PAGE 1 – ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LORI WAKEFIELD, individually and on 

behalf of a class of others similarly situated,

Plaintiff,

v.

VISALUS, INC., 

Defendant.

Case No. 3:15-cv-1857-SI

ORDER ON PRETRIAL MOTIONS 

AND OBJECTIONS

Scott F. Kocher and Stephen J. Voorhees, FORUM LAW GROUP, 811 SW Naito Parkway, 

Suite 420, Portland, OR 97204; Benjamin H. Richman, Rafey S. Balabanian, Eve-Lynn J. Rapp, 

J. Aaron Lawson, and Lily E. Hough, EDELSON PC, 123 Townsend Street, Suite 100, San 

Francisco, CA 94107; Gregory S. Dovel, Simon C. Franzini, Jonas B. Jacobson, Julien A. 

Adams, DOVEL & LUNER LLP, 201 Santa Monica Boulevard, Suite 600, Santa Monica, CA

90401; Stefan L. Coleman, LAW OFFICES OF STEFAN COLEMAN PA, 1072 Madison Avenue, 

Suite 1, Lakewood, NJ 08701. Of Attorneys for Plaintiff and the Certified Class.

Joshua M. Sasaki and Nicholas H. Pyle, MILLER NASH GRAHAM & DUNN LLP, 3400 U.S. 

Bancorp Tower, 111 SW Fifth Avenue, Portland, OR 97204; John M. O’Neal and Zachary S. 

Foster, QUARLES & BRADY LLP, 2 N. Central Avenue, One Renaissance Square, Phoenix, AZ 

85004. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Plaintiff Lori Wakefield brings this class action lawsuit under the Telephone Consumer 

Protection Act of 1991 (“TCPA”) against Defendant ViSalus, Inc., a multi-level marketing 

company that sells weight-loss products and dietary supplements. Plaintiff alleges that ViSalus 

Case 3:15-cv-01857-SI Document 269 Filed 04/08/19 Page 1 of 21
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violated the TCPA by making telemarketing calls to cellular (or mobile) telephones or residential 

landlines using an artificial or prerecorded voice to deliver a message promoting ViSalus’s 

products or services without the prior express consent of the person being called. 47 U.S.C. 

§ 227(b)(1). ViSalus does not contend that it had the prior express consent to place such calls at 

the time when they were made. The Court has certified a class consisting of: “All individuals in 

the United States who received a telephone call made by or on behalf of ViSalus: (1) promoting 

ViSalus’s products or services; (2) where such call featured an artificial or prerecorded voice; 

and (3) where neither ViSalus nor its agents had any current record of prior express written 

consent to place such call at the time such call was made.” ECF 81 at 6.

A jury trial is scheduled to begin on April 10, 2019. The Court held a pretrial conference 

with the parties on April 3, 2019, and again on April 8, 2019. This Order addresses many of the 

parties’ pending pretrial motions and objections, as well as the threshold question of whether the 

issue of willfulness under the TCPA is for the Court or the jury to determine.

DISCUSSION

A. Whether Willfulness is Determined by the Court or the Jury

In 47 U.S.C. § 227(b)(3), the TCPA provides a private right of action for violations of 

subsection (b). A prevailing plaintiff may recover the greater of $500 per violation or the actual 

monetary loss for each violation, whichever is greater. 47 U.S.C. § 227(b)(3)(B). In addition, 

If the court finds that the defendant willfully or knowingly violated 

this subsection or the regulations prescribed under this subsection, 

the court may, in its discretion, increase the amount of the award to 

an amount equal to not more than 3 times the amount available 

under subparagraph (B) of this paragraph.

47 U.S.C. § 227(b)(3)(C). A threshold question is whether the statutory text “the court” refers to 

the judge presiding over a jury trial or the jury.

