Facts
- Derrick Harris was arrested in 2011 by NYPD officers for sexual assault related to two incidents, one at his home and another at a nearby park [lines="10-11"], [lines="41-41"].
- Following his arrest, he escaped from the courthouse; this charge was later dismissed in 2015, and he was acquitted of one sexual assault charge in August 2015 [lines="12-16"], [lines="13-14"].
- Harris filed a lawsuit in 2022 against multiple defendants, including the City of New York and several police officers, claiming violations of his civil rights under 42 U.S.C. § 1983 [lines="17-22"], [lines="23-28"].
- Harris argued that prosecutors withheld exculpatory evidence, such as a Medical Examiner’s report that excluded him as a DNA source, affecting his trial [lines="93-106"].
- His claims included allegations of malicious prosecution and conspiracies against the defendants, which led to a motion to dismiss by the City and ADA defendants on grounds of failure to state a claim and being time barred [lines="29-31"], [lines="248-252"].
Issues
- Whether Harris's claims were time-barred due to the statute of limitations for civil rights claims under 42 U.S.C. § 1983, considering his assertions of wrongful arrests and malicious prosecution [lines="284-286"].
- Whether the defendants, particularly the ADA defendants, were entitled to absolute immunity for actions taken during the grand jury proceedings and for suppressing evidence [lines="544-554"].
- Whether the claims regarding malicious prosecution and Brady violations were sufficiently alleged to withstand dismissal [lines="567-630"].
Holdings
- The court held that Harris's claims related to the Escape Charge, false arrest, conditions of confinement, and illegal home search were time-barred, as they accrued when he was arraigned in 2011 [lines="242-342"].
- The ADA defendants were found to be immune from liability regarding Harris's allegations of fraudulent grand jury indictments and evidence suppression due to their prosecutorial functions [lines="544-554"].
- The court ruled that Harris failed to state claims for malicious prosecution and Brady violations against the ADA defendants, thus dismissing these claims [lines="629-630"].
OPINION
Case Information
*1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE
CHAMPIONX, LLC, f/k/a WINDROCK, INC., )
)
Plaintiff, )
)
v. ) No. 3:21-CV-288-TAV-JEM
)
RESONANCE SYSTEMS, INC., et al ., )
)
Defendants. )
MEMORANDUM AND ORDER
This case is before the Court pursuant to 28 U.S.C. § 636, the Rules of this Court, and the Order [Doc. 455] referring this matter by United States District Judge Thomas A. Varlan.
Now before the Court is Defendants’ Motion in Limine to Exclude Evidence Regarding Expert Witness James Plank’s Prior Arbitration with StreamScale, Inc. [Doc. 372]. Plaintiff responded in opposition to the motion [Doc. 392], and Defendants replied [Doc. 413].
Also before the Court is Plaintiff’s Motion to Reopen Deposition of Defendants’ Expert Witness Dr. James Plank and for Sanctions [Doc. 393]. Defendants responded in opposition to the motion [Doc. 425], and Plaintiff filed a reply [Doc. 431].
The motions are ripe for adjudication. See E.D. Tenn. L.R. 7.1(a). For the reasons stated below, the Court GRANTS IN PART AND DENIES IN PART Defendants’ motion in limine Doc. 372 ] and DENIES Plaintiff’s motion to reopen the deposition [ Doc. 393 ]. I. BACKGROUND
On February 21, 2024, Plaintiff’s counsel took the deposition of Defendants’ expert, James S. Plank, Ph.D. (“Dr. Plank”) [Doc. 392-1 p. 1]. Plaintiff’s counsel asked Dr. Plank whether he had ever been a party to a lawsuit [ . at 5]. Dr. Plank responded that in 2014, StreamScale Inc., *2 (“StreamScale”), where he had been a consultant, named him as a defendant and accused him of “[i]mproper information disclosure” [ Id .]. He testified that he had signed a nondisclosure agreement and StreamScale alleged that he violated that agreement [ Id .]. Dr. Plank further testified that he and StreamScale participated in arbitration where they agreed to settle “and no blame was assigned either way” [ Id .]. As part of the arbitration, Dr. Plank signed a confidentiality agreement [ Id .]. Plaintiff’s counsel asked if source code was involved in that litigation, and Dr. Plank responded, “I’m actually not going to answer. Again, I signed a confidentiality agreement about that suit, and I’m not comfortable disclosing details” [ Id .]. Defense counsel stated, “I’m going to object. That’s a privilege[] between him and his attorney at the time. Dr. Plank is asserting privilege” [ Id .].
