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Monday, December 14, 2015 Strategic Use of ‘Early’ in Limine Motions

By Michael T. Mervis and Edward J. Canter

otions in limine (sometimes called “in limine motions”) Mtypically are thought of as applications made proximate to the time of trial that seek the exclusion of specific pieces or types of evidence. In general, New York state courts disfavor the practice of making such motions before the close of discovery (particu- larly if they seek potentially issue-dis- positive relief), often on the basis that they are premature partial summary judgment motions in disguise. There are, however, some trial court decisions that can be used to support the argu- BIGSTOCK ment that it’s appropriate to resolve certain issues through an in limine weigh the potential strategic benefits of inadmissible, immaterial and/or prej- motion made early in a case, before making an in limine motion relatively udicial evidence.1 The typical goal discovery has closed. This article will early in a case. is to make clear that the challenged explore case law in the area and iden- Traditionally, in limine motions are evidence will not even be referred to tify considerations for counsel as they used to obtain a preliminary order, (much less offered) by an adversary before (or sometime during) trial, in front of a jury. Michael T. Mervis is a partner and Edward J. Canter is excluding the introduction (or limit- While most motions in limine are an associate at Proskauer Rose, where they both practice in the litigation department. ing the use) of what is argued to be made close to the time of trial, New Monday, December 14, 2015

York state procedural law does not summary judgment.”7 In part, the court missive” motion seeking a ruling that prevent litigants from bringing them came to this conclusion because, based a particular form of proof would be earlier—including prior to the comple- on the motion papers, it was clear that admissible at trial. tion of discovery.2 No statute or provi- the purpose of the motion was to limit At issue in Schron v. Grunstein sion in the New York Civil Practice Law damages to a particular period. The (Schron) were two contracts—a and Rules, for example, contains any court was not persuaded by the defen- loan agreement and an option agree- limitation on when motions in limine dant’s attempt to frame its motion, ment—executed by the parties. The can be made.3 Although various court instead, as a request to “limit the use defendants, who refused to honor parts and individual judges can have of evidence.”8 the plaintiff’s exercise of the option rules about the timing of motions in New York courts also have hesitated agreement, maintained that the two limine, they usually require only that to grant motions in limine when they contracts were, in reality, part of one motions be made by no later than a are made at the outset of litigation, rea- agreement and should be read together. certain time (as opposed to requiring soning that evidentiary rulings should Relying primarily on extrinsic evidence, that they not be made before a certain be made at or near the time of trial they argued that they had no duty to time). The rules of the Commercial so that the issues can be assessed in perform under the option agreement Division, for example, require parties context with other proof developed because performance under the loan to “make all motions in limine no later through discovery.9 agreement was a condition precedent than ten days prior to the scheduled to performance under the option agree- pre-trial conference date.”4 But there ment and, they alleged, the plaintiff had is no prohibition against bringing a New York courts also have hesitated failed to satisfy his obligations under motion before then. to grant motions in limine when they the loan agreement. are made at the outset of litigation, As a practical matter, however, New Relatively early in the litigation, reasoning that evidentiary rulings York courts are generally reluctant to and well prior to the conclusion of should be made at or near the time grant motions in limine prior to the con- of trial so that the issues can be discovery, the plaintiff filed a motion clusion of discovery, especially when assessed in context with other proof in limine to preclude the defendants’ doing so would require the court to developed through discovery. use of parol evidence. In opposition, rule on substantive legal issues. New the defendants maintained that the York courts also typically reject the use motion was inappropriate because: of motions in limine to decide broadly There are, however, exceptions to (1) it was premature; (2) the court had applicable or dispositive legal issues, these general practices, as two trial not yet even seen the evidence the characterizing them as the functional court cases demonstrate. In one case, plaintiff sought to exclude; and (3) the equivalent of a motion for summary Schron v. Grunstein, 32 Misc.3d 231, 239 motion was “an inappropriate attempt judgment.5 (Sup. Ct. N.Y. Co. 2011), aff’d sub nom, at a disguised summary judgment.”10 Courts have applied the same logic Schron v. Troutman Saunders, 97 A.D.3d The trial court disagreed, concluding when parties move in limine prior to 87, 95 (1st Dep’t 2012), aff’d, 20 N.Y.3d that the loan agreement and the option the close of discovery where the effect 430, 437 (2013), the court granted a agreement were separate contracts; of granting the motion would be to bar motion