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In a case interpreting similar statutory text in the Copyright Act, which allows “the court 

in its discretion” to increase damages if it finds “willful” violations, the Supreme Court held that 

“[t]he word ‘court’ in this context appears to mean judge, not jury.” Feltner v. Columbia Pictures 

Television, Inc., 523 U.S. 340, 346 (1998). In the context of the TCPA, numerous district courts 

similarly have concluded that the judge, rather than the jury, decides whether a TCPA violation 

was committed willfully or knowingly. See, e.g., Krakauer v. Dish Network LLC, 2017 

WL 4417957, at *10 (M.D.N.C. Oct. 3, 2017) (concluding that the court, not the jury, determines

whether to award up to treble damages for willful or knowing violations of the TCPA); Asher & 

Simons, P.A. v. J2 Global Canada, Inc., 965 F. Supp. 2d 701, 707 (D. Md. 2013) (same); 

Adamcik v. Credit Control Servs., Inc., 832 F. Supp. 2d 744, 755 (W.D. Tex. 2011) (same); see 

generally Tull v. United States, 481 U.S. 412, 425–27 (1987). The Court will follow this 

approach and, if there is a verdict in favor of Plaintiff, determine whether to award up to treble 

damages for any willful or knowing violation of the TCPA, as opposed to submitting that 

question, or any portion of it, to the jury.

Tis decision will have an effect on what evidence the jury may hear. Evidence that is only 

relevant to the issue of willful or knowing violation of the TCPA will be heard only by the Court 

outside of the presence of the jury because that evidence is not relevant to any issue properly 

before the jury. For example, although prior express consent is an affirmative defense to liability 

under the TCPA, ViSalus has disclaimed that affirmative defense. Instead, ViSalus contends that 

it may present evidence of its beliefs concerning prior express consent only to show the absence 

of willfulness or knowing violation. ViSalus may present that evidence but only to the Court and 

outside the presence of the jury. Similarly, Plaintiff may not present evidence before the jury that 

is relevant only to show that ViSalus did act willfully or knowingly. To allow otherwise would 

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risk unnecessarily confusing the jury on an issue not properly before it. With that threshold issue 

resolved, the Court now turns to the parties’ respective motions in limine and trial objections.

B. Plaintiff’s Motions in Limine

1. Plaintiff’s First Motion in Limine: Whether ViSalus knew the 

requirements of the TCPA or misunderstood the requirements

GRANTED IN PART. 

Defendant argues that evidence about ViSalus’s understanding of the requirements of the 

TCPA is necessary to determine whether ViSalus willfully or knowingly violated the TCPA.

Neither party may present evidence before the jury when the only relevance is whether ViSalus 

willfully or knowingly violated the TCPA.

In addition, when Plaintiff presents evidence to the Court that ViSalus’s conduct was 

knowing or willful, Plaintiff is not be required to prove that ViSalus had knowledge that its 

conduct violates the TCPA. Such evidence would likely be sufficient to show willfulness or 

knowledge on the part of ViSalus, but it is not necessary. There is a split in authority among the 

various courts that have addressed this provision of the TCPA over what qualifies as willful or 

knowing conduct. Some courts have held that a defendant must know that it is violating the 

TCPA, while other courts have held that it is sufficient for a plaintiff to show that the defendant 

merely knew that a call was being made. See J2 Global Comm’cns, Inc. v. Blue Jay Inc., 2009 

WL 4572726, at *7 (N.D. Cal. Dec. 1, 2009).

The Court concludes that the most persuasive case law and the most persuasive reading 

of the relevant statutory text supports the position that a person need know that he, she, or it was 

committing an unlawful act in order to act willfully or knowingly under the TCPA. The TCPA 

does not define the terms “willfully” or “knowingly” but courts generally interpret these terms to 

require only that an action is intentional, not that the party is aware that it is violating the law. 

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See, e.g., Davis v. Diversified Consultants, Inc., 36 F. Supp. 217, 226 (D. Mass. 2014); 

Sengenberger v. Credit Control Servs., Inc., 2010 WL 1791270, at *6 (N.D. Ill. May 5, 2010). 

