IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

AMX CORPORATION, §

 §

Plaintiff-counterdefendant,§

 § Civil Action No. 3:04-CV-2035-D

VS. §

 §

PILOTE FILMS, §

 §

Defendant-counterplaintiff.§

MEMORANDUM OPINION

 AND ORDER 

In this litigation between plaintiff-counterdefendant AMX

Corporation (“AMX”) and defendant-counterplaintiff Pilote Films

(“Pilote”), the court decides three remaining motions concerning

expert witnesses.

I

The relevant background facts and procedural history of this

case are set out in the court’s prior opinions in AMX Corp. v.

Pilote Films, 2007 WL 1695120, at *1-*2 (N.D. Tex. June 5, 2007)

(Fitzwater, J.) (“AMX I”), and need not be repeated.

Pilote has filed a June 27, 2007 motion to compel expert

payment. AMX has filed a June 28, 2007 motion to exclude expert,

in which it seeks to exclude the expert opinions of Robert A.

Hancock (“Hancock”). In addition to these two motions, in AMX

Corp. v. Pilote Films, 2007 WL 2254943 (N.D. Tex. Aug. 7, 2007)

(Fitzwater, J.) (“AMX II”), the court directed the parties to

address whether three motions that the court had denied as moot in

AMX I were in fact moot.
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[I]n AMX I the court denied as moot AMX’s

July 31, 2006 motion to exclude expert

testimony, September 26, 2006 motion for leave

to file motion for leave to designate French

law expert, and March 2, 2007 supplemental

motion to exclude expert testimony, because

the court had determined that Texas law

governed the contractual relationship between

AMX and Pilote, and it had dismissed all of

Pilote’s French-law counterclaims. AMX I,

2007 WL 1695120, at *14 n.13. Within 14 days

of the date this memorandum opinion and order

is filed, a party may identify in writing a

component of one or more of these motions that

it maintains is not moot, state briefly the

reason for its position, and request a ruling.

AMX II, 2007 WL 2254943, at *14.

In response to AMX II, AMX submitted an August 8, 2007 letter

stating that its July 31, 2006 motion to exclude expert testimony,

in which it seeks to exclude the testimony of Pilote’s French law

expert——Philippe L. Migeot (“Migeot”)——is moot. According to AMX,

Migeot offered no opinions on the remaining allegations of Pilote’s

only surviving French-law claim. It also states, however, that if

Pilote intends to use Migeot’s testimony at trial, the court should

consider AMX’s motion and exclude Migeot’s testimony. AMX submits

that its June 28, 2007 motion to exclude Pilote’s damages expert,

Hancock, is moot in view of the court’s decision in AMX II

concerning Pilote’s motion for reconsideration and AMX’s motion for

partial summary judgment. It also states, however, that if Pilote

intends to use Hancock’s testimony at trial, the court should

consider AMX’s motion and exclude Hancock’s testimony.

Pilote submitted an August 21, 2007 letter setting out its
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position. It maintains that Migeot will offer opinions pertinent

to Pilote’s remaining French-law counterclaim under Article L.

442-6 6o

 of the French Commercial Code. And it contends that

Hancock will offer opinions on damages that are pertinent to the

pre-February 1, 2005 time period and that are not excluded under

the court’s prior rulings.

Accordingly, based on the parties’ submissions, the court

concludes that the following motions remain to be decided: AMX’s

July 31, 2006 motion to exclude expert testimony, as supplemented

on March 2, 2007; Pilote’s June 27, 2007 motion to compel expert

payment; and AMX’s June 28, 2007 motion to exclude expert. The

court will not address AMX’s September 26, 2006 motion for leave to

file motion for leave to designate French law expert.

II

The court first considers AMX’s July 31, 2006 motion to

exclude expert testimony, as supplemented on March 2, 2007, in

which it seeks to exclude the testimony of Migeot, Pilote’s French

law expert. 

A

In its motion, AMX contends that Migeot should be precluded

from testifying because it appears that his proposed testimony is

neither relevant nor reliable and consists solely of improper legal

conclusions. AMX posits that federal courts uniformly prohibit

expert testimony on legal issues, legal principles, and legal
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conclusions. It maintains that Migeot will apparently testify that

French law applies to the parties’ dispute, testify concerning what

is the applicable French law, and testify that AMX violated the

law. In AMX’s reply brief and in its supplement to the motion, it

maintains that the testimony should be excluded, or, alternatively,

if Migeot’s testimony relates solely to questions of foreign law,

he should be precluded from testifying in the jury’s presence. AMX

seeks this relief on the grounds that Pilote has failed to show

that there is a need in this case for a foreign law expert; his

testimony is neither relevant nor reliable; he is not a lawyer; and

he is not qualified to testify regarding the content or

applicability of French law. According to AMX, Migeot is not

qualified to testify as an expert in French law or to provide

expert opinions regarding the content or applicability of French

law, because he is not qualified as an expert and his opinions are

unreliable.

B

The court denies AMX’s motion without prejudice to considering

objections during the pretrial conference and/or at trial. 

