Wal-Mart Stores, Inc. v. Cuker Interactive, LLC, 5:14-CV-5262. (2017)
Court: District Court, W.D. Arkansas
Number: infdco20170515757
Visitors: 13
Filed: Apr. 08, 2017
Latest Update: Apr. 08, 2017
Summary: ORDER ON ALEX ALEXANDER (5/21/2015) DEPOSITION TESTIMONY TIMOTHY L. BROOKS , District Judge . Now before the Court is the Parties' Joint Motion to Exclude Deposition Testimony of ALEX ALEXANDER (5/21/15) (Doc. 342). Mr. Alexander was employed by Wal-Mart during the project as ASDA's Director of Multi-Channel Technology. Having read the "color-coded" passages of the deposition transcript submitted to chambers, and having been advised by the parties' objections and responses to certain dep
Summary: ORDER ON ALEX ALEXANDER (5/21/2015) DEPOSITION TESTIMONY TIMOTHY L. BROOKS , District Judge . Now before the Court is the Parties' Joint Motion to Exclude Deposition Testimony of ALEX ALEXANDER (5/21/15) (Doc. 342). Mr. Alexander was employed by Wal-Mart during the project as ASDA's Director of Multi-Channel Technology. Having read the "color-coded" passages of the deposition transcript submitted to chambers, and having been advised by the parties' objections and responses to certain depo..
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ORDER ON ALEX ALEXANDER (5/21/2015) DEPOSITION TESTIMONY
TIMOTHY L. BROOKS, District Judge.
Now before the Court is the Parties' Joint Motion to Exclude Deposition Testimony of ALEX ALEXANDER (5/21/15) (Doc. 342). Mr. Alexander was employed by Wal-Mart during the project as ASDA's Director of Multi-Channel Technology. Having read the "color-coded" passages of the deposition transcript submitted to chambers, and having been advised by the parties' objections and responses to certain deposition testimony, the Court finds that the Joint Motion (Doc. 342) is GRANTED IN PART AND DENIED IN PART. The Court's rulings on the Parties' respective line item objections are as follows:
DOC. 342
Obj. Excerpt Page and Line Ruling Additional Explanation
1 9 P12:8-P13:14 Overruled The witness is not interpreting the scope
of the contract. The point of the
testimony is to explain that Wal-Mart
sued because it contends that Cuker
breached its promises [contained in the
contract].
2 9 & 10 P13:13-P13:14 Overruled Witness testifying to an admission by
P13:24-P14:5 Cuker of an anticipatory repudiation of
the contract. The excerpt does not run
afoul of Rule 408, because it does not
reference Cuker's offer of compromise.
3 14 P59:24-P61:18 Overruled The witness is not interpreting the scope
of the contract.
4 16 P62:8-P67:8 Overruled The Court will provisionally allow:
in Part, P62 line 8 to P63 line7, and
P64 line 9 to P64 line 19,
but only on the condition that the
parties agree — or Wal-Mart can proffer
evidence — that it actually paid $26,000 to
Cuker for that specific reason, separate
and in addition to the payment schedule
set forth in the contract.1 If such a
payment was made, it would be relevant
and probative of Cuker's claim for unjust
enrichment — but the Court would
expressly limit the use of this testimony
to that purpose, and would instruct the
jury that the testimony may not be used
as evidence of the scope of the parties
contract, or as evidence of an
amendment to the contract — because
the Court understands that the PCR,
while discussed, was never actually
consummated. To the extent the
payment wasn't made, then the
objections to these portions are
sustained.
The Court will allow P64 at line 20
through P67 Line 8, as relevant and
probative on the issue of breach.
Sustained Under Rule 403, the Court will not allow
in Part evidence or argument to the effect that
Susie Spencer's February 12th
"clarification of the site map" served to
define — or alter or amend — the scope of
the parties contract. Accordingly, P63
line 8 through P64 line 8, will be
excluded.
5 17 P67:20-P68:16 Overruled Relevant and probative of breach.
6 18 P71:15-P71:22 Overruled Relevant and probative of breach. (But
the Court has not been provided with a
copy of Exhibit 6 that was marked at this
point in the deposition — and the Court
makes no rulings as to its admissibility).
7 20 P74:3-P74:9 Overruled The Court understands the temporal
context here to be May 2014 — when
Atalla supposedly made a "non-negotiable"
demand for $300,000 in extra
compensation. The 408 objection is
overruled because (1) this testimony in
no way references the written offer of
compromise (that would follow in July)
that the Court has previously excluded
and (2) nothing about Atalla's alleged
statement suggests that it was intended
for the purpose of compromising a
disputed claim. The testimony is also
relevant and probative on the issues of
breach and unjust enrichment.
8 24 P113:1-P115:14 Overruled This testimony is relevant and probative
P116:11-P119:16 of Cuker's trade secrets claim. That
said, Cuker designated the same or
substantially similar testimony with
regard to Alexander's May 20 deposition,
and Cuker is advised to not burden the
record with cumulative testimony from
the same witness.
9 28 P143:6-P146:21 Sustained Rules 401 and 403.
IT IS SO ORDERED.
FootNotes
1. It is not clear to the Court whether a $26,000 payment was made or not. Later in his deposition, at pp. 147-148, Alexander seems to testify that the payment wasn't made.
Source: Leagle
