*1 Before the Court are five (5) motions in limine filed by Plaintiff (ECF Nos. 112–115, 118), and one (1) motion in limine filed by Defendants (ECF No. 110). For the reasons stated herein, the Court rules on the parties' motions as described below.

I. Background

A. Factual Background

Plaintiff Wixen Music UK Ltd. (“Wixen”) and Defendant Transparence Entertainment Group Inc. (“TEG”) are both companies that administer music copyrights and collect royalties earned by their clients. Individual Defendants Dennis Dreith and Shari Hoffman founded TEG (collectively, the “TEG Defendants”). This case concerns Wixen's allegations that Individual Defendant Tania Oliveira (“Oliveira”) had access to its trade secrets from her employment with Wixen and conspired with the TEG Defendants to misappropriate Wixen's trade secrets.

B. Procedural History

On March 26, 2021, Wixen filed its Complaint alleging: (1) trade secret misappropriation under federal law; (2) trade secret misappropriation under state law; (3) intentional interference with contractual relations; (4) intentional interference with economic relations; (5) unfair competition; and (6) conspiracy. ECF No. 1 (“Complaint”).

On December 22, 2021, Judge Otis Wright issued an order granting in part Defendants' Motion to Dismiss, and dismissed Wixen's third, fourth, and fifth causes of action. ECF No. 22 (“MTD Order”). Wixen was left with its two trade secret misappropriation claims under federal and state law, as well as its conspiracy cause of action, although the conspiracy cause of action was limited to the misappropriation claims. MTD Order at 18.

On August 3, 2023, Defendants moved for summary judgment. ECF No. 77 (“MSJ”). At the MSJ stage, Wixen narrowed the basis of its trade secret claims from what it set out in its Complaint originally, leaving five categories of trade secrets at issue (the “Alleged Trade Secrets”). The parties have stipulated to dismiss the allegations in the Complaint related to the withdrawn trade secrets, which the Court has granted. ECF Nos. 71, 72, 90, 91.

After hearing from the parties on the MSJ, the Court issued an order granting summary judgment in part. ECF No. 94 (“MSJ Order”). In particular, on the trade secret misappropriation claims, the Court granted complete summary judgment only as to one four of the five categories of trade secrets identified—leaving the trade secrets at issue (1) the names and contact information of Wixen's clients and potential clients (“First Alleged Trade Secret”); (2) Wixen's contracts with its clients, including their expiration dates (“Second Alleged Trade Secret”); (3) estimated revenue and net profit to Wixen from its clients (“Fourth Alleged Trade Secret”); and (4) information regarding which Neighboring Rights Societies Wixen collected royalties from (“Fifth Alleged Trade Secret”). With respect to the Fourth and Fifth Alleged Trade Secrets, the Court granted summary judgment with monetary damages, leaving for trial the claim for injunctive relief with respect to these categories Id. The Court denied summary judgment as to the conspiracy claim. Id. After giving the parties a chance to submit written briefing on the issue, the Court also granted summary judgment pursuant to Federal Rule of Civil Procedure 56(f) in favor Wixen in finding that the First Alleged Trade Secret qualified as a protected trade secret. ECF No. 104 (“56f Order”).

*2 On December 6, 2023, Wixen filed five (5) motions in limine. ECF Nos. 112–115, 118. Oppositions to these motions were filed on December 20, 2023. ECF Nos. 123–127. On December 6, 2023, Defendants filed one (1) motion in limine. ECF No. 110. Wixen filed an opposition to this motion on December 20, 2023. ECF No. 128.

The Court held oral argument on the motions on January 3, 2024, after issuing a tentative opinion.

II. Applicable Law

A. Motions in limine

A motion in limine is “a procedural mechanism to limit in advance testimony or evidence in a particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). A party files a motion in limine to exclude anticipated prejudicial evidence before the evidence is introduced at trial. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984). A court has the power to grant such motions pursuant to its “inherent authority to manage trials,” even though such rulings are not explicitly authorized by the Federal Rules of Evidence. Id. at 41 n.4 (citation omitted). Regardless of a court's initial decision on a motion in limine, it may revisit the issue at trial. Id. at 41–42 (“[E]ven if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.”).

B. Federal Rule of Civil Procedure 26

Federal Rule of Civil Procedure 26(a)(1)(A) provides that a:

Fed. R. Civ. P. 26(a)(1)(A). Federal Rule of Civil Procedure 26(a)(1)(A) requires parties to provide initial disclosures to the opposing parties without awaiting a discovery request. The initial disclosures must include a computation of each category of damages claimed by the disclosing party. Fed. R. Civ. P. 26(a)(1)(A)(iii).