in limine, made relatively early that the agreements contained merger a particular category of damages.6 For in the litigation, to preclude the use and integration clauses, which explic- example, in Hefti v. Brand Union Co., the of parol evidence. In the other, MBIA itly barred the use of parol evidence; court concluded that the defendant’s Ins. v. Countrywide Home Loans, 30 and, further, that the contractual lan- motion, “though dressed up as a motion Misc.3d 1201[A], 1201A (Sup. Ct. N.Y. guage was unambiguous, containing in limine, [was] really one for partial Co. 2010), the court granted a “per- no language that made funding of the Monday, December 14, 2015 loan an express condition precedent must be enforced according to the practical challenges in terms of prov- to the plaintiff’s right to exercise the plain meaning of its terms.” Parol ing its case at trial with a modicum of option.11 Thus, the court granted the evidence—evidence outside the efficiency. Thus, “well in advance of the plaintiff’s in limine motion. four corners of the document—is pre-trial conference date,” the plaintiff The court explained that because the admissible only if a court finds an brought a “permissive” motion in limine agreement at issue was unambiguous, it ambiguity in the contract.15 seeking a determination that it could was not necessary to wait until after dis- Courts are capable of ruling on the use statistical sampling as evidence in covery closed to rule on whether parol threshold issue of ambiguity early in support of its claims.18 (A “permissive” evidence would be admissible.12 The the litigation life-cycle. Doing so does motion is one made by the party seek- court noted that a party is not allowed not require a court to consider what- ing to offer the evidence and asks for to submit parol evidence in order to cre- ever evidence could be developed dur- a determination that the evidence in ate ambiguity in an otherwise clear and ing discovery because the question question is admissible.19) complete agreement. In view of that, of whether or not a contract clause is Rejecting the defendants’ argument the court reasoned, “‘[a]ny such dis- ambiguous typically can be determined that the motion was premature, the covery would simply be an opportunity from the face of the contract. court explained that “[w]hile the major- for plaintiff to uncover parol evidence The strategy employed by the plain- ity of motions in limine are made close to to attempt to create an ambiguity in tiff in Schron also allows for a possible or during trial, neither New York statute an otherwise clear and unambiguous “second bite at the apple” if the court nor code prevents a party from bring- agreement.’”13 “‘Unless this Court were denies the in limine motion on the basis ing a motion as their litigation strategy to find an ambiguity,’” the court added, that the contract provision at issue is dictates. Neither does New York statute “‘such parol evidence would be inad- ambiguous. “Summary judgment is or code prevent the court from decid- missible at trial or on a subsequent not limited to those cases where the ing that motion.”20 The court also dis- motion for summary judgment.’”14 contract is free from ambiguity and not tinguished the line of New York cases The Appellate Division, First Depart- subject to differing interpretations.”16 cited by the defendants to the effect that ment, and thereafter the New York In such cases, summary judgment is rulings on the admissibility of evidence Court of Appeals, affirmed. Although appropriate when the uncontradicted should be made at or near trial because, neither explicitly addressed the tim- extrinsic evidence definitively estab- at that point, the relevance of the chal- ing of the motion in limine, the Court lishes the meaning of the ambiguous lenged evidence can be determined in of Appeals’ explanation of the eviden- language.17 In other words, a “loss” in context with all the other evidence. The tiary question at issue sheds light on a Schron-style in limine motion made court observed that there was no ques- the rationale for permitting such an early in a case does not necessarily tion that the facts the plaintiff sought early motion despite the general rule mean that summary judgment cannot to prove through statistical sampling disfavoring motions in limine prior to be granted later in the case. were relevant to the plaintiff’s claims the conclusion of discovery: In MBIA Insurance v. Countrywide for fraud and breach of contract. Thus, Home Loans (Countrywide”), the plain- “[t]he question is not of admissibility Under New York law, written agree- tiff sued the defendants for fraud and and relevance,” the court clarified, “but ments are construed in accordance breach of contract in a case arising out of the form that the relevant and admis- with the parties’ intent and “[t]he of the defendants’ underwriting of com- sible evidence will take at trial.”21 best evidence of what parties to a plex residential mortgage-backed secu- The court acknowledged that, on written agreement intend is what rities. Given the complicated structure the merits, there were factual issues they say in their writing.” As such, “a of the financial instruments at issue, still in dispute; however, it rejected the written agreement that is complete, each comprised of hundreds of indi- contention that these were “thresh- clear and unambiguous on its face vidual loans, the plaintiff faced certain old issues” that needed to be resolved Monday, December 14, 2015 before