Koch v. Koch Industries, Inc.

• Decision Date: 20 March 1998
• Docket Number: No. 85-1636-SAC.,85-1636-SAC.
• Citation: 2 F.Supp.2d 1385
• Parties: William I. KOCH, et al., Plaintiffs, v. KOCH INDUSTRIES, INC., et al., Defendants.
• Court: U.S. District Court — District of Kansas

2 F.Supp.2d 1385

William I. KOCH, et al., Plaintiffs, v. KOCH INDUSTRIES, INC., et al., Defendants.

No. 85-1636-SAC.

United States District Court, D. Kansas.

March 20, 1998.

COPYRIGHT MATERIAL OMITTED

Clifford L. Malone, Adams, Jones, Robinson & Malone, Wichita, Thomas E. Wright, Wright, Henson, Somers, Sebelius, Clark & Baker, LLP, Topeka, Harry L. Najim, Najim Law Offices, Wichita, John T. Hickey, Jr., Alex Dimitrief, Kirkland & Ellis, Chicago, IL, Ellen A. Cirangle, Bartlit, Beck, Herman, Palenchar & Scott, Denver, CO, Gregory S.C. Huffman, L. James Berglund, II, Thompson & Knight, Dallas, TX, Russell E. Brooks, Milbank, Tweed, Hadley & McCloy, New York, NY, Stephen M. Joseph, Redmond & Nazar, L.L.P., Wichita, Michael Paul Kirschner, Lee & Kirschner, P.L.L.C., Oklahoma City, OK, for William I Koch, Oxbow Energy Inc, L.B. Simmons Energy Inc. dba Rocket Oil Company, United States Trust Company of New York, as Trustee, Spring Creek Art Foundation Inc, Gay A. Roane, Ann Alspaugh, Marjorie Simmons Gray, as Trustee, Northern Trust Company, as Trustee, Marjorie L. Simmons, as Trustee, Louis Howard Andres Cox, Paul Anthony Andres Cox, Holly A. Andres Cox Farabee, Frederick R. Koch, Nationsbank N A, co-trustee of the Louis Howard Andres Cox Trusts B & D, plaintiffs.

James M. Armstrong, Robert L. Howard, Timothy B. Mustaine, Foulston & Siefkin L.L.P., Donald L. Cordes, Koch Industries, Inc., Wichita, for Koch Industries Inc., Charles G. Koch, Sterling V. Varner, David H. Koch, Donald L. Cordes, Thomas M. Carey, defendants.

Michael W. Merriam, Gehrt & Roberts, Chartered, Daniel R. Lykins, Bryan, Lykins & Hejtmanek, P.A., Topeka, for Kansas Press Association, Kansas Association of Broadcasters, Wichita Eagle-Beacon, Topeka Capital-Journal, WIBW-TV, Kansas City Star Company, the Wichita Business Journal, Harris Enterprises, Inc., Koch Crime Comm, movants.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

The case comes before the court on a number of pretrial filings. The plaintiffs have filed the following motions in limine: Number 1—Post 1985 Lawsuits (Dk.663); Number 2—Plaintiffs' Consultations with Health Professionals (Dk.664); Number 3— Plaintiffs' Lifestyles (Dk.664); Number 4— Plaintiffs' "Reneging" on other Business Deals (Dk.664); Number 5—Plaintiffs' Post Filing Investigations of Defendants (Dk.664); Number 6—Pretrial Judicial Commentary (Dk.665); Number 7—Withdrawal or Dismissal of Claims (Dk.666); and Number 8— Lawyers and Experts (Dk.667). The defendants have filed the following motions in limine: Number 1—Exclude Allegations of Document Destruction (Dk.668); Number 2—Exclude Improper Testimony on Accounting Issues (Dk.669); Number 3—Exclude Testimony of Kenneth McGraw on Changed Method of Valuation and Assignment of Value to Premium for Control (Dk.670); and Number 4—Exclude Testimony of John O'Brien on Value of Pine Bend Refinery (Dk.671). After duly considering the memoranda and all relevant law, the court rules as follows.

GENERAL RULES GOVERNING MOTIONS IN LIMINE

The motion in limine is a creature of neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence. Deghand v. Wal-Mart Stores, Inc., 980 F.Supp. 1176, 1179 (D.Kan.1997). Its purpose is "`to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.'" Palmieri v. Defaria, 88 F.3d 136, 141 (2nd Cir.1996) (quoting Banque Hypothecaire Du Canton De Geneve v. Union Mines, Inc., 652 F.Supp. 1400, 1401 (D.Md.1987)). Besides saving trial time, pretrial rulings often may save the parties time, effort and cost in preparing and presenting their cases. Pivot Point Intern., Inc. v. Charlene Products, Inc., 932 F.Supp. 220, 222 (N.D.Ill.1996). On the other hand, a court is almost always better situated during the actual trial to assess the value and utility of evidence. For this reason, some courts defer making in limine rulings unless the "evidence is clearly inadmissible on all potential grounds." Hawthorne Partners v. AT & T Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D.Ill.1993) ("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.")

