MICHAEL P. MILLS, District Judge.
Now before the Court is plaintiffs' Motion in Limine [82], defendants' response, and plaintiffs' rebuttal. The motion is two fold: 1) it seeks to prohibit the defendants' expert, Mitchell Block, from offering legal conclusions and 2) it seeks to prohibit the introduction of or reference to plaintiffs' and other witnesses' previous use of profanity. Defendants represent that they "have no intention of eliciting legal opinion testimony from Mr. Block," nor do they "oppose redaction of the profanities so long as [...] the unredacted statements are not robbed of their context and meaning."
This Court has previously held that "[t]he purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence." Harkness v. Bauhaus U.S.A., Inc., 2015 WL 631512, at *1 (N.D. Miss. Feb. 13, 2015) (internal citations omitted). When ruling upon motions in limine, the Court notes that "[e]vidence should not be excluded . . . unless it is clearly inadmissible on all potential grounds."
With this standard in mind, the Court turns to the substance of plaintiffs' motion.
As stated above, plaintiffs first request that the court exclude any testimony from defendants' expert witness, Mitchell Block, which appears to offer legal conclusions, "usurp[ing] the jury's role." Specifically, plaintiffs seek to exclude any legal conclusions from Block relating to "who owns the rights to digitized material" and "whether It's Time infringes Undefeated's copyright." In their rebuttal brief, plaintiffs ask the court to prohibit Block from using legal terms such as "substantially similar" and "probatively similar," as well as from offering any opinions whatsoever regarding substantial similarity. Defendants assert that they do not intend to elicit any "legal opinion" from Block; rather, defendants state that they intend to offer Block's testimony to "assist the jury in evaluating the factual similarities and dissimilarities between the two films" and "to explain why both films necessarily include footage created by third parties."
Regarding the testimony of expert witnesses, case law has noted that legal opinions or conclusions must be excluded as improper. "Under Rule 704(a), `testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.'" United States v. Izydore, 167 F.3d 213, 218 (5
Applying the relevant case law, the court agrees that legal opinions or conclusions provided by Block are inadmissible. Further, any explanation by the witness regarding how the films are "substantially similar" is a legal conclusion, and is also inadmissible. To limit Block from saying "substantially similar" or "probatively similar," however, goes further than the current case law allows. Outside of the context of trial, the court is unable to predict every situation in which Block may use the phrases "substantially similar," "probatively similar," or any variation of similar words, so the court will not order in limine that Block be prevented from stating those words. The court finds that the plaintiffs' motion regarding prohibiting Block from giving legal conclusions, including whether the films are substantially similar, is well taken. However, the request that Block be prohibited from using the terms "substantially similar" or "probatively similar" is not granted at this time.
Plaintiffs also contend that any evidence of prior use of profanity by the plaintiffs or by other witnesses should not be referenced to or introduced as evidence. Plaintiffs do not contend that the documents containing profanity are themselves inadmissible, but, rather, that the profanity within the documents should be redacted and noted as inadmissible. Defendants do not object to the profanity being redacted, so long as "the unredacted statements are not robbed of their context and meaning." FRE 403 states that "[t]he Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice . . . [or] wasting time[.]" FED. R. EVID. 403. The use of profanity by the plaintiffs or by any other witnesses has minimal probative value and a high possibility of potential prejudice against the plaintiffs, and as such, should be excluded. The court finds that the plaintiffs' request is well taken.
Accordingly, it is hereby ORDERED that plaintiffs' Motion in Limine [82] is GRANTED in part and DENIED in part.
SO ORDERED.