The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
CHAMPIONX, LLC, f/k/a WINDROCK, INC., )
)
Plaintiff, )
)
v. ) No. 3:21-CV-288-TAV-JEM
)
RESONANCE SYSTEMS, INC., et al., )
)
Defendants. )
MEMORANDUM AND ORDER
This case is before the Court pursuant to 28 U.S.C. § 636, the Rules of this Court, and the
Order [Doc. 455] referring this matter by United States District Judge Thomas A. Varlan.
Now before the Court is Defendants’ Motion in Limine to Exclude Evidence Regarding
Expert Witness James Plank’s Prior Arbitration with StreamScale, Inc. [Doc. 372]. Plaintiff
responded in opposition to the motion [Doc. 392], and Defendants replied [Doc. 413].
Also before the Court is Plaintiff’s Motion to Reopen Deposition of Defendants’ Expert
Witness Dr. James Plank and for Sanctions [Doc. 393]. Defendants responded in opposition to the
motion [Doc. 425], and Plaintiff filed a reply [Doc. 431].
The motions are ripe for adjudication. See E.D. Tenn. L.R. 7.1(a). For the reasons stated
below, the Court GRANTS IN PART AND DENIES IN PART Defendants’ motion in limine
[Doc. 372] and DENIES Plaintiff’s motion to reopen the deposition [Doc. 393].
I. BACKGROUND
On February 21, 2024, Plaintiff’s counsel took the deposition of Defendants’ expert, James
S. Plank, Ph.D. (“Dr. Plank”) [Doc. 392-1 p. 1]. Plaintiff’s counsel asked Dr. Plank whether he had
ever been a party to a lawsuit [Id. at 5]. Dr. Plank responded that in 2014, StreamScale Inc.,
(“StreamScale”), where he had been a consultant, named him as a defendant and accused him of
“[i]mproper information disclosure” [Id.]. He testified that he had signed a nondisclosure
agreement and StreamScale alleged that he violated that agreement [Id.]. Dr. Plank further testified
that he and StreamScale participated in arbitration where they agreed to settle “and no blame was
assigned either way” [Id.]. As part of the arbitration, Dr. Plank signed a confidentiality agreement
[Id.]. Plaintiff’s counsel asked if source code was involved in that litigation, and Dr. Plank
responded, “I’m actually not going to answer. Again, I signed a confidentiality agreement about
that suit, and I’m not comfortable disclosing details” [Id.]. Defense counsel stated, “I’m going to
object. That’s a privilege[] between him and his attorney at the time. Dr. Plank is asserting
privilege” [Id.].
Later, during the depositions, Plaintiff’s counsel raised the issue again [Id. at 6]. He asked
if the lawsuit involved source code, and Dr. Plank stated, “And I signed a confidentiality
agreement, and I plan to honor that completely. So I’m not going to answer that question” [Id.].
The parties took a break, and upon return, defense counsel stated:
So, Dr. Plank has entered into an agreement in this other case. He
would be from what I understand, he would be violating that
agreement if he answered any further questions. Also a lot of the
information is attorney-client privilege. I have not received the
agreement or talked to the attorney. It’s difficult for me to fully
evaluate the privilege and address each of these questions, so until I
can do that, I’m instructing him not to answer any further questions
on this case.
[Id.]. Upon questioning by Plaintiff’s counsel, defense counsel agreed to review the agreement for
the purpose of possibly changing his instruction to Dr. Plank [Id.].
Following the deposition, in an email dated February 23, 2024, Plaintiff’s counsel stated:
“Please let us know as soon as possible whether Defendants will instruct Dr. Plank not to answer
any questions regarding the aforementioned arbitration matter, whether Dr. Plank will maintain his
refusal to answer any further questions concerning the arbitration or whether Dr. Plank will
respond to such questions” [Doc. 392-1 p. 8]. Plaintiff’s counsel followed up on March 1, 2024
[Id. at 9]. The parties agreed that Defendants needed to put StreamScale on notice of Plaintiff’s
inquiries [Id. at 11–13].
Later, Plaintiff’s counsel requested to resume Dr. Plank’s deposition and agreed to allow
StreamScale’s attorney to be present [Id. at 17–23]. The parties reached an impasse on whether to
reconvene Dr. Plank’s deposition [Id.].
