Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 1 of 115
`
`Jeffrey A. LeVee (State Bar No. 125863)
`jlevee@JonesDay.com
`Eric P. Enson (State Bar No. 204447)
`epenson@JonesDay.com
`Kelly M. Ozurovich (State Bar No. 307563)
`kozurovich@JonesDay.com
`JONES DAY
`555 South Flower Street
`Fiftieth Floor
`Los Angeles, CA 90071.2300
`Telephone: +1.213.489.3939
`Facsimile:
`+1.213.243.2539
`John M. Majoras (Admitted Pro Hac Vice)
`jmmajoras@jonesday.com
`JONES DAY
`51 Louisiana Avenue, N.W.
`Washington, D.C. 20001-2113
`Telephone: +1.202.879.3939
`Facsimile:
`+1.202.626.1700
`Attorneys for Defendants
`HOLY STONE ENTERPRISE CO., LTD.,
`MILESTONE GLOBAL TECHNOLOGY, INC.
`(D/B/A HOLYSTONE INTERNATIONAL),
`VISHAY POLYTECH CO., LTD.
`[COUNSEL FOR OTHER DEFENDANTS LISTED
`ON SIGNATURE PAGE]
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`IN RE CAPACITORS ANTITRUST
`LITIGATION
`THIS DOCUMENT RELATES TO:
`
`Direct Purchaser Plaintiffs Action, 14-cv-
`03264-JD
`
`Master File No. 17-md-02801-JD
`DEFENDANTS’ OMNIBUS MOTIONS IN
`LIMINE AND DPPS’ RESPONSES
`THERETO
`The Honorable James Donato
`Date:
`February 13, 2020
`Time:
`10:00 a.m.
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`Defendants’ Omnibus Motions In Limine
`And DPPs’ Responses Thereto
`Master File No 17-md-02801-JD
`
`

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`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 2 of 115
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`
`
`Defendants Motion in Limine No. 1 to Exclude Criminal
`Documents and Transcripts .......................................................................................................... 1
`
`TABLE OF CONTENTS
`
`DPPs’ Response to Defendants’ Motion No. 1 ............................................................................... 9
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`Defendants Motion in Limine No. 2 to Admit Rebuttal Evidence
`If Guilty Pleas Are Introduced At Trial ..................................................................................... 12
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`DPPs’ Response to Defendants’ Motion No. 2 ............................................................................. 18
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`Defendants Motion in Limine No. 3 to Preclude Introduction Of And Adverse
`Inference Instructions From Non-Party Fifth Amendment Depositions .................................... 22
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`DPPs’ Response to Defendants’ Motion No. 3 ............................................................................. 28
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`Defendants Motion in Limine No. 4 to Exclude Improper Characterizations
`Of or References To Defendants ................................................................................................ 31
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`DPPs’ Response to Defendants’ Motion No. 4 ............................................................................. 37
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`Defendants Motion in Limine No. 5 to Exclude Evidence of
`Subsequent Remedial Measures................................................................................................. 40
`
`DPPs’ Response to Defendants’ Motion No. 5 ............................................................................. 48
`
`Defendants Motion in Limine No. 6 to Exclude
`All Evidence Relating To European Conduct ............................................................................ 51
`
`DPPs’ Response to Defendants’ Motion No. 6 ............................................................................ 57
`
`Defendants Motion in Limine No. 7 to Exclude Out of Court Statements
`Relating to AVX Corporation and Kement Corporation Declarants ......................................... 60
`
`DPPs’ Response to Defendants’ Motion No. 7 ............................................................................ 66
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`Defendants Motion in Limine No. 8 to Exclude Evidence of
`Kemet Corporation’s Sales ........................................................................................................ 70
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`DPPs’ Response to Defendants’ Motion No. 8 ............................................................................ 76
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`Defendants Motion in Limine No. 9 to Exclude Evidence Of and
`Reference To the AVX and Chemi-Con Potential Joint Venture ............................................. 78
`
`DPPs’ Response to Defendants’ Motion No. 9 ............................................................................. 85
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`- ii -
`
`Defendants Taitsu Corporation, Taitsu America, Inc. and Nippon
`Chemi-Con Corp.’s Motion in Limine No. 10 to Exclude Evidence of
`Supplier-Customer Communications and to Provide a Limiting Instruction ............................ 88
`Defendants’ Omnibus Motions In Limine
`And DPPs’ Responses Thereto
`Master File No 17-md-02801-JD
`
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`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 3 of 115
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`
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`DPPs’ Response to Defendants’ Motion No. 10 .......................................................................... 95
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`Defendants Motion in Limine No. 11 to Exclude
`Evidence of Foreign Investigations............................................................................................ 98
`
`DPPs’ Response to Defendants’ Motion No. 11 ........................................................................ 104
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`- iii -
`
`Defendants’ Omnibus Motions In Limine
`And DPPs’ Responses Thereto
`Master File No 17-md-02801-JD
`
`