First, the court is unable to conclude based on the motion and

supplement that Migeot lacks the necessary qualifications to offer

any opinions or other expert testimony concerning French law or

that his opinions about French law will not relate to fact issues

that the jury must decide. 
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Second, because the court declines at this time to exclude

Migeot’s testimony in toto, it must focus on his specific opinions

or other expert testimony that AMX seeks to exclude. Although AMX

includes Migeot’s expert report in support of its motion, it does

not identify in the motion or the supplement any specific opinions

or other expert testimony that it seeks to exclude. This is

necessary, however, because the specific content and nature of the

opinions and testimony may impact whether Migeot can offer

testimony that the court needs to determine French law under Fed.

R. Civ. P. 44.1, or that will assist the jury in deciding a fact

issue. 

According to Pilote’s August 21, 2007 letter, AMX’s present

motion is not moot because Migeot will offer opinions that are

relevant to Pilote’s counterclaim under Article L. 442-6 6o of the

French Commercial Code for breach of exclusivity by interference

with a third party contract. In this counterclaim, Pilote “alleges

that AMX had direct and/or indirect involvement in the French

market, in violation of the prohibition on reselling outside the

network imposed on Pilote by its exclusive distribution agreement

with AMX.” AMX I, 2007 WL 1695120, at *30. In AMX II the court

denied summary judgment on this counterclaim, holding that “[i]f

the 1994 Agreement controls, then a reasonable jury could find,

based on AMX UK’s sale of products to TVSAT2 Design, that Pilote is

entitled to recover on its French-law breach of exclusivity by
1

In response to AMX’s supplement, Pilote asserts that AMX does

not challenge Migeot’s testimony concerning French commercial

practices. AMX replies that its July 31, 2006 motion seeks to

exclude all of Migeot’s testimony, not merely that which relates to

French law. Because the court is denying AMX’s motion without

prejudice, it need not decide whether the motion extends to

testimony concerning French commercial practices. But it notes

that its reasoning would essentially be the same were it to

consider whether expert testimony about French commercial practices

should now be excluded. First, it cannot say that Migeot’s

testimony should be excluded in its entirety. And second, it must

decide admissibility questions in the context of Migeot’s specific

opinions and testimony. 

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interference with third party contract counterclaim.” AMX II, 2007

WL 2254943, at *8. At least to some extent, the court has already

determined the law of Article L. 442-6 6o in deciding the summary

judgment motions, and it may be able to make other relevant legal

determinations without Migeot’s testimony. And it is unclear

whether the jury will in any way be assisted by Migeot’s expert

testimony in deciding factually whether Pilote is entitled to

recover from AMX based on AMX UK’s sale of products to TVSAT2

Design. The court nevertheless concludes that its decision on

AMX’s motion should be made in a context that is sufficiently

focused that it enables the court to make a reasoned decision about

whether it and/or the jury will be assisted by Migeot’s expert

opinions or testimony. 

Accordingly, the court denies AMX’s motion without prejudice.1
2

The court is citing Pilote’s response in this manner because

Pilote did not comply with N.D. Tex. Civ. R. 7.1(i)(1) and 7.2(e)

in briefing this motion. Rule 7.1(i)(1) provides that “[a] party

who relies on documentary (including an affidavit, declaration,

deposition, answer to interrogatory, or admission) or non-

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III

The court next considers AMX’s June 28, 2007 motion to exclude

Pilote’s damages expert, Hancock. AMX maintains that Hancock’s

testimony is neither relevant nor reliable because it is based on

improper assumptions and methodology. It posits that Hancock

assumed that AMX was the cause of Pilote’s loss, failed to address

other potential causes of Pilote’s losses, did nothing to link any

alleged conduct to the projected loss, and used an incorrect

measure of damages (gross rather than net profits).

Having considered AMX’s motion and Pilote’s response, the

court concludes that AMX has presented issues that go to the

weight, not the admissibility, of Hancock’s opinions. Pilote

intends to rely on Hancock’s expert testimony to prove the damages

it sustained during the pre-February 1, 2005 period by losing AMX’s

sales. The questions that AMX raises concerning his opinions do

not demonstrate that his testimony is unreliable, and the cases on

which it relies are distinguishable. And concerning, in

particular, the measure of damages, Pilote has shown that it is not

relying on gross profits. According to Hancock’s deposition

testimony, despite his answer stating that he used “gross profit,”

P. Resp. Ex. B at 5,2 he in fact deducted certain costs from sales
documentary evidence to support or oppose a motion must include

such evidence in an appendix.” Rule 7.2(e) states that “[i]f a

party’s motion or response is accompanied by an appendix, the

party’s brief must include citations to each page of the appendix

that supports each assertion that the party makes concerning any

documentary or non-documentary evidence on which the party relies

to support or oppose the motion.” By contrast, when Pilote filed

its motion to compel expert payment, discussed infra at § IV, it

did file the required appendix.

