Opinion
Case No. 15-cv-01728-MMC
03-20-2017
PNY TECHNOLOGIES, INC., Plaintiff, v. MILLER, KAPLAN, ARASE & CO., LLP, Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR NEW TRIAL
Before the Court is plaintiff PNY Technologies, Inc.'s ("PNY") "Motion for a New Trial," filed December 14, 2016. Defendant Miller, Kaplan, Arase & Co., LLP ("Miller Kaplan") has filed opposition, to which PNY has replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows.
By order filed February 27, 2017, the Court took the matter under submission.
BACKGROUND
In 2008, PNY, a "seller of USB and SD flash memory system products" (see Compl. ¶ 6), entered into a license agreement with SanDisk Corporation ("SanDisk"), under which agreement SanDisk had the right "to have an independent Third Party accounting firm" audit PNY's compliance with the terms of the license agreement (see Tully Decl., filed July 22, 2016, Ex. 55 § 5.11).
The license agreement was admitted at trial as Exhibit 7.
On May 30, 2014, PNY instituted the above-titled action by filing a complaint against Miller Kaplan, alleging claims arising from its assertion that Miller Kaplan, which had been engaged by SanDisk in 2010 to audit PNY's compliance with the license agreement, had engaged in misconduct in connection with the audit. In its complaint, PNY alleges five Counts, titled, respectively, "Breach of Contract - Non-Disclosure Agreement," "Fraud," "Intentional Misrepresentation," "Negligent Misrepresentation," and "Tortious Interference with Contract."
By order filed September 28, 2016, the Court granted in part Miller Kaplan' motion for summary judgment. Specifically, the Court granted summary judgment in favor of Miller Kaplan as to the fraud/misrepresentation claims to the extent those claims were based on the theory that Miller Kaplan had made false statements in its audit reports, and as to the claim alleging tortious interference with contract. The Court denied Miller Kaplan's motion for summary judgment as to the remaining claims, specifically, the fraud/misrepresentation claims to the extent those claims were based on the theory that Miller Kaplan had falsely represented it was independent of SanDisk, and as to the breach of contract claim.
A jury trial on the remaining claims began on October 31, 2016. After the close of evidence, the Court granted Miller Kaplan's motion for judgment, pursuant to Rule 50 of the Federal Rules of Civil Procedure, as to the breach of contract claim. (See Trial Tr. vol. 8, 1581:15-16, 1603:15-20.) The remaining fraud/misrepresentation claims were submitted to the jury, which, on November 15, 2016, found that (a) "Miller Kaplan [made] a false representation to PNY regarding independence," (b) Miller Kaplan either "[knew] that the representation was false" or "[made] the representation recklessly or without regard for its truth," (c) "Miller Kaplan intend[ed] that PNY rely on the misrepresentation," (d) "PNY reasonably rel[ied] on the representation," but (e) "PNY's reliance on Miller Kaplan's representation" was not "a substantial factor in causing harm to PNY." (See Verdict Form.)
On November 16, 2016, the Clerk of Court entered judgment in favor of Miller Kaplan and against PNY. // //
DISCUSSION
By the instant motion, PNY seeks, pursuant to Rule 59(a), a new trial on its claims alleging breach of contract and intentional fraud. PNY argues it is entitled to such relief for the reason that, according to PNY, the Court made various erroneous rulings.
A district court "may grant a new trial only if the verdict is contrary to the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice." See Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (internal quotation and citation omitted). Where, as here, a party seeks a new trial due to assertedly erroneous rulings, the plaintiff must establish the asserted errors "affect[ed] the essential fairness of the trial," see McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553 (1984); stated otherwise, the errors must have "substantially prejudiced" the moving party in its ability to present its case, see United States v. 99.66 Acres of Land, 970 F.2d 651, 658 (9th Cir. 1992).
A. Breach of Contract Claim
PNY's breach of contract claim was based on the theory that, in June and July of 2011, Miller Kaplan, in violation of the terms of a non-disclosure agreement, provided SanDisk with PNY's confidential business records, obtained by Miller Kaplan in connection with the audit, and that PNY was damaged by such alleged disclosures in that, after SanDisk allegedly received the confidential records, PNY lost market share to SanDisk.
