Case 2:15-cv-01274-JRG-RSP Document 466 Filed 03/15/17 Page 1 of 131 PageID #:
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`30164
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF TEXAS
`
`MARSHALL DIVISION
`
`CIVIL DOCKET NO.
`2:15-CV-1274-JRG-RSP
`
`MARSHALL, TEXAS
`
`
`
`))
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`)
`)
`)
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`))
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`)
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`BLITZSAFE TEXAS, LLC
`
`VS.
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`HONDA MOTOR CO., LTD. ET AL
`
`--------------------------------
`
`PRE-TRIAL HEARING
`
`BEFORE THE HONORABLE JUDGE ROY S. PAYNE
`
`UNITED STATES MAGISTRATE JUDGE
`
`---------------------------------
`
`APPEARANCES:
`
`FOR THE PLAINTIFF: (See Attorney Attendance Sheet docketed in
` minutes of this hearing.)
`
`FOR THE DEFENDANTS: (See Attorney Attendance Sheet docketed in
` minutes of this hearing.)
`
`COURT REPORTER: MELISSA D. SHNAPER-BAILEY, Texas CSR #3237
` Substitute Court Reporter
` 306 West Sabine Street
` Carthage, Texas 75633
` (903) 754-1472
`
`(Proceedings recorded by mechanical stenography, transcript
` produced on a CAT system.)
`
`
`
`30164
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF TEXAS
`
`MARSHALL DIVISION
`
`CIVIL DOCKET NO.
`2:15-CV-1274-JRG-RSP
`
`MARSHALL, TEXAS
`
`
`
`))
`
`)
`)
`)
`
`))
`
`)
`
`BLITZSAFE TEXAS, LLC
`
`VS.
`
`HONDA MOTOR CO., LTD. ET AL
`
`--------------------------------
`
`PRE-TRIAL HEARING
`
`BEFORE THE HONORABLE JUDGE ROY S. PAYNE
`
`UNITED STATES MAGISTRATE JUDGE
`
`---------------------------------
`
`APPEARANCES:
`
`FOR THE PLAINTIFF: (See Attorney Attendance Sheet docketed in
` minutes of this hearing.)
`
`FOR THE DEFENDANTS: (See Attorney Attendance Sheet docketed in
` minutes of this hearing.)
`
`COURT REPORTER: MELISSA D. SHNAPER-BAILEY, Texas CSR #3237
` Substitute Court Reporter
` 306 West Sabine Street
` Carthage, Texas 75633
` (903) 754-1472
`
`(Proceedings recorded by mechanical stenography, transcript
` produced on a CAT system.)
`
`
`
`Case 2:15-cv-01274-JRG-RSP Document 466 Filed 03/15/17 Page 2 of 131 PageID #:
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`30165
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`2
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`I N D E X
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`January 12, 2016
`-------------------------------------------------------
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`PAGE
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`APPEARANCES.......................................... 1
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`HEARING.............................................. 3
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`COURT REPORTER'S CERTIFICATE.........................131
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`THE CLERK: All rise.
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`
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`THE COURT: For the record, we are resuming the
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`pretrial conference in Blitzsafe Texas versus Tom Walker, et
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`al, Case number 2:15-1274 on our docket.
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`Would Counsel note their appearance again for the
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`record?
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`MR. AKIN: Randy Akin for Honda; Joe Beauchamp, Bob
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`Kantner, Albert Liou, Jeff White.
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`THE COURT: All right. Thank you, Mr. Akin.
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`MR. FINK: Your Honor, Plaintiff Blitzsafe is here.
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`My name is Rudy Fink. Mr. Peter Lambrianakos, Mr. Albert
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`Fabricant, Mr. Shahar Harel, and Ms. Jennifer Truelove.
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`THE COURT: Thank you, Mr. Fink.
