREEMENT.
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`3. Motion in Limine to Preclude Blitzsafe from Referencing IPR Proceedings:
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`GRANTED-BY-AGREEMENT as reciprocal.
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`4. Motion in Limine to Preclude Blitzsafe from Praising or Lauding the Patent Office in a
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`Manner Inconsistent with the Presumption of Validity:
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`GRANTED-BY-AGREEMENT that any such statements will be consistent with the FJC
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`video shown to the jury panel before jury selection.
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`5. Motion in Limine to Preclude Blitzsafe from Referring to VWGOA’s Overall Size,
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`Profitability, Wealth, Revenues, or Value:
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`GRANTED-BY-AGREEMENT except for sales, revenue and cost related to the accused
`
`products.
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`3
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`Case 2:15-cv-01274-JRG-RSP Document 390 Filed 01/13/17 Page 4 of 14 PageID #: 29181
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`6. Motion in Limine to Preclude Blitzsafe from Referring to VWGOA’s Retention of Experts:
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`GRANTED-IN-PART. The experts are not precluded from testifying about previous
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`parties for whom they have testified but are otherwise precluded from testifying about retention
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`by opposing counsel.
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`7. Motion in Limine to Preclude Blitzsafe from Referring to VWGOA’S “Copying” of
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`Blitzsafe’s Patents or Products:
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`GRANTED. If Plaintiff can identify evidence in the record that supports an inference of
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`copying, Plaintiff may approach the bench to seek leave to refer to “copying” before the jury.
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`8. Motion in Limine to Preclude Blitzsafe from Referencing Any VWGOA or Any Affiliated
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`Company’s Unrelated Activities:
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`GRANTED-BY-AGREEMENT.
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`9. Motion in Limine to Preclude Blitzsafe from Making Prejudicial Statements About Foreign
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`Car Manufacturers:
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`GRANTED-BY-AGREEMENT.
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`10. Motion in Limine to Preclude Blitzsafe from Asserting that the ’342 Patent Is Entitled to
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`Any Priority Date Earlier than June 27, 2006:
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`GRANTED.
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`* * *
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`HYUNDAI AND KIA DEFENDANTS’ MOTIONS IN LIMINE (DKT. 324)
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`1. To Preclude Blitzsafe from Soliciting or Offering Any Testimony, Evidence or Argument
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`Concerning the Jury Verdict or Judgment of the Affinity Labs Case:
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`GRANTED-BY-AGREEMENT.
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`4
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`Case 2:15-cv-01274-JRG-RSP Document 390 Filed 01/13/17 Page 5 of 14 PageID #: 29182
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`2. To Preclude Blitzsafe and its Witnesses from Relying on Source Code of Other Defendants:
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`DENIED.
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`3. To Preclude Blitzsafe from Presenting Argument or Evidence Based on the Subject Matter
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`for Which Blitzsafe or Mr. Marlowe Asserted Attorney-Client Privilege, Including about
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`Negotiation and Execution of the Ford, AAMP, LTI, or Other License Agreements in the Record:
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`CARRIED with related Motion to Strike.
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`4. To Preclude Any Evidence, Testimony, or Opinion Regarding Secondary Considerations
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`of Non-Obviousness:
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`DENIED.
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`5. To Preclude Blitzsafe and its Witnesses from Referring to Disputes over Alleged Discovery
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`Obligations of Hyundai Motor Corporation or Kia Motor Company:
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`GRANTED-BY-AGREEMENT.
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`6. To Preclude Blitzsafe and its Witnesses from Presenting Argument or Eliciting Testimony
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`of Defendants Being “Foreign” or Owned by a Korean Entity:
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`GRANTED-BY-AGREEMENT.
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`7. To Preclude Blitzsafe and its Witnesses from Presenting Argument or Eliciting Testimony
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`of Preliminary Claim Constructions or Any Other Constructions That Would Refer to Statements
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`in the Court’s Claim Construction Order Apart from the Actual Claim Construction Themselves:
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`GRANTED to the extent that only the Court’s actual claim construction can be referenced
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`in front of the jury.
