United States ex rel. Morsell v. NortonLifeLock, Inc.

• Decision Date: 25 August 2021
• Docket Number: Civil Action No. 12-800 (RC)
• Parties: UNITED STATES of America EX REL. Lori MORSELL, et al., Plaintiffs, v. NORTONLIFELOCK, INC. (f/k/a Symantec Corporation), Defendant.
• Court: U.S. District Court — District of Columbia

567 F.Supp.3d 248

UNITED STATES of America EX REL. Lori MORSELL, et al., Plaintiffs,

v.NORTONLIFELOCK, INC. (f/k/a Symantec Corporation), Defendant.

Civil Action No. 12-800 (RC)

United States District Court, District of Columbia.

Signed August 25, 2021

Christopher Bowmar Mead, Schertler Onorato Mead & Sears LLP, Deborah Bradley Clements, Lance Alan Robinson, Mark London, London & Mead, Washington, DC, for Plaintiffs.

Anne B. Perry, David Lloyd Douglass, Jonathan S. Aronie, Christopher Michael Loveland, David T. Fischer, Keeley Allison McCarty, Sheppard Mullin Richter & Hampton LLP, Bradley A. Klein, Gregory Michael Luce, John Anthony James Barkmeyer, Skadden Arps Slate Meagher & Flom LLP, Alexander Wood Major, McCarter & English, LLP, Washington, DC, Matthew E. Sloan, Skadden, Arps, Slate, Meagher & Flom LLP, Los Angeles, CA, for Defendant.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE UNITED STATES’ MOTION IN LIMINE ; GRANTING IN PART AND DENYING IN PART NORTON'S MOTIONS IN LIMINE ; DENYING AS MOOT NORTON'S MOTION TO BIFURCATE TRIAL

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

This case concerns the Federal Government's ("Government") Federal False Claims Act ("FCA") claims, and the related state claims of California, Florida, and Relator Morsell on behalf of New York (collectively, "the States"), against Defendant NortonLifeLock Incorporated ("Norton").¹ The Government and Norton each filed motions in limine to exclude certain evidence from trial. The Court largely denies these motions, as explained below.² However, the Court grants the Government's motion to the following extent: (1) Norton may not introduce the deposition designations of its own employees or former employees except upon further motion as explained herein; (2) Norton expert Avram Tucker may not offer opinions regarding whether sales for products having stock-keeping-unit numbers ("SKUs") not found on the relevant contract's pricelist should be included for damages; (3) Tucker may not offer opinions regarding which sales are appropriate to consider in damages calculations based on their terms and conditions; (4) Tucker may not opine on whether order-level discount calculations are required in this case; (5) Tucker may not opine that Norton did not consider individual line items to be deals; and (6) Tucker may not offer opinions criticizing Government expert Dr. David A. Gulley merely for assuming liability for damages relating to the resellers’ and distributors’ sales. The Court also grants Norton's motions to the following extent: (1) Government expert Professor Ralph C. Nash may not offer his "first opinion," as it is characterized in the briefs; (2) Nash may not opine on the meaning of the contract terms at issue in this case; (3) California may not present testimony from the four late-disclosed individuals except upon further motion as explained herein; (4) Gulley may not present calculations of the assumed 2% rebates discussed below; (5) the States’ damages experts may not offer opinions to the extent they rely upon excluded opinions of other experts; and (6) Relator expert Seth Fliegler may not opine on whether Norton failed to provide New York proper pricing discounts as required by their agreement.³

II. BACKGROUND

The general background of this case has been laid out in previous opinions. See United States ex rel. Morsell v. Symantec Corp. , 471 F. Supp. 3d 257, 267–76 (D.D.C. 2020) ; United States ex rel. Morsell v. Symantec Corp. , No. 12-cv-800, 2020 WL 1508904, at *1–3 (D.D.C. Mar. 30, 2020) ; United States ex rel. Morsell v. NortonLifeLock, Inc. , No. 12-cv-800, 560 F.Supp.3d 32, 36–38 (D.D.C. Aug. 3, 2021). To summarize, the Government and the States claim that Norton violated the FCA, common law, state false claims acts, and state contract law when, "in the process of setting pre-negotiated maximum prices for government purchasers with the General Services Administration, Symantec overcharged them by misrepresenting the existence of certain prices and discounts that were available to Symantec's private customers and by consequently failing to offer government purchasers the same low prices these customers received." Morsell , 471 F. Supp. 3d at 267. Norton was "required to make certain representations and to provide details about their discounting policies" in their Commercial Sales Practices Format ("CSPs") disclosures, id. at 269, which were part of Norton's contract, see id. at 281–82. Norton's contract also contained a Price Reduction Clause ("PRC"), which "ensures that the Government's prices are reduced if [an agreed-upon] customer or category of customers is given lower pricing or increased discounts." Id. at 270.