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`MR. HEARTFIELD: Good morning, Your Honor. Thad
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`Heartfield and Gil Gillam for Toyota. Over there we have Bill
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`Mandir, John Rabena, Brian Shelton and Fadi Kiblawi.
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`THE COURT: Thank you.
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`MR. GARDNER: Good morning, Your Honor. Allen
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`Gardner here for Nissan. Serving with me is Mr. Kumar
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`Vinnakota, Mr. Glenn Janik, Mr. Sean Hsu. We are ready. I do
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`want to again note for the record that Mr. Patterson has
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`pneumonia; otherwise he would have been here today. Thank you,
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`sir.
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`THE COURT: All right. I just want to -- I'll make
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`the point that it would be helpful, given the fact that we
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`MELISSA BAILEY (903) 754-1472
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`don't have microphones everywhere, if you would speak up when
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`you are not near a microphone, and we'll try to do most of the
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`talking by the microphone. So thank you, Mr. Gardner.
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`MR. CRAFT: Good morning, Your Honor. Brian Craft.
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`Here with me is Paul Steadman here on behalf of Hyundai and
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`Kia.
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`THE COURT: Thank you, Mr. Craft.
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`MR. DACUS: Good morning, Your Honor. Deron Dacus
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`here with Susan Smith and Michael Turner on behalf of
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`Volkswagen, Your Honor. We're ready to proceed.
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`THE COURT: All right. Thank you, Mr. Dacus.
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`I will note that we are going to take up the motions
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`in limine filed by the Defendants in the order that was
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`established for the trial order recently. Meaning that we'll
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`start with those filed by Volkswagen.
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`I'll also ask counsel to please state their names for
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`the record early and often if you don't want have attributed to
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`you something that somebody else said. It would be helpful if
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`you would identify yourself for the record so that we can not
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`do that.
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`Let me see. I think we had completed the motions in
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`limine filed by the Plaintiff yesterday; and I think that would
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`leave us starting with the motions in limine filed by
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`Volkswagen.
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`MR. DACUS: Good morning, Your Honor. Deron Dacus on
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`MELISSA BAILEY (903) 754-1472
`
`
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`behalf of Volkswagen. I will say at the outset, Your Honor,
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`there are ten motions in limine but only three remain in
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`dispute. So as we go through these, I will identify for the
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`Court the ones that the parties have agreed on subject to the
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`Court's approval.
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`THE COURT: Thank you.
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`MR. DACUS: Unfortunately, Motion in Limine No. 1 is
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`not one that has been agreed on. This is a motion in limine
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`that seeks to preclude the Plaintiff from asserting that
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`1 2 3 4 5 6 7 8 9
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`Volkswagen was required to produce source code and that it
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`failed to do so.
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`It has a second aspect to it also, in that it seeks
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`to preclude the Plaintiff from discussing or arguing in any way
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`that source code it obtained from third parties that relate to
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`other Defendant's products has some applicability to
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`Volkswagen.
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`So with respect to the first aspect, Your Honor, I
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`think the important parts are Volkswagen does not have
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`possession, custody, or control over the source code here. The
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`Plaintiffs did not seek to compel the source code from
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`Volkswagen. Plaintiffs did seek some third party discovery
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`from third party suppliers.
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`In some of those instances, they did not seek the
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`source code related to Volkswagen. In others, I think they
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`claim they did. We don't need to fight about whether they did
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`MELISSA BAILEY (903) 754-1472
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`or did not. But in the end, they did not receive that source
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`code and they, again, did not seek to compel that source code.
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`Essentially, this is a prohibition in having a
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`discovery fight in front of a jury.
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`THE COURT: And Mr. Dacus, the motion in limine is
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`framed in terms of argument or testimony that you were required
`
`to but did not produce. So are -- does that extend to
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`mentioning that you did not produce; or is it only directed to
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`the argument that you should have produced and did not?
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`1 2 3 4 5 6 7 8 9
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`MR. DAVIS: To avoid the implication that we should
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`have done so, Your Honor, I think it would extend to precluding
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`the expert or any witness from Blitzsafe from saying that we
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`did not produce.
