United States District Court, W.D. Kentucky, Louisville Division
CERES PROTEIN, LLC, et al., Plaintiffs/Counterclaim Defendants,
THOMPSON MECHANICAL & DESIGN, et al., Defendants/Counterclaimants.
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge.
anticipation of the approaching trial in this action, Barry
and Robert Thompson, along with their Ohio partnership
Thompson Mechanical & Design, have filed a motion in
limine to exclude testimony from two potential witnesses
on the basis of the attorney-client privilege. Ceres Protein,
LLC and Roger Shannon oppose that motion. For the following
reasons, the Thompsons' Third Motion in Limine, [R. 167],
is DENIED AS MOOT.
general facts of this case, though nuanced and subject to
many genuine disputes, are described in the Court's prior
opinion, Ceres Protein, LLC v. Thompson Mechanical &
Design, No. 3:14-CV-00491-TBR-LLK, 2017 WL 1015855, at
*1-3 (W.D. Ky. Mar. 15, 2017). Briefly, Roger Shannon and
Michael Tarullo, Jr. formed Ceres Protein, LLC in 2013 to
pursue business opportunities relating to repurposing
“whole stillage, ” or distillery waste, generated
by distilleries in Kentucky and Tennessee. Sometime around
mid-2013, Michael Tarullo, Sr. (Michael Tarullo, Jr.'s
father) and Barry Thompson, along with his son Robert
Thompson, approached Roger Shannon and Michael Tarullo, Jr.
about a possible business arrangement. The trio offered to
license certain intellectual property to Ceres Protein, LLC,
to offer engineering support, and to contribute the capital
needed during the start-up phase of the joint-venture in
exchange for a membership interest in Ceres Protein, LLC.
Between July and October 2013, the parties attempted to
negotiate such an arrangement. However, no agreement
the breakdown in negotiations, the Thompsons supposedly
fabricated an invoice to Ceres Protein, LLC, demanding $175,
000 for work and materials related to the failed business
deal. Ceres Protein, LLC claimed, however, that it never
asked the Thompsons to do any work of the sort. It refused to
pay the invoice.
next few months, the Thompsons engaged in a pattern of
conduct designed-at least in Ceres Protein, LLC's
estimation-to extort payment on that invoice. For example,
the Thompsons wrote to a potential client of Ceres Protein,
LLC, claiming that Ceres Protein, LLC had infringed on Barry
Thompson's patent. The Thompsons also contacted Roger
Shannon's employer, accusing him of having committed
“serious ethical breaches, possible patent
infringement, and fraudulent activity.”
Protein, LLC and Roger Shannon responded with this lawsuit,
bringing claims for defamation and for intentional
interference with a prospective business relationship. The
history of that litigation is long and storied. With the
prospect of trial fast approaching, the Thompsons have filed
a motion in limine to exclude testimony from two
potential witnesses on the basis of the attorney-client
privilege. [R. 167 at 1-6 (Third Motion in Limine).] Ceres
Protein, LLC and Roger Shannon oppose that motion. [R. 176 at
the inherent authority to manage the course of trials before
it, this Court may exclude irrelevant, inadmissible, or
prejudicial evidence through in limine rulings.
See Dietz v. Bouldin, ___ U.S. ___, ___, 136 S.Ct.
1885, 1891 (2016); Luce v. United States, 469 U.S.
38, 41 n.4 (1984) (citing Fed.R.Evid. 103(c)); Louzon v.
Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013);
Mahaney ex rel. Estate of Kyle v. Novartis Pharm.
Corp., 835 F.Supp.2d 299, 303 (W.D. Ky. 2011). Unless
such evidence is patently “inadmissible for any
purpose, ” Jonasson v. Lutheran Child & Family
Servs., 115 F.3d 436, 440 (7th Cir. 1997), though, the
“better practice” is to defer evidentiary rulings
until trial, Sperberg v. Goodyear Tire & Rubber
Co., 519 F.2d 708, 712 (6th Cir. 1975), so that
“questions of foundation, relevancy and potential
prejudice may be resolved in proper context, ”
Gresh v. Waste Servs. of Am., Inc., 738 F.Supp.2d
702, 706 (E.D. Ky. 2010). A ruling in limine is
“no more than a preliminary, or advisory,
opinion.” United States v. Yannott, 42 F.3d
999, 1007 (6th Cir. 1994) (citing United States v.
Luce, 713 F.2d 1236, 1239 (6th Cir. 1983),
aff'd, 469 U.S. 38). Consequently, the Court may
revisit its in limine rulings at any time and
“for whatever reason it deems appropriate.”
Id. (citing Luce, 713 F.2d at 1239).
Thompsons move to exclude testimony from two potential
witnesses on the basis of the attorney-client privilege. [R.
167 at 1-6.] The first witness is Joe Kamer, former general
counsel of Steel Technologies, LLC, which previously employed
Roger Shannon. [Id. at 1-2.] The second possible
witness is Michael Tarullo, Sr., whom the Thompsons claim
acted as their attorney at the relevant time. [Id.
at 3-6.] However, Ceres Protein, LLC and Roger Shannon do not
intend to question Kamer regarding any privileged topic,
[see R. 176 at 2], and will ...