Free Motion in Limine - District Court of Delaware - Delaware

Case 1 :04-cv—00593-GIVIS Document 56 Filed 08/15/2005 Page 1 of 4 I
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re INACOM CORP., etal., Bankruptcy Case No. 00-2426 (PIW)
INACOM CORP., on behalf of all affiliated Civil Action No. 04-593 (GMS)
Debtors, [Bk Adv. Case No. 02-3960 (PIW)]
Plaintiff,
v.
INGRAM ENTERTAINMENT, INC., as I
successor in interest to NASHVILLE [MOTION IN LIMINE NO. 1 OF 4]
COMPUTER LIQUIDATORS, ·
Defendant.
AND RELATED THIRD PARTY =
ACTION.
PLAlNTIFF’S MOTION IN LIIVHNE TO EXCLUDE
CUIVIULATIVE EXPERT TESTIMONY RE INS OLVENCY ·
Plaintiff Inacom Corp. files this Motion under Federal Rules of Evidence 403 to exclude
cumulative evidence intended by Defendant through the presentation of two affiliated witnesses T
on the issue of the Debtor’s insolvency during the preference period. Such exclusion is expressly
contemplated in the Court’s form of Pretrial Order, at footnote 5 thereof. if
The affiliated witnesses worked together in preparing the Defendant’s expert report on _
insolvency, and each has testified in deposition that he does not hold any opinions additional or
different from his colleague. As such, exclusion of the intended evidence will not prejudice
Defendant, while introduction of the fruitless evidence that will amount to a waste of judicial
resources, and will unduly extend the trial and delay its conclusion.
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STATEMENT OF FACTS l`
Defendant has challenged the Debtor’s insolvency at the time of the preferential transfers,
and intends to introduce an expert report dated May 2, 2005 prepared jointly and signed by Jason .
Fensterstock and Richard Whalen, as well as supplemental reports. Defendant proposes to call
both Mr. Fensterstock and Mr. Whalen to testify with respect to the reports.
Each has testified in deposition that he does not hold or intend to testify regardingany
opinion that is additional to or different from those expressed in the reports and held by the other. .
(See Deposition of Jason Fensterstock, p._31, line 13 — p.33, line 10; Deposition of Richard
Whalen, p. 13, lines 10-13, p. 14, lines 4-18; the excerpted pages of these transcripts are attached
hereto as Exhibit A). Mr. Whalen’s testimony was particularly clear and succient: I
Q. Do you intend to offer any opinions that are different than those that you
understand Mr. Fensterstock intends to give?
A. No, no different.
Q. Do you intend to offer any opinions that are in addition to any that you understand E
Mr. Fensterstock intends to give?
A. No, nothing in addition. E;
(Whalen Deposition, p. 14, lines 11-18).
THE COURT SHOULD EXCLUDE THE PROPOSED CUMULATIVE TESTIMONY
The Court has authority to exclude evidence based on a motion in limine, pursuant to its
"inherent power to manage the course of trials." Luce v. United States, 469 U.S. 38, 41, 105
S.Ct. 460, 463, fn.2 (1984); United States v. Holmquist, 36 F.3d 154, 163 (lst Cir. 1994).
Motions in limine are well recognized in the case law as a vehicle for "advance planning [that]
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Case 1 :04-cv—00593-GIVIS Document 56 Filed 08/15/2005 Page 3 of 4 `Q
I helps both parties and the court." United States v. Cook, 608 F.2d 1175, 1186 (9m Cir. 1979).
See Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 417 (3rd Cir. 1999). 1
Federal Rules of Evidence 403 provides that "[a]lthough relevant, evidence may be
` excluded if its probative value is substantially outweighed bymconsiderations of undue delay, .
waste of time, or needless presentation of cumulative evidence. See Aetna Casualty & Surety C0.
v. Guynes, 713 F.2d 1187, 1193 (Sm Cir. 1983).
Defendant proposes to present two witnesses to testify to the identical reports and
opinions arising out of those reports. The proposed evidence is clearly cumulative, and will y
result in undue delay and waste of time. Under Rule 403, Defendant should be limited to the 1
presentation of a single witness with respect to its insolvency expert reports. i
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Case 1:04-cv—00593-G|\/IS Document 56 Filed 08/15/2005 Page 4 of 4 ` _.
CONCLUSION
Plaintiff submits that exclusion of the cumulative expert testimony relating to the issue of
Plaintiffs insolvency will not cause any prejudice to Defendant whatsoever, and will greatly
serve judicial economy and the interests of the parties and the Court. n
Dated: August /6, 2005 PACHULSKI, STANG, ZIEHL, YOUNG, JONES
& WEINTRAUB P.C.
Laura Davis Jones (Bar No. 2436) t
Sandra McLamb (Bar No. 4283) -
919 North Market Street, 16th Floor c
Wilmington, DE 19899-8705 (Courier 19801)
Telephone: (302) 652-4100
Facsimile: (302) 652-4400
Andrew W. Caine (CA Bar No. 110345)
Jeffrey P. Nolan (CA Bar No. 158923)
10100 Santa Monica Blvd., Suite 1100
Los Angeles, California 90067
Telephone: (310) 277-6910
Facsimile: (310) 201-0760
Counsel for Plaintiff, INACOM CORP.
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