While Rule 26 generally requires a party to provide a computation of such damages, emotional damages, because of their vague and unspecific nature, are oftentimes not readily amenable to computation. See Williams v. Trader Publishing Co., 218 F.3d 481, 486 n.3 (5th Cir. 2000) (“Since compensatory damages for emotional distress are necessarily vague and are generally considered a fact issue for the jury, they may not be amenable to the kind of calculation disclosure contemplated by Rule 26(a)(1)(C).”).

Under Federal Rule of Civil Procedure 26(a)(2), a party is required to disclose an expert witness and submit an accompanying report prepared by the witness. Fed. R. Civ. P. 26(a)(2)(A)–(B). This written report must contain, in part: (1) a complete statement of all opinions expressed by the witness and the “basis and reasons for them”; (2) the facts and data used by the witness in forming his or her opinions; and (3) the exhibits that will be used to support or summarize the opinions. Fed. R. Civ. P. 26(a)(2)(B)(i)–(iii).

*3 Further, absent a stipulation or a court order, expert disclosures must be made “if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure.” Fed. R. Civ. P. 26(a)(2)(D)(ii). “[T]he function of rebuttal testimony is to explain, repel, counteract or disprove evidence of the adverse party.” United States v. Lamoreaux, 422 F.3d 750, 755 (8th Cir. 2005); see also United States v. Webb, 115 F.3d 711, 719 n. 5 (9th Cir. 1997) abrogated on other grounds by United States v. Espinoza-Valdez, 889 F.3d 654 (9th Cir. 2018) quoting 1 Graham, § 611.3, at 819 (“The proper scope and function of rebuttal is thus refutation, which involves evidence which denies, explains, qualifies, disproves, repels, or otherwise sheds light on evidence offered by the defense[.]”); Black's Law Dictionary 1295 (8th ed.) (defining “rebut” as “to refute, oppose, or counteract (something) by evidence, argument, or contrary proof”); see also U.S. v. Collins, 90 F.3d 1420 (9th Cir. 1996) (finding the district court did not abuse its discretion by admitting rebuttal evidence of burglary to counter the adverse party's evidence). Rebuttal evidence may be used to challenge “the evidence or theory of an opponent—and not to establish a case-in-chief.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006); see also Cates v. Sears, Roebuck & Co., 928 F.2d 679, 685 (5th Cir. 1991) (“Rebuttal must be kept in perspective; it is not to be used as a continuation of the case-in-chief.”). The scope of rebuttal evidence is within the “broad discretion” of the court. Rent-A-Center, Inc. v. Canyon Television and Appliance Rental, Inc., 944 F.2d 597 (9th Cir. 1991) (“The district court has broad discretion in deciding what constitutes proper rebuttal evidence.”); see also Geders v. United States, 425 U.S. 80, 86 (1976) (“Within limits, the judge may control the scope of rebuttal testimony[.]” (internal citations omitted)).

Rule 26(e)(i) imposes a duty on parties to supplement their Rule 26(a) disclosures if the party learns that its disclosures are incomplete or incorrect. “Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). However, the Court provides two exceptions for when the information may still be introduced: if the parties' failure to disclose the required information is substantially justified or harmless. Id. (citing FED. R. CIV. P. 37(c)(1)). “Implicit in Rule 37(c)(1) is that the burden is on the party facing sanctions to prove harmlessness.” Yeti, 259 F.3d at 1107.

C. Federal Rule of Evidence 401, 403, & 408

Federal Rule of Evidence 401 prescribes what evidence qualifies as relevant. Fed. R. Evid. 401. It provides that evidence is relevant if: “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Id. 401(a)–(b); see also Crawford v. City of Bakersfield, 944 F.3d 1070, 1077 (9th Cir. 2019) (“Deciding whether a fact is of consequence in determining the action generally requires considering the substantive issues the case presents.” (internal quotation marks omitted)). Courts have recognized that Rule 401's “basic standard of relevance ... is a liberal one.” Crawford, 944 F.3d at 1077.

Federal Rule of Evidence 403 dictates that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. District courts have broad discretion in assessing admissibility under Rule 403. Sprint/United Mgmt. Co. v. Mendelsohn, 552 US 379, 384 (2008) (finding “wide discretion” necessary because Rule 403 “requires an on-the-spot balancing of probative value and prejudice, potentially to exclude ... evidence that already has been found to be factually relevant”) (internal quotes omitted); see also Hardeman v. Monsanto Co., 997 F.3d 941, 967 (9th Cir. 2021), cert. denied, 142 S. Ct. 2834 (2022) (“A district court's Rule 403 determination is subject to great deference, because the considerations arising under Rule 403 are susceptible only to case-by-case determinations, requiring examination of the surrounding facts, circumstances, and issues.”).