To support its theory that it had lost market share to SanDisk, PNY sought to introduce testimony from Gadi Cohen ("Cohen"), PNY's Chief Executive Officer. PNY proposed that Cohen would testify that, in 2011, PNY suffered a loss of market share and that he would rely on material published by a third party, "NPD," to establish a causal link between PNY's loss of market share and the above-referenced alleged disclosures by Miller Kaplan to SanDisk. (See Pl.'s Opp. to [Def.'s] Objection, filed October 31, 2016, at // // 1:9-12, 3:14-17.) More specifically, PNY sought to offer through Cohen five exhibits that were "market share trial demonstratives" PNY had "created from public market share research . . . available to anyone with [a] subscription to the market-based research group NPD." (See Pl.'s Opp. to [Def.'s] Objection, filed October 31, 2016, at 1:9-12.)
According to PNY, NPD is a "subscription-based market research service that allows anyone to access market share information compiled from publicly-available sources." (See id. at 1:25-26.) Cohen testified at his deposition that he understood NPD's sources to be "all the retailers." (See Robertson Decl., filed December 14, 2016, Ex. 6 at 322:12-15.)
Miller Kaplan objected to admission of the five demonstrative exhibits, as well as to any testimony regarding their content, on several grounds, including hearsay. The Court sustained the objection, finding the contents of the demonstratives to be inadmissible hearsay. (See Trial Tr. vol. 3 at 610:1 - 613:19.) PNY thereafter failed to offer other evidence to support its claim that it was damaged by the alleged breach of the non-disclosure agreement. At the close of evidence, Miller Kaplan moved for judgment on the claim, on the ground that PNY had not offered any evidence of damage. The Court, as noted above, granted Miller Kaplan's motion, and the breach of contract claim was not presented to the jury.
In the instant motion, PNY argues it is entitled to a new trial on its breach of contract claim, for the asserted reason that the Court, when it excluded the five demonstrative exhibits and testimony based thereon, did not comply with the requirements set forth in R & R Sails, Inc. v. Insurance Co., 673 F.3d 1240 (9th Cir. 2012). The Court disagrees, as the requirements in R & R Sails are inapplicable given the basis for the order of exclusion challenged here.
In R & R Sails, the Ninth Circuit held that where imposition of a discovery sanction imposed under Rule 37(c)(1) would "amount[ ] to dismissal of a claim," the district court must consider "whether the claimed noncompliance involved willfulness, fault, or bad faith" and "the availability of lesser sanctions." See id. at 1247. Here, however, the Court did not exclude the demonstratives and testimony based thereon as a discovery sanction, but, rather because such evidence constituted inadmissible hearsay. As PNY does not contend the Court erred in finding the subject evidence to be inadmissible hearsay, PNY fails to identify any basis for a new trial on its breach of contract claim.
Although Miller Kaplan did seek exclusion of the demonstrative exhibits and testimony as a sanction under Rule 37(c)(1) for failure to timely disclose the information contained in those exhibits, the Court never ruled on that request, in light of its finding excluding the evidence on other grounds.
Accordingly, to the extent PNY seeks a new trial on its claim alleging breach of contract, the motion will be denied.
B. Intentional Misrepresentation Claim
PNY's intentional misrepresentation claim was based on the theory that Miller Kaplan falsely represented to PNY that Miller Kaplan was independent of SanDisk, and that, prior to the audit, had PNY known of such lack of independence, it would have requested that SanDisk retain a different auditor. With respect to injury, PNY's theories were that Miller Kaplan issued a flawed audit report that was a substantial factor in causing SanDisk to file a lawsuit against PNY for breach of the license agreement and to cease negotiations with PNY as to the terms of a possible agreement to sell SanDisk products to PNY. As noted, the jury found Miller Kaplan made a false representation to PNY regarding independence, and that, although PNY reasonably relied thereon, PNY's reliance was not a substantial factor in causing the injuries claimed by PNY.
PNY argues that it is entitled to a new trial as to both of its theories of injury. As discussed below, the Court disagrees.
