Keezio Group v. SlumberPod, LLC

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
SLUMBERPOD, LLC,
Plaintiff,
v.
KEEZIO GROUP,
Defendant.
Case No. 23-cv-06288-PHK
ORDER RE: MOTIONS IN LIMINE
Re: Dkts. 182, 183, 184, 185
The Court has received the Parties’ Motions in Limine (“MIL”). [Dkts. 182, 183, 184, 185].
Having reviewed the briefing and heard oral argument at the Final Pretrial Conference, the Court
resolves each of the Motions in Limine as set forth herein. 	The Court’s statements at the Final
Pretrial Conference are incorporated by reference.
SlumberPod’s MIL No. 1
SlumberPod requests an “order precluding Keezio, its counsel, and its witnesses from
stating, suggesting, or arguing that a product is an acceptable non-infringing alternative (‘ANIA’)
merely because the product competes in the marketplace, does not infringe, or both.” [Dkt. 182 at
2]. Keezio argues that this motion is “boilerplate, overbroad, and nonspecific” being that it “does
not seek to exclude any specific trial evidence.” 	[Dkt. 216 at 3 (emphasis in original)]. 	It is
recognized that “‘[m]otions in limine that seek exclusion of broad and unspecific categories of
evidence [ ] are generally disfavored.’” 	Camenisch v. Umpqua Bank, 763 F. Supp. 3d 871, 894
(N.D. Cal. 2025) (citations omitted). This motion in limine does not identify with specificity what
testimony or evidence is sought to be excluded, nor at this stage is it a certainty what Keezio’s
counsel will argue to the jury. 	Accordingly, SlumberPod’s motion is DENIED WITHOUT
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PREJUDICE as to SlumberPod raising individual objections to specific questions and testimony
or arguments made at trial, instead of granting or denying this motion on a blanket basis.
Keezio’s MIL No. 1
Keezio moves “to impose targeted limits on the testimony of [SlumberPod’s] patent damages
expert, Mark Gallagher. [Dkt. 183 at 5].
Reasonable Royalty
Keezio moves to preclude Mr. Gallagher from offering expert testimony on reasonable
royalty under Rule 37(c). 	Id. at 6. 	Keezio argues that SlumberPod “did not identify reasonable
royalty as a damages category in its Damages Contentions,” did not disclose reasonable royalty in
discovery, and cannot “sneak in” reasonable royalty through Mr. Gallagher’s expert report. Id. at
7-9.
SlumberPod responds that although its damages contentions “did not separately define
reasonable royalty . . . Rule 37 does not provide that every disclosure deficiency automatically
requires exclusion. It provides the opposite: the evidence itself remains usable if ‘the failure was
substantially justified or is harmless.’” Dkt. 211 at 6-7; Fed. R. Civ. P. 37(c)(1).
The Court notes that SlumberPod admits its Patent Local Rule 3-8 Damages Contentions
“did not separately identify reasonable royalty.” 	[Dkt. 211 at 6]. 	SlumberPod’s approach to the
Patent Damages Contentions is not to be lauded and is not the best practices under the Patent Local
Rules. However, SlumberPod did in fact disclose reasonable royalty as a damages theory through
both fact and expert discovery in other ways such that exclusion under Rule 37 is not justified where
“the failure [to disclose] was substantially justified or is harmless.” See Fed. R. Civ. P. 37(c)(1);
see also Looksmart Grp., Inc. v. Microsoft Corp., 386 F. Supp. 3d 1222, 1234-35 (N.D. Cal. 2019)
(cited by both Parties here; acknowledging that revised reasonable royalty theory was not disclosed
in supplemental Patent Damages Contentions but denying the motion to strike under Rule 37 where
the failure to disclose was substantially justified).
Here, any failure to disclose was harmless because the fact that SlumberPod was seeking a
reasonable royalty was not a surprise, despite not being disclosed in the Patent Damages
Contentions. 	SlumberPod’s First Amended Answer expressly requested “[a]n award of damages
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not less than a reasonable royalty, sufficient to compensate SlumberPod for Keezio’s acts of patent
infringement.” 	[Dkt. 42 at 26]. 	In response to Keezio’s Interrogatory No. 9 (which asked
SlumberPod to “[d]escribe in detail all bases for SlumberPod’s damages claims against Keezio,
including, but not limited to, identifying each legal theory under which damages are sought . . . .”),
SlumberPod responded that “it is seeking monetary relief against Keezio, including compensatory
damages, enhanced damages for willful infringement, and attorneys’ fees, as set forth in its October
11, 2024 First Amended Answer and Counterclaims.” [Dkt. 186-6 at 12]. When there is a finding
of infringement, Section 284 of the Patent Act states that “the court shall award the claimant
damages adequate to compensate for the infringement, but in no event less than a reasonable royalty
for the use made of the invention by the infringer . . . .” 35 U.S.C. § 284. During the fact discovery
period, Keezio did not move to compel a more detailed response to Interrogatory No. 9.