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`8. To Preclude Blitzsafe from Asserting Claim 70 of the ’342 Patent Against Defendants:
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`5
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`Case 2:15-cv-01274-JRG-RSP Document 390 Filed 01/13/17 Page 6 of 14 PageID #: 29183
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`GRANTED-BY-AGREEMENT.
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`9. To Preclude Blitzsafe from Asserting Any Claims for Indirect Infringement:
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`WITHDRAWN.
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`10. To Preclude Blitzsafe from Presenting Any Argument or Evidence on the Earlier Priority
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`Date:
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`GRANTED.
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`11. To Preclude Blitzsafe from Presenting Any Evidence its Expert Now Relies Upon to Argue
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`for an Earlier Conception Date:
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`GRANTED.
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`12. To Preclude Blitzsafe from Voicing Complaints Before the Jury Panel or Jury or to Suggest
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`Blitzsafe Could Not Prove its Case Because It Was Not Given Access to Source Code:
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`GRANTED-IN-PART. Plaintiff’s expert is not precluded from testifying that source code
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`was not available to him but is precluded from testifying that Volkswagen failed to produce source
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`code.
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`13. To Preclude Blitzsafe from Presenting Evidence or Argument of Defendants’ Failure to
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`Obtain the Advice of Counsel Concerning Alleged Infringement:
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`GRANTED-BY-AGREEMENT.
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`14. To Preclude Any Argument Concerning Indemnification:
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`GRANTED-BY-AGREEMENT.
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`6
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`Case 2:15-cv-01274-JRG-RSP Document 390 Filed 01/13/17 Page 7 of 14 PageID #: 29184
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`15. To Preclude Any Argument Concerning Defendants’ Decision Not to Call Any Particular
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`Witness:
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`GRANTED to the extent that only witnesses who are employees of the named Defendant,
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`and therefore under its control, may be identified by name as not called by Defendant.
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`16. To Preclude Any Testimony with Respect to Which Blitzsafe Has Previously Asserted
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`Privilege:
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`DENIED. Defendants are directed to object and approach the bench regarding any efforts
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`by the Plaintiff to introduce evidence previously withheld by Plaintiff as privileged.
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`* * *
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`DEFENDANTS NISSAN NORTH AMERICA INC.’S AND NISSAN MOTOR CO., LTD’S
`MOTIONS IN LIMINE (DKT. 347)
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`1. Nissan MIL No. 1 – Testimony Related to Uncharted “Accused” Products:
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`CARRIED with Motion at Dkt. 234.
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`2. Nissan MIL No. 2 – Testimony Related to Partially Charted Products:
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`CARRIED with Motion at Dkt. 229.
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`3. Nissan MIL No. 3 – Testimony Related to Untimely Disclosed Expert Opinions:
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`DENIED.
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`4. Nissan MIL No. 4 – Testimony Related to Untimely Produced Bosch Documents:
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`DENIED.
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`5. Nissan MIL No. 5 – Opinions or Facts/Data Not Timely Disclosed:
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`DENIED. The issues raised by this MIL will be address in the related Daubert Motion.
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`7
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`Case 2:15-cv-01274-JRG-RSP Document 390 Filed 01/13/17 Page 8 of 14 PageID #: 29185
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`6. Nissan MIL No. 6 – Testimony Related to Late-Disclosed Priority Date:
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`GRANTED.
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`7. Nissan MIL No. 7 – Reference to Conduct in Discovery:
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`GRANTED to the limited extent that Plaintiff’s expert is not precluded from testifying
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`that source code was not available to him but is precluded from testifying that Nissan failed to
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`produce source code. Other generalized relief requested by Nissan’s Motion is DENIED. Nissan
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`is cautioned not to open the door.