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`Certainly, the Plaintiff can say -- and this
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`primarily comes up in the context of the experts, certainly he
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`can say, "I did not have the source code." But to say that we
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`did not produce it, I'm afraid, implies that we had some
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`obligation to do so; and so we would extend to preclude that
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`type of statement.
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`THE COURT: All right. During your meet and confer
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`on this, did you develop an understanding of how the Plaintiff
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`intended to handle this issue or should I get that from the
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`Plaintiff?
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`MR. DACUS: To be honest with you, I'm not quite sure
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`I understood how -- my understanding was, perhaps incorrectly,
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`MELISSA BAILEY (903) 754-1472
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`that they wanted the expert to say that Volkswagen failed to
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`produce the information.
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`THE COURT: Well, let me hear from them and I will
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`give you a chance to respond.
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`MR. DACUS: Thank you, Your Honor.
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`THE COURT: Thank you, Mr. Dacus.
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`MR. FABRICANT: Good morning, Your Honor. I'm Fred
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`Fabricant for Plaintiff. The two points I would rest that
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`Mr. Dacus raised with respect to what we would intend to do
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`with this issue, the expert in each and every instance with
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`respect to the Defendants in this case would have liked to have
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`reviewed the source code, particular to that particular product
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`if it was available.
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`Under the rules of this Court, we believe Volkswagen
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`should have produced source code for the products that it
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`includes in all of its hundreds of thousands of vehicles. They
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`did not produce any source code whatsoever with respect to any
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`product. So all we want to do is to be able to have our expert
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`testify that we would have like to have seen Volkswagon's
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`source code; that it was not produced in this litigation by
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`Volkswagen. Really, that's the extent of the testimony that we
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`would elicit from our technical expert with respect to that
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`fact.
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`That source code is always available, as far as the
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`manufacturer has to have source code. Source code is always in
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`MELISSA BAILEY (903) 754-1472
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`these units. Source code is a very important part of the
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`product. And no source code was produced by Volkswagen with
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`respect to any of these products that were used.
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`THE COURT: I take it that was never an issue raised
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`by Plaintiff during discovery?
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`MR. FABRICANT: Well, Your Honor, we did everything
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`we possibly could to try to obtain the source code. Volkswagen
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`told us that they didn't have it. We went out and subpoenaed
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`third party suppliers. We did get some of it.
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`We find it hard to believe that Volkswagen was not
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`able to have access to the source code for its own products,
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`but they didn't produce it. And we went out and had the same
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`problem with other Defendants and gathered source code from
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`third parties.
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`We even have a pending action in Alabama against one
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`of the Defendants, Your Honor, to try to get the source code
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`from the holding subsidiary of Kia; so this has been, you know,
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`a battle from day one. And I don't believe any Defendant in
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`this case actually produced the source code. We had to go on
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`an expedition to try to gather source code from third parties.
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`THE COURT: And tell me, do you have anything that
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`you consider evidence that Volkswagen had the source code and
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`failed to produce it? Or has it been their position that they
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`don't have it and you've not been able to controvert that?
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`MR. FABRICANT: The only circumstantial evidence I
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`MELISSA BAILEY (903) 754-1472
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`would say that we have, Your Honor, from most of the Defendants
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`we are were able to get ahold of the documents that they have,
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`the contracts with their suppliers, where it was clear -- and
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`this relates not to Volkswagen but to others -- that the
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`suppliers commit to allow the OEM to have the source code and
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`inspect the source code and see the source code.
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`I cannot say that we have that specific agreement
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`with Volkswagen, but it is an industry practice to have the
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`manufacturer of the automobile have access to the very code
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`that is running the product. So we don't have any -- you know,
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`contending with the Volkswagen Defendant, we would not seek to
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`do more than to just have the expert testify with respect to
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`what is in that device and the source code that's in there and
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`the fact that it was not produced in litigation and he was not
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`able to see it.
