Local Access, LLC v. Peerless Network, Inc.
Local Access, LLC v. Peerless Network, Inc.
2024 WL 2273375 (M.D. Fla. 2024)
April 5, 2024

Sneed, Julie S.,  United States District Judge

Exclusion of Evidence
Bad Faith
Sanctions
Failure to Produce
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Summary
The court granted a motion to exclude evidence related to a Settlement Agreement and an email from the plaintiff's president, as well as references to sanctions proceedings. The court also granted a motion to exclude evidence that was withheld during discovery based on privilege. The trial will proceed without this excluded evidence.
Additional Decisions
LOCAL ACCESS, LLC, Plaintiff,
v.
PEERLESS NETWORK, INC., Defendant
Case No: 6:17-cv-236-JSS-EJK
United States District Court, M.D. Florida
Filed April 05, 2024

Counsel

David S. Sellman, Tammy G. Cohen, SellmanHoff, LLC, Baltimore, MD, Lee W. Marcus, Ernest J. Myers, Marcus & Myers, PA, Orlando, FL, Stephen Michael Jones, The Stephen M. Jones Law Firm, PLLC, Orlando, FL, for Plaintiff.
Catherine E. James, Henry T. Kelly, Kelley, Drye & Warren LLP, Chicago, IL, Dennis R. O'Connor, O'Connor, Haftel & Angell, PLLC, Orlando, FL, Stephen R. Brown, Christopher J. Esbrook, Lauren Breen Wright, Matthew Hunter Griffin, Esbrook P.C., Chicago, IL, Yvette M. Pace, Kubicki Draper, Orlando, FL, Daniel P. Schaefer, Esbrook P.C., Washington, DC, for Defendant.
Sneed, Julie S., United States District Judge