Additionally, Keezio apparently understood that the issue of reasonable royalty was an issue
in this case. Keezio’s Interrogatory No. 20 specifically asked SlumberPod to identify persons with
whom it had communicated “regarding a reasonable royalty rate for the licensing of any of the
Patents-in-Suit.” [Dkt. 186-6 at 21].
Further, Mr. Gallagher disclosed his reasonable-royalty opinion in his March 27, 2026
report. See Dkt. 124-12 at 15-19. 	Keezio’s damages expert Minh Doan issued a rebuttal report
expressly addressing “Mr. Gallagher’s Claimed Reasonable Royalty Damages,” devoting multiple
sections to his claimed royalty range, comparable licenses, Keezio’s ability to increase price, alleged
non-infringing alternatives, and Ms. Doan’s own Georgia-Pacific analysis. See Dkts. 124-14 at 41-
53. Ms. Doan likewise formulated her own reasonable-royalty opinion. Id. at 46–53. Keezio then
deposed Mr. Gallagher directly on his reasonable royalty analysis which undercuts the argument
that Keezio lacked an opportunity to explore or probe that opinion with him. 	See Dkt. 187 at 3
(Administrative Motion to Seal Exhibits cited in connection with MIL 1) (citing Dkt. 126-3 at 143-
149 (excerpts of Gallagher deposition transcript filed under seal per Dkt. 146)).
On the record presented, there is not a sufficient showing of SlumberPod’s failure to disclose
throughout the discovery period in this case starting with the pleadings or prejudice to Keezio which
warrants exclusion. The Court DENIES Keezio’s motion WITHOUT PREJUDICE to Keezio’s
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ability to raise appropriate objections to Mr. Gallagher’s reasonable royalty opinion testimony in
response to specific questions or to Keezio’s opportunity to cross-examine Mr. Gallagher on his
reasonably royalty opinion.
The Court notes that Keezio filed a reply brief regarding MIL 1’s arguments on the
reasonable royalty issue, without leave of Court. 	[Dkt. 219]. 	The Court’s Pretrial Order makes
clear that the Court does not automatically include in the pretrial schedule a deadline to file reply
briefs on motions in limine. See Dkt. 169 at 9 (“reply briefs are not permitted absent a prior Court
Order upon a showing of good cause.”). Keezio did not file an ex parte or administrative motion
seeking leave to file a reply brief. 	As of the date of this Order, however, SlumberPod has not
objected to Keezio’s reply, and the reply does not materially alter the conclusion as to the reasonable
royalty issue. 	Accordingly, while the Court does not strike the reply brief and has considered it,
that reply brief does not persuasively alter the Court’s analysis and thus there is no prejudice to
SlumberPod in any event.
Lost Profits – Mr. Gallagher
Keezio seeks an Order excluding Mr. Gallagher’s lost profits opinion on various grounds.
[Dkt. 183 at 10-15]. 	Keezio argues that Mr. Gallagher improperly relied on certain assumptions
based on communications from SlumberPod’s counsel. 	Id. at 11. 	Keezio argues that Mr.
Gallagher’s methodology was also deficient because he failed to consider certain evidence. Id. at
14.
SlumberPod argues that Keezio’s motion should be denied, because Keezio seeks to
relitigate arguments already resolved on summary judgment and on Daubert motions practice. [Dkt.
211 at 5-6]. In Keezio’s cross-motion for summary judgment, Keezio sought summary judgment
against SlumberPod’s lost profits claim and, as to the Daubert issues, Keezio also sought to exclude
Mr. Gallagher’s opinion testimony on lost profits on the same grounds asserted now. [Dkt. 122 at
8; Dkt. 127 at 4]. Judge Wise held that damages causation was “a question of fact for the jury” and
denied Keezio’s cross-motion for summary judgment on damages. [Dkt. 145 at 5]. On the motion
to strike or exclude Mr. Gallagher’s opinion, Judge Wise held that “Keezio has not demonstrated
that Mr. Gallagher’s methodology suffers from serious flaws. Instead, Keezio primarily challenges
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Mr. Gallagher’s assumptions that serve as support for his opinions.” Id. at 6.
A Party may not present an argument in a motion in limine which has already been decided
on a previous motion. See Venture Corp. v. Barrett, No. 5:13–cv–03384–PSG, 2015 WL 2088999,
at *4 (N.D. Cal. May 5, 2015) (denying motions in limine which “rehash the same arguments” made
in support of an earlier motion for partial summary judgment which the court previously ruled on).
As Judge Wise previously ruled, “[i]f Keezio believes Mr. Gallagher’s opinions are not credible or
sufficiently supported by his assumptions, Keezio should cross examine him accordingly; exclusion
is not the proper ‘remedy.’” [Dkt. 145 at 6].
The Court thus DENIES Keezio’s motion WITHOUT PREJUDICE as to cross-examining
Mr. Gallagher or raising objections to questions SlumberPod’s counsel poses to him regarding his
lost profits opinion.
