Free Motion in Limine - District Court of Arizona - Arizona

Matthew A. C. Zapf (pro hac vice) A. Colin Wexler (pro hac vice) GOLDBERG KOHN 55 East Monroe Street, Suite 3300 Chicago, IL 60603-5792 Telephone: 312.201.3914 Facsimile: 312.863.7414 [email protected] [email protected] David P. Irmscher (15026-02) John K. Henning (25203-49) BAKER & DANIELS LLP 111 East Wayne Street, Suite 800 Fort Wayne, IN 46802 Telephone: 260-424-8000 Facsimile: 260-460-1700 [email protected] [email protected] H. Michael Clyde (009647) PERKINS COIE BROWN & BAIN P.A. 2901 North Central Avenue, Suite 2000 Phoenix, AZ 85012-2788 Telephone: 602.351.8000 Facsimile: 602.648.7000 [email protected] Attorneys for Defendant Omron Corporation UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Hypercom Corporation, Plaintiff, vs. Omron Corporation, Defendants. ) ) ) ) ) ) ) ) ) CAUSE NO. CV04-0400 PHX PGR DEFENDANT OMRON CORPORATION'S MOTION IN LIMINE NO. 11 TO EXCLUDE EVIDENCE RELATED TO ALLEGED DUAL REPRESENTATION OF OMRON CORPORATION AND VERVE L.L.C. (Oral Argument Requested) Pursuant to Rules 402, 403, and 602 of the Federal Rules of Evidence, the defendant, Omron Corporation, moves to exclude from evidence any testimony that

Case 2:04-cv-00400-PGR

Document 174

Filed 04/13/2007

Page 1 of 6

Omron's attorney, Herbert Kerner, represented both Omron and Verve, L.L.C., in negotiating the assignment agreements or at other times relevant to this action. The only evidence that suggests that both Omron and Verve were represented by the same attorney, Herbert Kerner ("Kerner"), is Raymond Galasso's ("Galasso") testimony that in his opinion, Kerner was representing Omron during the time Kerner was with Hunton & Williams. This assertion was self-serving; Galasso used the purported relationship to invoke the attorney-client privilege with respect to his communications with Kerner. Nothing in the remainder of the record supports Galasso's contention that Kerner ever represented Verve. Any evidence that Kerner represented Verve should therefore be excluded because it is irrelevant and more prejudicial than probative. It should also be excluded because Galasso's deposition reveals that he lacked the requisite foundation to support his purported belief that Kerner represented Verve. A. Evidence That Kerner Represented Omron And Verve During The Negotiation Of Assignment Agreements Is Inadmissible Under Rules 402, 403 And 602 Kerner has testified that he never represented Verve. 5/17/2006 Deposition of Kerner at 222:5 - 222:13, attached hereto as Exhibit A. Omron's representative, Mr. Nakano ("Nakano"), also testified that he never understood Kerner to be representing Verve. 3/2/2005 Deposition of Nakano at 20:3 - 20:6, attached hereto as Exhibit B. Omron has never asserted the attorney-client privilege to prevent discovery of communications between Verve and Kerner. Moreover, in spite of this testimony, Galasso claimed that he was represented by Tom Anderson, another attorney at Hunton & Williams ("Hunton"), the law firm where Kerner then worked, and that therefore, he was also represented by Kerner. 3/11/2005 Deposition of Galasso at 33:8-34:15; 24:7-25:20, attached hereto as Exhibit C. Galasso admitted that he did not have any tangible support -2Case 2:04-cv-00400-PGR Document 174 Filed 04/13/2007 Page 2 of 6