ORDER

*1 In preparation for the trial of this matter, Plaintiff and Defendant each filed Motions in Limine. (Dkts. 1156, 1157.) The court held a hearing on the motions on March 28, 2024. Upon consideration and for the reasons stated on the record, the court orders the following.
BACKGROUND
Plaintiff brings this breach of contract action against Defendant seeking damages from Defendant's alleged breach of a Customer Agreement – Homing Tandem Service (Contract) and First Amendment to Master Services Agreement (First Amendment). See (Dkt. 135.) The parties amended the Homing Tandem Agreement and settled litigation in a separate action, Local Access, LLC and Blitz Telecom ConsultingLLC v. Peerless Network, Inc., 14-cv-399 (M.D. Fla.) (“Case 399”) in the March 31, 2017, Settlement Agreement. Notwithstanding the settlement, the parties’ disputes concerning the Contract, First Amendment, and Settlement Agreement remain. (Dkts. 135, 207.) As this case was initially filed in February 2017 and has been pending for approximately seven years, the parties are in the final stages of trial preparation. Each party seeks rulings concerning the admission of evidence at trial.
DEFENDANT'S MOTION IN LIMINE
Defendant moved to include evidence at trial relating to the negotiation and enforceability of the Settlement Agreement. (Dkt. 1156, Defendant's Motion for in Limine Rulings.) During the hearing, however, Defendant withdrew its motion concerning this evidence in light of Plaintiff's statement that it would not pursue its claim in Count IV of Plaintiff's Second Amended Complaint due to the court's ruling on the parties’ summary judgment motions as to that claim. As the court granted Defendant's Motion for Summary Judgment as to Count IV (Dkt. 1201), Plaintiff explained that evidence related to the parties’ Settlement Agreement in support of Count IV may be excluded. Accordingly, Defendant's motion is denied as moot as to this issue.
Defendant also moved in limine to include an email sent from Robert Russell, President of Local Access, to himself. Defendant seeks to introduce Mr. Russell's email to impeach his credibility pursuant to Federal Rule of Evidence 608(b). In response, Plaintiff argues that the emails should be excluded as the contents of the emails include Mr. Russell's musings, but do not contain substantive admissible evidence. Plaintiff argues that the evidence would constitute improper character evidence under Federal Rule of Evidence 608(b), is irrelevant under Federal Rules of Evidence 401 and 403, is inadmissible under Federal Rule of Evidence 804, and further asserts that Defendant was instructed to destroy the email as part of the settlement of Case 399.
Generally, Rule 608(b) “prohibits the impeachment of witnesses by inquiry into specific bad acts of misconduct unless those acts resulted in a criminal conviction as described in Rule 609.” United States v. Crutchfield, 26 F.3d 1098, 1102 n. 5 (11th Cir. 1994). Nevertheless, Rule 608(b) “permits evidence to demonstrate bias or undercut a witness's credibility.” Abella v. Town of Miami Lakes, No. 22-12673, 2024 WL 729007, at *3 (11th Cir. Feb. 22, 2024). Additionally, the “Rule does not preclude a witness from testifying regarding another witness’ general character or truthfulness but does prevent testimony about truthfulness on a certain occasion to be used to show a character for dishonesty.” United States v. Hipps, 857 F. App'x 1002, 1008 (11th Cir. 2021); Treminio v. Crowley Mar. Corp., No. 3:22-cv-00174-CRK-PDB, 2024 WL 382399, at *6 (M.D. Fla. Feb. 1, 2024) (“Rule 608(b) generally prohibits introduction of extrinsic evidence detailing specific incidents of conduct to attack or support a witness's credibility.”).
*2 Defendant seeks to introduce Mr. Russell's emails to demonstrate his lack of truthfulness. According to Defendant, Mr. Russell falsified an email by changing the date it was sent. (Dkt. 1176.) Although the contents of the email are not alleged to be untruthful, Defendant seeks to show that Mr. Russell falsified the date to make it appear as though he sent the email on June 11, 2012. (Id.) Defendant fails to demonstrate that the difference in the date stamp is probative of Mr. Russell's character for truthfulness or untruthfulness. United States v. Adair, 951 F.2d 316, 319 (11th Cir. 1992) (holding there must exist a “good faith factual basis” for incidents of character raised on cross-examination and the incidents must be “relevant to the character traits at issue in the case.”); United States v. Russo, 796 F.2d 1443, 1454 (11th Cir.1986) (holding a witness could not be impeached regarding the criminal arrest of another witness as there is no right to impeach a witness as to collateral or irrelevant issues at trial); Ad-Vantage Tel. Directory Consultants, Inc. v. GTE Directories Corp., 37 F.3d 1460, 1464 (11th Cir. 1994) (holding that while crimes that are probative of untruthfulness under the Rule include “forgery, perjury, and fraud,” the court has discretion to weigh the “probative value of the evidence against the danger of unfair prejudice from it.”); In re Bankatlantic Bancorp, Inc. Sec. Litig., No. 07-61542-civ, 2010 WL 11426137, at *1 (S.D. Fla. Aug. 20, 2010) (holding a non-party's false statements at deposition were inadmissible under Rule 608(b) and not probative of the witness’ character for truthfulness). Accordingly, Defendant's motion to introduce Mr. Russell's email is denied.
Additionally, Defendant seeks to exclude argument that mischaracterizes the testimony of Defendant's expert James Webber. According to Defendant, Mr. Webber did not estimate the traffic Defendant delivered to Plaintiff. Instead, Defendant explains that Mr. Webber estimated the traffic inbound from Inteliquent to Plaintiff. Thus, Defendant maintains it would be incorrect for Plaintiff to argue that Mr. Webber “estimated that 72.75% of the traffic that Peerless delivered to Local Access was long-distance traffic” and improper to ask the jury to find that “72.75% of the traffic that Peerless delivered to Local Access was long-distance traffic.” (Dkt. 1156 at 9.)