Further, although the TCPA does not define willfully, the Communications Act of 1943, “of 

which the TCPA is a part, defines willful as ‘the conscious or deliberate commission or omission 

of such act, irrespective of any intent to violate any provision[], rule or regulation.” Id. (quoting 

the Communications Act of 1943); see 47 U.S.C. § 312(f)(1)(“The term “willful,” when used 

with reference to the commission or omission of any act, means the conscious and deliberate 

commission or omission of such act, irrespective of any intent to violate any provision of this 

chapter or any rule or regulation of the Commission authorized by this chapter or by a treaty 

ratified by the United States.”). Thus, the Court finds that “a person need not have intent to 

commit an unlawful act in order to act willfully or knowingly under the TCPA.” Roylance v. 

ALG Real Estate Servs., Inc., 2015 WL 1522244, at *10 (N.D. Cal. March 16, 2015). Thus, 

evidence that ViSalus did not know that its actions violated the TCPA is not relevant to the 

question of whether it acted willfully or knowingly. Because this evidence will not be presented

to the jury, however, and should not be unreasonably time-consuming to present, the Court will 

allow ViSalus to present such evidence to the Court in order to preserve its appellate record.

2. Plaintiff’s Second Motion in Limine: Amount of statutory damages for 

violations of the “artificial or prerecorded voice” section of the TCPA

GRANTED.

Defendant does not oppose this motion.

3. Plaintiff’s Third Motion in Limine: Prior express consent to call

GRANTED IN PART.

ViSalus has expressly stated that it will not present evidence that it had prior express 

consent to call Ms. Wakefield or any class members and that it will not raise prior express 

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consent as an affirmative defense. ECF 145 at 2 (“To set the record clear, ViSalus . . . does not 

claim that for Count II, Plaintiff’s or the class’s claims are barred by them giving ViSalus prior 

express written consent under 47 C.F.R. § 64.1200(a)(2)-(3).”). Defendant argues that consent is 

relevant to the determination of whether ViSalus violated the TCPA willfully and knowingly. 

Because the question of willfulness and knowledge is for the Court, not the jury, this evidence 

may not be presented to the jury but may be presented to the Court outside of the presence of the 

jury.

4. Plaintiff’s Fourth Motion in Limine: Retroactive waiver by the FCC

GRANTED IN PART.

ViSalus argues that its application to the Federal Communications Commission (“FCC”) 

for a retroactive waiver is relevant to the question of whether it acted willfully and knowingly. 

Because the question of willfulness and knowledge is for the Court, not the jury, this evidence 

may not be presented to the jury but may be presented to the Court outside of the presence of the 

jury. The Court, however, notes that the FCC has not yet ruled on ViSalus’s application.

5. Plaintiff’s Fifth Motion in Limine: ViSalus’s financial condition

GRANTED IN PART.

Plaintiff argues that evidence of a party’s financial condition is not relevant and can 

improperly seek to obtain the jury’s sympathy and thus affect a damages award. ViSalus 

responds that evidence of a party’s financial condition is not only relevant but must be 

considered in assessing “punitive damages.” Because ViSalus does not dispute that its financial 

condition is relevant, if at all, only to the issue of whether the Court should increase damages if 

the jury finds liability, evidence of ViSalus’s financial condition may not be presented to the 

jury. It may, however, be presented to the Court outside the presence of the jury.

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This evidentiary ruling is made without deciding at this time whether the treble damages 

provision of the TCPA is compensatory or punitive. “Whether treble damages under a given 

statute are considered compensatory or punitive is an intensely fact-based inquiry that may vary 

statute-to-statute.” Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 777 (11th Cir. 

2011) (collecting cases). In Alea London, the Eleventh Circuit concluded that, because the 

TCPA’s $500 statutory damages provision was not punitive, and the statute permits, but does not 

require, an increase up to three times that amount, and given the “relatively small amount of 

statutory damages available under the TCPA, trebling these damages appears to be a mechanism 

to encourage victims” to file suit. Id. at 778. Relying on this decision from the Eleventh Circuit, 

several district courts in the Ninth Circuit similarly have concluded that the treble damages 

provision in the TCPA is “not punitive in nature,” although the Ninth Circuit has not yet resolved 

that issue. See Roylance v. Carney, 2014 WL 1652440, at *5 (N.D. Cal. April 23, 2014). Further, 

the Second, Third, Sixth, Eighth, and Eleventh Circuits have all concluded that the TCPA is 

remedial in nature and, thus, that the treble damages provision is not punitive. See Parchman v. 