addressing the plaintiff’s in limi- emphasized.26 5. Sadek v. Wesley, 117 A.D.3d 193, 203 (1st Dep’t 2014); Downtown Art Co. v. Zimmerman, 232 A.D.2d 22 ne motion. “Defendants do not argue The strategy employed in Coun- 270, 270 (1st Dep’t 1996); Carrasquillo v. New York how resolution, or non-resolution, of trywide seems well suited to cases City Dep’t of Educ., 104 A.D.3d 516, 516 (1st Dep’t 2013); A.R. Med. Rehabilitation, P.C. v. GEICO Gen. any of their purported issues will be involving complicated scientific or Ins. Co., 39 Misc. 3d 1206[A], 1206A (Civ. Ct. Bronx Co. 2013). affected by a statistically significant econometric issues. As another New 6. Charter Sch. for Applied Techs. v. Bd. of Educ. sampling of the securitizations at York trial court noted, “[i]n relation for City Sch. Dist. of City of Buffalo, 105 A.D.3d 1460, 1464 (4th Dep’t 2013) (“Defendant’s motion to pre- issue, nor do Defendants attempt to to the conduct of the civil litigation, clude plaintiffs from introducing any evidence with link the list of issues with their other there is an evolving preference for ear- respect to damages was ‘the functional equivalent of a motion for partial summary judgment.’”); Scalp arguments,” the court wrote. “Defen- ly presentation [of issues concerning & Blade v. Advest, 309 A.D.2d 219, 224 (4th Dep’t 2003); Rondout Elec. v. Dover Union Free Sch. Dist., dants simply state that if Plaintiff scientific evidence] because scientific 304 A.D.2d 808, 810 (2d Dep’t 2003); Avail Ship- does not prevail upon all of the listed issues may involve a time-consuming ping v. Shero Shipping, No. 600112/2009, 2015 WL 1158556, at *1-3 (Sup. Ct. N.Y. Co. March 12, 2015). issues ‘[the plaintiff’s] proposal will analysis of an expert’s methodology 7. Hefti, 2014 WL 2990389 at *1. not work.’”23 Because the defendants and the pertinent literature.”27 In cases 8. Id. 9. Speed v. Avis Rent-A-Car, 172 A.D.2d 267 (1st offered no nexus between the disputed involving complicated technical issues, Dep’t 1991) (citing Carroll v Nunez, 137 A.D.2d 911, 913 (3d Dep’t 1988) (“A decision regarding the ad- factual issues and the form of evidence there is a significant potential benefit missibility of evidence … is more properly made at proposed by the plaintiff, there was in knowing, well before trial, whether a trial when its relevance, or lack of relevance, may be determined in context.”); Grant v. Richard, 222 no need to resolve the factual issues particular means of proving claims or A.D.2d 1014 (4th Dep’t 1995). before ruling on the plaintiff’s motion defenses will be acceptable to the trial 10. Schron, 32 Misc.3d at 234. 11. Id. at 236-39. in limine. judge. And, even if the court declines 12. Id. at 237. 13. Id. at 238 (quoting R.M. Realty Holdings v. The defendants also raised concerns to decide an early permissive in limine Moore, 64 A.D.3d 434, 437 (1st Dep’t 2009)). about the proposed sampling meth- motion on the basis that it’s premature, 14. Id. 15. Schron, 20 N.Y.3d at 436 (quoting Greenfield v. odology itself. But, finding that the the early motion may help to educate Philles Records, 98 N.Y.2d 562, 569 (2002)). proposed methodology satisfied the the trial judge about important issues 16. Hudson-Port Ewen Assoc., L.P. v. Chien Kuo, 165 A.D.2d 301, 303 (3d Dep’t 1991). well-known Frye standard for admis- concerning the ultimate conduct of 17. Evans v. Famous Music, 1 N.Y.3d 452, 460 24 (2004); Fed. Ins. Co. v. Ams. Ins. Co., 258 A.D.2d 39, sibility of scientific expert evidence, trial. 44 (1st Dep’t 1999). the court explained that the defen- In sum, although the common wis- 18. Countrywide, 30 Misc.3d at 1201A. 19. 4 N.Y. Prac., Com. Litig. in New York State dants’ criticisms went to the weight dom is that New York courts are reluc- Courts §38:3 (4th ed.). of the evidence, not its admissibility. tant to grant motions in limine made 20. Countrywide, 30 Misc.3d at 1201A. 21. Id. “[W]hile Plaintiff is permitted to pres- in the early stages of a case, case law 22. Id. 23. Id. ent evidence as it so chooses, and the suggests that there are some situations 24. Frye v. United States, 293 F. 1013 (D.C. Cir. court will permit Plaintiff to present evi- when such a motion is appropriate. 1923). 25. Countrywide, 30 Misc.3d at 1201A. dence of its claims through its chosen Schron and Countrywide represent two 26. Id. sampling methodology, the court does such situations, and forward-thinking 27. Drago v. Tishman Constr., 4 Misc.3d 354, 361 (Sup. Ct. N.Y. Co. 2004). not necessarily endorse the Plaintiff’s counsel may well be able to identify method as better or worse than any and pursue others and thereby achieve other method.”25 The court noted that a tactical advantage by obtaining an the plaintiff would still be required to early ruling on a key issue. prove each element of its claims, as •••••••••••••• •••••••••••••• well as damages, and that the defen- • dants would have the opportunity to 1. State v. Metz, 241 A.D.2d 192, 198 (1st Dep’t 1998). challenge the plaintiff’s proofs. “Sam- 2. See Hefti v. Brand Union, No. 150832/2014, 2014 WL 2990389, at *1 (Sup. Ct. N.Y. Co. 2014). Reprinted with permission from the December 14, 2015 edition of the NEW YORK pling itself is not proof, but merely a LAW JOURNAL © 2015 ALM Media Properties, LLC. All rights reserved. Further 3. Id. duplication without permission is prohibited. For information, contact 877-257-3382 vehicle to present evidence,” the court 4. 22 N.Y.C.R.R. 202.70, Rule 27. or [email protected]. # 070-12-15-20