`

`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 4 of 115
`
`Charles F. Rule (admitted pro hac vice)
`Joseph J. Bial (admitted pro hac vice)
`Eric R. Sega (admitted pro hac vice)
`PAUL, WEISS, RIFKIND, WHARTON &
`GARRISON LLP
`2001 K Street, NW
`Washington, DC 20006
`Telephone: (202) 223-7300
`Facsimile: (202) 223-7420
`rrule@paulweiss.com
`jbial@paulweiss.com
`esega@paulweiss.com
`
`Steven Shea Kaufhold (SBN 157195)
`KAUFHOLD GASKIN LLP
`388 Market Street, Suite 1300
`San Francisco, CA 94111
`Telephone: (415) 445-4621
`Facsimile: (415) 874-1071
`skaufhold@kaufholdgaskin.com
`
`Roberto Finzi (admitted pro hac vice)
`Farrah Berse (admitted pro hac vice)
`Johan E. Tatoy (admitted pro hac vice)
`PAUL, WEISS, RIFKIND,
`WHARTON & GARRISON LLP
`1285 Avenue of the Americas
`New York, NY 10019
`Telephone: (212) 373-3000
`Facsimile: (212) 757-3990
`rfinzi@paulweiss.com
`fberse@paulweiss.com
`jtatoy@paulweiss.com
`
`Counsel for Defendants
`Nippon Chemi-Con, Corp. and
`United Chemi-Con, Inc.
`
`[COUNSEL FOR OTHER DEFENDANTS
`LISTED ON SIGNATURE PAGE]
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`IN RE CAPACITORS ANTITRUST
`LITIGATION
`
`THIS DOCUMENT RELATES TO:
`
`Direct Purchaser Plaintiffs Action, 14-cv-
`03264-JD
`
`Master File No. 17-md-02801-JD
`
`DEFENDANTS’ MOTION IN LIMINE NO. 1
`TO EXCLUDE CRIMINAL DOCUMENTS
`AND TRANSCRIPTS
`
`The Honorable James Donato
`
`Date:
`Time:
`
`February 13, 2020
`10:00 a.m.
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`- 1 -
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`Defendants’ Motion In Limine To Exclude
`Criminal Documents & Transcripts
`Master File No. 17-md-02801-JD
`
`