1. SanDisk's Filing of Lawsuit Against PNY
As noted, PNY asserted that Miller Kaplan's issuance of the audit report was a substantial factor in causing SanDisk to file against PNY a lawsuit alleging breach of the license agreement.
At trial, in support of its argument that PNY could not show a causal connection between the audit report and SanDisk's decision to file its lawsuit against PNY, Miller Kaplan offered the testimony of Jim Brelsford ("Brelsford"), SanDisk's chief legal officer at the time SanDisk decided to file its lawsuit against PNY. Brelsford testified PNY's "failure to provide information over the course of an extended period of time" led him to "believe[ ] that [PNY] [was] not operating in good faith" (see Brelsford Dep. (Tully Decl., filed July 22, 2016, Ex. A) at 289:11-18), a perception that "existed independent and irrespective of whatever dollar estimates may have been included in any Miller Kaplan audit" (see id. at 290:7-14). Brelsford further testified that SanDisk and PNY had a legal dispute over the meaning of the license agreement, specifically, a dispute as to what products were covered thereunder, and that PNY had refused to mediate the dispute. (See id. at 319.) When asked whether the "difference of opinion between SanDisk and PNY about what was covered and not covered and the need for a legal resolution through a lawsuit existed independent of and irrespective of any Miller Kaplan audit report," Brelsford answered, "[y]eah, I would say so." (See id. at 319:22 - 320:4.)
Brelsford's videotaped deposition testimony was played for the jury.
After Miller Kaplan rested its case, PNY sought to offer testimony from Cohen, its CEO, in rebuttal to Brelsford's testimony. Specifically, PNY, after noting that Brelsford had testified he understood a mediation provision in the license agreement to be mandatory in nature, proposed that Cohen would testify he interpreted the provision as not being mandatory when an audit was "underway." (See Trial Tr. vol. 8 at 1568:13-19, 1569:9 - 1570:6.) Miller Kaplan objected to the introduction of the proposed testimony, and the Court sustained the objection, on the ground Cohen came to such interpretation long after the time at which SanDisk proposed mediation, and that neither he nor anyone else at PNY had ever communicated such interpretation to SanDisk. (See Trial Tr. vol. 8 at 1571:5 - 1577:16.)
The provision, in relevant part, states: "All disputes arising directly under the express terms of this [a]greement will be resolved as follows: First, the senior management of both parties will engage in good faith negotiations for up to thirty days in an attempt to resolve such disputes. If the disputes cannot be resolved by senior management within the thirty day good faith negotiation period, the parties will engage in a full-day (8 hours) mediation, with authorized senior executives of each [p]arty present for the duration of the mediation. Should the mediation fail to result in an agreement-in-principle, either party may initiate litigation proceedings in the Northern District of California." (See Tully Decl., filed July 22, 2016, Ex. 55 § 7.9(d).)
PNY argues the Court erred in not allowing Cohen to testify in rebuttal as to his interpretation of the mediation provision. PNY, however, does not dispute that, at the time it sought to offer Cohen in rebuttal, it did not offer to prove, nor does it do so by way of the instant motion, that the reason PNY declined to mediate was because PNY had, at that time, interpreted the mediation provision as being permissive in light of the pendency of the audit. Nor has PNY shown that Cohen's interpretation of the license agreement would have been relevant to any other disputed issue. In short, PNY has failed to show the order sustaining Miller Kaplan's objection to Cohen's proffered rebuttal testimony was erroneous.