Later, during the depositions, Plaintiff’s counsel raised the issue again [ . at 6]. He asked if the lawsuit involved source code, and Dr. Plank stated, “And I signed a confidentiality agreement, and I plan to honor that completely. So I’m not going to answer that question” [ .]. The parties took a break, and upon return, defense counsel stated:
So, Dr. Plank has entered into an agreement in this other case. He would be from what I understand, he would be violating that agreement if he answered any further questions. Also a lot of the information is attorney-client privilege. I have not received the agreement or talked to the attorney. It’s difficult for me to fully evaluate the privilege and address each of these questions, so until I can do that, I’m instructing him not to answer any further questions on this case. .]. Upon questioning by Plaintiff’s counsel, defense counsel agreed to review the agreement for
the purpose of possibly changing his instruction to Dr. Plank [ Id. ].
Following the deposition, in an email dated February 23, 2024, Plaintiff’s counsel stated: “Please let us know as soon as possible whether Defendants will instruct Dr. Plank not to answer any questions regarding the aforementioned arbitration matter, whether Dr. Plank will maintain his *3 refusal to answer any further questions concerning the arbitration or whether Dr. Plank will respond to such questions” [Doc. 392-1 p. 8]. Plaintiff’s counsel followed up on March 1, 2024 [ Id . at 9]. The parties agreed that Defendants needed to put StreamScale on notice of Plaintiff’s inquiries [ Id . at 11–13].
Later, Plaintiff’s counsel requested to resume Dr. Plank’s deposition and agreed to allow StreamScale’s attorney to be present [ Id . at 17–23]. The parties reached an impasse on whether to reconvene Dr. Plank’s deposition [ Id .].
Defendants now seek an order “prohibiting [Plaintiff], its counsel, and its witnesses from presenting any evidence or arguments or otherwise referring to an arbitration proceeding filed against Defendants’ expert witness, [Dr. Plank]” [Doc. 372 p. 1]. Pursuant to Rules 401 and 608 of the Federal Rules of Evidence, Defendants state that the StreamScale Arbitration and the StreamScale Settlement are irrelevant, especially “because neither StreamScale nor Dr. Plank admitted any fault” [Doc. 373 p. 5]. In addition, relying on Rule 403, Defendants submit that allowing Plaintiff to cross-examine Dr. Plank about the StreamScale Arbitration or the StreamScale Settlement will be confusing and mislead the jury because Dr. Plank “will be forced to testify on his dispute with StreamScale” [ .]. They explain that “[i]f Plaintiff is allowed to cross-examine Dr. Plank about the StreamScale Arbitration or the StreamScale Settlement, Dr. Plank’s hands will be tied, and he will be forced to refuse to testify on his dispute with StreamScale, just as he did at his deposition” [ .]. In addition, according to Defendants, allowing Plaintiff to discuss the StreamScale Settlement and the StreamScale Arbitration “would effectively turn [this case] into a ‘mini-trial’ concerning improper considerations painting Dr. Plank as an uncredible witness” . at 6]. Stating that Dr. Plank’s testimony “goes to the very heart of Defendants’ defense[],” they *4 argue that allowing such evidence “would undermine Dr. Plank’s credibility and resultantly and unfairly prejudice Defendants and hamstring [their] defense” [ Id . at 7].
Plaintiff responds that “[n]either Defendants’ arguments nor their cited caselaw are sufficient to support this [m]otion” [Doc. 392 p. 3]. It contends that “the jury should be permitted to evaluate the issues in [Dr.] Plank’s arbitration” [ Id . at 5]. According to Plaintiff, “[a]t a minimum, the arbitration appears to have some similarity to the allegations in this case—improper disclosure of confidential information” [ Id .]. Although Defendants claim that “Dr. Plank’s hands will be tied[,]” if asked questions about the StreamScale Arbitration and StreamScale Settlement, Plaintiff states this argument “ignores the Court’s inherent authority over witnesses and evidence and ignores that his testimony would be subject to the Protective Order entered in this cause” Id . at 6]. Given that Defendants call Dr. Plank a “key witness,” Plaintiff should be allowed to test his credibility and bias [ .].