`

`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 5 of 115
`
`TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
`
`Please take notice that on February 13, 2020, or as soon thereafter as the matter may be
`
`heard, in the Courtroom of the Honorable James Donato, Courtroom 11, 19th Floor, 450 Golden
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`Gate Avenue, San Francisco, CA 94102, the undersigned Defendants will, and hereby do, move
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`this Court, pursuant to Rules 401, 402, 403 and 802 of the Federal Rules of Evidence, to preclude
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`DPPs’ introduction or use at trial of documents or transcripts created as part of the United States’
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`criminal investigations and prosecutions of the undersigned Defendants or their alleged co-
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`conspirators, including indictments, plea agreements, sentencing memoranda, or any other
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`document or transcript referencing the same.
`
`Date: January 6, 2020
`
` PAUL, WEISS, RIFKIND,
` WHARTON &GARRISON LLP
`Charles F. Rule
`Joseph J. Bial
`Eric R. Sega
`2001 K Street, NW
`Washington, DC 20006-1047
`Telephone: (202) 223-7300
`Facsimile: (202) 223-7420
`rrule@paulweiss.com
`jbial@paulweiss.com
`esega@paulweiss.com
`
`Roberto Finzi
`Farrah R. Berse
`Johan E. Tatoy
`1285 Avenue of the Americas
`New York, NY 10019
`Telephone: (212) 373-3000
`Facsimile: (212) 757-3990
`rfinzi@paulweiss.com
`fberse@paulweiss.com
`jtatoy@paulweiss.com
`
`KAUFHOLD GASKIN LLP
`Steven Shea Kaufhold
`388 Market St, Suite 1300
`San Francisco, CA 94111
`Telephone: (415) 445-4621
`Facsimile: (415) 874-1071
`skaufhold@kaufholdgaskin.com
`
`By: /s/ Joseph J. Bial
`
`Attorneys for Defendants
`NIPPON CHEMI-CON CORPORATION and
`UNITED CHEMI-CON, INC.
`Defendants’ Motion In Limine To Exclude
`Criminal Documents & Transcripts
`Master File No. 17-md-02801-JD
`
`- 2 -
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`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 6 of 115
`
`ISSUES TO BE DECIDED
`
`1.
`
`Whether the DPPs should be allowed to introduce into evidence material—
`
`including indictments, plea agreements, sentencing memoranda, and other such documents—
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`created as part of the United States’ criminal investigations or prosecutions of the undersigned
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`Defendants and their alleged co-conspirators.
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`- 3 -
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`Defendants’ Motion In Limine To Exclude
`Criminal Documents & Transcripts
`Master File No. 17-md-02801-JD
`
`

`

`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 7 of 115
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`The exhibit list provided by DPPs in connection with the scheduled trial of this case
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`includes all manner of irrelevant hearsay documents generated as part of the Department of
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`Justice’s investigation and prosecution of the Defendants and their alleged co-conspirators.
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`Specifically, and by way of example, DPPs’ exhibit list includes entries for grand jury indictments,
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`for plea agreements, and for memoranda submitted in connection with sentencings.
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`None of this material is relevant and, to the extent that it is, its probative value is
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`dramatically outweighed by its potential to prejudice the Defendants, confuse the jury, and
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`complicate these proceedings. Furthermore, these documents are hearsay, admissible at most
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`against a single admitting party in this action, but not against that party’s co-defendants.
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`I. ARGUMENT
`
`As the Court is aware, DPPs have alleged a broad, more than decade-long conspiracy “to
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`fix and inflate the prices of aluminum, film, and tantalum capacitors from January 2002 through
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`December 2013.” DPPs’ Mot. for Class Cert., In re Capacitors Antitrust Litig., No. 14-cv-03264,
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`ECF No. 1693 (N.D. Cal. June 15, 2017). As the Court is likewise aware, certain defendants have
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`pled guilty to conspiring to fix prices of certain electrolytic capacitors over certain periods of time.
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`Significantly, the conspiracy alleged by the DPPs is different from and vastly broader than the
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`conspiracies to which the different defendants pled. For this reason, the materials generated in the
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`criminal cases are not relevant to this case. Furthermore, the use of these materials would require
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`“trials within trials” to provide the necessary explanation and context to the jury.1
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`DPPs’ exhibit list contains plea agreements entered into by certain defendants and their
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`alleged co-conspirators. But those agreements have limited relevance to this action in that they
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`describe conduct different from (and significantly narrower than) the broad conspiracy alleged in
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`1 Defendants recognize that under 15 U.S.C. § 16(a), a final judgment in a criminal proceeding may be
`adduced by a civil plaintiff as prima facie evidence, but only against the pleading defendant and only
`for matters necessarily decided in the judgment. See In re Capacitors Antitrust Litig. (No. III), No.
`14-CV-03264-JD, 2018 WL 5980139, at *8 (N.D. Cal. Nov. 14, 2018). But that section does not
`require the introduction of other materials from criminal proceedings. Moreover, given the prejudicial
`effect of the plea agreements as to unspecified “certain electrolytic capacitors” coupled with the
`necessity of “trial[s] within a trial” to prevent juror confusion, Defendants believe that Rule 403
`requires exclusion of these documents. See Duran v. City of Maywood, 221 F.3d 1127, 1132–33 (9th
`Cir. 2000) (excluding evidence of subsequent similar act in police shooting case under Rule 403 where
`there was high potential for juror confusion). If the Court denies this Motion and allows these
`materials as evidence here, Defendants seek the relief requested in Defendants’ Motion in Limine No.
`2 to Admit Rebuttal Evidence If Guilty Pleas Are Introduced at Trial, filed concurrently herewith.
`Defendants’ Motion In Limine To Exclude
`Criminal Documents & Transcripts
`Master File No. 17-md-02801-JD
`
`- 4 -
`
`