Lastly, in a footnote, PNY observes that Miller Kaplan, in its closing argument, stated that Brelsford had "no axe to grind" and "no motive to do anything but tell the truth" (see Trial Tr. vol. 9 at 1713:1-2, 1714:8), as he "is retired" (see id. at 1713:4) and "doesn't work for SanDisk anymore," and thus "has no connection to SanDisk whatsoever" (see id. at 1714:3-5); (see Pl.'s Mot. for New Trial at 19:25-28). PNY argues the statements were false because Brelsford is not "retired," in that, at the time he gave his testimony, he was working for the law firm of Skadden, Arps, Slate, Meagher & Flom, and, in such capacity, "has worked on SanDisk legal matters." (See id. at 20:26-28 (citing Robertson Decl., filed December 14, 2016, Ex. 13 (Brelsford Dep.) at 86:21 - 87:2).) To the extent PNY may be arguing that the assertedly false statements caused a "miscarriage of justice" or otherwise entitle it to a new trial, see Molski, 481 F.3d at 729, the Court disagrees, as PNY fails to show the statements were false or misleading. Read in context, the reference to Brelsford's being "retired" and having "no connection to SanDisk" was likely intended by counsel for Miller Kaplan and understood by the jury to refer to Brelsford's employment status with SanDisk, i.e., that he was no longer employed at that company, and the jury was free to draw or not draw therefrom the inference suggested by Miller Kaplan.
Accordingly, PNY has failed to show it is entitled to a new trial on its theory that Miller Kaplan's issuance of the audit report was a substantial factor in causing SanDisk to file its lawsuit against PNY.
2. Disruption in Contractual Negotiations
As noted, PNY claimed Miller Kaplan's issuance of the audit report was a substantial factor in causing SanDisk to end negotiations concerning the possibility of entering an agreement under which SanDisk would sell its products to PNY. As such theory was explained by PNY in a pretrial filing, "while the audit was underway (December 2010 through June 2011)" PNY was "engaged in discussions with SanDisk to purchase flash memory products," and "one month after Miller Kaplan's final royalty audit report came out," SanDisk "cut off communications with PNY." (See Pl.'s Opp. to Def.'s Mot. in Limine No. 1, filed October 12, 2016, at 11.)
a. Exclusion of Emails Produced After Close of Fact Discovery
PNY argues the Court erred in excluding certain emails that document negotiations between PNY and SanDisk as to a possible sales agreement.
Prior to trial, Miller Kaplan filed a motion in limine by which it sought to preclude PNY from offering evidence to support an "unpleaded theory," specifically, that "PNY and SanDisk might have engaged in a sales relationship . . . but for Miller Kaplan's supposedly false royalty audit." (See Def.'s Mot. in Limine No. 7, filed October 3, 2016, at 3:1-3, 17-20.) In particular, Miller Kaplan sought to preclude PNY from offering emails between PNY and SanDisk employees regarding a potential sales agreement, for the reason that the emails were not disclosed to Miller Kaplan until August 1, 2016, a date well after the May 16, 2016, deadline for completion of fact discovery. (See Pretrial Preparation Order, filed September 28, 2015.) In its opposition, PNY argued it had given adequate notice of such theory during discovery, but did not address the circumstances or timing of its disclosure of the emails Miller Kaplan sought to exclude. After hearing oral argument on Miller Kaplan's motion, the Court afforded the parties an opportunity to file additional declarations to support their respective positions, and both parties subsequently did so.
In its complaint, PNY alleged only in general terms that "[a]s a result of Miller Kaplan's fraud, PNY has suffered and/or will suffer damages." (See Compl. ¶ 48.)
Thereafter, on October 19, 2016, the Court issued an order in which it granted in part and denied in part Miller Kaplan's motion. To the extent the motion sought to exclude all evidence offered to show PNY lost a "possible sales contract" with SanDisk, the Court denied the motion, finding PNY had adequately disclosed such theory in its timely responses to Miller's Kaplan's interrogatories. (See Order Re: Def.'s Mot. in Limine No. 7, filed October 19, 2016, at 1:13-16.) To the extent the motion sought to exclude "the email exchanges between SanDisk and [PNY] reflecting those [sales] discussions," however, the Court granted the motion, finding exclusion was proper under Rule 37(c)(1), as production of that evidence was required under Rule 26(a) and PNY had failed to show substantial justification for its late production or a lack of prejudice to Miller Kaplan. (See id. at 1:17-23.)
As noted, PNY argues the Court erred in excluding the subject emails. Under Rule 37(c)(1), "[i]f a party fails to provide information . . . as required by Rule 26(a) . . ., the party is not allowed to use that information . . . at a trial, unless the failure was substantially justified or is harmless." See Fed. R. Civ. P. 37(c)(1). PNY does not contend the Court erred in finding PNY was required by Rule 26(a) to disclose the emails, nor does it contend PNY's disclosure was timely or that PNY had a substantial justification for the late disclosure. Rather, PNY argues, Miller Kaplan was not prejudiced by the late disclosure of the emails.