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`8. Nissan MIL No. 8 – References to Other Defendants’ Positions in the Lawsuit:
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`DENIED. Nissan may raise issues regarding specific exhibits at a future pretrial
`
`conference.
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`9. Nissan MIL No. 9 – No Reference to Foreign or Japanese Entity:
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`GRANTED to the extent that Plaintiff will not disparage Defendants because they are
`
`foreign entities.
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`10. Nissan MIL No. 10 – References to Nissan’s Decision to Call/Not Call a Particular
`
`Witness:
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`DENIED.
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`11. Nissan MIL No. 11 – Contradicting Prior Litigation Positions Taken by Plaintiff:
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`CARRIED with related marking Motion.
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`12. Nissan MIL No. 12 – Contradicting or Misinterpreting the Court’s Claim Construction:
`
`DENIED. This issue is addressed in the last paragraph of the Court’s Claim Construction
`
`Order.
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`8
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`Case 2:15-cv-01274-JRG-RSP Document 390 Filed 01/13/17 Page 9 of 14 PageID #: 29186
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`13. Nissan MIL No. 13 – Hearsay Declarations or Statements Outside of Testimony:
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`DENIED. Objections to specific exhibits will be addressed at a future pretrial conference.
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`14. Nissan MIL No. 14 – Performance of Counsel in Prior Litigation:
`
`CARRIED with related Motion to Strike.
`
`15. Nissan MIL No. 15 – Opinions, Testimony or Facts/Data Regarding “Praise” and a Nexus
`
`Between Secondary Considerations of Non-Obviousness and the Claimed Features:
`
`DENIED.
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`* * *
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`DEFENDANT HONDA’S MOTIONS IN LIMINE (DKT. 325)
`
`1. Theories of Infringement:
`
`WITHDRAWN as to induced infringement. GRANTED-BY-AGREEMENT as to
`
`infringement under the doctrine of equivalents and contributory infringement.
`
`2. Accusations Against Vehicles or Devices Not Accused in Infringement Contentions:
`
`GRANTED-BY-AGREEMENT.
`
`3. Undisclosed Opinion Testimony:
`
`CARRIED with related Motion for Summary Judgment (Dkt. No. 325).
`
`4. Late, Unapproved Change in Position on Priority Date:
`
`DENIED-AS-MOOT due to granting of Motion to Strike.
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`9
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`Case 2:15-cv-01274-JRG-RSP Document 390 Filed 01/13/17 Page 10 of 14 PageID #:
` 29187
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`5. Jury Verdict/Post Judgment Order in Affinity Labs:
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`GRANTED-IN-PART. Plaintiff is precluded from referencing a jury verdict or Court
`
`order in Affinity Labs as the source, but is otherwise not precluded from introducing testimony
`
`about the relevant royalty rate that was established.
`
`6. Testimony Blocked by Privilege – Including Performance of Marlowe’s Counsel in Prior
`
`Litigation:
`
`CARRIED with related Motion to Strike.
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`7. Reliance on Documents Not Produced:
`
`DENIED-AS-MOOT.
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`8. Complaints About Lack of Discovery – Including Plaintiff’s Failure to Obtain Source
`
`Code:
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`GRANTED-IN-PART. Plaintiff’s expert is not precluded from testifying that source code
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`was not available to him but is precluded from testifying that Honda failed to produce source code.
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`9. Retention of Experts:
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`GRANTED-IN-PART. The experts are not precluded from testifying about previous
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`parties for whom they have testified but are precluded from testifying about retention by opposing
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`counsel.
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`10. U.S. Honda Defendants’ Decision Not to Rely on Opinions:
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`GRANTED-BY-AGREEMENT.
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`11. Privileged Matters:
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`GRANTED-BY-RECIPROCAL AGREEMENT.
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`10
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`Case 2:15-cv-01274-JRG-RSP Document 390 Filed 01/13/17 Page 11 of 14 PageID #:
` 29188
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`12. Joint Defense Agreement:
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`GRANTED-BY-AGREEMENT.