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`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 8 of 115
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`the Complaint. It is well-settled that evidence of guilty pleas can be used only to establish facts
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`“necessarily decided” in a criminal action. United States v. Real Prop. Located at Section 18, 976
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`F.2d 515, 519 (9th Cir. 1992). Here, the guilty pleas only “necessarily decided” that certain
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`Defendants engaged in conspiracies regarding “certain” electrolytic capacitors during differing
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`periods of time. Those pleas do not even purport to describe the specific electrolytic capacitors
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`affected or whether any specific customers (let alone any or all DPPs) were harmed.2 The
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`existence of a price-fixing conspiracy as to certain electrolytic capacitors does not tend to prove a
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`conspiracy as to others, even when those products are related. See In re TFT-LCD (Flat Panel)
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`Antitrust Litig., MDL No. 1827, 2010 WL 2629728 (N.D. Cal. June 29, 2010) (rejecting argument
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`that involvement in a conspiracy relating to cathode ray tubes rendered more plausible a
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`conspiracy claim relating to LCD panels).
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`Moreover, and importantly, not all of the defendants pled guilty to criminal charges, and
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`the pleas of others are plainly irrelevant and inadmissible as to the non-pleading defendants. See
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`Halbert, 640 F.2d at 1004 (“[A] guilty plea or conviction of a codefendant may not be offered . . .
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`as substantive evidence of the guilt of those on trial.”). Id. at 1005–06; United States v.
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`Maliszewski, 161 F.3d 992, 1004 (6th Cir. 1998) (“[E]vidence of a co-conspirator’s guilty plea is
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`extremely prejudicial”). Nor are the pleas of pleading defendants admissible against other
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`pleading defendants. By definition, a guilty plea is not a co-conspirator statement made in
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`furtherance of a conspiracy. Indeed, the time periods to which certain defendants pled, as well as
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`the capacitors at issue, differed even among the pleading defendants. Compare, e.g., Plea
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`Agreement ¶ 4(a), United States v. Hitachi Chem. Co., 16-cr-0180-JD, ECF No. 12-2 (N.D. Cal.
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`May 13, 2016) (pleading to conduct occurring between at least Aug. 2002 and Mar. 2010), with
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`Plea Agreement ¶ 4(a), United States v. Nichicon Corp., 17-cr-00368-JD, ECF No. 19 (N.D. Cal.
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`2 The conspiracies described in the various plea agreements all refer to a conspiracy concerning
`“certain electrolytic capacitors.” E.g., Plea Agreement ¶ 4, United States v. Matsuo Elec. Co. Ltd., 17-
`cr-00073-JD, ECF No. 12-2 (N.D. Cal. Mar. 24, 2017) (defendant pled guilty to conduct relating to
`“certain electrolytic capacitors”); Plea Agreement ¶ 4(b), United States v. ELNA Co., Ltd., 16-cr-
`00365-JD, ECF No. 16-2 (N.D. Cal. June 6, 2017) (same); Plea Agreement ¶ 4(b), United States v.
`Nippon Chemi-Con Corp., 17-cr-00540-JD, ECF No. 54 (N.D. Cal. May 31, 2018) (defendant pled
`guilty to conduct relating to “certain electrolytic capacitors manufactured outside of the United
`States”). Notably, two defendants remaining in the civil case—Shinyei and Taitsu—only produced
`film capacitors, which are not mentioned in any plea agreements.
`Defendants’ Motion In Limine To Exclude
`Criminal Documents & Transcripts
`Master File No. 17-md-02801-JD
`
`- 5 -
`
`

