Schut is a former employee of Stafford-Smith. The only claim remaining in the consolidated lawsuits is Stafford-Smith's claim against Schut for conversion. The conversion claim was added to the litigation in late March 2013, when the Stafford-Smith was granted leave to file an amended complaint.[1] (ECF No. 46 Order; ECF No. 48 First Amended Counterclaim.) Stafford-Smith alleges, while employed as a regional manager, Schut accepted from customers certain kickbacks, known in the industry as “spiffs.” Stafford-Smith seeks to recover the spiff money Schut received during his employment.

“A motion in limine is ‘any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.’ ” Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013) (quoting Luce v. United States, 469 U.S. 38, 40 n.2 (1984)). The decision to grant or deny a motion in limine is within a trial court's discretion. See United States v. Humphries, 608 F.3d 955, 957 (6th Cir. 2010) (reviewing a district court's grant of a motion in limine for an abuse of discretion). Motions in limine are used to “narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.” Louzon, 718 F.3D at 561 (citation omitted); see Jonasson v. Lutheran Child and Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). Motions in limine allow the trial judge to eliminate from consideration evidence that should not be introduced at trial because it would not be admissible for any purpose. Jonasson, 115 F.3d at 440; Indiana Ins. Co. v. Gen. Elec. Co., 326 F. Supp.2d 844, 846 (N.D. Ohio 2004) (citing Jonasson). Such motions may also be used to prevent a jury from exposure to prejudicial evidence. Provident Life & Accident Ins. Co. v. Adie, 176 F.R.D. 246, 250 (E.D. Mich. 1997). When a motion in limine does not raise questions about admissibility of evidence or that evidence would be prejudicial, the motion will be denied. See Goldman v. Healthcare Mgt. Sys., Inc., 559 F. Supp.2d 853, 873 (W.D. Mich. 2008) (Maloney, J.).

“The Federal Rules of Civil Procedure set forth the discovery obligations of parties and their attorneys, and authorize federal courts to impose sanctions on those participants who fail to meet these obligations.” Laukus v. Rio Brands, Inc., 292 F.R.D. 485, 500 (N.D. Ohio 2013.) Rule 26(a) provides for required initial disclosures, the disclosure of expert witnesses, and pretrial disclosures. Fed. R. Civ. P. 26(a). A party, however, has no obligation to disclose information or witnesses that will be used solely for impeachment. Id. 26(a)(3)(A). Rule 26(b) provides that parties may obtain discovery of any nonprivileged matter relevant to any party's claim or defense. Id. 26(b)(1). A party may request another party to produce documents and electronically stored information. Id. 34(a). Once a party has made a disclosure, either because the disclosure was mandatory under Rule 26(a) or in response to a discovery request by another party, the party has an obligation to supplement or correct the disclosure or response. Id. 26(e)(1). If a party fails to provide information or disclose a witness as required by Rules 26(a) and (e), that party is not allowed to use the information or the witness at trial, unless the failure was substantially justified or harmless. Id. 37(c)(1). The burden rests on the party to be sanctioned to establish that the violation was harmless or substantially justified. Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003). Harmlessness arises from a combination of an honest mistake by the party to be sanctioned, combined with sufficient knowledge by the other party. Sommer v. Davis, 317 F.3d 686, 692 (6th Cir. 2003).

*2 Schut requests the Court issue an order precluding Defendant from introducing into evidence, directly or indirectly, unproduced emails. Schut argues the emails should be prohibited under Rules 37(c) and (d)(3) of the Federal Rules of Civil Procedure and Rule 403 of the Federal Rules of Evidence. Schut argues, on December 27, 2013, he received numerous emails from Defendant that had not previously been produced. (ECF No. 74 12-27-13 Letter PgID 1129-32; ECF No. 74-3 Emails PgID 1161-1205.) Schut argues, prior to this disclosure, Defendant had not indicated its intention to introduce or rely on any emails at trial.

Plaintiff made a sufficient discovery request to cause Defendant to produce spiff-related emails. On April 15, 2013, Schut submitted a second discovery request asking Defendant to “produce each and every document which refers to, or you contend supports, your claim against Mr. Schut.” (ECF No. 73-1 2nd Discovery Request PgID 1115.) By April 15, 2013, Defendant had filed its counterclaim for conversion of the spiff funds. Schut also requested Defendant “produce each and every document which you intend to introduce at trial in support of your claim against Mr. Schut and/or your defenses to Plaintiff's claims against you.” (Id. PgID 1116.) Schut contends Defendant never responded to his second discovery request, which Defendant admits in its response (ECF No. 78 Def. Resp. 6 PgID 1233.) Discovery closed on May 15, 2013. (ECF No. 21.)

