2Case No.: 11-CV-01846-LHK PRETRIAL CONFERENCE ORDER
U n i t e d S t a t e s D i s t r i c t C o u r t
F o r t h e N o r t h e r n D i s t r i c t o f C a l i f o r n i a
Apple’s Motion in Limine #1 to Exclude Evidence Regarding Patent ReexaminationProceedings, ECF No. 2400, is GRANTED for the reasons stated on the record.
Apple’s Motion in Limine #2 to Exclude Reference to Prior Art, ECF No. 2402, isDENIED without prejudice for the reasons stated on the record.
For the reasons stated on the record, Apple’s Motion in Limine #3 to Exclude MichaelWagner’s “New” Design Around Theories, ECF No. 2403, is GRANTED IN PART withrespect to: (1) theories based on patent reexamination proceedings, and (2) theories firstdisclosed in post-trial briefing on a permanent injunction. The Court will issue a separatewritten order on the remainder of Apple’s Motion in Limine #3 regarding design around theories based on the first jury’s noninfringement findings.
Samsung’s Motion in Limine #1 to Exclude Evidence of “Copying,” ECF No. 2406, isDENIED without prejudice for the reasons stated on the record.
Samsung’s Motion in Limine #2 to Exclude Evidence Broadening the Scope of Apple’sPatents, ECF No. 2406, is DENIED without prejudice for the reasons stated on the record.
Samsung’s Motion in Limine #3 to Exclude Apple’s Evidence of Lost Profits, ECF No.2406, is DENIED for the reasons stated on the record.
Samsung’s Motion in Limine #4 to Exclude Julie Davis’s Opinions Based on Data Provided by Interbrand, ECF No. 2406, is DENIED for the reasons stated on the record.
For the reasons stated on the record, Apple’s Motion to Exclude Samsung Witnesses, ECF No. 2413, is GRANTED IN PART and DENIED IN PART. Specifically:
Apple’s Motion is DENIED with respect to limiting witnesses to testifying in the formfor which they were previously designated. Samsung may call witnesses previouslydesignated for live testimony by deposition, and may call live any witnesses previouslydesignated for testimony by deposition.
Apple’s Motion is GRANTED with respect to limiting the parties to calling witnesseslisted on their
final witness lists from the first trial. The Court finds that it hasdiscretion to determine whether to allow Samsung to call a witness that was previouslyincluded on Apple’s final witness list, but not on Samsung’s own final witness list.
SeePrice v. Seydel
, 961 F.2d 1470, 1474 (9th Cir. 1992). In considering whether to exercisethis discretion, the Court considers: “(1) the prejudice or surprise in fact of the partyagainst whom the excluded witnesses would have testified; (2) the ability of that partyto cure the prejudice; (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or other cases in thecourt; [and] (4) bad faith or willfulness in failing to comply with the court’s order.”
The Court finds that allowing Samsung to call witnesses previously disclosed onlyon Apple’s witness list will prejudice Apple. Samsung explained at the hearing that itwishes to call Todd Pendleton, a Samsung executive,
ECF No. 2486-3, who was previously designated on Apple’s, but not Samsung’s, final witness list. However, preparing to call a witness on direct is significantly different than preparing to call thatwitness on cross-examination, and as Apple prepared its first case on the assumptionthat Samsung would call the witnesses listed on its own final list only, Apple has not previously prepared a cross-examination of Pendleton. The Court further finds that this prejudice would be difficult to cure at this stage of the litigation, in light of the brief time between now and trial and the myriad other tasks the parties and the Court mustaccomplish before the retrial begins on November 12, 2013.Perhaps most significantly, the Court finds that waiving the rule against unlisted witnesses to allow Samsung to call Pendleton would “disrupt the orderly and efficient
Case5:11-cv-01846-LHK Document2552 Filed10/18/13 Page2 of 5