Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I LLLP

COURT OF CHANCERY
OF THE
SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE
VICE CHANCELLOR 34 THE CIRCLE
GEORGETOWN, DELAWARE 19947
Date Submitted: November 7, 2017
Date Decided: November 13, 2017
Gregory V. Varallo, Esquire William B. Chandler, III, Esquire
Rudolf Koch, Esquire Ian R. Liston, Esquire
Robert L. Burns, Esquire Wilson Sonsini Goodrich & Rosati, P.C.
Richards, Layton & Finger, P.A. 222 Delaware Avenue, Suite 800
One Rodney Square Wilmington, DE 19801
920 North King Street
Wilmington, DE 19801 Lewis H. Lazarus, Esquire
Meghan A. Adams, Esquire
Morris James LLP
500 Delaware Avenue, Suite 1500
Wilmington, DE 19801
David S. Eagle, Esquire
Sean M. Brennecke, Esquire
Klehr Harrison Harvey Branzburg LLP
919 Market Street, Suite 1000
Wilmington, DE 19801
Re: Great Hill Equity Partners IV, LP, et al. v. SIG Growth Equity
Fund I, LLLP, et al., Civil Action No. 7906-VCG
Dear Counsel:
As discussed at the pretrial conference, this Letter Opinion will address the
Defendants’ Motion in Limine No. 1. For the reasons that follow, the Motion in
Limine is denied without prejudice to object at trial and to seek to exclude
consideration of evidence in post-trial briefing.
Motion in Limine No. 1 seeks to exclude portions of proposed testimony from
the Plaintiffs’ industry expert, Dr. Thomas Layman. The Defendants’ Motion
focuses on two purported problems with Dr. Layman’s proposed testimony. First,
the Defendants point out that the body of Dr. Layman’s report contains a recitation
of facts upon which he relied in forming his opinion. The Defendants argue that this
recitation of facts is cherry-picked and self-serving, and expressed the concern that
it may improperly skew my view of the facts, which I must determine based on
testimony at trial, not second-hand evidence received via an expert’s report. I have
no doubt, however, that I will be able to separate the two. Dr. Layman is permitted
to set forth the facts as he understood them in formulating his opinion.1 The
Defendants, of course, are free to cross-examine Dr. Layman and point out the
deficiencies or inaccuracies of the purported facts upon which he bases his opinion.
But I see no need to exclude Dr. Layman’s testimony through a ruling in limine.2
Next, the Defendants argue that Dr. Layman should not be permitted to opine
on the subjective knowledge or intent of individuals in the guise of providing insight
1
See D.R.E. 702 (“If scientific, technical or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training or education may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.” (emphasis added)).
2
See Beard Research, Inc. v. Kates, 2009 WL 7409282, at *6 (Del. Ch. Mar. 31, 2009)
(“[A]lthough it is critical in a jury trial for a court to exercise its gatekeeper function in advance of
allowing an expert to testify, the importance of addressing issues raised under Daubert and Rule
702 before an expert testifies is more attenuated in a bench trial.”).
2
into the industry in which Plimus did business. The Plaintiffs have responded that
they are not anticipating any such testimony. The Defendants are free to object to
any question which they feel improperly solicits views outside Dr. Layman’s area of
expertise.3
For the foregoing reasons, the Defendants’ Motion in Limine No. 1 is denied
without prejudice, as described in the body of this Letter Opinion. To the extent that
the foregoing requires an order to take effect, IT IS SO ORDERED.
Sincerely,
/s/ Sam Glasscock III
Sam Glasscock III
3
See Hoechst Celanse Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 1994 WL 721624, at
*1 (Del. Ch. Apr. 20, 1994) (holding that “subjective testimony regarding the plaintiffs’ subjective
intent with respect to property damage is not admissible as expert testimony pursuant to Delaware
Rule of Evidence 702.”).
3