Defendants now seek an order “prohibiting [Plaintiff], its counsel, and its witnesses from
presenting any evidence or arguments or otherwise referring to an arbitration proceeding filed
against Defendants’ expert witness, [Dr. Plank]” [Doc. 372 p. 1]. Pursuant to Rules 401 and 608
of the Federal Rules of Evidence, Defendants state that the StreamScale Arbitration and the
StreamScale Settlement are irrelevant, especially “because neither StreamScale nor Dr. Plank
admitted any fault” [Doc. 373 p. 5]. In addition, relying on Rule 403, Defendants submit that
allowing Plaintiff to cross-examine Dr. Plank about the StreamScale Arbitration or the StreamScale
Settlement will be confusing and mislead the jury because Dr. Plank “will be forced to testify on
his dispute with StreamScale” [Id.]. They explain that “[i]f Plaintiff is allowed to cross-examine
Dr. Plank about the StreamScale Arbitration or the StreamScale Settlement, Dr. Plank’s hands will
be tied, and he will be forced to refuse to testify on his dispute with StreamScale, just as he did at
his deposition” [Id.]. In addition, according to Defendants, allowing Plaintiff to discuss the
StreamScale Settlement and the StreamScale Arbitration “would effectively turn [this case] into a
‘mini-trial’ concerning improper considerations painting Dr. Plank as an uncredible witness”
[Id. at 6]. Stating that Dr. Plank’s testimony “goes to the very heart of Defendants’ defense[],” they
argue that allowing such evidence “would undermine Dr. Plank’s credibility and resultantly and
unfairly prejudice Defendants and hamstring [their] defense” [Id. at 7].
Plaintiff responds that “[n]either Defendants’ arguments nor their cited caselaw are
sufficient to support this [m]otion” [Doc. 392 p. 3]. It contends that “the jury should be permitted
to evaluate the issues in [Dr.] Plank’s arbitration” [Id. at 5]. According to Plaintiff, “[a]t a
minimum, the arbitration appears to have some similarity to the allegations in this case—improper
disclosure of confidential information” [Id.]. Although Defendants claim that “Dr. Plank’s hands
will be tied[,]” if asked questions about the StreamScale Arbitration and StreamScale Settlement,
Plaintiff states this argument “ignores the Court’s inherent authority over witnesses and evidence
and ignores that his testimony would be subject to the Protective Order entered in this cause”
[Id. at 6]. Given that Defendants call Dr. Plank a “key witness,” Plaintiff should be allowed to test
his credibility and bias [Id.].
Defendants reply that Dr. Plank’s opinions are not related to violations of non-disclosure
agreements [Doc. 413 p. 1]. While Plaintiff states it should be able to test bias, Defendants argue
that StreamScale’s accusation against Dr. Plank “should not be allowed to imply bias when it is
not directly related to Dr. Plank’s opinion or his expertise” [Id. at 3].
Before Defendants replied, on May 13, 2024, Plaintiff filed its motion to reopen, which
largely relies on its response to Defendants’ motion in limine [Doc. 393].
Defendants responded to the motion to reopen asserting that Plaintiff did “not compl[y]
with the Court’s order regarding discovery procedures in bring this motion” [Doc. 425 p. 2]. They
also rely on the briefing to their motion in limine [Id. at 2–3]. To the extent the Court allows
Dr. Plank to be re-deposed, Defendants request that “a protective order be entered limiting
Dr. Plank’s deposition testimony to testimony that does not cause him to violate the StreamScale
Agreements” [Id. at 3].
Plaintiff replies that it did not follow the discovery dispute procedure because Defendants
initially raised this issue in their motion in limine and the issue is related to Plaintiff’s response to
that motion [Doc. 431 p. 1]. In addition, Plaintiff contends that, at the time, “trial was imminent”
[Id.]. While Defendants seek a protective order, Plaintiff argues “seeking affirmative relief in a
[r]esponse is not procedurally correct” [Id. at 2 (citation omitted)]. Further, Plaintiff states that the
existing Protective Order in this case protects Dr. Plank’s testimony relating to StreamScale, and
the Court has the authority to direct Dr. Plank to respond to questions [Id. (citation omitted)].