Plaintiff opposes Defendant's motion arguing during the hearing that Defendant is presenting a Daubert[1] issue that was previously asserted and decided by District Judge Wendy Berger. (Dkt. 1215.) Indeed, Judge Berger explained that Plaintiff's expert David Gabel “adopted a methodology developed by Peerless's expert James D. Webber.” (Dkt. 1215 at 5.) The court concluded that “Webber's methodology appears to be sufficient under Daubert” and “Gabel was entitled to rely on it in forming his own opinion.” (Id.See Christiansen v. Wright Med. Tech. Inc. (In re Wright Med. Tech. Inc., Conserve Hip Implant Prod. Lib. Litig.), 127 F. Supp. 3d 1306, 1320 (N.D. Ga. 2015) (holding that the “facts and data upon which an expert may rely in reaching an expert opinion includes the opinions and findings of other experts, if experts in their respective field would reasonably rely on other expert's opinions and findings”); Eberli v. Cirrus Design Corp., 615 F. Supp. 2d 1357, 1364 (S.D. Fla. 2009) (same). Moreover, to the extent Defendant disagrees with Plaintiff's characterization of its expert's opinion, such arguments are appropriate for cross-examination of the expert because “[t]he weight to be given to admissible expert testimony is a matter for the jury.” Seamon v. Remington Arms Co., LLC, 813 F.3d 983, 990 (11th Cir. 2016); Lincare Holdings Inc. v. Doxo, Inc., No. 8:22-cv-2349-VMC-AEP, 2024 WL 243646, at *4 (M.D. Fla. Jan. 23, 2024) (holding alleged flaws in the methodology of an expert is an issue of weight for the jury to consider, rather than a question of admissibility).
Finally, Defendant seeks to exclude references to the sanctions proceedings against Defendant and its former counsel, Kelley, Drye & Warren, LLP, Henry Kelly and Catherine James as evidence at trial. (Dkt. 1156.) Plaintiff argues that it seeks to introduce this information on cross-examination because it is probative of the character for untruthfulness of the witnesses. (Dkt. 1177.)
*3 Pursuant to Rule 608(b), the introduction of extrinsic evidence is admissible if it is probative of the character for truthfulness or untruthfulness of the witness. Bryant v. Mascara, 800 F. App'x 881, 885 (11th Cir. 2020) (extrinsic evidence of specific incidents of conduct is generally inadmissible, unless the specific acts proffered pertain to a witness’ credibility). The admissibility of character evidence must also be balanced with the stringent requirements of Federal Rule of Evidence 403(b). Treminio v. Crowley Mar. Corp., No. 3:22-cv-0174-CRK-PDB, 2024 WL 382399, at *6 (M.D. Fla. Feb. 1, 2024) (“Admission under an exception still requires a finding that the probative value is not substantially outweighed by the dangers contemplated in Rule 403.”); Wherevertv, Inc. v. Comcast Cable Commc'ns, LLC, No. 2:18-cv-529-WJF-NPM, 2023 WL 2664200, at *4 (M.D. Fla. Mar. 28, 2023) (holding character evidence of a witness’ prior self-dealings in violations of securities and auditing rules was neither relevant nor outweighed by the substantial prejudice certain to develop from such introduction). “The 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(b); see Tracy v. Fla. Atl. Univ. Bd. of Trustees, 980 F.3d 799, 813 (11th Cir. 2020) (finding no error in district court's exclusion of evidence pursuant to Rule 403 where admission of evidence would “distract[ ] the jury from their central obligation to decide the issue before them”); Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1069 (11th Cir. 2014) (“[In order for evidence to be excluded as unduly prejudicial under Rule 403, the undue prejudice it causes must substantially outweigh its probative value.”). Here, the sanctions proceedings have little to no relevance to the issues remaining for trial. United States v. Santiago-Mendez, 599 F. Supp. 2d 95 (D.P.R. 2009) (holding that evidence of an attorney's disbarment for disregarding orders of the court, and obstructing and delaying court procedures, was inadmissible due to its risk of prejudice outweighing its probative value). Furthermore, introduction of the same is unduly prejudicial, and risks confusing and misleading the jury. See Jones v. Sandusky Cnty., Ohio, 96 F. Supp. 3d 711, 719 (N.D. Ohio 2015), aff'd, 652 F. App'x 348 (6th Cir. 2016) (holding evidence of a law enforcement officer's prior disciplinary history, while moderately relevant to his character for truthfulness, was not outweighed by the inherent prejudice and risk of confusion to the jury). As a result, Defendant's motion seeking to exclude evidence related to sanctions proceedings is granted.
PLAINTIFF'S MOTION IN LIMINE
Plaintiff filed its motion in limine seeking to bar Defendant from introducing evidence at trial that Defendant failed to provide during discovery based on an assertion of privilege. (Dkt. 1157, Plaintiff's Motion in Limine.) Specifically, Plaintiff seeks to exclude evidence from Defendant's President and Chief Executive Officer, John Barnicle, related to his failure to pay Plaintiff monies owed. (Id.) Plaintiff asserts that during his deposition, Mr. Barnicle acknowledged writing an email about the lapse in payment, indicating that it was initially an oversight, and thereafter he withheld payment based on the advice of his counsel. (Id.) Defendant asserted attorney-client privilege when Plaintiff asked, “What did counsel inform you as to why you should not pay?” (Dkt. 1157.) Similarly, Plaintiff seeks to exclude evidence from Defendant's former counsel, Henry Kelly, that was withheld from discovery. (Dkt. 1157 (citing Dkt. 1075 at 28:6-35:25, 46:12-47:5, 48:21-49:20, 50:3-6, 50:25-51:3, 51:17-52:9, 63:2-65:25, 105:6-12, 107:19-113:4, 12-:2-15, 121:18, 122:21-123:10, 124:6-125:9, 126:18-127:24, 128:9-129:20, 138:21-139:6).) Although Plaintiff did not move to compel production of the evidence, Defendant consents to the relief Plaintiff requests as to this issue. Accordingly, Defendant is precluded from introducing evidence at trial that Defendant withheld during discovery based on an assertion of privilege.
Plaintiff also moved to exclude additional evidence related to the parties Settlement Agreement. During the hearing on the motion, Plaintiff explained that it would not pursue its claim in Count IV of Plaintiff's Second Amended Complaint due to the court's ruling on the parties’ summary judgment motions as to that claim. Thus, Plaintiff noted that arguments in its motion in limine related to the Settlement Agreement and Count IV are withdrawn. Accordingly, the motion is denied as moot as to this issue.
Upon consideration, is it ORDERED:
  1. Defendant's Motion in Limine (Dkts. 1156) is GRANTED in part and DENIED in part.
  2. Plaintiff's Motion in Limine (Dkt. 1157) is GRANTED in part and DENIED in part.
ORDERED in Orlando, Florida, on April 5, 2024.

Footnotes

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).