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`THE COURT: I think that Volkswagen is entitled to
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`avoid the implication that they failed in an obligation to
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`produce it since there is no evidence that they had it. I
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`think your expert would be well within his rights to say it was
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`not available to him.
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`And I'm concerned that what you want him to say is
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`that the Defendant did not produce it.
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`MR. FABRICANT: That he was not able -- that the
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`Defendant did not produce any source code in connection with
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`these products and therefore he was not able to review the
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`MELISSA BAILEY (903) 754-1472
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`Volkswagen source code.
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`THE COURT: Okay.
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`MR. FABRICANT: And, really, when that becomes
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`relevant, Your Honor, relates in part to the second point that
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`Mr. Dacus raised which is the expert's reliance on other source
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`code from other suppliers. There are a whole bunch of
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`different that provide these radio head units to the automobile
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`manufacturers.
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`And the reason we believe that is relevant and should
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`not be precluded in the motion in limine is this is an expert.
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`This is an expert very knowledgeable in the field of
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`automotive. He has been retained in other litigations,
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`reviewed -- looked at these same types of products. He's
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`reviewed source codes. He has experience with these types of
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`units. He has, in fact, reviewed the source code from other
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`suppliers for units that are substantially identical.
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`And so we don't believe it is proper to preclude our
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`tactical expert from talking about other source codes that he
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`has, in fact, reviewed for similar or substantially identical
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`models made by other manufacturers.
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`So that really relates to the fact, at the end of the
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`day, he would say, "I did not have an opportunity to review the
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`Volkswagen source code, but I did have the opportunity to
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`review source code from A, B, C and D; and those units are
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`substantially the same, and I can tell you, based upon my
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`MELISSA BAILEY (903) 754-1472
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`experience in the industry and based upon my knowledge of
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`source code, based upon my review of the third party source
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`code that these are the opinions that I've rendered."
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`THE COURT: All right. Thank you, Mr. Fabricant.
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`MR. FABRICANT: Thank you.
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`THE COURT: Mr. Dacus, is there -- are you seeking
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`some limitation on what the Plaintiff's expert can say about
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`source code from other entities besides Volkswagen?
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`MR. DACUS: We are, Your Honor. And the reason for
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`that is that the very things that Mr. Fabricant just recited
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`was that their expert has industry experience and therefore is
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`able to infer or impute someone else's product source code to
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`our's is found nowhere in their expert report. That's the
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`reason, candidly, that I emphasized that particular issue when
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`I first came to the podium because I saw that in their
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`response; and I was told that Mr. Turner, my colleague, has
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`been through their expert report and that is nowhere found in
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`there. So that's the reason for that preclusion. So it is
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`two-fold.
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`And we do think, Your Honor, that the expert saying
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`that Volkswagen failed to produce it leaves the implication
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`that we had an obligation to do so. And if that -- if -- I
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`think it is clear from the argument this is going to evolve
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`into a discovery dispute in front of the jury, which we should
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`not be having.
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`MELISSA BAILEY (903) 754-1472
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`THE COURT: All right. As far as the second part of
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`your request, I am not going to enter a motion in limine
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`addressing whether or not something is within the scope of the
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`expert report. That's something that can be handled at trial,
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`based on what the exact question and answer is that is
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`presented to him.
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`But with respect to the primary issue, I will grant
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`this motion in part to say that the expert can say that source
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`code was not available to him but not say that the Defendant
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`failed to produce that. I do think that carries an implication
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`that there was an obligation, which is not a matter properly
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`put to the jury.
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`So I know that's a fine line; but, Mr. Fabricant, I
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`just ask that you go over that with your expert.
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`MR. FABRICANT: Yes, sir.
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`THE COURT: All right.
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`MR. DACUS: Understood, Your Honor. Thank you. The
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`Motion in Limine No. 2 has been agreed to by the parties
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`subject to the Court's approval.