SLM Corp., 896 F.3d 728, 740-41 (6th Cir. 2018) (“In all, then, we think that claims under the 

TCPA are best characterized as remedial. The fact that the statute allows for accumulated 

recovery does not convert an otherwise remedial statutory scheme into a penal one.”); Phys. 

Healthsource, Inc., v. Boehringer Ingelheim Pharm., Inc., 847 F.3d 92, 96 (2d Cir. 2017) 

(“Because the TCPA is a remedial statute, it should be construed to benefit consumers.”) 

(quoting Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 271 (3d Cir. 2013)); Universal 

Underwriters Ins. Co., v. Lou Fusz Automotive Network, Inc., 401 F.3d 876, 881 (8th Cir. 2005).

Other district courts and the Tenth Circuit, however, have concluded that the treble 

damages provision of the TCPA is “penal” in nature. See Hannabury v. Hilton Grand Vacations 

Case 3:15-cv-01857-SI Document 269 Filed 04/08/19 Page 7 of 21
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Co., LLC., 174 F. Supp. 3d 768, 774 (W.D.N.Y. 2016); US Fax Law Ctr., Inc. v iHire, Inc., 362 

F. Supp. 2d 1248, 1253 (D. Colo. 2005); see also Ace Am. Ins. Co., 883 F.3d 881, 888 (10th Cir. 

2018) (finding all statutory damages under TCPA penal in nature). This question is far from 

settled. See Sharp v. Ally Financial, Inc., 328 F. Supp. 3d 81, 91 (S.D.N.Y. 2018) (collecting 

cases on each side of split but determining that the TCPA is remedial in nature). The Supreme 

Court has noted that “[t]he very idea of treble damages reveals an intent to punish past, and deter 

future, unlawful conduct, not to ameliorate the liability of wrongdoers.” Vermont Agency of Nat. 

Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 786 (2000) (quoting Texas Indus., Inc., v. Radcliff 

Materials, Inc., 451 U.S. 630, 639 (1981)).

The parties will be allowed to present further argument, if needed, as to whether the 

TCPA is punitive or remedial in nature. Pending the Court’s final decision on that question, 

ViSalus may present evidence of its financial condition to the Court outside the presence of the 

jury. The Court also notes that in the context of patent litigation, a defendant’s financial 

condition is a mitigating factor in the consideration of whether to impose treble damages for a 

willful violation. See Read Corp. v. Portec, Inc., 970 F.2d 816, 826 (Fed. Cir. 1992); see also 

Halo Electronics, Inc., v. Pulse Electronics, Inc., 136 S. Ct. 1923, 1935 (2016) (trebling of 

damages in patent context requires case-specific consideration of circumstances).

6. Plaintiff’s Sixth Motion in Limine: Class counsel’s attorneys’ fees

GRANTED.

Defendant does not oppose this motion. 

C. Defendant’s Motions in Limine

1. Defendant’s First Motion in Limine: “Pyramid scheme” or ViSalus’s 

compensation structure

GRANTED IN PART.

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No party may refer to ViSalus as a “pyramid scheme” or suggest that its business model 

is illegal. ViSalus, however, refers to itself as a “multi-level direct marketing company.” 

Accordingly, that is how the Court will refer to it and how Plaintiff may refer to it. The Court 

also will allow evidence about ViSalus’s business operations sufficient to allow the jury to

understand the relationship between ViSalus and the class members, including Plaintiff 

Wakefield.

2. Defendant’s Second Motion in Limine: Dissatisfaction with ViSalus’s 

products, services, or business opportunities

GRANTED IN PART.

The purpose of the TCPA is “to protect the interests of telephone users by placing 

restrictions on ‘unsolicited, automated telephone calls.’” Fober v. Mgmt. and Tech. Consultants, 

LLC, 886 F.3d 789 (9th Cir. 2018). The harm that Congress sought to prevent was the invasion 

of privacy caused by unsolicited telephone calls. Plaintiff’s subjective feelings towards ViSalus 

based on Plaintiff’s experience as a ViSalus “promoter” have minimal probative value, at most. 

