that the Court simply failed to address its argument that the
affidavit authenticating the underlying evidence - documents
purporting to be copies of Plaintiff’s website on certain dates -
should be stricken.

In both instances, Plaintiff argues that these affidavits
should be stricken in favor of live testimony, citing to the
Seventh Circuit’s decisions in Ty, Inc. v. GMA Accessories, Inc.,
132 F.3d 1167, 1171 (7° Cir. 1997); Eisenstadt v. Centel Corp.,
113 F.3d 738, 742 (7° Cir. 1997); and United States v. Mack, 249
F.2d 321, 323 (7 Cir. 1957). In response to the underlying
Motions, Defendant correctly countered that these cases merely
stand for the proposition that affidavits are generally
inadmissible as substantive evidence; they do not touch upon the
admissibility of affidavits submitted solely for the purpose of
authentication. Plaintiff labels the distinction as false and
dubious, stating that the only method available for
authenticating documents is via live testimony.

Of course, Plaintiff is mistaken. The Federal Rules of
Evidence specifically contemplate the use of affidavits to
authenticate various documents, such as business records. See
Rambus, Inc. v. Infineon Tech., No. CIV A 300 CV 524, 348 F.
Supp.2d 698, 701 {E.D.Va. 2004) citing Fed. R. Evid 902(11) (“in
lieu of live testimony, the foundation for admissibility of a

business record may be established by an f{affidavit].” }


will show merely that EchoStar’s conduct was authorized by the
Affiliation Agreement- as opposed to evidence that shows that the
conduct was not prohibited by the Agreement -- and this Court
declines to split fine evidentiary hairs prior to trial, tying
the hands of the judge presiding over the trial in the process.
To the extent that Judge Guzman determines that the law of the
case prevents Defendant from introducing a line of evidence or
making certain arguments to the jury, this Court finds ~ as it
found in its October 14, 2004 Memorandum Opinion and Order — that
this is a decision best reserved for trial.
B. Plaintiff’s Fourteenth and Fifteenth Motions in Limine

Plaintiff then asks the Court to reconsider its rulings with
regard to Plaintiff’s Fourteenth and Fifteenth Motions in Limine.
Plaintiff’s Fourteenth Motion in Limine sought to prevent
Defendant from introducing Polish to English translations of
email documents allegedly written by and between Plaintiff’s
employees and supposed subscribers to Plaintiff’s Programming
Services. The Court denied Plaintiff’s attempt to exclude this
evidence. Undeterred, Plaintiff claims that the affidavit
authenticating the evidence is not admissible; since the evidence
cannot be authenticated by the affidavit, neither the affidavit
nor the translations are admissible.

Plaintiff makes a similar argument in its Motion to

Reconsider its Fifteenth Motion in Limine. Here, Plaintiff argues


Similarly, the Advisory Committee Notes to Federal Rule of
Evidence 903 explain that “the common law required that attesting
witnesses be produced or accounted for. Today the requirement
has generally been abolished.”

Plaintiff then regurgitates its previous attacks against the
reliability of the affiants, which the Court has already
considered and rejected. Plaintiff has clearly failed to
demonstrate that "the Court has patently misunderstood a party,
or has made a decision outside the adversarial issues presented
to the Court by the parties, or has made an error not of
reasoning but of apprehension." Bank of Waunakee v. Rochester
Cheese Sales, Inc., 906 F.2d 1185, 1191 (7 Cir. 1990
(quotations omitted). Therefore, Plaintiff's Motions for
Reconsideration must be denied.

CONCLUSION

For the reasons set forth above, Plaintiff’s Motions to

Reconsider the Court’s rulings on its First, Fourteenth and

Fifteenth Motions in Limine are denied.

Date: February 4, 3005 ENTERED:

Odeo Koy

Arlander Keys v
United States Magistrate Judge



as

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TELEWIZJA POLSKA USA, INC.
a Delaware Corporation,
Case No. 02 C 3293

Plaintiff, Judge Ronald A. Guzman
vs.
Magistrate Judge
ECHOSTAR SATELLITE CORPORATION, Arlander Keys

a Colorado corporation,

Defendant.

MEMORANDUM OPINION AND ORDER

Currently before the Court are Plaintiff’s Motions to
Reconsider three of this Court’s previous rulings. On October
14, 2004, this Court issued a Memorandum Opinion and Order,
addressing 17 Motions in Limine filed by Plaintiff, and 38
Motions in Limine filed by Defendant. Plaintiff argues that the
Court erred in resolving three of those motions: Plaintiff’s
First Motion in Limine, Plaintiff’s Fourteenth Motion in Limine
and Plaintiff’s Fifteenth Motion in Limine. For the reasons set
forth below, Plaintiff’s Motions are denied.

STANDARDS

The Seventh Circuit has repeatedly instructed that
"[mJotions for reconsideration serve a limited function: to
correct manifest errors of law or fact or to present newly
discovered evidence." Publisher’s Res. Inc., v. Walker-Davis
Publications, Inc., 762 F.2d 557, 561 (7*® Cir. 1985). A motion

for reconsideration warrants serious consideration in only very


limited circumstances: where "the Court has patently
misunderstood a party, or has made a decision outside the
adversarial issues presented to the Court by the parties, or has
made an error not of reasoning but of apprehension." Bank of
Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191
(7 Cir. 1990) (quotations omitted). A motion for
reconsideration may not be used "as a vehicle to introduce new
evidence;" nor does it present an opportunity "to tender new
legal theories for the first time." Rothwell Cotton Co. v.
Rosenthal & Co., 827 F.2d 246. 251 (7th Cir. 1987) (quotations
omitted).
DISCUSSION

Before discussing Plaintiff’s arguments, the Court will set
forth the standards governing Motions in Limine. A Motion in
Limine should be granted only if the evidence clearly is not
admissible for any purpose. See Hawthorne Partners v. AT&T
Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D. I11.1993).
Generally, motions in limine are disfavored. Instead of barring
evidence before trial, the preferred practice is to resolve
questions of admissibility as they arise. See Scarboro v.
Travelers Ins. Co., 91 F.R.D. 21, 22 (E.D.Tenn.1980). By
deferring evidentiary rulings until trial, courts can properly
resolve questions of foundation, relevancy, and prejudice. See

Hawthorne Partners, 831 F.Supp. at 1401


A. Plaintiff's First Motion in Limine

Plaintiff contends that the Court erred in refusing to
preclude Defendant from offering evidence or arguing at trial
that, pursuant to the parties’ Affiliation Agreement contract,
Defendant had the right to sell new subscription agreements after
termination of the Affiliation Agreement. Plaintiff notes that
the Seventh Circuit issued a decision interpreting the agreement
in the manner advocated by Plaintiff. In the October 14, 2004
Memorandum Opinion and Order, however, this Court noted that
Judge Guzman had recently stated that Defendant was “free to
argue that it had the right to [sell subscriptions during the
post-termination period] because the contract did not explicitly
forbid its conduct,” and that Judge Guzman would be well within
his authority to permit such an argument.

Plaintiff contends that the Court misapprehended its Motion;
explaining that the Motion seeks to preclude Defendant only from
offering testimony and argument that the Affiliation Agreement
authorized post-expiration sales - it does not seek to preclude
Defendant from arguing that it had the right to conduct post-
expiration sales.

It is Plaintiff that is suffering from a misapprehension, if
it believes that its argument satisfies the stringent
requirements governing motions to reconsider. Plaintiff has not

identified the evidence that Defendant seeks to introduce that