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`THE COURT: All right.
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`MR. DACUS: If the Court doesn't have any questions
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`on that, Your Honor, I'll lead to No. 3. No. 3 is agreed among
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`the parties with the further agreement that it is reciprocal,
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`meaning that neither party will refer to any IPR proceeding
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`subject to the Court's approval on that, Your Honor.
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`MELISSA BAILEY (903) 754-1472
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`THE COURT: All right.
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`MR. DACUS: Motion in Limine No. 4, Your Honor, is an
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`issue that we talked about yesterday in conjunction with
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`Plaintiff's motions in limine related to what we sought to do,
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`is to preclude the Plaintiff from praising or lauding the
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`patent office.
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`The parties' agreement with respect to that is that
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`both parties will not say anything that is outside of or
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`inconsistent with the Court's patent video. I think that is
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`consistent with what the Court said yesterday.
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`THE COURT: That's fine.
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`MR. DACUS: With respect to No. 5, it is agreed, but
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`the language is slightly different than what's contained in the
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`motion in limine, so with the Court's approval, I will read
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`that into the record so we have it.
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`THE COURT: All right.
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`MR. DACUS: It now reads -- the agreed limine reads,
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`"Other than as is necessary for Blitzsafe's standards case,
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`that is the disclosure of Volkswagen United States sales,
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`revenues, and costs associated with the accused products,
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`Blitzsafe agrees not to make general statements before the jury
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`about Volkswagen or it's affiliates' overall size,
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`profitability, wealth, revenues, or value."
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`24
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`MR. FABRICANT: Can I just comment on that so there
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`is no misunderstanding, Your Honor? We agree in essence with
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`MELISSA BAILEY (903) 754-1472
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`what Mr. Dacus said.
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`I think for one thing, we just want to be specific on
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`and reserve the right to comment on, is there is an element of
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`a hypothetical negotiation the damages expert is going to
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`comment upon with respect to the relevant bargaining position
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`and strength of the licensor on the one hand and the licensee.
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`So we wouldn't want that to be read so literally that
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`the expert is precluded from saying that, one, it's a very
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`large company that makes many, many automobiles; and on the
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`1 2 3 4 5 6 7 8 9
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`other end is a very, very small company that makes, you know,
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`small products for purposes of hypothetical negotiations.
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`THE COURT: He is not going to use specific dollar
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`amounts in making that comparison?
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`MR. FABRICANT: That's correct.
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`MR. DACUS: That's agreeable, Your Honor. No. 6 is
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`not agreed, Your Honor. This is a motion in limine that seeks
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`to preclude the Plaintiff from referring to Volkswagen or it's
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`counsel's prior retention of experts.
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`I have some experience with the Court on this issue.
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`I know the Court generally has said that if the party itself
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`retains the experts, then that is proper subject matter for
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`cross-examination.
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`The Court may or may not decide to changes its mind
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`on that issue, but my experience with the Court has been that
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`with respect to retention by counsel by experts that it is not
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`MELISSA BAILEY (903) 754-1472
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`a proper matter for disclosure or subject of cross-examination.
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`So we would ask the Court to issue a limine on those bases.
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`THE COURT: All right. Let me hear from Plaintiff
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`then.
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`MR. FABRICANT: I'm Alfred Fabricant for the
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`Plaintiff. I think our position on that is -- not trying to
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`make a big issue out of it, but with one exception; and that is
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`-- and I don't have any reason to believe necessarily this is
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`the case with respect to Volkswagen. But where Volkswagen
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`1 2 3 4 5 6 7 8 9
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`questions the qualifications of the expert to be -- to be
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`qualified as an expert in the case, and what our evidence of
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`his basic skills and knowledge and qualifications and object to
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`his qualifications as an expert, I think it would be pertinent
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`to that.