`

`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 9 of 115
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`Nov. 09, 2017) (pleading to conduct occurring between at least Nov. 2001 and Dec. 2011).3
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`Above and beyond the plea agreements themselves—which are inadmissible—DPPs
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`propose to offer other documents, including indictments, sentencing memoranda, and others that
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`are inadmissible under the Federal Rules of Evidence. Indictments and informations, for example,
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`are out of court statements—allegations, in fact—of the grand jury and the government. Those
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`allegations are irrelevant to DPPs’ case, and are inadmissible hearsay. Government sentencing
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`memoranda are likewise inadmissible out of court statements offered by DPPs for the truth of the
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`matters asserted therein, irrelevant to the question of whether DPPs’ have met their burden of
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`establishing their allegations. And while a sentencing memorandum might arguably be admissible
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`against the defendant who submitted it, it would be inadmissible as to any other defendant.4
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`Moreover, the danger of undue prejudice and delay from the jury misunderstanding the
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`proper use of any of these criminal documents is high, far outweighing any probative value. There
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`is real danger that a juror would give undue weight to statements made in a different proceeding
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`than the instant civil case, rather than focusing on the allegations and facts properly presented by
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`DPPs as they attempt to prove their much broader case. And even to the extent offered against
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`single defendants, the admission of documents that tell only one part of the story would clearly
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`require that the particular defendant be allowed to contextualize their statement by permitting an
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`explanation of the circumstances in which it was made, thereby creating a series of mini trials
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`regarding the scope and reasons for each pleading party’s plea.
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`The Court should grant Defendants’ Motion and exclude documents and testimony created
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`CONCLUSION
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`in the criminal proceedings pursuant to Federal Rules of Evidence 401, 402, 403, and 802.
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`3 If the Court permits the plea agreements to be introduced into evidence, the Court should provide the
`jury with limiting instructions specifying the particular defendants against whom each plea can be used
`as well as for what purposes. See Defendants Proposed Jury Instruction No. 7. See United States v.
`Halbert, 640 F.2d 1000, 1006–07 (9th Cir. 1981) (court erred in failing to tell the jury “in unequivocal
`language that the plea may not be considered as evidence of a defendant’s guilt”); see also New York v.
`Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir. 1988) (approving instruction that conviction of
`one defendant “could not be used against any other defendant for any purpose”); Fed. R. Evid. 105.
`4 To the extent DPPs seek to introduce evidence of criminal conduct from unrelated cases, such
`evidence is also irrelevant and unduly prejudicial hearsay which should be excluded. For instance,
`DPPs’ exhibit list includes non-parties’ plea agreements, such as Panasonic’s plea in United States v.
`Panasonic Corp., No. 2:10-cr-20576-JAC-MAR (E.D. Mich. Sept. 30, 2010).
`Defendants’ Motion In Limine To Exclude
`Criminal Documents & Transcripts
`Master File No. 17-md-02801-JD
`
`- 6 -
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`

