*1 Defendants' Motion in Limine No. 4 to Preclude Improper Commentary During Trial ([Doc. 78] in Case No. 1:18-CV-748-RWS (the “Crumbley case”)) is before the Court for consideration. The motion was originally filed in the Crumbley case but the parties have stipulated that the motion is adopted in Case No. 1:18-CV-402 (the “Guffey case”). After considering the submissions of the parties, the Court enters the following Order.

In the motion, Defendants seek to preclude Plaintiffs from commenting at trial on: “(1) the confidentiality status of any documents produced during discovery or otherwise referring to documents not publicly disseminated as ‘secret’ or ‘confidential’ company documents, (2) the fact that any Ethicon employee or witness is a foreign national, and (3) the presence or absence of an Ethicon corporate representative at trial.” (Defs.' Br. [Doc. 78] at 1). The Court will address each of these issues, in turn.

Confidentiality Status of Documents

Defendants seek to preclude Plaintiffs' counsel and witnesses from stating to the jury that certain documents were designated as “confidential” by Defendants during the discovery process. To the extent that the motion goes to the designation of documents as “confidential” during discovery, it is due to be granted. However, Plaintiffs are not precluded from offering evidence or commenting regarding documents designated as “confidential” outside the litigation. In other words, internal communications that were designated as “confidential” or “trade secrets” may be identified as such during the trial. Thus, as to these matters, the motion is due to be denied.

Nationality or Residence of Defendants' Employees

Defendants urge that Plaintiffs' counsel and witnesses not be permitted to refer to the nationality and/or residence of Defendants' employees and other witnesses in order to disparage the witnesses' credibility or to inflame the jury. In their response, Plaintiffs state they have no intention of making disparaging statements about any witness. However, they assert that they should not be precluded from having a witness testify concerning nationality or residence. The Court agrees. Therefore, the motion is due to be granted insofar as it precludes any effort to disparage a witness based on nationality or residence. However, Plaintiffs are not precluded from offering evidence about nationality or residence.

Corporate Representative at Trial

Defendants request that Plaintiffs' counsel be precluded from commenting on the absence of a corporate representative at trial. Under normal circumstances, the Court would not be inclined to grant this request. However, in light of the pandemic that we are presently experiencing, the Court will grant Defendants' request. To facilitate the trial of this case, the Court will be urging limited attendance in the courtroom and will be working with counsel to limit the necessity for travel. Consistent with the goal of conducting a safe and fair trial, the Court is not inclined to require an additional person in the courtroom who is performing no meaningful function in the case.

*2 While this Order generally applies to future trials, this holding is subject to reconsideration in future cases if warranted by progress in addressing pandemic-related issues.

Based on the foregoing, Defendants' Motion in Limine No. 4 to Preclude Improper Commentary During Trial ([Doc. 78] in the Crumbley case) is GRANTED in part and DENIED in part.

SO ORDERED this 5th day of March, 2021.