Plaintiff, however, may explain to the jury that she was a ViSalus promoter and briefly explain 

the reasons why she quit. This will provide sufficient context to ViSalus’s later calls to Plaintiff.

3. Defendant’s Third Motion in Limine: Other consumer complaints is not 

admissible

GRANTED IN PART.

Plaintiffs have stated that the online consumer complaints referenced in ViSalus’s motion 

in limine and the Amended Complaint are not on Plaintiff’s exhibit list and that Plaintiffs do not 

intend to introduce them or discuss them at trial. ViSalus’s internal discussions prompted by 

consumer complaints, which Plaintiff claims include admissions by ViSalus that it used an 

artificial or prerecorded voice are not hearsay if they are statements of a party opponent. See Fed. 

R. Evid. 801(d)(2). The content of any consumer’s complaint, however, would appear to be 

Case 3:15-cv-01857-SI Document 269 Filed 04/08/19 Page 9 of 21
PAGE 10 – ORDER

hearsay if offered to the truth of the matter asserted, even if discussed by ViSalus employees, 

Any such complaints, therefore, require any independent basis for admissibility. Regarding two 

specific exhibits, Plaintiff shall redact Ex. 47 as discussed on the record on April 3, 2019. 

Plaintiff shall redact all instances of “BBB,” “complaint,” and “DNC” or “do not call.” The 

Court will reserve ruling on the admissibility of Ex. 47. The Court also will reserve ruling on the 

admissibility of Ex. 45.

4. Defendant’s Fourth Motion in Limine: “GroupCast”

GRANTED.

Plaintiff does not oppose redacting or omitting all references to “GroupCast.” No party 

may introduce evidence referring to “GroupCast.”

5. Defendant’s Fifth Motion in Limine: “Autodialer”

DENIED.

Plaintiff does not assert any claim that the use of an autodialer per se violated the TCPA. 

Plaintiff’s contention is ViSalus violated the recorded voice prohibition of the TCPA when 

ViSalus used an autodialer referred to as a Proactive Outreach Manager (“POM”) to make calls 

to Plaintiff and the class. Plaintiff may present that evidence to the jury.

D. Plaintiff’s Deposition Designations and Defendant’s Cross-Designations

1. Procedure to Reading Approved Deposition Designations

Plaintiff has designated excerpts from the depositions of Justin Call, Scott Gidley (2016), 

Scott Gidley (2017), and John Laun to be read to the jury in lieu of live testimony. Defendant 

cross-designated certain excerpts. After the Court’s first pretrial conference, held on April 3, 

2019, the Court directed the parties: (1) to remove from their designations to be read to the jury 

all testimony that relates only to the issue of “willfulness or knowledge,” which will be resolved 

by the Court after the jury returns its verdict; and (2) after conferring, to file revised deposition 

Case 3:15-cv-01857-SI Document 269 Filed 04/08/19 Page 10 of 21
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designations. The parties have done so. ECF 265. Defendant objects to several of Plaintiff’s 

desginations on various grounds. Plaintiff objects to several of Defendant’s cross-designations 

primarily on the grounds that they are not required under the Rule of Completeness (Fed. R. 

Evid. 106) to be read to the jury “at the same time” that Plaintiff’s designations are read.

When the Court has overruled Defendant’s objection to a designation by Plaintiff, that 

testimony may be read to the jury. When the Court has overruled Plaintiff’s objection to a crossdesignation by Defendant, that cross-designation must be read to the jury at the same time and in 

the same manner that Plaintiff’s designation is read. When, however, the Court has sustained 

Plaintiff’s objection to a cross-designation, Plaintiff need not read that cross-designation at the 

same time Plaintiff’s designation is read. Instead, Defendant may read any cross-designation for 

a witness (unless otherwise excluded on other grounds) after the Plaintiff has concluded her 

reading of all designations for that specific witness. Thus, the jury will hear Plaintiff’s 

designations along with all cross-designations required under Rule 106 in a fashion analogous to 

direct examination. When Plaintiff has concluded a specific witness, then Defendant may read all 

appropriate cross-designations for that witness in a fashion analogous to cross examination.

