Fourth Dimension Software v. Der Deutsches Reiseburo GMBh & Co., OHG

Background

The court ruled on the parties’ motions in limine, which are pretrial requests to limit or exclude evidence, Defendant Der Touristik Deutschland GmbH’s request to exclude Plaintiff Fourth Dimension Software’s expert Dr. Eric B. Cole under the expert-evidence standards of Federal Rule of Evidence 702 and Daubert, and Defendant’s request for judicial notice.

Plaintiff’s Motions in Limine

- Plaintiff’s MIL No. 1: The court DENIED Fourth Dimension’s request to exclude third-party Gudrun Schoen’s deposition testimony. The court found no sanctionable misrepresentation in Defendant’s request to take the deposition and found that Plaintiff had not shown prejudice from the deposition occurring after the ordinary discovery period. - Plaintiff’s MIL No. 2: The court GRANTED IN PART and DENIED AND DEFERRED IN PART the motion concerning emails sent between 2008 and 2010. The emails could not be used to show Plaintiff’s motive for filing the lawsuit or to support Defendant’s unclean-hands defense, unless the alleged misconduct was directly related to the contract claim. The emails could be used to show when Plaintiff discovered Defendant’s alleged breaching conduct. Specific hearsay objections were deferred until trial. - Plaintiff’s MIL No. 3: The court GRANTED the motion concerning Plaintiff’s financial documents. Defendant could not introduce the identified financial records to show Plaintiff’s financial condition or its motives for bringing the lawsuit.

Defendant’s Motions in Limine

- Defendant’s MIL No. 1: The court GRANTED IN PART and DEFERRED IN PART the motion concerning an adverse-inference jury instruction related to missing user logs. Plaintiff could discuss the missing records, Defendant’s duty to preserve them, and the general trial process, but could not discuss the substance or mechanics of the adverse-inference instruction during opening statements or witness examinations. The court deferred other examples not specifically addressed. - Defendant’s MIL No. 2: The court GRANTED the motion. The identified settlement communications were excluded from trial except for impeachment. - Defendant’s MIL No. 3: The court DENIED IN PART, GRANTED IN PART, and DEFERRED IN PART the motion concerning meeting notes prepared by Katherine Hamilton. Statements reflecting the speakers’ then-existing state of mind, motives, intentions, or plans could be used under the hearsay exception in Rule 803(3). Statements about past events or business operations were excluded as hearsay unless another basis for admission was presented. Specific statements or other hearsay exceptions were deferred until trial. - Defendant’s MIL No. 4: The court deferred ruling until trial on the request to exclude evidence concerning unasserted claims, including trade-secret misappropriation, copyright infringement, and violation of a non-compete obligation. - Defendant’s MIL No. 5: The court deferred ruling until trial on Defendant’s request to exclude new evidence offered to explain Plaintiff’s delay in filing suit.

Motion to Exclude Dr. Eric B. Cole

The court GRANTED IN PART and DENIED IN PART Defendant’s motion to exclude Dr. Cole’s expert testimony.

The court found Dr. Cole qualified by experience to testify about software-license valuation and damages. It did not exclude his opinions merely because he relied on a 2016 licensing agreement or because Defendant challenged the factual basis of his calculations; those weaknesses could be addressed through cross-examination.

The court did exclude Dr. Cole’s opinions about the specific amount of year-over-year software-price increases because he did not explain a reliable method for calculating those increases. The exclusion included the damages calculations in Models 3A, 2B, and 3B. The court did not exclude the portions of his analysis concerning increases in the number of users requiring licenses. It also excluded opinions about the legality of Defendant’s actions and Defendant’s state of mind. The court found no further action was necessary at that time concerning the calculation’s failure to offset amounts Defendant had already paid, because Plaintiff represented that it would present corrected calculations.

Request for Judicial Notice

The court GRANTED Defendant’s request for judicial notice. It took judicial notice of the German law reflected in Exhibits 1–3 because the official German Financial Supervisory Authority webpages were reliable sources. It did not adopt Defendant’s related factual statements or summaries.

For Exhibits 4–5, the court took judicial notice that Aovo filed a public prospectus with German regulators on November 29, 2006, and that Aovo made the statements contained in the prospectus. The court did not take judicial notice of the truth of those statements or assume that the prospectus established actual or constructive notice of any facts.

Disposition and Classification

The order is a pretrial evidentiary order. It controlled the use of evidence and expert testimony but did not decide the merits of the underlying breach-of-contract dispute.