*4 Federal Rule of Evidence 408 prohibits the admissibility of settlement negotiations to “prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction.” Fed. R. Evid. 408.

D. Federal Rule of Evidence 702

The personal knowledge requirement for lay witnesses does not apply to expert testimony. Fed. R. Evid. 602. Federal Rule of Evidence 702 allows a witness to testify as an expert “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” United States v. Alonso, 48 F.3d 1536, 1540 (9th Cir. 1995) (quoting FED. R. EVID. 702). While Courts may reject wholly speculative or unfounded testimony, it abuses its discretion if it overlooks relevant data submitted as the foundation of an expert's remarks.” Elosu v. Middlefork Ranch Inc., 26 F.4th 1017, 1025 (9th Cir. 2022). Experts may express opinions without published support if they provide an explanation of why such publications are unavailable. Primiano v. Cook, 598 F.3d 558, 567 (9th Cir. 2010). This concern regarding speculation speaks to weight, not reliability. Elosu, 26 F.4th at 1025.

E. Federal Rule of Evidence 801 & 802

As defined by Federal Rule of Evidence 801, “hearsay” is an out-of-court statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801. A statement includes “a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” Id. Under Federal Rule of Evidence 802, hearsay evidence is inadmissible unless otherwise provided by a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court. Fed. R. Evid. 802.

III. Discussion

Wixen moves to exclude at trial (1) evidence of settlements and settlement negotiations (ECF No. 112); (2) documents not produced during discovery (ECF No. 113); (3) certain affirmative defenses (ECF No. 114); (4) certain statements by Oliveira (ECF No. 115); and (5) expert opinion testimony and opinion from Vincent Leoni (ECF No. 118).

Defendants move to limit expert opinion testimony from Michael Pellegrino. ECF No. 110.

A. Evidence of settlements and settlement negotiations shall not be permitted (Wixen's Motion in limine No.1, ECF No. 112).

Wixen requests that the Court order that any evidence regarding settlement negotiations and offers to compromise should be excluded. ECF No. 112-1 at 3. Under Federal Rule of Evidence 408(b), although the use of settlement negotiations to show liability and damages is prohibited, such evidence can be used for other purposes, including showing bias, prejudice, undue delay, or obstruction of justice. Fed. R. Evid. 408(b). Wixen argues that (1) no evidence of settlement here could be used for any purpose other than a prohibited one, and (2) that such evidence could also be prejudicial, confuse the issues, and mislead the jury. ECF No. 112-1 at 3.

Defendants argue that Wixen filed the motion frivolously to hide its questionable litigation tactics. Nevertheless, Defendants state they have no real opposition to the motion, but believe that the motion is one-sided, and therefore request that any order bind all parties. ECF No. 123 at 1.

*5 The Court GRANTS the Motion in part; consistent with Rule 408(b), neither party will be permitted to present evidence of settlements and settlement negotiations. To the extent that either party intends to present this evidence for a purpose permitted by Rule 408(b), they must meet and confer with opposing counsel and raise with the Court before presenting the evidence to the jury.

B. Documents not produced during discovery shall not be permitted (Wixen's Motion in limine No. 2, ECF No. 113).

Wixen requests that the Court limit the introduction of any evidence at trial not produced during discovery because it would be prejudicial. ECF No. 113-1 at 1. Wixen notes that it does not actually anticipate that Defendants will introduce such evidence, and is making the request as a precautionary matter. Id. at 3.

Defendants agree with the general proposition that evidence not disclosed may be excluded unless a party can demonstrate that the failure to disclose is substantially justified or harmless, or used for impeachment purposes, but note that Wixen's request relies on an assumption that Defendants intend to violate their discovery obligations. ECF No. 124 at 1.

The Court GRANTS the Motion in part; consistent with settled principles of civil procedure, in general, neither party will be permitted to present evidence not produced during discovery. Neither party has identified specific evidence to which this motion is directed; the Court therefore acknowledges that it may be permissible to present such evidence in certain limited circumstances. To the extent that either party intends to present such evidence, they must meet and confer with opposing counsel and raise with the Court before presenting the evidence to the jury.

C. Evidence concerning Defendants' affirmative defenses are not excluded with one partial exception (Wixen's Motion in limine No. 3, ECF No. 114).