2. Defendant’s Objections to Plaintiff’s Designations

The Court’s rulings on Defendant’s objections to Plaintiff’s designations are as follows:

a. Justin Call’s Deposition Testimony

42:16-21 Overruled

45:12-15 Overruled

45:16-17 Overruled

45:18-22 Overruled

45:23-46:2 Overruled

46:3-6 Overruled

Case 3:15-cv-01857-SI Document 269 Filed 04/08/19 Page 11 of 21
PAGE 12 – ORDER

47:17-22 Overruled

55:10-16 Overruled

55:17-20 Overruled

77:13-18 Overruled

77:19-23 Overruled

83:10-11 Overruled

83:15-20 Overruled

83:21-23 Overruled

83:24-84:3 Overruled

84:4-8 Overruled

84:13-20 Overruled

88:3-8 Overruled

b. Scott Gidley’s Deposition Testimony (2016)

136:14-20 Overruled

146:9-11 Overruled

146:12-14 Overruled

154:25-155:3 Overruled

155:4-6 Overruled

179:21-22 Overruled

179:23-180:02 Overruled

180:10-12 Overruled

180:13-22 Overruled

180:23-181:23 Overruled

181:25-182:01 Overruled

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182:2-4 Overruled

182:5-8 Overruled

182:18-20 Overruled

184:17-185:2 Overruled, although Defendant may cross-designate 185:4-5

189:8-15 Overruled

189:16-19 Overruled

189:20-22 Overruled

189:23-190:02 Overruled

190:18-19 Overruled

190:20-22 Overruled

190:23-191:1 Overruled

191:2-4 Overruled

194:11-12 Overruled

194:14-16 Overruled

194:17-22 Overruled

194:23-195:1 Overruled

195:2-16 Overruled

195:21-24 Overruled

196:1-4 Overruled

c. Scott Gidley’s Deposition Testimony (2017)

29:2-6 Overruled

36:4-8 Overruled

71:14-20 Overruled

80:23-81:1 Overruled

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d. John Laun’s Deposition Testimony

85:18-19 Overruled

85:20-25 Overruled

86:1-4 Overruled

92:20-23 Overruled

98:25-99:6 Overruled

3. Plaintiff’s Objections to Defendant’s Cross-Designations

The Court’s rulings on Plaintiff’s objections to Defendant’s cross-designations are as 

follows:

a. Justin Call’s Deposition Testimony

14:23-15:8 Overruled

15:12-16:11 Sustained

16:15-20:19 Sustained

28:19-29:1 Overruled

29:7-10 Sustained

29:17-32:20 Sustained

34:8-22 Overruled

38:16-39:6 Sustained

43:7-21 Sustained

43:23-25 Sustained

48:24-51:7 Sustained

56:10-22 Sustained

60:17-62:15 Sustained

67:6-10 Sustained

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67:12-68:2 Sustained

68:7-16 Sustained

68:19-21 Sustained

68:23-24 Sustained

71:10-12 Sustained

76:22-77:12 Sustained

78:5-11 Sustained

81:17-82:2 Sustained

82:10-11 Sustained

84:21-85:1 Overruled

88:20-89:19 Sustained

90:8-91:12 Sustained

94:25-95:6 Sustained

98:14-18 Overruled

98:25-99:5 Overruled

99:9-100:23 Sustained

117:18-118:14 Sustained and excluded under Rule 403

123:3-24 Sustained and excluded under Rule 403

b. Scott Gidley’s Deposition Testimony (2016)

10:21-14:8 Moot (nothing marked in blue)

14:23-15:11 Moot (nothing marked in blue)

15:19-24 Moot (nothing marked in blue)

16:5 Moot (nothing marked in blue)

16:14-17:7 Moot (nothing marked in blue)

