United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
before the Court are Defendant Cuker Interactive, LLC's
("Cuker") Motion in Limine filed on December 2,
2016 (Doc. 186) and Unredacted Brief in Support (Doc. 187-1),
and Plaintiff Wal-Mart Stores, Inc.'s
("Walmart") Response in Opposition (Doc. 192).
Cuker's Motion seeks liminal relief on a wide variety of
discrete issues. As further explained below, Cuker's
Motion is GRANTED IN PART AND DENIED IN PART.
Exclusion of pejorative words.
asks the Court to prohibit Walmart's attorneys from
referring to Adel Atalla's son by his full name
"Osama" instead of the name "Sam, " which
is apparently, what his father calls him, see Doc.
186-2, pp. 6-7, and what he goes by in public, see
Doc. 187-1, p. 2. Cuker contends Sam's full name of Osama
has no probative value, and that referring to him by that
name would have the potential of inciting bias against Cuker,
presumably because it is a name shared by the mastermind of
the September 11, 2001 terroristic attacks on the World Trade
Center in New York City. Walmart opposes Cuker's request,
arguing that it is improper because "[a]pparently Cuker
believes that the proper full name of a human being is a
'pejorative word, ' or that a Western District of
Arkansas jury will be so negatively influenced by a Middle
Eastern name that the name should be westernized." (Doc.
192, p. 3). Walmart has provided zero evidence or explanation
of why it would need to refer to Sam by his full name instead
of the name that he ordinarily uses, though the Court can
imagine that there may be situations where that would be
appropriate-for example, when referring to a line on a
document in evidence where the name is written thus.
Court will stop short a blanket prohibition on the use of
Sam's full first name because the Court cannot envision
every possible scenario where it could potentially become
relevant. But the Court will prohibit Walmart from making any
gratuitous references to Sam's full first name,
on the grounds that such references would be substantially
more unfairly prejudicial than probative. See Fed.
R. Evid. 403. As for what constitutes "gratuitous"
in any given situation, the Court will simply have to wait
for the context at trial, but would ask the attorneys and
witnesses to use their common sense and to look to their
basic sense of human decency for guidance. Counsel must
approach the bench and seek a ruling in advance, if they
believe the context at trial establishes a non-gratuitous
basis to warrant the making of any such references.
also asks the Court to preclude Walmart from making
statements to the effect "that a verdict for Cuker would
be like winning the lottery, jackpot justice, any other
references to a game of chance, or that Cuker seeks to cause
harm to Walmart with a verdict." (Doc. 187-1, p. 2).
Cuker has not pointed the Court towards any specific
instances or evidence of such statements and in the absence
of a particular remark the Court will not speculate at this
time as to the potential prejudicial effect. Counsel must
obtain the Court's permission prior to making any
lottery/jackpot type arguments, or substantially similar
remarks, in front of the jury.
Exclusion of prejudicial statements regarding Cuker's
asks the Court to prevent Walmart from "referring to the
fact that Cuker had previous counsel who withdrew from its
representation, or any topics related thereto, " as
irrelevant and highly prejudicial under Rule 403. See
Id. at 2-3. Walmart responds that it "does not
intend to unduly draw attention to the fact that Cuker was
formerly represented by other counsel, " but that
"it is unavoidable that this fact will come to the
jury's attention, " for example, if videotaped
depositions are introduced that were attended only by
Cuker's original counsel in this case. (Doc. 192, p. 3).
Once again, the appropriateness of such a reference will
depend on the context in which it is made, and the Court will
not be able to offer guidance at this time that is any more
specific than to say generally that Walmart should adhere to
its promise not "to unduly draw attention" to these
Exclusion of references to Walmart's economic impact on
argues that "Walmart should not discuss its
philanthropic activities within the Northwest Arkansas
community or imply that a judgment against Walmart could
adversely impact those activities in the future." (Doc.
187-1, p. 3). Walmart "agrees with Cuker that
reputational evidence under Rule 405(a) . . . does not belong
in this case." (Doc. 192, p. 4). So does the Court, so
it will grant Cuker's request that such references be
Exclusion of references to Cuker's finances.
asks the Court to prevent Walmart from making any references
to Cuker's financial condition, because it "has no
bearing on this case." (Doc. 187-1, p. 3). Walmart
disagrees, and argues that some reference to Cuker's
financial condition will be necessary in order to "show
the value of what Cuker delivered to Walmart, " and
thereby defend itself against Cuker's claims for damages
that exceed the price of the contract, for example, by
arguing that "Cuker's total damage claim for four
months of work is more than its annual gross revenues."
(Doc. 192, p. 4).
the Court will not grant the blanket form of relief that
Cuker is seeking, it will address some of the specific
examples presented in the briefing. The Court agrees with
Walmart that "[e]vidence of other contracts, the hourly
rates that Cuker charges, how much time was spent on the
project, and other matters relevant to the issue of value
should not be excluded." Id. But, with regard
to another example, the Court finds that the salaries or
commissions paid by the parties to their individual employees
are either not relevant at all, or that such evidence should
otherwise be excluded under Rule 403. Next, the Court finds
the probative value of comparing Cuker's claimed damages
to its historical revenues to be substantially outweighed by
the potential for confusion and/or a needless waste of
time-while Cuker is forced to explain the context necessary
to properly understand its revenues and/or profits and
losses. Likewise, the intrinsic value of certain of
Cuker's alleged trade secrets may have no correlation to
the value of services rendered on a particular project in an
isolated year. As to other types of financial information,
the parties should be guided by the Court's rulings as to
these examples, but otherwise the Court does not presently
have the context in which to make blanket findings or
prohibitions that would apply to every type or form of
Cuker's of financial information. Accordingly, this
aspect of the motion is granted in part, denied in part, and
deferred in part.
Exclusion of references to other ...