`

`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 10 of 115
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`INDEX OF EXHIBITS TO DEFENDANTS’ MOTION IN LIMINE NO. 1
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`The table below contains a non-exclusive list of exemplary documents listed on DPPs’
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`initial exhibit list that are affected by this motion. Defendants’ motion is not limited to the
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`documents on this list, but includes any documents covered by the substance of this motion that
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`DPPs have already identified or may identify in its list of rebuttal exhibits, and any testimony
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`regarding defendants’ pleas, sentencing, or the ultimate result of the criminal Capacitors case.
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`Copies of the exhibits listed below are attached to this motion.
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`Exhibit
`No.
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`12065
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`12066
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`12067
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`12068
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`12069
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`12070
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`12071
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`12072
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`12073
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`12077
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`12079
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`Description
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`2018-09-19 DECLARATION of Mikal J. Condon ISO United States' Sentencing
`Memorandum - USA v. Nippon Chemi-Con Corp. N.D. Case No. 4:17-cr-00540-
`JD
`
`2018-09-25 UNITED STATES' SENTENCING MEMORANDUM and Motion for
`Departure - USA v. Tokuo Tatai, N.D. Case No. 4:15-cr-00163-JD
`
`2018-09-26 UNITED STATES' REPLY SENTENCING MEMORANDUM - USA
`v. Nippon Chemi-Con Corp., N.D. Case No. 4:17-cr-00540-JD
`
`2018-10-03 TRANSCRIPT PROCEEDINGS - USA v. Nippon Chemi-Con Corp.,
`N.D. Case No. 4:17-cr-00540-JD
`
`2018-10-10 TRANSCRIPT PROCEEDINGS - USA v. Tokuo Tatai, N.D. Case No.
`4:15-cr-00163-JD-9
`
`2013-07-18 PLEA AGREEMENT - USA v. Panasonic Corp., E.D. Mich. Case No.
`2:10-cr-20540-GCS-PJK
`
`2010-09-30 PLEA AGREEMENT - USA v. Panasonic Corp., E.D. Mich. Case No.
`2:10-cr-20576-JAC-MAR
`
`2013-07-18 PLEA AGREEMENT - USA v. Sanyo Electric Co., Ltd., N.D. Cal
`Case No. 4:13-cr-00472-YGR
`
`2013-07-18 PUBLIC AFFAIRS RELEASE - United States Department of Justice,
`Office of Public Affairs
`
`2018-10-03 PUBLIC AFFAIRS RELEASE - United States Department of Justice,
`Office of Public Affairs
`
`2017-10-11 TRANSCRIPT PROCEEDINGS - USA v. Holy Stone Holdings Co.,
`Ltd., N.D. Cal. Case No. 4:16-cr-00366-JD
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`- 7 -
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`Certificate of Service
`Master File No17-md-02801-JD
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`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 11 of 115
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`12080
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`2016-08-18 PLEA AGREEMENT - USA v. Holy Stone Holdings Co., Ltd., N.D.
`Cal. Case No. 4:16-cr-00366-JD
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`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 12 of 115
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`OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1 TO EXCLUDE
`CRIMINAL DOCUMENTS AND TRANSCRIPTS
`
`A.
`
`The Guilty Pleas and Related Documents Are Admissible.
`Guilty pleas by certain defendants and their co-conspirators, as well as certain other
`documents related to those pleas, are relevant and admissible as substantive evidence against all
`Defendants.
`Guilty pleas and plea agreements are presumptively admissible, as expressly contemplated
`by Federal Rule of Evidence 803(22), which provides an exception to the rule against hearsay for
`“a final judgment of conviction . . . entered after a trial or guilty plea.” The plea agreements are
`relevant because in them, Defendants admit to unlawful conduct at issue in this case. They
`describe a conspiracy where Defendants, through their employees, including high-level personnel,
`conspired with each other to fix prices and rig bids of capacitors. See, e.g., NCC Plea Agreement
`¶ 4(b). They describe that Defendants, through their officers and employees, engaged in
`discussions and attended meetings where they agreed to fix the price and rig bids of capacitors to
`be sold in the United States. Id. “[T]he facts contained in th[e] plea agreement[s] are probative
`and relevant to the determination of the outcome here.” In re Homestore.com, Inc., No. CV 01-
`11115 RSWL (CWx), 2011 WL 291176, at *9 (C.D. Cal. Jan. 25, 2011).
`Defendants’ argument that the guilty pleas are admissible only against the pleading
`Defendants is faulty because it improperly relies on law applicable to criminal cases rather than
`civil cases. Defs.’ MIL No. 1 at 2. Defendants cite no civil cases applying such a rule and, in fact,
`courts in civil cases have admitted guilty pleas against persons other than the confessor. See
`United States ex rel. Miller v. Bill Harbert Int’l Constr., Inc., 608 F.3d 871, 892 (D.C. Cir. 2010);
`Scholes v. Lehmann, 56 F.3d 750, 762 (7th Cir. 1995); Strauss v. Credit Lyonnaise, S.A., 925 F.
`Supp. 2d 414, 447 (E.D.N.Y. 2013). In an antitrust case, a judgment of conviction relating to the
`conspiracy should be admissible against co-conspirators.
`Moreover, other documents related to the guilty pleas, such as indictments, are also
`admissible. See Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 412 (6th Cir. 2006)
`(“Several courts have held that an indictment from a previous conviction is properly included
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`Defendants’ Omnibus Motions In Limine
`And DPPs’ Responses Thereto
`Master File No 17-md-02801-JD
`
`

