United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
Following summary judgment proceedings, trial in this case is limited to the issue of damages on Plaintiff Jaynes Corporation's ("Jaynes") claim for breach of contract on defendant American Safety Indemnity Company's ("ASIC") failure to provide a defense of Jaynes in the underlying action, Sun City Anthem Community Association v. Del Webb Communities, et. al., Clark County District Court Case No. A-10-608708-D ("the Underlying Action"). (Dkt. no. 57.) As the Court found in the order on the parties' cross motions for summary judgment, ASIC must compensate Jaynes for reasonable costs incurred in the defense of the underlying action, except for the amount that Jaynes must pay ASIC pursuant to the self-insured retention ("SIR"). ( Id. ) ASIC has filed nine (9) motions in limine. (Dkt. Nos. 84-92.) The Court will address each motion in turn below.
The scope of this insurance dispute has been narrowed by two previous orders. In the first order, issued on December 26, 2012, the Court determined that SIC had a duty to defend Jaynes in the Underlying Action and was responsible for the reimbursement of reasonable defense costs less the amount of the SIR. (Dkt. no. 57.) In the second order, issued on September 26, 2013, the Court found that the evidence that Jaynes offered in support of its motion for summary judgment on its damages lacked sufficient detail for the Court to determine whether the fees and costs were reasonable. (Dkt. no. 77.) The Court found that SIC is not entitled to apportion costs to pay for only claims that are covered under the applicable policies.
Discovery in this case closed on January 31, 2012. (Dkt. no. 28.) Before the Court issued the first order addressing summary judgment in December 2012, the parties in the Underlying Action reached a settlement. Jaynes filed a notice of entry of order dismissing the Underlying Action on January 17, 2013. (Dkt. no. 112-1 at 118-126.)
The subject of several of ASIC's motions in limine is Jaynes' counsel's billing statements. In response to a discovery request seeking all documents relating to the fees and costs Jaynes incurred in defense of the Underlying Action, Jaynes responded that it would produce "invoice summaries" from its counsel. (Dkt. no. 84 at 4-5.) In October 2011, Jaynes supplemented its responses to produce its counsel's legal invoices for the Underlying Action for the period from May 13, 2009, to September 30, 2011. ( Id. ) Jaynes produced the balance of its counsel's invoices on February 4, 2014, after ASIC had filed its motions in limine, as part of Jaynes' amended fourth supplemental disclosures. Jaynes' fourth supplemental disclosures also included a "loss run report" and Rule 26 computation of damages. (Dkt. no. 93 at 5.) Jaynes also offered for its counsel to be deposed at that time.
III. LEGAL STANDARD
A motion in limine is a procedural mechanism to limit in advance testimony or evidence in a particular area. See United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). It is a preliminary motion that is entirely within the discretion of the Court. See Luce v. United States, 469 U.S. 38, 41-42 (1984). To exclude evidence on a motion in limine, "the evidence must be inadmissible on all potential grounds." See, e.g., Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004). "Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." Hawthorne Partners v. AT & T Tech., Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). This is because although rulings on motions in limine may save "time, costs, effort and preparation, a court is almost always better situated during the actual trial to assess the value and utility of evidence." Wilkins v. Kmart Corp., 487 F.Supp.2d 1216, 1219 (D. Kan. 2007).
In limine rulings are provisional. Such "rulings are not binding on the trial judge [who] may always change his mind during the course of a trial." Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce, 469 U.S. at 41 (nothing that in limine rulings are always subject to change, especially if the evidence unfolds in an unanticipated manner). "Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded." Ind. Ins. Co., 326 F.Supp.2d at 846.
IV. MOTIONS IN LIMINE
A. Motion in Limine Nos. 1 and 2 (dkt. nos. 84, 85)
ASIC argues that four categories of documents should be excluded at trial: (1) Jaynes' counsel's billing statements from the instant case; (2) Jaynes' counsel's billing statements from the Underlying Litigation since September 30, 2011; (3) Jaynes' "loss run report"; and (4) Jaynes' Calculation of Each Category of Damages. ASIC argues that these documents should be excluded because they were not produced until long after the close of discovery and after the dismissal of the Underlying Action. Jaynes responds that category 1, the billing statements from this litigation, is not relevant to this trial as any fees for prosecution of this case will be sought post-trial. ( See dkt. no. 93 at 2.) The Court will therefore not consider these documents.
Jaynes did not produce the documents in category 2 to ASIC until February 4, 2014. ( Id. at 2.) Jaynes argues that they should nonetheless be admitted as ASIC failed to request supplemental production and is not prejudiced since ASIC knew the basis of Jaynes' damages and was offered the opportunity to depose Jaynes' counsel. Jaynes did not produce the document in category 3, the "loss run report", or the document in category 4, the calculations, until February 12, 2014. ( See id. ; dkt. no. 94 at 4.) Jaynes argues that it is merely a summary of the information contained in the billing statements for the Underlying Action. ( See dkt. no. 93 at 2.) Regarding category 4, ASIC seeks to exclude a calculation of damages for Jaynes' fees in the Underlying Action, Jaynes' damages in prosecuting the instant case, and Jaynes' damages paid to settle the Underlying Action. ( See dkt. no. 85 at 5.) Jaynes states that it is not seeking damages at this stage for either prosecuting the instant case or settling the Underlying Action. As a result, the Court need only consider ...