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`In fact, this law firm that is representing
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`Volkswagen has qualified him as an expert in other cases that
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`are of a similar nature; and to challenge his qualifications as
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`an expert in this case when they've stood before the Court and
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`qualified him as an expert in another case, I think, would be
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`inequitable.
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`THE COURT: Mr. Fabricant, my view of that is that it
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`is just not proper to get the lawyers from center in this. If
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`Volkswagen has retained this expert before, then I think that
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`is fair game to point out that they have used him and now they
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`are criticizing him, but I don't think it is appropriate in
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`MELISSA BAILEY (903) 754-1472
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`front of the jury to inject counsel's relationship with the
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`expert in other matters.
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`I just -- so I will grant the motion in limine to
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`that extent.
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`MR. FABRICANT: Can I ask one question?
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`THE COURT: Yes.
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`MR. FABRICANT: When Your Honor says if Volkswagen
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`had retained the expert, does that include that Volkswagen had,
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`in fact, retained the expert through counsel as opposed to
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`1 2 3 4 5 6 7 8 9
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`Volkswagen directly retaining the expert?
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`THE COURT: If the expert has testified for
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`Volkswagen in prior matters, --
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`MR. FABRICANT: Yes, sir.
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`THE COURT: -- yes. I don't think it matters what
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`law firm retained the expert on behalf of Volkswagen. I think
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`the focus should be on the parties, not on the counsel.
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`MR. FABRICANT: Understood, Your Honor.
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`THE COURT: All right.
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`MR. DACUS: Your Honor, Motion in Limine No. 7 seeks
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`to preclude the Plaintiff from referring to Volkswagen's
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`alleged copying of Blitzsafe's patents or products.
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`I know this is an issue that I've had a lot of
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`discussion with the Court about in the Genband and Mediswitch
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`cases. The Court is very aware that the Federal Circuit has
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`sort of strikingly said that copying is not relevant to the
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`MELISSA BAILEY (903) 754-1472
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`issue of infringement.
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`THE COURT: I'm not going to accept any
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`characterization of the Federal Circuit as striking. I'll
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`agree that there are cases that make the point strongly.
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`MR. DACUS: As Judge Ward used to tell me, maybe I
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`should drop all of adjectives from my discussions.
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`THE COURT: You may be before him before you know it.
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`MR. DACUS: I do think the Court will hopefully agree
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`that the Federal Circuit has said that the issue of copying is
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`1 2 3 4 5 6 7 8 9
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`not relevant to the issue.
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`THE COURT: Not legally relevant. That's correct.
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`MR. DACUS: Right. It can be relevant to the issue
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`13
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`of secondary considerations. However, in this case, there is
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`14
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`no evidence -- as the Court well knows, there is a very
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`specific requirement for that relevance. And, here, I think
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`rather than go into that specific requirement, the Plaintiff's
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`response admits -- if you look at the Plaintiff's response,
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`they say they have no intent to put on specific evidence of
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`copying.
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`What they say in their response and what I've
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`understood from the meet and confers, although still left a
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`22
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`little bit as to why we can't reach agreement on this, is that
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`23
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`they want to introduce evidence that Mr. Marlowe, the principal
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`of Blitzsafe and inventor, had some communications with
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`Volkswagen prior to the filing of this lawsuit.
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`MELISSA BAILEY (903) 754-1472
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`We don't object to that. We don't -- we agree that
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`they can seek to introduce that evidence. What they cannot do
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`is to go further and say that Volkswagen copied or that that is
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`evidence that Volkswagen copied based on the Federal Circuit
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`pronouncement.
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`So we would ask the Court to simply preclude them
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`from attempting to refer to the fact that Volkswagen copied any
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`of Blitzsafe's patents or products.
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`THE COURT: All right. Let me hear from the
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`1 2 3 4 5 6 7 8 9
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`Plaintiff.