According to Plaintiff, Defendants’ requested protective is “illogical” because it does not know
what questions would violate the StreamScale Agreement and it appears that any question would
be a violation [Id. at 2–3].1
II. DEFENDANTS’ MOTION IN LIMINE
“Motions in limine allow the court to rule on evidentiary issues prior to trial in order to
avoid delay and focus pertinent issues for the jury’s consideration.” Greene v. LEDVANCE LLC,
No. 3:21-CV-256, 2024 WL 4181777, at *1 (E.D. Tenn. Sept. 12, 2024) (quoting United States v.
Amir, No. 1:10-CR-439, 2011 WL 3862013, at *1 (N.D. Ohio Aug. 31, 2011)). “Motions in limine
are generally used to ensure evenhanded and expeditious management of trials by eliminating
evidence that is clearly inadmissible for any purpose.” Ind. Ins. Co. v. Gen. Elec. Co.,
326 F. Supp. 2d 844, 846 (N.D. Ohio 2004) (citation omitted). “A ruling on a motion in limine is
no more than a preliminary, or advisory, opinion that falls entirely within the discretion of the
1 On July 22, 2024, Dr. Plank filed a Motion for Protective Order [Doc. 440], requesting that
that the Court enter a protective order prohibiting another deposition.
district court.” Greene, 2024, WL 4181777, at *1 (quoting United States v. Yannott, 42 F.3d 999,
1007 (6th Cir. 1994)).
Defendants seek to prohibit Plaintiff from presenting arguments or evidence regarding
Dr. Plank’s arbitration with StreamScale, arguing that such evidence is irrelevant. Defendants
assert that inquiries about the StreamScale arbitration have no probative value. Plaintiff responds
that Dr. Plank’s previous arbitration is relevant for purposes of his credibility and bias at trial,
reasoning that “the arbitration appears to have some similarity to the allegations in this case”
[Doc. 392 p. 5]. It states that “[h]aving been accused himself, there is at least an argument that
[Dr.] Plank is biased in favor of programmers like [Defendant] Kelley who are accused of violating
[non-disclosure agreements], in addition to biased toward freely using or sharing work created or
held in confidence for someone else” [Id. at 5–6].
Rule 401 defines relevant evidence as evidence that “has any tendency to make a fact more
or less probable than it would be without the evidence[] and . . . the fact is of consequence in
determining the action.” Fed. R. Evid. 401(a)–(b). Rule 608(b) states that “extrinsic evidence is
not admissible to prove specific instances of a witness’s conduct in order to attack or support the
witness’s character for truthfulness. But the court may, on cross examination, allow them to be
inquired into if they are probative of the character for truthfulness or untruthfulness of . . . the
witness.” Fed. R. Evid. 608(b)(1).
“[C]ourts routinely exclude evidence about the prior litigation history and the disciplinary
records of expert witnesses.” Ferris v. Tenn. Log Homes, Inc., No. CIVA4:06CV-35-M,
2010 WL 1049852, at *1 (W.D. Ky. Mar. 19, 2010) (collecting cases). But courts will allow such
inquiries “when doing so is of sufficiently probative value.” Id. at *2; see also In re Aqueous Film-
Forming Foams Prod. Liab. Litig., No. 2:18-CV-3487-RMG, 2023 WL 3409041, at *2
(D.S.C. May 12, 2023) (granting motion in limine to exclude expert’s alleged violation of certain
laws because the inquiry was not “of any probative value”); Giles v. Sam’s E., Inc.,
No. 118CV00170, 2021 WL 6274876, at *5 (W.D. Ky. Sept. 23, 2021) (explaining that evidence
of past malpractice claims “may be admissible when it is of sufficiently probative of value”). And
“[t]he partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting
the witness and affecting the weight of his testimony.’” Davis v. Alaska, 415 U.S. 308, 316 (1974)
(quoting 3A J. Wigmore, Evidence s 940, p. 775 (Chadbourn rev. 1970)); see also In re Davol,
Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prod. Liab. Litig., 510 F. Supp. 3d 538, 556
(S.D. Ohio 2020) (explaining how evidence of bias is relevant and “ultimately an issue for the
jury” (citation omitted)).