Wixen argues that the Court should exclude any evidence concerning a number of Defendants' affirmative defenses, specifically: (1) Second Affirmative Defense (Personal Jurisdiction) because there is no dispute that Defendants are subject to jurisdiction here; (2) Third Affirmative Defense (Mitigation) because it is inconsistent with Defendants' position on summary judgment, based on the Court's finding on summary judgment that Wixen has taken reasonable measures to maintain its trade secrets, and that Wixen brought this lawsuit promptly after discovering the alleged misappropriation; (3) Fourth Affirmative Defenses (After-Acquired Evidence, Fraud, Deceit, Misrepresentation, Laches)[1] because after-acquired evidence is irrelevant to trade secret matters, because the fraud, deceit, and misrepresentation defenses have not been stated with particularity, and because the laches defense is the same as the mitigation defense; (4) Seventh Affirmative Defense (Statute of Limitations) because Wixen timely brought this action; (5) Eighth Affirmative Defense (Lack of Protectable Trade Secrets) because it is not actually an affirmative defense, and the Court has previously determined that some of Wixen's trade secrets qualify as protected trade secrets; (6) Ninth Affirmative Defense (Trade Secret Disclosure Statement) because Wixen has served a disclosure statement identifying the trade secrets at issue; and (7) Eleventh Affirmative Defense (Novelty) because it is irrelevant as there are no patents at issue. See generally ECF No. 114-1. Wixen argues that evidence supporting these defenses would be confusing, misleading, and a waste of time under Federal Rule of Evidence 403, and therefore should be excluded. Id. at 9.

*6 Defendants argue that a motion in limine cannot be substituted for summary judgment and should not be used to resolve factual disputes. ECF No. 125 at 1. Nevertheless, Defendants respond as to each affirmative defense at issue as follows: (1) the Second Affirmative Defense (Jurisdiction) has already been withdrawn; (2) the Third Affirmative Defense (Mitigation) is not inappropriate for this type of case; (3) the Fourth Affirmative Defense (After-Acquired Evidence) has been abandoned; (4) the Seventh Affirmative Defense (Statute of Limitations) has been abandoned; (5) the Eighth Affirmative Defense (Lack of Protectable Trade Secrets) is still at issue; (6) the Ninth Affirmative Defense (Failure to Prepare Disclosure Statement) has been abandoned; (7) the Eleventh Affirmative Defense (Novelty) has been abandoned.

The Court DENIES the Motion. Defendants have already abandoned several affirmative defenses or acknowledge that the Court has ruled on them; the Motion is therefore DENIED as MOOT with respect to the following: the Second Affirmative Defense (Jurisdiction); the Fourth Affirmative Defense (After-Acquired Evidence); the Seventh Affirmative Defense (Statute of Limitations); the Ninth Affirmative Defense (Failure to Prepare Disclosure Statement); and (7) the Eleventh Affirmative Defense (Novelty).

With respect to the Third Affirmative Defense (Mitigation), Defendants explain that their theory of mitigation of damages is that Wixen failed to take any action to keep the clients it is alleging the Defendants stole, and therefore failed to mitigate the damages on the alleged trade secret misappropriation. They acknowledge that there is no model jury instruction on this theory, nor any authority establishing this as a defense. Nevertheless, it appears to the Court that the Defendants are entitled to argue—for each category of actual damages—whether and how Wixen failed to mitigate that particular category. Therefore, to the extent that Wixen argues that one category of damages is the revenue it lost from clients that transferred to Defendants as a result of the Defendants' efforts which were enabled by their misappropriation, Defendants are entitled to argue that Wixen failed to take reasonable measures to keep those clients or win them back. But it would not be logical to hold Wixen accountable for mitigating its damages prior to the point at which it was aware of the alleged misappropriation and the Defendants' use of the misappropriated information to obtain Wixen's clients. The Motion is therefore GRANTED in part with respect to this defense. In light of the Court's ruling, the parties are ORDERED to meet and confer regarding the contours of this defense and raise any further objections or disputes to the Court in advance of any witness examination on these issues so that the objections can be handled outside of the presence of the jury if possible.

With respect to the Eighth Affirmative Defense (Lack of Protectable Trade Secrets), Wixen argues that the Court has already decided that Wixen's trade secrets are protectable, but that is not the case. The only trade secrets still at issue are the client names and information (First Alleged Trade Secret) and contracts with clients (Second Alleged Trade Secret).

In its 56f Order, the Court indeed decided that the client names and contact information qualify as protected trade secrets. 56f Order at 4. The Motion is therefore DENIED as MOOT with respect to this aspect of the Eighth Affirmative Defense.