The timely disclosure PNY did make with respect to its theory that it lost the opportunity to enter into a sales agreement with SanDisk, which disclosure was set forth in a response to an interrogatory, stated in full as follows:
SanDisk is one of only a handful of companies in the world that manufacture the raw material (NAND flash) that is used to make the chips that go inside the finished products that PNY sells. PNY purchases NAND
flash directly from these companies in order to manufacture finished products such as flash drives and SD cards, among others. (PNY also purchases partially or fully assembled products for resale.) Since [Miller Kaplan's] [a]udit and ensuing SanDisk [l]itigation, PNY has not had any business relationship with SanDisk. This means that PNY has access to one less supplier in what is already an extremely limited market for raw materials. SanDisk's competitors know that PNY does not deal with SanDisk, which puts PNY at a disadvantage when negotiating with SanDisk when it comes to PNY. PNY has lost millions of dollars in profits as a result.(See Robertson Decl., filed December 14, 2016, Ex. 1 at 22:1-4.)
Additionally, if [Miller Kaplan's] [a]udit had not destroyed the relationship between PNY and SanDisk, PNY could have turned SanDisk into one of its major suppliers -- not only of raw materials, but also downstream products and components that SanDisk sells. If PNY had continued to do business with SanDisk, PNY would have earned millions of dollars in additional profits.
The above-quoted disclosure did not state that PNY and SanDisk had reached or were about to reach an agreement under which SanDisk would sell products to PNY. Nor does PNY contend that it otherwise gave Miller Kaplan, while fact discovery was open, notice that any negotiations between SanDisk and PNY had occurred. As a result, during fact discovery, Miller Kaplan was unaware of any such negotiations, let alone their having occurred around the time Miller Kaplan issued its final audit report in mid-June 2011. (See Tully Decl., filed July 22, 2016, Ex. 9.) By contrast, the emails that were later disclosed indicated that, on July 1, 2011, Joanna Wong ("Wong"), a SanDisk employee, emailed to Jacob Afber ("Afber"), PNY's Vice President of Procurement, a proposed "Contract," and that, on July 14, 2011, Afber responded with a "draft with our comments," and stated, "[p]lease review and let us know when you will be ready to discuss" (see Afber Decl., filed August 5, 2016, Ex. H), after which, on July 15, 2011, Wong stated to Afber that "last week" she was "informed by Executive management" to "put the process on hold." (See id.)
The emails also indicated that between January 21, 2010 and June 13, 2011, Afber and Arie Tal ("Tal"), a SanDisk employee, discussed the possibility of SanDisk's selling various products to PNY, without reaching any agreement to do so. (See id. Exs. B-G.)
PNY argues that Miller Kaplan was not prejudiced by the untimely disclosure of the emails because, PNY contends, Miller Kaplan had "ample opportunity" after the disclosure to take "additional testimony," such as deposing Wong and Tal, the above-referenced SanDisk employees who had authored the subject emails sent to PNY. (See Pl.'s Mot. for New Trial at 12:14-19.) PNY also argues that Miller Kaplan deposed Afber after it had obtained the emails, and, consequently, the late disclosure was harmless. The Court is not persuaded.
A scheduling order "is not a frivolous piece of paper, idly entered." See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (internal quotation and citation omitted); see also Wong v. Regents of the University of California, 410 F.3d 1052, 1062 (9th Cir. 2005) (holding scheduling orders "permit the court and the parties to deal with cases in a thorough and orderly manner"). Consequently, Miller Kaplan could not simply have taken whatever discovery it wanted after it received PNY's untimely disclosure; it would have been required to move to reopen fact discovery, given that the deadline set by the Court had already passed. Moreover, at a time when Miller Kaplan would have turned its attention to other important aspects of trial preparation, it would have had to schedule and conduct a number of depositions and other discovery pertaining to the late-disclosed emails, thereby putting it at a disadvantage and disrupting the schedule previously adopted by the Court after careful consideration.