for this assertion; it was merely his opinion. Id. At another point of his deposition, Galasso testified that he had no idea whether Kerner had ever done work on Verve's behalf. Galasso Dep. at 24:15-16. Galasso's deposition testimony reveals that he lacks personal knowledge to support his belief that Kerner represented Verve at any time. His testimony, based entirely on inference and supposition, and directly contradicted by Kerner, should therefore be excluded under Rule 602. Any evidence that Kerner represented both Verve and Omron should also be excluded under Rules 402 and 403. Omron is concerned that Hypercom will use Galasso's testimony to further its theory that Omron and Verve were engaged in a conspiracy. It may argue that Omron used the attorney-client privilege as a shield to hide some insidious agreement with Verve (or for some other alleged improper purpose). This argument would misstate the facts and improperly prejudice the jury. Omron has never asserted the attorney-client privilege to prevent discovery of communications between Verve and Kerner. Moreover, there is no reason why Omron would have wanted Kerner to represent Verve at the same time he was representing Omron, as such an arrangement would have presented a clear conflict of interest. Nevertheless, if Hypercom attempted to persuade the jury that it should infer a conspiracy from such an agreement, it is possible that the jury would be so persuaded. This evidence is also irrelevant and misleading; as discussed above, there is no credible evidence that Kerner ever represented Verve. This evidence, therefore, is not relevant to proving that Omron and Verve engaged in a conspiracy to file baseless patent infringement lawsuits without conducting an adequate pre-filing investigation, and any

-3Case 2:04-cv-00400-PGR Document 174 Filed 04/13/2007 Page 3 of 6

potential relevance is substantially outweighed by the dangers of unfair prejudice and misleading the jury. Even if Verve was represented by Tom Anderson at one point, a fact that is not clear from the record, it does not follow that Kerner was representing Verve as well. If a Hunton attorney did represent Verve, Omron had no knowledge of it. See Nakano Dep. at 23:7-17. Furthermore, if Hunton did represent Verve, it does not follow that Kerner was also representing Verve simply because he worked at Hunton. Galasso's basis for believing that Kerner represented him is premised on a supposition that if a client is represented by one attorney at a firm, he is represented by every attorney at that firm. That is not so. Firms can use conflict waivers and screens to create appropriate delineations between an attorney at a firm who should not be ethically permitted to work for a client the firm is representing. When done right, such arrangements are legitimate. But it is improper to expect a juror to understood the complex operation of law firm conflicts rules. Even assuming arguendo that Mr. Anderson did represent Verve at some point, there is no credible evidence that Kerner also represented Verve, thereby keeping this evidence irrelevant. B. Conclusion For the reasons discussed above, pursuant to Rules 402, 403, and 602 of the Federal Rules of Evidence, the defendant, Omron Corporation, moves to exclude from evidence any testimony that Omron's attorney, Kerner, represented both Omron and Verve, L.L.C., in negotiating the assignment agreements or at other times relevant to this action.

-4Case 2:04-cv-00400-PGR Document 174 Filed 04/13/2007 Page 4 of 6

RESPECTFULLY SUBMITTED on April 13, 2007.

By: /s/ Matthew A.C. Zapf Matthew A.C. Zapf A. Colin Wexler GOLDBERG KOHN 55 East Monroe Street Suite 3300 Chicago, IL 60603-5792 David P. Irmscher (15026-02) John K. Henning (25203-49) BAKER & DANIELS LLP 111 East Wayne Street Suite 800 Fort Wayne, IN 46802 H. Michael Clyde (009647) PERKINS COIE BROWN & BAIN P.A. 2901 North Central Avenue Suite 2000 Phoenix, AZ 85012-2788 Attorneys for Defendant Omron Corporation

-5Case 2:04-cv-00400-PGR Document 174 Filed 04/13/2007 Page 5 of 6

CERTIFICATE OF SERVICE I hereby certify that on April 13, 2007, I electronically transmitted the attached documents to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Andrew Foster Halaby Ray Kendall Harris John Kenyon Henning, IV David P. Irmscher Sid Leach Monica Anne Limon-Wynn Paul Moore A. Colin Wexler Matthew A.C. Zapf [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

I hereby certify that on April 16, 2007, I caused the attached document to be served by hand delivery on Judge Paul G. Rosenblatt, United States District Court of Arizona, 401 West Washington Street, Phoenix, Arizona 85003-2118

/s/ Lisa M. Sandoval

-6Case 2:04-cv-00400-PGR Document 174 Filed 04/13/2007 Page 6 of 6