According to Defendants, “Dr. Plank has retained the data file created by Windrock’s
analyzer, the source code of both parties, and render opinions related to both. Dr. Plank was not
retained to evaluate a non-disclosure agreement or opine on whether a non-disclosure agreement
was violated” [Doc. 413 p. 1]. But Defendants also retained Dr. Plank to “[i]nvestigate and evaluate
Plaintiff’s claim that [Defendants used its] trade secret and confidential material” [SEALED
Doc. 247-11 p. 7]. He also opines that Defendant Kelley did not reverse engineer Plaintiff’s data
by accessing its source code [id.], which is not too different from the allegation that Dr. Plank
mishandled confidential information [See Doc. 440-1 ¶ 5 (“Disputes arose between StreamScale
and [Dr.] Plank concerning the Consulting Agreement with Streamscale asserting that [Dr.] Plank
had breached the confidentiality provisions of that Agreement and included some of the
confidential material in publicly disclosed materials.”)].
Bias may arise in a “vast variety of situations.” In re Davol, Inc./C.R. Bard, Inc.,
Polypropylene Hernia Mesh Prod. Liab. Litig., 575 F. Supp. 3d 942, 945 (S.D. Ohio 2021) (citation
omitted). As the Sixth Circuit has explained:
Extrinsic testimony, or that elicited by cross examination to show
the bias or interest of a witness in a cause, covers a wide range and
the field of external circumstances from which probable bias or
interest may be inferred is infinite. The rule encompasses all facts
and circumstances which, when tested by human experience, tend to
show that a witness may shade his testimony for the purpose of
helping to establish one side of a cause only.
Id. at 945–46 (quoting Majestic v. Louisville & N.R. Co., 147 F.2d 621, 627 (6th Cir. 1945)).
Considering this, and the subject matter of Dr. Plank’s opinions, the Court finds that the matter of
Dr. Plank’s arbitration with StreamScale is significantly probative. See Rheinfrank v. Abbott
Lab’ys, Inc., No. 1:13-CV-144, 2015 WL 5258858, at *1 (S.D. Ohio Sept. 10, 2015) (noting that
the experts’ malpractice lawsuits were “relevant and may be useful in helping the jury assess expert
credibility and competency on cross-examination[,]” in a product liability lawsuit, alleging that
the ingestion of Depakote during a pregnancy caused injuries to the baby); Ferris,
2010 WL 1049852, at *1 (denying the defendant’s motion in limine to exclude the appraisal board
actions against its appraiser, explaining that “the mistakes alleged to have been made in [the
expert’s] assessment of [the plaintiffs’] property are related to the same types of mistakes he
admittedly made in the assessment of the properties for which he was disciplined”); cf. In re
Aqueous Film-Forming Foams Prod. Liab. Litig., 2023 WL 3409041, at * 1–2 (granting the
plaintiff’s motion in limine to exclude the defendants from presenting evidence that their expert
was alleged to have violated Anti-Lobbying laws in a case about defendants’ contamination of the
plaintiff’s water supply, finding that defendants “have not shown this line of inquiry is of an
probative value—especially given that no wrongdoing was ever issued against [the expert]”);
Giles, 2021 WL 6274876, at *5 (“Because [the p]laintiff has not shown that the malpractice claims
are relevant to [the expert’s] opinions in this case and the introduction of the claims would involve
collateral and irrelevant matters, this testimony will be excluded.”).
