Vehicle Market Research, Inc. v. Mitchell International, Inc., 839 F.3d 1251

Background

VMR licensed vehicle valuation software to Mitchell for $1 per use (capped at $4.5M); Mitchell stopped paying royalties after releasing its own product in 2005.
VMR’s sole shareholder, John Tagliapietra, filed Chapter 7 in Oct. 2005 and listed VMR stock value as $0 (bankruptcy discharge granted Oct. 2009); VMR sued Mitchell for alleged infringement and unpaid royalties in Oct. 2009.
On initial appeal (VMR I), the Tenth Circuit reversed district court summary judgment based on judicial estoppel, declining to apply judicial estoppel because precedent was unclear about a debtor’s duty to amend schedules; the Court noted impeachment at trial remained a less drastic remedy.
On remand, the district court allowed Mitchell to use Tagliapietra’s bankruptcy valuation for impeachment (but barred affirmative references to the bankruptcy in opening or by other witnesses); VMR nevertheless elicited the bankruptcy valuation on direct examination.
Mitchell called its Rule 30(b)(6) designee (Jim Lindner); deposition testimony about not allowing employees to “use” VMR work product was later clarified at trial to mean not copying VMR code. The district court declined VMR’s proposed jury instruction that would treat 30(b)(6) testimony as binding, deleting the sentence that the corporation cannot present a theory differing from its designee.
The jury returned a verdict for Mitchell. VMR appealed, arguing (1) law-of-the-case/mandate rule barred impeachment with the bankruptcy valuation, and (2) the court erred by refusing the final sentence of its proposed 30(b)(6) instruction.

Issues

Issue	Plaintiff's Argument (VMR)	Defendant's Argument (Mitchell)	Held
Whether VMR I barred use of Tagliapietra’s bankruptcy valuation on remand	VMR I precluded any use or mention of the bankruptcy valuation; statements were consistent with its litigation position	VMR I addressed only judicial estoppel and did not forbid impeachment or cross-examination; impeachment is a lesser remedy	Court: VMR I did not bar impeachment; district court complied with mandate
Whether VMR waived challenge to admission of bankruptcy valuation by introducing it on direct exam	Introducing the valuation on direct did not waive the right to challenge district court’s in limine ruling	By eliciting the valuation first, VMR invited the error and waived appellate review under Ohler	Court: VMR waived appellate challenge to admission because it elicited the evidence on direct examination
Whether Rule 30(b)(6) testimony should bind the corporation as a judicial admission	30(b)(6) testimony should be treated as binding; corporation cannot present a theory differing from its designee	30(b)(6) testimony is an evidentiary admission and may be contradicted, explained, or supplemented; not absolute judicial admission	Court: 30(b)(6) testimony is evidentiary, not a judicial admission; deleting VMR’s sentence was proper
Whether district court abused discretion by refusing VMR’s proposed 30(b)(6) jury sentence	Omitting the sentence deprived jury of correct instruction that defendant cannot contradict its designee	The sentence misstated governing law; majority rule treats 30(b)(6) testimony as subject to impeachment/correction	Court: No abuse of discretion; instruction as given correctly stated law

Key Cases Cited

Vehicle Mkt. Research, Inc. v. Mitchell Int’l, Inc., 767 F.3d 987 (10th Cir. 2014) (prior appeal addressing judicial estoppel and bankruptcy schedules)
Ohler v. United States, 529 U.S. 753 (Supreme Court) (party who introduces evidence on direct examination waives appellate challenge to its admissibility)
Padilla-Caldera v. Holder, 637 F.3d 1140 (10th Cir. 2011) (de novo review of compliance with appellate mandate/law-of-the-case)
Keepers, Inc. v. City of Milford, 807 F.3d 24 (2d Cir. 2015) (discussing limits on contradicting Rule 30(b)(6) testimony, especially in summary judgment context)