With respect to Wixen's contracts with its clients, however, the Court merely found in its MSJ Order that a reasonable jury could find that these were protectable. MSJ Order at 18. Accordingly, the question of whether these contracts were protectable is still an issue for trial. The Court agrees, however, that this is less in the nature of an affirmative defense and more an argument that one of the elements of the claim has been met. In any event, Defendants will not be precluded from presenting evidence that this alleged trade secret was not protectable, and the Court therefore and DENIES the motion for that reason with respect to the Eighth Affirmative Defense.

D. Oliveira's statements regarding her reasons for leaving Wixen shall be permitted (Wixen's Motion in limine No. 4, ECF No. 115).

*7 Wixen requests that Oliveira's statements related to why she left her employment with Wixen and any alleged mistreatment of its female employees should be excluded because it would be irrelevant, prejudicial, misleading, and confusing to the factfinder. ECF No. 115-1 at 1.

Defendants argue that (1) Oliveira's statements regarding why she left her employment at Wixen are relevant and are essential to her claims in this lawsuit, (2) this Court ruled recently in Skye Orthobiologics, LLC v. CTM Biomedical, LLC, 2023 WL 5667558, *7 (C.D. Cal. Aug. 9, 2023) that a defendant could not be prohibited from presenting evidence to refute a plaintiff's contention that he left as part of a scheme to steal their secrets; and (3) Oliveira's reasons for leaving her employment at Wixen will not confuse or mislead the jury. ECF No. 126.

It appears to this Court that one of Wixen's theories is that Oliveira secretly began working with the Defendants and eventually left Wixen in order to profit from Wixen's trade secrets. Even if not stated explicitly, the fact that she left Wixen may cause the jury to believe that she left for this purpose. And in any event, her credibility will be a significant issue at trial. It is therefore fair for Defendants to attempt to rebut this theory and present their innocent reason for her leaving.

The Court DENIES the Motion in part. To be clear, Oliveira will not be permitted to testify generally as to any alleged mistreatment of Wixen's female employees that was not among her reasons for leaving Wixen. In light of the Court's ruling, the parties are ORDERED to meet and confer regarding the contours of this evidence and the danger of undue prejudice or undue consumption of time from a “trial within a trial” as to Wixen's working conditions. The parties shall raise any further objections or disputes to the Court in advance of Oliveira's testimony so that they can be handled outside of the presence of the jury if possible.

E. Expert testimony of Vincent Leoni shall be permitted (Wixen's Motion in limine No. 5, ECF No. 118).

Wixen argues that Defendants' expert, Vincent Leoni, should not be permitted to testify as to his opinions because he is not qualified, and his opinions are not relevant or reliable. ECF No. 118-1 at 1. Specifically, Wixen notes that Leoni has no experience in trade secrets valuation or damages calculation, and many of his opinions are conclusions not generated from any reliable principles or methods. Id. Wixen argues that any expert opinion and testimony from Leoni would be prejudicial, confusing, and misleading. ECF No. 118-1 at 10.

Defendants argue that Leoni should be allowed to testify because he is qualified, and Wixen's arguments merely go towards the weight of his opinions. ECF No. 127 at 1.

The Court DENIES the Motion. The Court finds that the witness offered is a designated expert with appropriate credentials and his opinions are neither irelevant nor unreliable. Defendants' arguments go towards factual disagreement, bias, and weight, but not his actual qualifications or an absence of a basis for opinions.

F. Expert testimony of Michael Pellegrino shall not be limited (Defendants' Motion in limine No. 1, ECF No. 110).

Defendants request that the Court limit the testimony of Wixen's expert, Michael Pellegrino, to opinions offered in his expert report. ECF No. 110 at 1. Specifically, Defendants argue that Pellegrino was only asked by Wixen to provide an opinion regarding unjust enrichment, and therefore in the report, Pellegrino declined to offer an opinion as to a reasonable royalty. Id. Defendants argue that Pellegrino's testimony at trial should be accordingly so limited. Id. at 3.

*8 Wixen concedes that Pellegrino was not asked to opine on actual damages, and only unjust enrichment. ECF No. 128 at 1. Wixen states it is not “generally” opposed to Defendants' motion, but have reserved the issue on damages to the extent that Defendants bring forth anything new at trial that would potentially change Pellegrino's calculations. ECF 128 at 1.

Given Wixen's concession, Defendants are unable to point to specific objectionable testimony that Pellegrino might provide.

The Court DENIES the Motion as MOOT. Wixen are to instruct Pellegrino not to provide testimony beyond unjust enrichment. If Wixen seeks to have Pellegrino testify beyond this, the parties must meet and confer and raise this issue with the Court before presenting it in front of the jury.

IV. Conclusion

For the foregoing reasons, the Court hereby ORDERS as follows:

IT IS SO ORDERED.