Defendants reply that Dr. Plank’s opinions are not related to violations of non-disclosure agreements [Doc. 413 p. 1]. While Plaintiff states it should be able to test bias, Defendants argue that StreamScale’s accusation against Dr. Plank “should not be allowed to imply bias when it is not directly related to Dr. Plank’s opinion or his expertise” [ . at 3].
Before Defendants replied, on May 13, 2024, Plaintiff filed its motion to reopen, which largely relies on its response to Defendants’ motion in limine [Doc. 393].
Defendants responded to the motion to reopen asserting that Plaintiff did “not compl[y] with the Court’s order regarding discovery procedures in bring this motion” [Doc. 425 p. 2]. They also rely on the briefing to their motion in limine [ . at 2–3]. To the extent the Court allows Dr. Plank to be re-deposed, Defendants request that “a protective order be entered limiting *5 Dr. Plank’s deposition testimony to testimony that does not cause him to violate the StreamScale Agreements” [ Id . at 3].
Plaintiff replies that it did not follow the discovery dispute procedure because Defendants initially raised this issue in their motion in limine and the issue is related to Plaintiff’s response to that motion [Doc. 431 p. 1]. In addition, Plaintiff contends that, at the time, “trial was imminent” Id .]. While Defendants seek a protective order, Plaintiff argues “seeking affirmative relief in a [r]esponse is not procedurally correct” [ . at 2 (citation omitted)]. Further, Plaintiff states that the existing Protective Order in this case protects Dr. Plank’s testimony relating to StreamScale, and the Court has the authority to direct Dr. Plank to respond to questions [ . (citation omitted)]. According to Plaintiff, Defendants’ requested protective is “illogical” because it does not know what questions would violate the StreamScale Agreement and it appears that any question would be a violation [ . at 2–3]. [1]
II. DEFENDANTS’ MOTION IN LIMINE
“Motions in limine allow the court to rule on evidentiary issues prior to trial in order to
avoid delay and focus pertinent issues for the jury’s consideration.”
Greene v. LEDVANCE LLC
,
No. 3:21-CV-256,
Defendants seek to prohibit Plaintiff from presenting arguments or evidence regarding Dr. Plank’s arbitration with StreamScale, arguing that such evidence is irrelevant. Defendants assert that inquiries about the StreamScale arbitration have no probative value. Plaintiff responds that Dr. Plank’s previous arbitration is relevant for purposes of his credibility and bias at trial, reasoning that “the arbitration appears to have some similarity to the allegations in this case” [Doc. 392 p. 5]. It states that “[h]aving been accused himself, there is at least an argument that [Dr.] Plank is biased in favor of programmers like [Defendant] Kelley who are accused of violating [non-disclosure agreements], in addition to biased toward freely using or sharing work created or held in confidence for someone else” [ . at 5–6].
Rule 401 defines relevant evidence as evidence that “has any tendency to make a fact more or less probable than it would be without the evidence[] and . . . the fact is of consequence in determining the action.” Fed. R. Evid. 401(a)–(b). Rule 608(b) states that “extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of . . . the witness.” Fed. R. Evid. 608(b)(1).
“[C]ourts routinely exclude evidence about the prior litigation history and the disciplinary
records of expert witnesses.”
Ferris v. Tenn. Log Homes, Inc.
, No. CIVA4:06CV-35-M,
According to Defendants, “Dr. Plank has retained the data file created by Windrock’s analyzer, the source code of both parties, and render opinions related to both. Dr. Plank was not retained to evaluate a non-disclosure agreement or opine on whether a non-disclosure agreement was violated” [Doc. 413 p. 1]. But Defendants also retained Dr. Plank to “[i]nvestigate and evaluate Plaintiff’s claim that [Defendants used its] trade secret and confidential material” [SEALED Doc. 247-11 p. 7]. He also opines that Defendant Kelley did not reverse engineer Plaintiff’s data by accessing its source code [ id .], which is not too different from the allegation that Dr. Plank mishandled confidential information [ See Doc. 440-1 ¶ 5 (“Disputes arose between StreamScale and [Dr.] Plank concerning the Consulting Agreement with Streamscale asserting that [Dr.] Plank had breached the confidentiality provisions of that Agreement and included some of the confidential material in publicly disclosed materials.”)].
Bias may arise in a “vast variety of situations.”
