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"Sure our damages figure sounds big, but look how big this other number is!" AI-Generated, displayed with permission

This week, Judge Andrews issued an order on the six motions in limine that the parties filed in Sprint Communications Company, L.P. v. Mediacom Communications Corp., C.A. No. 17-1736-RGA (D. Del. Nov. 14, 2022).

The order is short and to the point, and doesn't identify what the MILs relate to. But if the docket shows that there are at least two MILs here worth mentioning, if only because they come up so often.

Prior Proceedings

The defendant first moved to exclude the outcomes of multiple prior cases, as well as pending cases against co-defendants. Plaintiff responded that the prior cases are relevant to willfulness. Defendant responded that the outcomes of those cases are irrelevant to willfulness. The Court granted the motion.

"Prior proceedings" is a category of MIL that's worth considering, if there are prior proceedings that come out the wrong way for whichever party you represent. These motions tend to be at least partially successful, in my experience, and are worth considering during trial prep.

Prior proceedings or rulings can be very impactful. If the jury hears that a prior factfinder found one way, that may become the "default." The opposing party likely knows this, and if they aren't precluded they may make the prior proceedings into a trial theme.

There are a couple of obvious reasons it may be worth bringing this as a MIL rather than objecting at trial. First, if you raise it with the other side, they may agree—particularly if they understand the history of these motions in the District of Delaware and how the Court tends not to let this material in.

Second, it's the kind of thing that's likely to come up early, in opening statements. Bringing it as a MIL avoids the need to object during an opening statement. Objections during an opening statement aren't ideal for a number of reasons, including because it calls attention to whatever you are objecting to.

Third, having a ruling prior to trial lets you adjust your trial themes beforehand, without having to account for the possibility that the Court will deny the motion.

Total Revenue Figures

The defendant also moved to exclude reference to their own total profits and revenues for the product segment as irrelevant and prejudicial. Plaintiff responded that its expert uses those figures, and that the figures show "the reasonableness of [the expert's] ultimate royalty determination," among other things. The Court granted the motion.

That's not a surprising result. In my experience, the Court tends to be sensitive to this issue and doesn't let big damages figures into evidence if they are irrelevant (or mostly irrelevant) to the damages calculation.

This is another good MIL for accused infringers to consider, for similar reasons to the prior proceedings issue. Seeing a high revenue number helps the jury come back with a high damages figure. Plus it's an issue that may come up early, and there is a chance that the other side may just agree not to use it if you raise it, in light of the Court's prior holdings on this issue (freeing up a precious slot for another MIL).

There Are Better Things to Cite

The outcome of the order gives a helpful current data point on Judge Andrews' views on these issues, but does not set forth the Court's reasoning. These are recurring issues that the Court has ruled on several times, though, so you shouldn't have too much trouble finding useful cases to cite if this comes up in your case.

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