But even if evidence is relevant, the Court may exclude it “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the
jury . . . , [and] wasting time . . . .” Fed. R. Evid. 403. With respect to the matter before the Court,
the Court is mindful “that extensive cross-examination on the topic could waste time and result in
mini-trials.” Rheinfrank, 2015 WL 5258858, at *8. While Dr. Plank’s general dispute with
StreamScale and how they resolved it is relevant to his credibility and alleged bias, any further
inquiries relating to these subjects beyond what Dr. Plank testified to in his deposition would be a
waste of time and would risk confusing the issues before the jury in this case. Fed. R. Evid. 403;
Magnuson v. Trulite Glass & Aluminum Sols., LLC, No. 19 C 6158, 2024 WL 1216338, at *13
(N.D. Ill. Mar. 21, 2024) (limiting the plaintiff’s cross examination of the expert witness’s previous
testimony under Rule 403, finding “any probative value from allowing such a questionable
impeachment was exceeded by the danger of confusing the jury with potentially time-consuming
subtrials, remote from the subject matter”); see also Esteban-Garcia v. Wal-Mart Stores E., LP.,
No. 21-23831, 2022 U.S. Dist. LEXIS 203580, *21 (S.D. Fla., Oct. 4, 2022) (“Moreover an inquiry
into those lawsuits would undoubtably lead to a mini trial where [the expert] would be forced to
defend his actions even though they were based on the facts entirely different from those presented
here.”); Robertson v. Neison, No. 2016CV30861, 2018 Colo. Dist. LEXIS 257, at *9 (D. Col.
Mar. 9, 2018) (“In any event, any information on [the expert’s] lawsuit including all of the
extensive background information which would necessarily have to go to the jury for fair
understanding of the issue, is completely collateral to the disputed substantive issues in his case.
Presentation of such evidence would lead to the sideshow to take over the circus and derail the
orderly completion of these proceedings.”). Hence, Dr. Plank’s concerns about answering
additional questions related to his dispute with StreamScale as violative of his settlement
agreement and how his inability to testify would cause confusion, mislead the jury, and be unfairly
prejudicial are moot.2
III. PLAINTIFF’S MOTION TO OPEN
Plaintiff seeks to reopen Dr. Plank’s deposition so that he can “answer questions about the
facts underlying his prior arbitration with StreamScale” [Doc. 393 p. 1]. It also seeks sanctions
[Id.].3
Dr. Plank testified that StreamScale alleged that he disclosed confidential information and
the parties settled during an arbitration without admitting liability [Doc. 392-1 p. 5]. StreamScale’s
counsel, Michael Adler, filed an unsworn declaration under the penalty of perjury, stating that
Dr. Plank and StreamScale signed a Consulting Agreement that contained a confidentiality
obligation [Doc. 440-1 ¶ 4]. He describes, “Disputes arose between Streamline and [Dr.] Plank
concerning the Consulting Agreement with StreamScale asserting that [he] had breached the
confidentiality provisions of that Agreement and included some of the confidential material in
publicly disclose materials” [Id.]. “StreamScale initiated an arbitration proceeding against
[Dr.] Plank[,]” and the parties settled” [Id. ¶¶ 5, 7].
2 Plaintiff offers that Dr. Plank’s testimony could be designated as “attorney’s eyes only”
[Doc. 383 p. 6], but Plaintiff does not explain how such a designation would allow any such
testimony to be introduced at a trial.
3 Defendants object to the motion because Plaintiff did not follow the Court’s Scheduling
Order that requires the parties to participate in an informal conference with the magistrate judge
[See Doc. 26 p. 3]. As Plaintiff argues, Defendants initially raised the issue in their motion in limine
[Doc. 431 p. 1]. Because Defendants’ motion in limine and Plaintiff’s motion to reopen are
“inextricably linked” [id.], the issue is not amendable to an informal discovery conference.
“On motion or on its own, the [C]Jourt must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it determines that[] . . . the discovery sought is
unreasonably cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive[.]” Fed. R. Civ. P. 26(a)(2)(C)(i). Considering the
Court’s ruling on the motion in limine, and the evidence already in the record, the Court finds that
reopening Dr. Plank’s deposition is unreasonably cumulative and duplicative under
Rule 26(a)(2)(C)().
IV. CONCLUSION
For the reasons stated above, the Court GRANTS IN PART AND DENIES IN PART
Defendants’ Motion in Limine to Exclude Evidence Regarding Expert Witness James Plank’s Prior
Arbitration with StreamScale, Inc. [Doc. 372] and DENIES Plaintiff’s Motion to Reopen
Deposition of Defendants’ Expert Witness Dr. James Plank and for Sanctions [Doc. 393].
IT IS SO ORDERED.
ENTER:
CME FL Vea
a E. McCook
United States Magistrate Judge
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