In re Davol, Inc./C.R. Bard, Inc.,
Polypropylene Hernia Mesh Prod. Liab. Litig.
,
Extrinsic testimony, or that elicited by cross examination to show the bias or interest of a witness in a cause, covers a wide range and the field of external circumstances from which probable bias or interest may be inferred is infinite. The rule encompasses all facts and circumstances which, when tested by human experience, tend to show that a witness may shade his testimony for the purpose of helping to establish one side of a cause only. . at 945–46 (quoting Majestic v. Louisville & N.R. Co. , 147 F.2d 621, 627 (6th Cir. 1945)).
Considering this, and the subject matter of Dr. Plank’s opinions, the Court finds that the matter of
Dr. Plank’s arbitration with StreamScale is significantly probative.
See Rheinfrank v. Abbott
Lab’ys, Inc.
, No. 1:13-CV-144,
But even if evidence is relevant, the Court may exclude it “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the
jury . . . , [and] wasting time . . . .” Fed. R. Evid. 403. With respect to the matter before the Court,
the Court is mindful “that extensive cross-examination on the topic could waste time and result in
mini-trials.”
Rheinfrank
, 2015 WL 5258858, at *8. While Dr. Plank’s general dispute with
StreamScale and how they resolved it is relevant to his credibility and alleged bias, any further
inquiries relating to these subjects beyond what Dr. Plank testified to in his deposition would be a
waste of time and would risk confusing the issues before the jury in this case. Fed. R. Evid. 403;
Magnuson v. Trulite Glass & Aluminum Sols., LLC
, No. 19 C 6158,
III. PLAINTIFF’S MOTION TO OPEN
Plaintiff seeks to reopen Dr. Plank’s deposition so that he can “answer questions about the facts underlying his prior arbitration with StreamScale” [Doc. 393 p. 1]. It also seeks sanctions [ .]. [3]
Dr. Plank testified that StreamScale alleged that he disclosed confidential information and the parties settled during an arbitration without admitting liability [Doc. 392-1 p. 5]. StreamScale’s counsel, Michael Adler, filed an unsworn declaration under the penalty of perjury, stating that Dr. Plank and StreamScale signed a Consulting Agreement that contained a confidentiality obligation [Doc. 440-1 ¶ 4]. He describes, “Disputes arose between Streamline and [Dr.] Plank concerning the Consulting Agreement with StreamScale asserting that [he] had breached the confidentiality provisions of that Agreement and included some of the confidential material in publicly disclose materials” [ .]. “StreamScale initiated an arbitration proceeding against [Dr.] Plank[,]” and the parties settled” [ . ¶¶ 5, 7].
*11 “On motion or on its own, the [C]ourt must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that[] . . . the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive[.]” Fed. R. Civ. P. 26(a)(2)(C)(i). Considering the Court’s ruling on the motion in limine, and the evidence already in the record, the Court finds that reopening Dr. Plank’s deposition is unreasonably cumulative and duplicative under Rule 26(a)(2)(C)(i).
IV. CONCLUSION
For the reasons stated above, the Court GRANTS IN PART AND DENIES IN PART Defendants’ Motion in Limine to Exclude Evidence Regarding Expert Witness James Plank’s Prior Arbitration with StreamScale, Inc. [ Doc. 372 ] and DENIES Plaintiff’s Motion to Reopen Deposition of Defendants’ Expert Witness Dr. James Plank and for Sanctions [ Doc. 393 ].
IT IS SO ORDERED.
ENTER:
___________________________ Jill E. McCook
United States Magistrate Judge
Notes
[1] On July 22, 2024, Dr. Plank filed a Motion for Protective Order [Doc. 440], requesting that that the Court enter a protective order prohibiting another deposition.
[2] Plaintiff offers that Dr. Plank’s testimony could be designated as “attorney’s eyes only” [Doc. 383 p. 6], but Plaintiff does not explain how such a designation would allow any such testimony to be introduced at a trial.
[3] Defendants object to the motion because Plaintiff did not follow the Court’s Scheduling Order that requires the parties to participate in an informal conference with the magistrate judge See Doc. 26 p. 3]. As Plaintiff argues, Defendants initially raised the issue in their motion in limine [Doc. 431 p. 1]. Because Defendants’ motion in limine and Plaintiff’s motion to reopen are “inextricably linked” [ id .], the issue is not amendable to an informal discovery conference.