In the December 27, 2013, letter from Defendant to Schut, Defendant identified twenty-one emails it might introduce at trial, potential trial exhibits 3-23. (12-17-13 Letter PgID 1130-31.) Two of those emails, numbers 6 (Schut to Brian at Two Market dated September 27, 2011) and 15 (Schut to Dave Smith dated December 9, 2011), were filed with the Court as part of Defendant's response to Plaintiff's motion for partial summary judgment. The two emails were attached as exhibits to Randy Clark's affidavit, which was filed on April 1, 2013. (ECF No. 49 PgID 777 and 778.) Defendant alleges that it previously disclosed two other emails as part of its case evaluation brief, which was sent to Plaintiff on June 7, 2013.[2] Those two emails are listed as numbers 5 (Schut to Dave Smith dated September 27, 2011) and 23 (Schut to Dave Smith on June 8, 2012) on Defendant's list of potential trial exhibits.

Of the list of spiff-related emails included in the December 27, 2013, letter, Defendant may use at trial on those four emails previously disclosed to Schut. Defendant has not established that the belated disclosure of the other emails was harmless. Weighing in favor of harmlessness is the fact that Schut was the author or recipient of the emails in question. Defendant has not established that the failure to disclose was an honest mistake or substantially justified. Defendant states that its failure to respond to the Second Discovery Request was a “mere oversight.” (Def. Resp. 6 PgID 1233.) Defendant admits that the timing of the disclosure was “later than a proper response to Plaintiff's discovery requests.” (Def. Resp. 9 PgID 1236.) Defendant insists that the disclosure does not result in any prejudice, as Schut possesses exclusive control over the original spiff evidence. But harmlessness, not lack of prejudice, is what the party to be sanctioned must prove. Sommers, 317 F.3d at 692. The impeachment exception for disclosure obligations under Rule 26(a)(3)(A) does not excuse Defendant's failure to respond to Schut's second discovery request. The Sixth Circuit rejected any such tactic.

Varga v. Rockwell Int'l Corp., 242 F.3d 693, 697 (6th Cir. 2001).

Defendant concedes that the emails first disclosed on December 27, 2013, “were, for the most part, either resending of the prior emails, repeated demands by Plaintiff for payment, or emails which were not intended to be used by Defendant as direct evidence; perhaps only rebuttal evidence.” (Def. Resp. 9.) With this concession, the Court finds that limiting Defendant to using the emails previously disclosed to be a proper sanction.

Schut requests this Court issue an order precluding Defendant from calling witnesses who were first disclosed on December 27, 2013: Rich Harrison, Randy Clark, Mark Norvold, Brian Pelkington, Jarrod Stilwell, and any other undisclosed persons.

Defendant may not call as a witness at trial, unless for impeachment purposes, Mark Norvold, Brian Pelkington, or Jarrod Stilwell. Schut made a proper discovery request to Defendant asking for the name, address, and subject matter of individuals Defendant expected to call as a witness at trial. (Second Discovery Request 8 PgID 1113.) Defendant disclosed to Schut on March 1, 2013, that Randy Clark may be called as an expert witness. (ECF No. 39.) Defendant alleges that Plaintiff named Rich Harrison as a possible witness.[3] In its response to the motion, Defendant admits that it “only recently disclosed the names of Mark Norvold, Brian Pelkington, [and] James Stilwell, and that their testimony may be reserved only for rebuttal.” (Def. Resp. 10 PgID 1237.) In the Final Pretrial Order submitted by the parties and signed by the Court, Defendant identifies Norvold, Pelkington, and Stilwell as rebuttal witnesses. (ECF No. 90.) That Defendant intends to call Norvold, Pelkington, and Stilwell as rebuttal witnesses does not excuse its failure to disclose those individuals as witnesses when Defendant received a proper discovery request. See Varga, 242 F.3d at 697.

Schut requests the Court issue an order precluding Defendant from introducing evidence regarding mens rea, specifically, that Schut intentionally or knowingly exerted control over Defendant's property, the spiff funds. Schut argues that, in the pleadings, Defendant included no allegations relevant to mens rea. Schut reasons it has had no opportunity or reason to conduct discovery of the mens rea element. Schut argues the evidence should be excluded under Rule 403 of the Federal Rules of Evidence. Under Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice. Fed. R. Evid. 403.