`

`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 13 of 115
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`within the scope of Rule 803(22) and is thus admissible . . . .”) (citing Maynard v. Dixon, 943
`F.2d 407, 414 (4th Cir.1991)).
`Guilty pleas are highly probative evidence of the central disputed fact in this litigation: the
`existence of a conspiracy. Other courts, including in this district, have denied motions in limine to
`exclude co-conspirator criminal convictions and guilty pleas for this purpose. See Costco
`Wholesale Corp. v. AU Optronics Corp., No. C13-1207, 2014 WL 4674390, at *8-10 (W.D.
`Wash. Sept. 17, 2014); In re TFT-LCD (Flat Panel) Antitrust Litig., No. M 07-1827 SI (N.D. Cal.
`May 4, 2012) (Dkt. No. 5597) (Final Pretrial Order at 6); In re Static Random Access Memory
`(SRAM) Antitrust Litig., No. 07-md-1819, 2010 WL 10086747, at *3 (N.D. Cal. Dec. 16, 2010);
`S.E.C. v. Hilsenrath, Case No. C 03-03252, 2008 WL 2225709, at *4 (N.D. Cal. May 29, 2008)
`(“the plea agreement is still extremely probative as a party admission and evidence of [crime]”).
`In Costco Wholesale Corp., the court addressed a similar motion in limine. The defendant,
`a Taiwanese manufacturer of TFT-LCD screens, sought to exclude evidence of price-fixing
`convictions of various Japanese TFT-LCD manufacturers. The court denied the motion because
`the Japanese convictions were relevant and probative evidence of the conspiracy alleged by the
`plaintiff. 2014 WL 4674390 at *10 (“Costco can use those convictions as part of its effort to show
`that the conspiracy that those convictions establish is part of the conspiracy it hopes to prove at
`trial.”). The court explicitly rejected the argument that the guilty pleas were not relevant because
`they were narrower than the conspiracy alleged. See id. at *8-9 (rejecting defendants’ argument
`that guilty pleas were not admissible because they related to narrower conspiracy than the one
`alleged by Costco). The Class in this action has the burden to show that there was a conspiracy
`and that each of the Defendants joined it. The guilty pleas speak to the first issue: the existence of
`a conspiracy. That is relevant to the Class’s claims against each of the Defendants, whether or not
`a particular Defendant plead guilty.
`Contrary to Defendants’ argument, the probative value of the guilty pleas is not
`substantially outweighed by a danger of unfair prejudice. See Fed. R. Evid. 403; Costco
`Wholesale Corp., 2014 WL 4674390, at *10 (“[T]he court finds no danger of undue prejudice
`flowing from the admission of the criminal convictions of the Japanese manufacturers.”);
`Defendants’ Omnibus Motions In Limine
`And DPPs’ Responses Thereto
`Master File No 17-md-02801-JD
`
`- 10 -
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`