In that regard, although, as PNY points out, Afber was deposed after the late disclosure, Miller Kaplan would have needed to depose the above two SanDisk employees, as well as Mark Ciano ("Ciano"), PNY's President, and Heidi Stuto ("Stuto"), PNY's Treasurer, each of whom was involved in the negotiations as reflected in the emails, and likewise would have had information relevant to a claim based in part thereon. Deposing all of those additional potential witnesses would have been particularly important to Miller Kaplan, as the emails included comments that suggested PNY and SanDisk would have had considerable difficulty in ever reaching an agreement.
Afber was deposed on October 14, 2016 (see Robertson Decl., filed December 14, 2016, Ex. 7), just two weeks before trial. The parties did not seek leave of court to depose Afber on such untimely basis and the record does not indicate the reason(s) PNY seemingly delayed producing Afber for deposition. (See, e.g., Tully Decl., filed October 3, 2016, ¶ 12 (counsel for Miller Kaplan's statement that, as of October 3, 2016, PNY had yet to provide dates to depose Afber).)
Although Miller Kaplan did depose both Ciano and Stuto during fact discovery, Miller Kaplan was unaware of the existence of the emails at the time, and, consequently, had no opportunity to question either of them about the emails or the negotiations described therein.
In response to the Court's ruling that PNY had laid a sufficient factual basis to allow PNY to call an expert witness to offer an opinion as to PNY's claimed damages caused by the asserted disruption in negotiations, counsel for Miller Kaplan stated: "[T]his puts me in a horrible position. I have emails that rebut now what [Cohen] said . . . . And that Heidi Stuto writes an e-mail saying, 'This is all one-sided, we can't do this' . . . ." (See Trial Tr. vol. 7 at 1416:22-25.)
PNY's argument that its late production of Afber for deposition eliminated any prejudice likewise is unavailing. Although Afber did receive emails from SanDisk and sent several in response, Afber's deposition testimony made clear that he was not in a position to meaningfully offer testimony relevant to the key legal issue presented, whether it was "reasonably probable that the prospective economic advantage would have been realized but for the defendant's interference." See Westside Center Associates v. Safeway Stores 23, Inc., 42 Cal. App. 4th 507, 522 (1996) (internal quotation and citation omitted). Specifically, at his deposition, Afber testified that "in this case [he] was just the messenger" who "forward[ed]" a proposed agreement to SanDisk that "was done by [PNY's] lawyers" (see Robertson Decl., filed December 14, 2016, Ex. 7 at 124:20 - 125:3), and, when asked if he was "familiar with any of the[ ] changes" to the proposed contract he forwarded to SanDisk, he answered "no" (see id. Ex. 7 at 132:10-14).
At trial, Afber confirmed his limited involvement in the negotiations, testifying that "during 2010, [the] Legal Department from both sides was working to put a contract in place" (see Trial Tr. vol. 6 at 1245:1-2), and, when asked if he was "personally involved in negotiating with SanDisk related to the agreement," responding "no." (See id. at 1245:15-19.)
PNY argues, again citing R & R Sails, that even if a sanction was warranted, the instant sanction amounted to dismissal of a claim and the Court erred by not considering "whether the claimed noncompliance involved willfulness, fault, or bad faith" and "the availability of lesser sanctions." See R & R Sails, 673 F.3d at 1247. The sanction, however, did not result in the dismissal of a claim, as PNY offered other evidence to support the claim and the matter was submitted to the jury. Cf. id. at 1242 (reviewing propriety of order excluding as discovery sanction sole evidence plaintiff sought to offer to support claim and of subsequent order granting judgment as matter of law to defendant in light of plaintiff's lacking any admissible evidence to support claim). As the Ninth Circuit has held, even if a discovery sanction is "onerous," i.e., the sanction makes it "much more difficult, perhaps almost impossible," for the sanctioned party to establish the claim at issue, a district court is not required to "identify willfulness, fault, or bad faith" where, as here, the sanction is "less than a dismissal." See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (internal quotation and citation omitted).