Having a deep appreciation for the potential savings from in limine rulings, this court does not take the strict approach followed by some courts. Still, the court believes the better practice is to wait until trial to rule on objections when admissibility substantially depends upon what facts may be developed there. See Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 395, 46 L.Ed.2d 303 (1975); Hunter v. Blair, 120 F.R.D. 667 (S.D.Ohio 1987). This is particularly the case when a ruling in limine would have little impact on the parties' evidentiary burdens or preparation for trial. Cipollone v. Liggett Group, Inc., 644 F.Supp. 283, 286 (D.N.J.1986). The movant has the burden of demonstrating that the evidence is inadmissible on any relevant ground. Plair v. E.J. Brach & Sons, Inc., 864 F.Supp. 67, 69 (N.D.Ill.1994). The court may deny a motion in limine when it "lacks the necessary specificity with respect to the evidence to be excluded." National Union v. L.E. Myers Co. Group, 937 F.Supp. 276, 287 (S.D.N.Y. 1996).

At trial, the court may alter its limine ruling based on developments at trial or on its sound judicial discretion. Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). "Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted at trial." Hawthorne Partners v. AT & T Technologies, Inc., 831 F.Supp. at 1401. Denial only means that the court cannot decide admissibility outside the context of trial. Plair v. E.J. Brach & Sons, Inc., 864 F.Supp. at 69. A ruling in limine does not "relieve a party from the responsibility of making objections, raising motions to strike or making formal offers of proof during the course of trial." Thweatt v. Ontko, 814 F.2d 1466, 1470 (10th Cir.1987) (internal quotation omitted).

PLAINTIFFS' MOTIONS IN LIMINE

By their motions, the plaintiffs seek an order in limine that would exclude all references and evidence concerning eight separate areas. Based on the memoranda filed in response and reply, the court believes the parties agree that a limine order should issue on three of those areas. Thus, the court orders that all parties and counsel are precluding from presenting evidence or referring to the following:

1) The parties' personal lives or lifestyles, including their marital or other personal relationships, recreational interests, hobbies, passions, political or religious beliefs or unrelated financial endeavors;

2) The comments, findings, or rulings made by this court or any other court concerning the plaintiffs, the defendants or any of the claims in this case or any other litigation involving these parties; and

3) The plaintiffs' counsel or experts who have withdrawn or been replaced during this litigation, except for showing witness bias through evidence of what prior counsel may have instructed and paid expert witnesses.

The parties do not agree on the other five areas and leave them to the court for decision. Before turning to these areas, the court will summarize that law common to its rulings.

"Relevant evidence" is that evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. "Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case." Fed.R.Evid. 401 adv. comm. note. "All relevant evidence is admissible except" when exclusion is called for by the rules, by the statutes, or by constitutional considerations. Fed.R.Evid. 402. For example, the court may exclude relevant evidence when "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403.

Because one side or the other will almost always consider a piece of evidence to be prejudicial, courts generally believe the jury is best able to determine the truth when given access to all the relevant admissible evidence. S.E.C. v. Peters, 978 F.2d 1162, 1171 (10th Cir.1992). Consequently, Rule 403 sets a standard for exclusion that is "somewhat exacting." C.A. Associates v. Dow Chemical Co., 918 F.2d 1485, 1489 (10th Cir.1990). Rule 403 considerations impacted by the evidence must "substantially outweigh" its probative value. The Tenth Circuit "on numerous occasions" has said that "`exclusion of relevant evidence under Rule 403 is an extraordinary remedy to be used sparingly.'" Wheeler v. John Deere Co., 862 F.2d 1404, 1410 (10th Cir.1988) (citations omitted); see Joseph v. Terminix Intern. Co., 17 F.3d 1282, 1284 (10th Cir.1994). Balancing the probative value of and need for evidence against the competing considerations of Rule 403 is a task for which the trial judge by his position and familiarity with the case is particularly well suited. McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1257 (10th Cir.1988). In weighing the factors under Rule 403, the court should generally "`give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.' 1 J. Weinstein & M. Burger, Weinstein's Evidence ¶ 403[03], at 403-25 to 403-26 (1982)." K-B Trucking Co. v. Riss Intern. Corp., 763 F.2d 1148, 1155 n. 9 (10th Cir.1985). Finally, a 403 inquiry focuses on whether...