`

`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 14 of 115
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`Harbert, 608 F.3d at 892 (“[P]roperly admitted but potentially incriminating evidence does not
`equate to unfairly prejudicial evidence that must be excluded.”).
`
`B.
`
`In All Other Respects, Defendants’ Motion Should Be Denied as Premature.
`Defendants’ request to exclude all documents relating to criminal investigations or
`prosecutions of Defendants and their alleged co-conspirators is premature and overbroad.
`“[M]otions in limine should rarely seek to exclude broad categories of evidence, as the court is
`almost always better situated to rule on evidentiary issues in their factual context during trial.”
`Colton Crane Co., LLC v. Terex Cranes Wilmington, Inc., No. CV 08-8525, 2010 WL 2035800,
`at *1 (C.D. Cal. May 19, 2010). That any documents related to criminal matters are inadmissible
`cannot be determined without appropriate understanding of the context for which they would be
`offered, and that context cannot be known until trial. Another example of potentially admissible
`documents are charging documents, which may be admissible under Rule 803(22), or because the
`plea agreements incorporate them by reference. See NCC Plea ¶ 5(a) (listing as an element of the
`charged offense, “the conspiracy described in the Indictment existed at or about the time
`alleged”). For example, charging documents may also be admissible where, after the indictment,
`the charged party has avoided apprehension. See F.D.I.C. v. Bakkebo, 506 F.3d 286, 295-96 (4th
`Cir. 2007) (evidence of principal’s unrelated indictment relevant and admissible in civil fraud and
`conspiracy case).
`The Court should deny Defendants’ motion in limine to exclude criminal documents and
`transcripts.
`
`- 11 -
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`Defendants’ Omnibus Motions In Limine
`And DPPs’ Responses Thereto
`Master File No 17-md-02801-JD
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`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 15 of 115
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`Heather S. Nyong’o (CA SBN 222202)
`heather.nyongo@wilmerhale.com
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`1 Front Street, Suite 3500
`San Francisco, California 94111
`Telephone: (650) 858-6000
`Facsimile: (650) 858-6100
`
`Thomas Mueller (pro hac vice)
`thomas.mueller@wilmerhale.com
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`1875 Pennsylvania Avenue, NW
`Washington, DC 20006
`Telephone: (202) 663-6000
`Facsimile: (202) 663-6363
`
`Counsel for Defendants ELNA Co., Ltd. and
`ELNA America, Inc.
`
`[Additional Counsel Listed on Signature Page]
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`IN RE CAPACITORS ANTITRUST
`LITIGATION
`
`Case No. 14-cv-03264-JD
`MDL No. 2801
`
`This Document Relates to:
`
`Direct Purchaser Plaintiffs Action, 14-cv-
`03264-JD
`
`DEFENDANTS’ MOTION IN LIMINE
`NO. 2 TO ADMIT REBUTTAL
`EVIDENCE IF GUILTY PLEAS ARE
`INTRODUCED AT TRIAL
`
`Date: February 13, 2020
`Time: 10:00 am
`Judge: Honorable James Donato
` Courtroom 11 – 19th Floor
`
`- 12 -
`DEFS.’ MOTION TO ADMIT REBUTTAL EVIDENCE IF GUILTY PLEAS ARE INTRODUCED AT TRIAL (MDL NO. 2801)
`
`

`

`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 16 of 115
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`TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
`
`Please take notice that on February 13, 2020, or as soon thereafter as the matter may be
`
`heard, in the Courtroom of the Honorable James Donato, Courtroom 11, 19th Floor, 450 Golden
`
`Gate Avenue, San Francisco, CA 94102, the undersigned Defendants will, and hereby do, move
`
`this Court to permit the introduction of rebuttal evidence related to the pleading Defendants’ plea
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`agreements if those plea agreements are introduced into evidence at trial.
`
`Dated: January 6, 2020
`
`/s/ Heather S. Nyong’o_________
`
`Heather S. Nyong’o
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`1 Front Street, Suite 3500
`San Francisco, California 94111
`heather.nyongo@wilmerhale.com
`
`Attorneys for Defendants
`ELNA CO., LTD. and ELNA AMERICA, INC.
`
`- 13 -
`DEFS.’ MOTION TO ADMIT REBUTTAL EVIDENCE IF GUILTY PLEAS ARE INTRODUCED AT TRIAL (MDL NO. 2801)
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`Case 3:14-cv-03264-JD Document 2520 Filed 01/21/20 Page 17 of 115
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`ISSUE TO BE DECIDED
`
`W