Accordingly, PNY having failed to show its untimely disclosure was harmless, PNY has failed to show the Court erred in excluding such evidence.
b. Possible Recall of Afber
PNY argues "[t]he Court's refusal to allow PNY to re-call [sic] . . . Afber was erroneous." (See Pl.'s Mot. for New Trial at 16:2.) As discussed below, however, PNY never sought leave to recall Afber, and, consequently, cannot show any such error was made.
On the sixth day of trial, PNY called Afber in its case-in-chief. After cross-examination was completed, PNY indicated it had no questions on redirect, and the Court excused Afber. (See Trial Tr. vol. 6 at 1254:1-4.) PNY next stated it would call Christian Tregillis ("Tregillis"), an expert witness, and Miller Kaplan requested a hearing outside the presence of the jury, which request was granted, and the matter was addressed in that manner. (See id. at 1254:7-23.) During the course of those proceedings, in response to a question by the Court, Miller Kaplan indicated it would not call Afber in the defense case, after which the Court stated "he's welcome to stay." (See id. at 1254:25 - 1255:3.) PNY expressed no concern as to Afber's presence, and he thereafter remained in the courtroom.
At the Pretrial Conference, the Court ordered all witnesses, with the exception of experts and designated representatives of each party, excluded from the courtroom at all times other than when testifying. (See Tully Decl., filed February 3, 2017, Ex. B at 43:25 - 44:15.) Afber was neither an expert nor a designated representative of PNY.
Miller Kaplan then argued that the testimony given by Afber was insufficient to lay a sufficient factual foundation for the "lost profits analysis" as to which Tregillis was expected to opine, and PNY argued Afber's testimony was sufficient. (See Trial Tr. vol. 6 at 1255:5 - 1261:19.) After the Court indicated it did not have the same recollection of Afber's testimony as recounted by PNY, the Court noted two possible ways to resolve the matter, specifically, PNY could "put [Afber] back on to clarify whatever he did" or the Court could "have the reporter read back the testimony that he did give." (See Trial Tr. vol. 6 at 1262:16-20.) PNY stated nothing in response to the Court's suggested alternatives, whereas Miller Kaplan stated an objection to allowing PNY to recall Afber, given his having "heard everything [counsel and the Court] just said." (See id. at 1262:24 -25.)
In his expert report, Tregillis opined that PNY lost millions of dollars in profits as a result of its inability to enter into a contract under which SanDisk would have agreed to sell products to PNY at a rate lower than other suppliers. (See Robinson Decl., filed August 5, 2016, Ex. 40 ¶¶ 129-39.) --------
At that point, the Court, rather than conducting a hearing and ruling on Miller Kaplan's objection, chose to proceed with what at that time appeared to be an immediate and equally effective means for determining the substance of Afber's testimony, namely, having the court reporter read it back. (See id. at 1263:1-6.) After the court reporter had done so, the Court found Afber's testimony was insufficient to lay a factual foundation for the opinion Tregillis intended to give. (See id. at 1270:8 - 1271:20.) PNY then proposed calling either Cohen or Stuto, and the Court responded that PNY could "call anybody [PNY] want[ed] who could lay a foundation for an expert to be able to say that, if there were a contract entered, this is what would have been the savings to PNY." (See id. at 1271:21- 1272:2.) Thereafter, PNY elected to call Cohen (see id. at 1281:5-8), and, at the conclusion of Cohen's testimony, the Court found his testimony sufficient and allowed Tregillis to offer the opinion at issue (see Trial Tr. vol. 7 at 1414:12 - 1417:16).
At no time during the above-described proceedings, or at any other time during trial, did PNY request to recall Afber, let alone make an offer of proof as to what additional testimony Afber would have given if recalled. Had PNY made such a request, the Court would have considered Miller Kaplan's objection in light of the posture of the case at that time and the nature of Afber's anticipated testimony. Given no such request by PNY was made, however, the Court had no occasion to consider whether circumstances might exist to warrant allowing Afber to be recalled irrespective of his presence in the courtroom during a discussion of the testimony he had given.