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`MR. FABRICANT: Alfred Fabricant for Blitzsafe. Your
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`Honor, we only seek to introduce evidence of copying with
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`13
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`respect to the willfulness claim against Volkswagen. I don't
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`14
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`disagree with what Mr. Dacus said about infringement. We do
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`15
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`have a willfulness case. There is evidence in the record that
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`Mr. Marlowe, on more than one occasion, on several occasions,
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`17
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`communicated with Volkswagen, sent products to Volkswagen,
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`18
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`tried to negotiate a business relationship with Volkswagen;
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`19
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`they had his products and they certainly should, we believe, in
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`20
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`the context of willfulness be able to argue that Volkswagen
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`21
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`liked what they saw and they wanted to use such a product but
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`22
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`they didn't want to do business with Mr. Marlowe.
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`23
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`THE COURT: Well, certainly, their knowledge --
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`24
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`Volkswagen's knowledge of the Plaintiff's products or patents
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`is admissible. What evidence of copying do you have, other
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`MELISSA BAILEY (903) 754-1472
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`Case 2:15-cv-01274-JRG-RSP Document 466 Filed 03/15/17 Page 19 of 131 PageID #:
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`than the evidence that they had knowledge?
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`MR. FABRICANT: Your Honor, the only evidence would
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`be that the final product of the Volkswagen companies was
`
`similar to the patented devices which Mr. Marlowe -- the
`
`devices which incorporate the patented invention that Mr.
`
`Marlowe had, that were provided to the Volkswagen Company.
`
`So it is a situation where if I sent you my product
`
`and it was covered by the patented claims and asked you to do
`
`business with me, you said no, and then years later you are
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`1 2 3 4 5 6 7 8 9
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`10
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`making a product which was very, very similar and meets all of
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`11
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`the elements of the claim. I mean, that is evidence of
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`12
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`copying.
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`13
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`THE COURT: Mr. Fabricant, I think the best thing to
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`14
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`do with this motion would be to grant it and say that if you
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`15
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`have placed in the record evidence that you think supports the
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`16
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`inference that you can approach before you make an argument
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`17
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`from that evidence to the jury that there is copying.
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`18
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`I do think that this is an issue that is very
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`19
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`sensitive under the case law; and unless you have a factual
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`20
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`foundation for it, I think it is also very prejudicial.
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`21
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`I'm just going to say that before you introduce the
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`22
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`issue of copying into the case, you need to approach the bench
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`23
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`and bring it up.
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`24
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`25
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`MR. FABRICANT: Yes, Your Honor.
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`THE COURT: What's next?
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`MELISSA BAILEY (903) 754-1472
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`Case 2:15-cv-01274-JRG-RSP Document 466 Filed 03/15/17 Page 20 of 131 PageID #:
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`MR. DACUS: Yes, Your Honor. Motion in Limine No. 8
`
`brought by Volkswagen has been agreed to by the parties subject
`
`to the Court's approval.
`
`THE COURT: All right.
`
`MR. DACUS: That is the same for No. 9, Your Honor
`
`with some slight difference in wording. And with the Court's
`
`permission, I'll read into the record what the parties have
`
`agreed to subject to the Court's approval.
`
`Motion in Limine No. 9 it's agreed would read,
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`1 2 3 4 5 6 7 8 9
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`10
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`"Blitzsafe agrees not to make any statements or elicit any
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`11
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`testimony alleging liability due to Volkswagen's or any
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`12
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`witnesses' country of origin or otherwise making pejorative
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`13
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`statements concerning German or foreign companies. However,
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`14
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`Blitzsafe shall not be precluded from mentioning the fact that
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`15
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`Volkswagen imports certain of the accused vehicles from foreign
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`16
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`countries such as Germany."
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`17
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`THE COURT: All right. Mr. Fabricant, that is
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`18
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`agreed?
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`19
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`20
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`21
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`MR. FABRICANT: That is agreed.
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`THE COURT: All right. Thank you.
