United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS'
 MOTION IN LIMINE TO EXCLUDE TESTIMONY REGARDING DAMAGES
RELATING TO DISGORGEMENT OF FUNDS
NUFFER UNITED STATES DISTRICT JUDGE
have moved to exclude “Plaintiff's proposed
evidence regarding damages relating to disgorgement of
funds” because “Plaintiff has failed to timely
disclose any computation…of damages” and
“to timely designate an expert”
witness. Plaintiff responded in
opposition. Defendants replied. For the reasons
set forth below, Defendants' Motion is DENIED.
seek, pursuant to Rule 26(a)(1)(iii), to prohibit the
Plaintiff from introducing evidence of disgorgement because
“Plaintiff failed to properly and timely
disclose” “any documents or other evidentiary
material on which any computation of damages or disgorgement
is based.”. Plaintiff responds that “Rule
26(a)(1) does not require disgorgement calculations to be
disclosed, and [they] disclosed all information that supports
[their] disgorgement calculations.” This is correct.
“Disgorgement is not a damages remedy, and therefore
‘the disclosure required by Rule 26(a)(1)(A)(iii) is
inapplicable.'” Furthermore, Plaintiff “timely
disclosed the bank records and tax returns underlying [their
claim they would be prejudiced by Plaintiff's ability to
“put on evidence of damages or disgorgement that
Plaintiff failed to properly and timely
disclose.” Plaintiff responds “[i]t is
nonsensical [for Defendants] to claim prejudice because
[Plaintiff] did not disclose information [Defendants
possess].” Defendants should know the total amount of
lenses sold and how much money was derived from those sales.
Defendants are “not prejudiced by the [Plaintiff's]
failure to disclose a precise calculation of disgorgement
because [they are] in at least as good of a position, if not
better, as the [Plaintiff] to calculate the ill-gotten gains
[they] received.” Moreover, Defendants have repeatedly
withheld information from Plaintiff regarding the basis for
disgorgement, despite being ordered to do so.
also complain that they have not had the opportunity to
examine experts who must necessarily present disgorgement
evidence. Plaintiff asserts that “[n]o
specialized expertise is required to perform the
[disgorgement] calculations.” Plaintiff will present
“evidence on disgorgement through summary witnesses who
reviewed the same voluminous documents that [were] timely
disclosed to Defendants, and who will be available for
cross-examination.” These witnesses reviewed
Defendants' bank accounts and tax returns of
Defendants' customers and synthesized this information
into Excel to “calculate Defendants' gross receipts
and estimate the harm to the Treasury.” Assuming
sufficient foundation is laid and the testimony is not
otherwise objectionable, a witness with “personal
knowledge or perception acquired through review of
records” may testify from her lay opinion
testimony. In this situation, no expertise is
HEREBY ORDERED that
Defendants' Motion is DENIED.
parties shall meet and confer and make an attempt to find a
time for Defendants to depose JoAnna Perez and Amanda
Reinken, only on the subject of the exhibits as to which they
will testify and their preparation of those exhibits. Neither
deposition shall consume more than three hours.
parties must submit briefs on or before noon March 26, 2018
on the measurement and proof of a disgorgement amount.
Specifically, the parties must provide legal authority for
(1) measuring disgorgement by the amount of (a) taxes avoided
by investors in Defendant RaPower; (b) gross profit of
RaPower; (c) net profit of RaPower; (d) income of individual
defendants from RaPower; or any other measure, and (2) who,
in the event net profit is a proper measure, bears the burden
of proof on expenses RaPower incurred in its business.
 Defendants' Motion in Limine to
Exclude Testimony Regarding Damages Relating to Disgorgement
of Funds (“Motion”), docket no. 319, at 1, 9,
filed March 5, 2018.
 United States' Memorandum in
Opposition to Defendants' Motion in Limine to Exclude
Testimony Regarding Damages Relating to Disgorgement of Funds