In sum, the Court finds PNY has failed to show any error was made with respect to Afber.
c. Miller Kaplan's Closing Argument
Before closing arguments began, the Court, in addressing a concern raised by PNY outside the presence of the jury, stated that Miller Kaplan could not, with respect to the emails the Court had excluded, argue in a manner that would "leave someone with the idea that something existed and [PNY] didn't put it in" (see Trial. Tr. vol. 9 at 1655:7-12), "as opposed to, gee, they don't have anything in writing" (see id.). The Court explained that it would be inappropriate to state that "somebody doesn't give something that they can get their hands on," as that would suggest "a consciousness of a weak case," i.e., that "you've got it and you're not putting it in because you know it hurts you." (See id. at 1657:13-19.)
PNY argues it is entitled to a new trial because, it asserts, Miller Kaplan, in its closing argument, made misleading statements concerning PNY's lost profits theory in violation of the above-described ruling, and the Court erroneously overruled PNY's objections to said argument. As discussed below, however, PNY fails to identify any misleading statements made by Miller Kaplan in its closing argument.
During Miller Kaplan's closing argument, the following occurred:
[Counsel for Miller Kaplan]: You'll be shown a jury instruction, Introduction to Tort Damages, and it talks about lost profits, and it says a couple things. One is PNY has the burden to prove that it actually lost profits with reasonable certainty; and, second, that you cannot speculate about damages or what caused the damages.(See id. at 1768:18 - 1770:4 (emphasis added.)
So now let's quickly look at the evidence that you've got. And basically all the evidence you've got are some secondhand comments from Mr. Cohen about a conversation with Sanjay in May of 2011. Cohen says there were negotiations, but he wasn't involved in them. He says his team was. The head of purchases, Afber, he says, "I wasn't involved in them either." Those were the only two witnesses they asked anything on. PNY hasn't identified who, what's the name of the person involved in the negotiations. They haven't done that. They certainly didn't call anybody who was involved in those negotiations. Cohen says that PNY and SanDisk insisted that there be a written agreement, because they didn't want a repeat of [the] dispute in 2009. But PNY produces no evidence of any contract whatsoever, much less what the terms might be. And if we go to 10b, they haven't produced a single document having anything to do --
[Counsel for PNY]: Objection.
[Counsel for Miller Kaplan]: I thought that was okay to state.
The Court: I think it is as long as you're not suggesting that any document was withheld.
[Counsel for Miller Kaplan]: I'm not.
The Court: All right.
[Counsel for Miller Kaplan]: They haven't provided you with a single document about anything concerning those discussions.
Furthermore, look at it from the SanDisk point of view. Cohen says he met with Sanjay about possible sales. They haven't called Sanjay. No deposition testimony from him. And you heard Brelsford. PNY didn't ask any questions of Brelsford about this. In fact, there's not a single SanDisk document or witness about anything concerning these discussions.
[Counsel for PNY]: Objection again, your Honor.
The Court: I'll overrule.
PNY argues the portions of the argument underlined above were "misstatements," and, additionally, were made "[d]espite the Court's specific rulings." (See Pl.'s Mot. for New Trial at 6:8-9, 19.) PNY fails, however, to identify any misstatement, and, indeed, the challenged portions of the argument were not misstatements, as PNY and SanDisk never reached an agreement and PNY elected not to call any SanDisk witness at trial. Nor were the challenged remarks made in violation of the Court's order, as they neither state nor suggest that PNY was in possession of a proposed contract but declined to offer it, or that PNY was in possession of other documents related to negotiations but withheld them from the jury.
In sum, PNY has failed to show the Court erred in overruling PNY's objections to the above-referenced argument.
d. Conclusion as to Disruption in Contractual Negotiations
Accordingly, PNY has failed to show it is entitled to a new trial on its theory that Miller Kaplan's issuance of the audit report was a substantial factor in causing SanDisk to end negotiations as to a possible sales agreement between SanDisk and PNY.
CONCLUSION
For the reasons stated above, PNY's motion for a new trial is hereby DENIED.
IT IS SO ORDERED. Dated: March 20, 2017
/s/_________
MAXINE M. CHESNEY
United States District Judge