*4 Under Indiana law, mens rea is not an element of a tortious conversion claim, however, a claim for criminal conversion requires the authorized control to be either knowing or intentional.[4] Computers Unlimited, Inc. v. Midwest Data Sys., Inc., 657 N.E.2d 165, 171 (Ind. Ct. App. 1995). The criminal conversion statute provides that a “person who knowingly or intentionally exerts unauthorized control over property of another commits criminal conversion.” Ind. Code § 35-43-4-3. A civil claimant who establishes all the elements of Indiana's criminal conversion statute, by a preponderance of the evidence, can recover treble damages. McKeighen v. Daviess Cnty. Fair Bd., 918 N.E.2d 717, 723 (Ind. Ct. App. 2009); see Ind. Code Ann. § 34-24-3-1.

Schut is not entitled to an order precluding Defendant from introducing evidence regarding the knowing and intentional element necessary for treble damages. “Orders in limine which exclude broad categories of evidence should rarely be employed.” Sperberg v. Goodyear Tire &Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). Although Schut has couched the motion in terms of fairness, the motion does not raise an evidentiary question, but a substantive one; the underlying basis for excluding evidence is Defendant's alleged failure to plead an element of a claim necessary to recover treble damages. See Louzon v. Ford Motor Co., 718 F.3d 556, 562-63 (6th Cir. 2013). Motions in limine do not serve as substitutes for dispositive motions. ABC Beverage Corp. v. United States, No. 1:07-cv-51, 2008 WL 5424174, at * 2 (W. D Mich. Dec. 4, 2008) (Maloney, C.J.) (collecting cases). This motion is denied because it is a rephrased motion to dismiss. See Louzon, 718 F.3d at 563 (“Where, as here, the motion in limine is no more than a rephrased summary-judgment motion, the motion should not be considered.”).

Defendant requests the Court issue an order precluding Schut from introducing an expert's opinion that spiffs or kickbacks are common or accepted practice in the foodservice equipment sales industry or that spiffs are generally permitted by employers in the industry. Defendant argues the testimony would not fall within the scope of Rule 702 of the Rules of Evidence and should also be excluded under Rule 37, as Schut failed to disclose any experts on this issue. The parties disagree whether such testimony constitutes expert testimony, or may be testified to by a lay witness.

Defendant has not established that it is entitled to the relief it seeks. Schut has not identified himself as an expert or disclosed himself as such under Rule 26(a)(2) and, therefore, he cannot testify as an expert. Expert testimony may be used to establish industry standards or practices. E.g., Walker v. Jax Mold & Mach., Ltd., 72 F.3d 131, at * 2 (6th Cir. Dec. 6, 1995) (unpublished table opinion) (per curiam). That experts have been so used does not require the conclusion that only expert testimony may be used to establish industry standards or practices. Indeed, lay witnesses have been able to testify about industry practices on the basis of their particularized knowledge garnered from years of experience in the field. See Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., Ltd., 320 F.3d 1213, 1218, 1223 (11th Cir. 2003). Defendant has not established that, in order to opine about spiff practices within the foodservice equipment sales industry one must have scientific, technical or specialized knowledge. SeeFed. R. Evid. 702(a). So long as Schut, or any other disclosed lay witness offers opinion testimony that is rationally based on his or her own perceptions and experiences, the testimony is proper. See id. 701(a).

*5 For the reasons provided in the accompanying Opinion,

IT IS SO ORDERED.

Because two cases were consolidated into the earlier filed case, Stafford-Smith, the defendant in the '787 case and the plaintiff in the '813 case, filed their claim as the first amended counterclaim in the '787 case.

The electronic docket reveals the lawsuit was submitted to a case evaluation panel under Local Rule 16.5. (ECF No. 22.) The case evaluation process requires the parties to submit case summaries and supporting documents to the three-member evaluation panel. W.D. Mich. LR Civ. P. 16.5(b)(i)(C). The Court accepts Defendant's representation that the emails were included as part of the mediation brief, and that the brief was served on Schut. Because the mediation brief are not filed with the Court, the Court has no means for determining the veracity of Defendant's assertion that the emails were included in the mediation brief.

The Court accepts Defendant's representation here. Schut was not obligated to file any witness list with the Court prior to the Proposed Final Pretrial Order. If Schut identified Harrison to Defendant as a possible witness in earlier exchanges between the parties, Schut would know that Harrison might be called as a witness at trial.

At the Final Pretrial Conference, the parties agreed that Indiana law governs Defendant's conversion claim. Schut was working in Indianapolis, Indiana at all times during which he allegedly converted the spiff funds.