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`MR. DACUS: And then With respect to Motion in Limine
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`22
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`No. 10, Your Honor, that relates to the priority date on the
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`23
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`'342. The Court addressed a motion with respect to that
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`24
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`yesterday; and, as a result, I believe that Motion in Limine
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`25
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`No. 10 is agreed.
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`MELISSA BAILEY (903) 754-1472
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`Case 2:15-cv-01274-JRG-RSP Document 466 Filed 03/15/17 Page 21 of 131 PageID #:
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`THE COURT: I'll spare the Plaintiff from saying it's
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`agreed, but it is ruled on.
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`MR. FABRICANT: I would believe it is moot in light
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`of Your Honor's ruling.
`
`THE COURT: All right.
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`MR. DACUS: Just so we're -- for absolute clarity
`
`here, Your Honor. I'm not so sure it is moot. I mean, based
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`on the Court's ruling, they should be precluded from providing
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`any testimony or argument that there is a priority date other
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`1 2 3 4 5 6 7 8 9
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`than June 27th, 2006.
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`THE COURT: I believe that is only moot because it
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`12
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`has already been ruled on.
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`MR. DACUS: Okay. And with that, Your Honor, that is
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`14
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`the conclusion of Volkswagen's motions in limine. Thank you,
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`15
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`Your Honor.
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`16
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`17
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`THE COURT: Okay. Thank you.
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`Next, we will take up the motions in limine by
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`18
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`Hyundai and Kia.
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`MR. STEADMAN: Good morning, Your Honor. This is
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`20
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`Paul Steadman for Hyundai and Kia. I apologize in advance, I
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`21
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`have a cold and I'm not able to hear very well this morning.
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`22
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`23
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`THE COURT: I will try to speak loud.
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`MR. STEADMAN: I'll try not to say "what." As to
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`24
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`Motion in Limine 1, Your Honor, I believe we have come to a
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`25
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`compromise position with the Plaintiff.
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`MELISSA BAILEY (903) 754-1472
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`Case 2:15-cv-01274-JRG-RSP Document 466 Filed 03/15/17 Page 22 of 131 PageID #:
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`The compromise is this: The Plaintiff's expert is --
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`intends to refer to the Affinity Labs case and verdict insofar
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`as to explain the Affinity Labs context of the Hyundai and
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`Kia/Affinity Labs settlement agreement. But they agree not to
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`refer to the Affinity Labs case with a jury verdict in any way
`
`that implies that Hyundai and Kia are infringers or that the
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`jury should make a similar finding in this case. With that, we
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`would agree with the Court's approval.
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`MR. FABRICANT: We agree, Your Honor.
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`THE COURT: All right.
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`MR. STEADMAN: As to Motion in Limine 2, I would like
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`1 2 3 4 5 6 7 8 9
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`10
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`to argue it with Motion in Limine 12 because they are closely
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`13
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`related.
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`14
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`Motion in Limine 12 was something very similar that
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`15
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`was granted in part for Volkswagen. And I think the same
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`16
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`ruling probably applies here, and we don't have to discuss it,
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`17
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`but that is voicing complaints before the jury panel or jury to
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`suggest Blitzsafe could not prove its case because it was not
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`19
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`given access to source code.
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`20
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`In this case, our clients are sales companies here in
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`21
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`the United States; Hyundai of America and Kia of America. They
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`22
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`do not have possession, custody, or control of the source code
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`23
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`and there is no evidence that they do.
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`24
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`In addition, we went to the parent companies of those
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`25
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`companies in Korea. They told us they did not have possession,
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`MELISSA BAILEY (903) 754-1472
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`custody, or control of the source code; and we asked our
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`suppliers for it and did not get it.
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`In addition, Blitzsafe made an argument about that
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`our supply agreements with our suppliers would contain clauses
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`that would allow us to get that source code. Even though
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`Hyundai Corporation and Kia Motor Company in Korea were not
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`parties to this case, we got the
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