The Government moves to exclude three categories of evidence: (1) "a July 1990 Procurement Information Bulletin," referred to as Bulletin 90-24; (2) Norton's designations of depositions of its own employees or former employees; and (3) expected testimony by Norton expert Avram Tucker that supposedly addresses contract interpretation and matters beyond his expertise.⁴ U.S.’ Mot. in Lim. & Mem. Supp. Thereof ("U.S. Mot.") at 1–2, ECF No. 210. This motion is fully briefed. See Norton's Opp'n to U.S.’ Mot. in Lim. & Mem. in Supp. Thereof ("Norton Opp'n"), ECF No. 229; U.S.’ Reply Supp. Mot. in Lim. ("U.S. Reply"), ECF No. 235.

Norton moves to exclude six categories of evidence: (1) all testimony of Government expert Ralph C. Nash, Def.’s Mot. in Lim. No. 1 ("Norton Mot. 1"), ECF No. 212; (2) any "evidence in support of any alleged false statements or false claims not identified in the [operative complaint], or through discovery" (and "order Plaintiffs to identify each and every false statement and claim falsity that they intend to prove at trial"), Def.’s Mot. in Lim. No. 2 ("Norton Mot. 2"), ECF No. 213; (3) documents and testimony not properly disclosed in discovery, Def.’s Mot. in Lim. No. 4 ("Norton Mot. 4"), ECF No. 215; (4) evidence that Norton contends "is irrelevant as a matter of law to the analysis of scienter under the [FCA]," Def.’s Mot. in Lim. No. 5 ("Norton Mot. 5"), ECF No. 216; (5) certain testimony of Government expert Dr. Allison Holt, Def.’s Mot. in Lim. No. 6 ("Norton Mot. 6"), ECF No. 219; and (6) all testimony from Government expert Dr. David A. Gulley, Florida expert Dr. Jamie M. Baldwin, California expert Dr. Zachary Nye, and Relator expert Seth Fliegler, Def.’s Mem. P. & A. Supp. Mot. in Lim. No. 7 ("Norton Mot. 7"), ECF No. 220-1.⁵ These motions are fully briefed. U.S.’ Combined Opp'n Def.’s Mots. in Lim. ("U.S. Opp'n"), ECF No. 231; States’ Joint Opp'n Def.’s Mots. in Lim. Nos. 2, 4 & 7 ("States’ Opp'n"), ECF No. 228-2; Def.’s Reply Br. Supp. Mot. in Lim. Nos. 1, 2, 4 & 5 ("Norton Reply Nos. 1, 2, 4 & 5"), ECF No. 237; Def.’s Omnibus Reply Br. Supp. Mots. in Lim. Nos. 6 & 7 ("Norton Reply Nos. 6 & 7"), ECF No. 238.

III. LEGAL STANDARD

"While neither the Federal Rules of Civil Procedure nor the Federal Rules of [E]vidence expressly provide for motions in limine , the Court may allow such motions ‘pursuant to the district court's inherent authority to manage the course of trials.’ " Barnes v. District of Columbia , 924 F. Supp. 2d 74, 78 (D.D.C. 2013) (quoting Luce v. United States , 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) ). "Motions in limine are designed to narrow the evidentiary issues at trial." Williams v. Johnson , 747 F. Supp. 2d 10, 14 (D.D.C. 2010). "[A] motion in limine should not be used to resolve factual disputes or weigh evidence." C & E Servs., Inc. v. Ashland Inc. , 539 F. Supp. 2d 316, 323 (D.D.C. 2008) (citation omitted).

"In evaluating the admissibility of proffered evidence on a pretrial motion in limine the court must assess whether the evidence is relevant and, if so, whether it is admissible, pursuant to Federal Rules of Evidence 401 and 402." Daniels v. District of Columbia , 15 F. Supp. 3d 62, 66 (D.D.C. 2014). "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401. Relevant evidence is admissible unless otherwise provided by the U.S. Constitution, a federal statute, the Federal Rules of Evidence, or other rules prescribed by the U.S. Supreme Court. See Fed. R. Evid. 402. "Irrelevant evidence is not admissible." Id.

Although Federal Rule of Evidence 403 provides, in relevant part, that a court may "exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice," Fed. R. Evid. 403, this portion of the Rule has a highly limited application, if any at all, to bench trials. See Schultz v. Butcher , 24 F.3d 626, 632 (4th Cir. 1994) (holding that "in the context of a bench trial, evidence should not be excluded under 403 on the ground that it is unfairly prejudicial"); Gulf States Utils. Co. v. Ecodyne Corp. , 635 F.2d 517, 519 (5th Cir. Unit A 1981) (holding that Rule 403 "has no logical application to bench trials" and that "excluding relevant evidence on the basis of ‘unfair prejudice’ [in a bench trial] is a useless procedure").

Federal Rule of Evidence 702 provides that qualified expert testimony is admissible if "(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed. R. Evid. 702. A witness may qualify as an expert through knowledge, skill, experience, training or education. Id. "In general, Rule 702 has been interpreted to favor admissibility." Khairkhwa v. Obama , 793 F. Supp. 2d 1, 10 (D.D.C. 2011) (citing Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (...