Erickson Productions Inc v. Kraig R Kast

Background

After pretrial conferences on March 6 and April 15, 2024, the court issued rulings for a second trial scheduled for April 18 through April 23, 2024. The court stated that the trial would use the existing record and would be limited to issues of willfulness and statutory damages. Trial time was limited to nine hours, with additional time for jury selection, opening statements, and closing arguments.

Plaintiffs’ Motion in Limine

The plaintiffs moved to admit documents obtained through post-judgment discovery, including trust-formation documents, emails, deeds, bank statements, and checks. They argued that the documents concerned the defendant’s finances and alleged concealment of assets and could impeach his testimony or support statutory damages.

The court denied the motion, except that the plaintiffs could seek to use the proposed exhibits, or earlier evidence the court had found irrelevant to willfulness and statutory damages, for impeachment if the defendant opened the door by testifying in a way suggesting limited financial resources, lack of business sophistication, or outstanding business or personal ethics.

The court denied as moot the portion of the motion concerning whether the defendant’s wealth could be considered in setting statutory damages. The court explained that the plaintiffs had raised the issue at the first trial, the prior judge had declined to give an adverse-inference instruction, and the Ninth Circuit had directed that the second trial proceed on the existing record. The court also noted that the plaintiffs had not specifically identified the testimony and exhibits they sought to introduce on the wealth issue.

The court also ruled that the plaintiffs could not introduce new evidence merely to show that the defendant was generally a sophisticated or experienced businessperson. They could, however, elicit testimony about his knowledge of how websites worked before the events involving Only Websites. The parties were ordered to meet and confer about exhibits bearing on that experience and knowledge.

Defendant’s Motions in Limine

The court granted Motion in Limine No. 1, which concerned argument or evidence suggesting that the defendant’s use of fictitious business names was improper or dishonest. The ruling was subject to the plaintiffs’ limited ability to use such evidence if the defendant opened the door by testifying in a way suggesting limited financial resources, lack of business sophistication, or outstanding business or personal ethics.

The court granted Motion in Limine No. 2. Evidence concerning the defendant’s post-infringement financial and asset-related conduct was excluded as irrelevant to willfulness and statutory damages, subject to the same limited impeachment exception if the defendant opened the door through his testimony.

The court granted Motion in Limine No. 3. The parties could not argue or suggest that the defendant should be responsible for delaying the litigation or increasing its costs. The court found that such arguments would be misleading and prejudicial and that the litigation’s duration and causes were not relevant to willfulness or statutory damages. The court also barred improper “golden rule” arguments asking jurors to decide the case based on how they would want others to treat them.

The court denied Motion in Limine No. 4, which concerned a statement by an unidentified Wells Fargo employee that, “Oh no, this is infringement.” The court held that the statement was not hearsay because it could be used to show Jesse Hughes’s state of mind while investigating the alleged infringement. The court ordered that the jury receive a limiting instruction stating that the testimony could be considered only to understand Hughes’s state of mind in determining that Wells Fargo did not infringe Erickson’s copyrights of the photographs at issue.

Exhibit and Testimony Rulings

The court overruled objections based on highlighting for Plaintiffs’ Exhibits 7 and 14 and ordered that they be admitted in the same format used at the 2015 trial. It sustained objections that Exhibits 9, 31, 33, 38, 40, and 42 were outside the existing record, and sustained the relevance objection to Exhibit 15.

Exhibit 18 could be offered only for impeachment, with admissibility to be decided at trial. For Exhibit 19, the parties were ordered to meet and confer about whether the existing record showed that the defendant registered domain names for redirection to the Atherton Trust website. The court overruled the relevance objection to portions concerning those domain names because they related to the defendant’s website experience, but sustained the objection to the remaining portions. The court allowed examination about Exhibit 41 but barred questioning materially different from the testimony at the 2015 trial. Exhibits 46 through 56 could be offered only for impeachment, with admissibility to be decided at trial.

The court ruled that the defendant could not use Exhibit A with witnesses other than Hughes. It overruled objections to the defendant’s use or introduction of Exhibits D through F, H, J, O, P, S, and U through Z, because those exhibits were part of the existing record. The defendant could question witnesses about them so long as the questioning did not materially exceed the scope of the 2015 trial.

The court overruled all objections to Hughes’s trial testimony. It stated that it would rule formally on substantive jury instructions at the April 19, 2024 charging conference. The order was entered on April 15, 2024.

Disposition

This was a pretrial and evidentiary order. The plaintiffs’ motion to admit additional post-judgment evidence was denied, with the stated impeachment exception, and the wealth-related portion was denied as moot. The defendant’s Motions in Limine Nos. 1, 2, and 3 were granted, subject to the stated limitations for the first two motions; Motion in Limine No. 4 was denied. The court also issued separate rulings on the parties’ exhibit objections and overruled all objections to Hughes’s testimony.