3Rule 26(b)(4)(C):

Unless manifest injustice would result, (i)

the court shall require that the party seeking

discovery pay the expert a reasonable fee for

time spent in responding to discovery under

this subdivision; and (ii) with respect to

discovery obtained under subdivision (b)(4)(B)

of this rule the court shall require the party

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when he calculated Pilote’s “lost profits on a gross margin basis,”

id. Hancock deducted “all the AMX product costs, the customs, the

shipping recognition of the value-added taxes, that sort of thing.”

Id. Pilote therefore is not seeking to recover gross profits; it

is contending, based on Hancock’s opinions, that net profit is

measured in a manner with which AMX disagrees. Hancock’s opinions

are sufficiently reliable as to be admissible. They can be tested

through cross-examination and refuted through AMX’s own evidence.

Accordingly, AMX’s motion is denied.

IV

Finally, the court considers Pilote’s motion to compel expert

payment.

A

Pilote moves under Rule 26(b)(4)(C)3 to compel AMX to pay the
seeking discovery to pay the other party a

fair portion of the fees and expenses

reasonably incurred by the latter party in

obtaining facts and opinions from the expert.

4AMX relies in part on the pending motions to exclude that the

court decides today. The court’s reasoning is not impacted,

however, by its rulings on these motions.

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fees of Migeot and Hancock for giving their depositions. AMX

responds that it does not oppose paying reasonable fees for these

depositions, provided Migeot and Hancock are in fact permitted to

testify at trial.4 AMX maintains that, unless Migeot and Hancock

testify, it would be manifestly unjust to require that AMX pay for

their time and expenses, and that Pilote’s motion is premature.

AMX also asserts that the court should wait until the conclusion of

the case so that it can offset fees and expenses that AMX’s experts

incurred responding to Pilote’s discovery requests, thereby only

requiring one party to make one net payment to the other, if any

payment is required.

Pilote cites an October 12, 2006 email from AMX’s counsel to

Pilote’s counsel in which he wrote, in pertinent part: “AMX will

comply with Rule 26(b)(4)(C) and pay a reasonable fee to Hancock

and Migeot for their time during deposition. AMX will not pay for

any time Pilote’s lawyers spend questioning their own witnesses.”

D. June 27, 2007 App. 1. Pilote cites this email in its reply

brief to refute the authorities on which AMX relies in opposing

Pilote’s motion.
5

Because the court is enforcing the parties’ agreement, it is

using as the measure of the reasonable fees the one to which they

agreed. For example, one treatise points out that some courts have

decided that fees under Rule 26(b)(4)(C) can include compensation

for time spent preparing for the deposition. 8 Charles Alan

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B

The court agrees with Pilote that AMX is obligated to pay

reasonable fees for the time Migeot and Hancock spent being deposed

at AMX’s request, exclusive of any time Pilote’s lawyers spent

questioning these witnesses. The email from AMX’s counsel to

Pilote’s counsel can only reasonably be interpreted to provide that

AMX had agreed to pay Pilote reasonable fees for Hancock’s and

Migeot’s time during their depositions, exclusive of any time that

Pilote’s lawyers spent questioning these witnesses. Agreements of

this type can be reached under Rule 26(b)(4)(C). See Abundiz v.

Explorer Pipeline Co., 2004 WL 1161402, at *2 (N.D. Tex. May 24,

2004) (Stickney, J.) (noting that parties had entered into

discovery agreement that provided that “the party seeking expert

discovery would reimburse the other for expert witness fees up to

four hours of preparation time and for the actual time spent in

deposition.”). The court will enforce the parties’ agreement.

 Within 20 days of the date this memorandum opinion and order

is filed, counsel must confer regarding what are the reasonable

fees for Hancock’s and Migeot’s time during their depositions,

exclusive of any time that Pilote’s lawyers spent questioning

them.5

 If agreement is reached, AMX must pay these fees to
Wright, et al., Federal Practice and Procedure § 2034, at 471 (2d

ed. 1994) (“Some courts have allowed such preparation time to be

compensated . . . .” (footnote omitted)). The parties in Abundiz

agreed to pay compensation for some preparation time. Abundiz,

2004 WL 1161402, at *2 (up to four hours). The parties agreed in

this case, however, that AMX would pay for Hancock’s and Migeot’s

time during their depositions. Accordingly, while today’s decision

does not preclude Pilote from seeking any additional available

relief at the conclusion of the case, the court is not awarding it

in response to Pilote’s motion.

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Pilote’s counsel within 20 days of the date of the agreement. If

no agreement is reached, counsel must jointly advise the court in

writing, and the court will direct the parties how to proceed. If

the court is required to resolve a fee dispute, it will consider

awarding the prevailing party its attorney’s fees and costs in

litigating the dispute.

For the reasons stated, Pilote’s motion to compel expert

payment is granted.

* * *

AMX’s July 31, 2006 motion to exclude expert testimony, as

supplemented on March 2, 2007, is denied without prejudice.

Pilote’s June 27, 2007 motion to compel expert payment is granted.

AMX’s June 28, 2007 motion to exclude expert is denied.

SO ORDERED.

August 27, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE