VKGS v. Planet Bingo
309 Neb. 950
| Neb. | 2021Background
- VKGS (Video King) and Planet Bingo (with subsidiary Melange) are competitors in bingo-hall management software; Melange developed EPIC and Planet Bingo later developed OMNI, alleging VKGS misused EPIC.
- The parties had a long contractual relationship (2003–2012) and a 2005 confidentiality provision drafted by VKGS; disputes arose over whether EPIC source code and related materials were confidential and whether VKGS reverse-engineered EPIC to create OMNI.
- Trial was bifurcated mid-first trial after VKGS sought to admit a previously undisclosed 2001 Canadian patent application (158 pages of alleged source code) to impeach a Melange witness; the court excluded that exhibit from VKGS’ case in chief for lack of authentication and surprise, and allowed Planet Bingo to present its claims later.
- First jury (VKGS’ claims) returned a verdict for VKGS for $558,405; in a later separate trial on Planet Bingo’s claims, a jury found VKGS liable for $2,990,000; the district court offset awards but granted VKGS postjudgment interest from the date of the first verdict.
- VKGS appealed, arguing the court erred in bifurcating rather than dismissing Planet Bingo’s claims, in excluding evidence, and in refusing certain jury instructions; Planet Bingo cross-appealed the postjudgment interest award.
Issues
| Issue | Plaintiff's Argument (VKGS) | Defendant's Argument (Planet Bingo) | Held |
|---|---|---|---|
| Authentication/exclusion of 2001 Canadian patent application | Exhibit should be admitted to impeach Wei and show public availability of source code | Lacked foundation, not certified, witness did not recognize it, unfair surprise | Exclusion affirmed: VKGS failed to authenticate or produce a certified copy; court did not abuse discretion |
| Bifurcation vs dismissal of Planet Bingo’s claims | Court should have dismissed Planet Bingo’s claims (public disclosures defeat confidentiality) rather than bifurcate; bifurcation unfairly gave Planet Bingo time to prepare | There were factual issues for jury (extent of public disclosure, confidentiality); Planet Bingo needed expert time; bifurcation appropriate | Court properly declined dismissal and permissibly bifurcated; VKGS invited the bifurcation and factual disputes required jury resolution |
| Exclusion of portions of an exhibit in Planet Bingo’s trial | Partial exclusion prejudiced VKGS’ defense that Planet Bingo’s software was publicly installed without confidentiality restrictions | Court admitted relevant portions and excluded irrelevant parts; remaining evidence sufficient for jury | No reversible error or prejudice; district court acted within evidentiary discretion |
| Jury instructions (multiple agreements combined; implied covenant) | Jury should not have been allowed to treat multiple agreements together; court should have instructed on implied covenant of good faith | Contracts were interrelated; combining did not create prejudice; Michigan law does not recognize separate implied-covenant cause of action | Instructions, taken as a whole, were correct and nonprejudicial; refusal to give implied-covenant instruction was proper under Michigan law |
| Postjudgment interest award | VKGS (implicitly) treated first verdict as accrual date for interest | Planet Bingo argued interest could not run because no final judgment after first verdict and final judgment occurred only after all claims resolved; offsetting judgment statute applies | Reversed as to interest: postjudgment interest does not accrue from the first nonfinal verdict; judgment must be modified consistent with §25-1315/§25-1316 principles |
Key Cases Cited
- O’Brien v. Cessna Aircraft Co., 298 Neb. 109 (authentication and hearsay standards; appellate review explained)
- Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810 (bifurcation appropriate to avoid prejudice and serve convenience)
- Boyd v. Cook, 298 Neb. 819 (order adjudicating fewer than all claims is not final under §25-1315)
- Wulf v. Kunnath, 285 Neb. 472 (standard for sufficiency of evidence and deference to jury verdict)
- Acklie v. Greater Omaha Packing Co., 306 Neb. 108 (trial court’s discretion over evidentiary rulings and jury instructions)