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32:6-15 Moot (nothing marked in blue)

35:24-36:4 Overruled

37:2-38:12 Sustained

39:8-25 Sustained

53:9-13 Sustained

59:12-22 Sustained

60:14-22 Sustained

64:19-21 Sustained

65:3-13 Sustained

84:9-15 Sustained

84:24-85:15 Sustained

87:17-88:6 Sustained

88:16-89:13 Sustained

92:9-22 Sustained

93:12-94:12 Sustained

96:21-97:24 Sustained

101:11-103:8 Sustained

103:19-107:15 Sustained

108:11-110:25 Sustained

111:6-112:16 Sustained

126:23-25 Sustained

127:4-5 Sustained

135:18-136:13 Sustained

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146:15-147:4 Sustained

167:14-22 Overruled

173:22-174:13 Sustained

183:13-16 Sustained

192:1-3 Sustained

210:11-18 Sustained

216:2-3 Sustained

216:6-11 Sustained

c. Scott Gidley’s Deposition Testimony (2017)

21:2-6 Sustained

21:12-23 Sustained

22:16-23:11 Sustained

32:5-11 Sustained

51:2-8 Overruled

d. John Laun’s Deposition Testimony

17:8-18:16 Sustained

28:25-29:5 Sustained

30:16-20 Sustained

39:14-40:5 Sustained

40:12-24 Sustained

43:15-24 Sustained

49:22-50:4 Sustained

81:4-23 Sustained

82:8-83:3 Sustained

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99:7-101:6 Overruled

E. Defendant’s Objections to Plaintiff’s Exhibits

The Court makes the following tentative rulings with leave to renew on Defendant’s 

objections to Plaintiff’s trial exhibits:

Ex. 1 Plaintiff withdraws Ex. 1 and Ex. 63. Instead, the parties shall 

revise the format of their stipulations to include only the text of the 

actual stipulated facts, which will be given to the jury.

Ex. 2 Defendant states that it will not object to this exhibit when offered 

by Plaintiff.

Ex. 3 Defendant states that it will not object to this exhibit when offered 

by Plaintiff.

Ex. 4 Defendant states that it will not object to this exhibit when offered 

by Plaintiff, after Plaintiff has removed page 4-3.

Ex. 5 Ruling reserved until trial.

Ex. 6 When offered by Plaintiff at trial, the Court anticipates receiving 

this document as Defendant’s business record. See Fed. R. 

Evid. 803(6).

Ex. 7 When offered by Plaintiff at trial, the Court anticipates receiving 

this document as Defendant’s business record. See Fed. R. 

Evid. 803(6).

Ex. 8 When offered by Plaintiff at trial, the Court anticipates receiving 

this document as Defendant’s business record. See Fed. R. 

Evid. 803(6).

Exs. 9-10 Ruling reserved until trial.

Ex. 11 When offered by Plaintiff at trial, the Court anticipates receiving 

this document as Defendant’s business record. See Fed. R. 

Evid. 803(6).

Ex. 12 Ruling reserved until trial.

Ex. 13 When offered by Plaintiff at trial, the Court anticipates receiving 

this document as Defendant’s business record. See Fed. R. 

Evid. 803(6).

Ex. 14 Ruling reserved until trial.

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PAGE 19 – ORDER

Ex. 15 When offered by Plaintiff at trial, the Court anticipates receiving 

this document as Defendant’s business record. See Fed. R. 

Evid. 803(6).

Ex. 16 Ruling reserved until trial.

Ex. 17 When offered by Plaintiff at trial, the Court anticipates receiving 

this document as Defendant’s business record. See Fed. R. 

Evid. 803(6).

Ex. 18 Ruling reserved until trial.

Exs. 19-20 When offered by Plaintiff at trial, the Court anticipates receiving 

this document as Defendant’s business record. See Fed. R. 

Evid. 803(6).

Ex. 21 Ruling reserved until trial.

Ex. 22 When offered by Plaintiff at trial, the Court anticipates receiving 

this document as Defendant’s business record. See Fed. R. 

Evid. 803(6).