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`13. Possibility of Indemnification of Defendants by Suppliers:
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`GRANTED-BY-AGREEMENT.
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`14. Derogatory Comments Against Witnesses from Foreign Countries:
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`GRANTED-BY-AGREEMENT.
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`15. Honda Motor Co., Ltd.:
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`GRANTED-BY-AGREEMENT.
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`16. Japan:
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`GRANTED-BY-AGREEMENT.
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`17. Decisions Not to Call Witnesses:
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`GRANTED to the extent that only witnesses who are employees of the named Defendant,
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`and therefore under its control, may be identified by name as not called by Defendant.
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`18. Any Reference to Unrelated Litigation Involving the U.S. Honda Defendants or Their
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`Affiliates:
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`GRANTED-BY-AGREEMENT.
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`19. Global Revenues/Net Worth:
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`GRANTED-BY-AGREEMENT.
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`20. Any Testimony or Evidence of Defendants’ Size, Finances, or Worth:
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`11
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`Case 2:15-cv-01274-JRG-RSP Document 390 Filed 01/13/17 Page 12 of 14 PageID #:
` 29189
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`GRANTED-BY-AGREEMENT except for sales, revenue and cost related to the accused
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`products..
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`21. Commitment from Jury Panel:
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`GRANTED-BY-AGREEMENT.
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`22. Rulings on Motions:
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`GRANTED-BY-AGREEMENT.
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`23. Objections to Evidence During Trial:
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`GRANTED-BY-AGREEMENT.
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`* * *
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`TOYOTA’S MOTIONS IN LIMINE (DKT. 326)
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`1. Testimony and Argument that is Contrary to the Court's Claim Construction Order:
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`CARRIED. The Court will address this issue in a separate written Order.
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`2. Preclude Blitzsafe from Suggesting that Toyota Should Have Produced Source Code:
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`GRANTED-IN-PART. Plaintiff’s expert is not precluded from testifying that source code
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`was not available to him but is precluded from testifying that Toyota failed to produce source code.
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`3. Preclude Blitzsafe from referring to in-house counsel’s internal legal document (as
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`reflected in Toyota’s privilege log) and/or other related testimony:
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`GRANTED-BY-AGREEMENT.
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`4. Preclude Blitzsafe from disclosing the Toyota Defendants’ profits and revenue to a jury:
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`GRANTED-BY-AGREEMENT except for sales, revenue and cost related to the accused
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`products. .
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`12
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`Case 2:15-cv-01274-JRG-RSP Document 390 Filed 01/13/17 Page 13 of 14 PageID #:
` 29190
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`5. Testimony and Argument regarding Equivalence:
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`GRANTED-BY-AGREEMENT.
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`6. Testimony and Argument regarding “Streaming:”
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`DENIED.
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`7. Testimony and Argument regarding Blitzsafe’s Profits:
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`DENIED.
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`8. Testimony and Argument regarding Source Code or Products of Other Defendants:
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`DENIED.
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`9. Undisclosed Opinion Testimony:
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`GRANTED-BY-AGREEMENT.
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`10. Accusations Against Vehicles Not Accused in Infringement Contentions:
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`GRANTED-BY-AGREEMENT.
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`11. Indirect Infringement Theories:
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`WITHDRAWN.
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`12. Reliance on Documents Not Produced:
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`DENIED-AS-MOOT.
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`13. Testimony Blocked by Privilege:
`
`GRANTED-BY-AGREEMENT.
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`14. Joint Defense Agreement:
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`GRANTED-BY-AGREEMENT.
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`13
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`Case 2:15-cv-01274-JRG-RSP Document 390 Filed 01/13/17 Page 14 of 14 PageID #:
` 29191
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`15. Commitment from Jury Panel:
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`DENIED
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`16. Rulings on Motions:
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`GRANTED-BY-AGREEMENT.
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`14
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`
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