Ex. 23 Withdrawn by Plaintiff; see Defendant’s Ex. 214.

Ex. 24 When offered by Plaintiff at trial, the Court anticipates receiving 

this document as Defendant’s business record. See Fed. R. 

Evid. 803(6).

Ex. 25 Ruling reserved until trial.

Exs.26-27 When offered by Plaintiff at trial, the Court anticipates receiving 

this document as Defendant’s business record. See Fed. R. 

Evid. 803(6).

Ex. 28 Ruling reserved until trial.

Ex. 29 Withdrawn by Plaintiff; see Defendant’s Ex. 215.

Exs. 30-33 Ruling reserved until trial.

Exs. 34-34a When offered by Plaintiff at trial, the Court anticipates receiving 

this document as Defendant’s business record. See Fed. R. 

Evid. 803(6).

Ex. 35 Ruling reserved until trial.

Exs. 36-36a Plaintiff represents that Ex. 36 is a summary of voluminous record 

admissible under Fed. R. Evid. 1006. Defendant, however, 

challenges the accuracy of this summary and contends that it 

Case 3:15-cv-01857-SI Document 269 Filed 04/08/19 Page 19 of 21
PAGE 20 – ORDER

does not that merely summarize Ex. 38. The Court reserves ruling 

until trial on the admissibility of this purported summary so that 

Plaintiff may present an adequate foundation.

Ex. 37 Ex. 37 is a declaration signed by Defendant’s employee Scott 

Gidley. When offered by Plaintiff at trial, the Court anticipates 

receiving this exhibit as a statement of a party-opponent. See Fed. 

R. Evid. 801(d)(2)(D).

Ex. 38 Ex. 38 contains 405 sub-exhibits, marked 38-1 through 38-405. 

These documents are “contact lists” from Defendant’s POM 

machine used to place the calls at issue. They were produced to 

Plaintiff by Defendant during discovery. When offered by Plaintiff 

at trial, the Court anticipates receiving these documents as 

Defendant’s business records. See Fed. R. Evid. 803(6).

Ex. 39-42 Ruling reserved until trial.

Ex. 43 Ex. 43 contains 35 sub-exhibits, marked 43-1 through 43-35. 

These documents are “wav” files containing audio recordings used 

by Defendant. They were produced to Plaintiff by Defendant 

during discovery. When offered by Plaintiff at trial, the Court 

anticipates receiving these documents as Defendant’s business 

records. See Fed. R. Evid. 803(6).

Exs. 44-46 Ruling reserved until trial.

Ex. 47 When offered by Plaintiff at trial, the Court anticipates receiving 

this document, without redaction, as Defendant’s business record. 

See Fed. R. Evid. 803(6).

Exs. 48-57 Ruling reserved until trial.

Ex. 58 Ex. 58 is a screenshot with file names related to Ex. 43. This 

document was produced to Plaintiff by Defendant during 

discovery. When offered by Plaintiff at trial, the Court anticipates 

receiving this exhibit as Defendant’s business record. See Fed. R. 

Evid. 803(6).

Exs. 59-62 Ruling reserved until trial.

Ex. 63 See ruling on Ex. 1.

F. Plaintiff’s Objections to Defendant’s Exhibits

Ex. 201 This exhibit may not be used with the jury.

Ex. 202 This exhibit may not be used with the jury.

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Ex. 203 This exhibit may not be used with the jury.

Ex. 204 Ruling reserved until trial.

Ex. 205 This exhibit may not be used with the jury.

Ex. 214 (Formerly Plaintiff’s Ex. 23.) When offered by Defendant at trial, 

the Court anticipates receiving this exhibit as Defendant’s business 

record. See Fed. R. Evid. 803(6).

Ex. 215 (Formerly Plaintiff’s Ex. 29.) When offered by Defendant at trial, 

the Court anticipates receiving this exhibit as Defendant’s business 

record. See Fed. R. Evid. 803(6).

IT IS SO ORDERED.

DATED this 8th day of April, 2019.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

Case 3:15-cv-01857-SI Document 269 Filed 04/08/19 Page 21 of 21