Lost Profits – Failure to Discloses Price Erosion and Advertising Costs
Keezio further moves to preclude Mr. Gallagher from offering expert testimony on both
price erosion and increased advertising costs, as part of his lost profits opinion, because
“SlumberPod admitted that ‘it did not specifically disclose price erosion and advertising costs as a
specific damages category in its Damages Contentions….[sic]’” 	[Dkt 183 at 14-15 (emphasis
removed)]. 	Keezio argues that Mr. Gallagher’s expert report calculation of lost profits includes
price erosion and increased advertising costs and argues that any such testimony should therefore
be excluded. Id. at 15.
As noted above with regard to the reasonable royalty issue, SlumberPod argues that the
failure to disclose the price erosion and advertising costs was substantially justified or harmless
under Rule 37(c)(1). 	Again, the Court notes that SlumberPod’s approach to the Patent Damages
Contentions is not to be lauded and is not the best practices under the Patent Local Rules. However,
unlike with the reasonable royalty issue above, SlumberPod did in fact disclose that it was seeking
lost profits in its Patent Damages Contentions and discusses the lost profits Panduit factors and
other applicable factors. See Dkt. 126-3 (SlumberPod’s Patent Damages Contentions, filed under
seal). 	The Federal Circuit has recognized that “damages may include lost profits due to diverted
sales, price erosion, and increased expenditures caused by the infringement.” Hebert v. Lisle Corp.,
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99 F.3d 1109, 1119 (Fed. Cir. 1996). 	Indeed, “[l]ost sales and price erosion damages are
inextricably linked.” Crystal Semiconductor Corp. v. TriTech Microelecs. Int’l, Inc., 246 F.3d 1336,
1360 (Fed. Cir. 2001). 	Under Federal Circuit law, both price erosion and increased expenditures
(like increased advertising costs) are thus types of or sub-species of lost profits damages. Thus, by
disclosing in the Patent Damages Contentions that SlumberPod was seeking lost profits, Keezio was
at least on notice that these types of lost profits theories could be at issue in this case. Throughout
fact discovery, Keezio did not move to compel more detailed damages contentions.
While SlumberPod did not specifically disclose either a price erosion or increased
advertising cost calculation in detail in the Patent Damages Contentions, that failure to disclose was
ultimately harmless. See Looksmart Group, 386 F. Supp. 3d at 1234-35. Keezio admits that Mr.
Gallagher’s expert report provided his opinions on all his lost profits theories, including price
erosion and increased advertising costs. Keezio’s rebuttal expert Ms. Doan provided her detailed
expert report on damages which directly addressed both price erosion and increased advertising
costs. Keezio chose not to move to exclude Mr. Gallagher’s price erosion or increased advertising
costs theories in its Daubert motion.
On the record presented, there is not a sufficient showing of SlumberPod’s failure to disclose
or prejudice to Keezio which warrants exclusion of his price erosion or increased advertising costs
opinion testimony. The Court DENIES Keezio’s motion WITHOUT PREJUDICE to Keezio’s
ability to raise appropriate objections to Mr. Gallagher’s price erosion and increased costs opinion
testimony in response to specific questions or to Keezio’s opportunity to cross-examine Mr.
Gallagher on his price erosion and increased costs opinion.
Keezio’s MIL No. 2
Keezio moves to exclude SlumberPod’s trial exhibits 3029 and 3030, identified as
“RoyaltySource Intellectual Property Database” documents (collectively, “the RoyaltySource
Documents”). 	[Dkt. 184 at 2]. 	Keezio argues these documents cannot be authenticated, contain
hearsay within hearsay, and are irrelevant. Id.
SlumberPod responds that the documents can be authenticated under Rule 901, the
documents are relevant to Mr. Gallagher’s reasonable-royalty analysis, and Keezio’s hearsay
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objection does not prohibit Mr. Gallagher’s reliance on RoyaltySource because experts may rely on
otherwise inadmissible facts or data under Rule 703. [Dkt. 212 at 2-4].
The Court DENIES WITHOUT PREJUDICE Keezio’s motion. 	At this time, these
exhibits are NOT preadmitted. 	As SlumberPod admits, the admissibility of these documents is
subject to laying foundation and establishing authenticity at trial, as well as resolution of the hearsay
objection (which in turn depends on what testimony is elicited from Mr. Gallagher regarding the
RoyaltySource material and how it is attempted to be used at trial). SlumberPod’s opposition admits
that the RoyaltySource material may be inadmissible as substantive evidence ultimately even though
Rule 703 may permit him to consider the materials. Id. at 4.
Keezio’s MIL No. 3
Keezio moves to exclude SlumberPod’s trial exhibit 3036, which the Parties refer to as “the
Shark Tank Video.” [Dkt. 185 at 2]. Keezio argues the video was not produced in discovery, the
video cannot be authenticated, lacks foundation, and constitutes hearsay, and introducing the video
would be unfairly prejudicial. Id. at 3-6.
SlumberPod responds that the video is relevant to willful infringement and is not offered to
prove the truth of the inventors’ statements, that Rule 403 does not warrant categorical exclusion,
and that any failure to produce the video was harmless under Rule 37(c)(1). [Dkt. 213 at 2-4].
The Court DENIES the motion to the extent Keezio argues that the failure to produce the
video in discovery should, by itself, bar admissibility. 	The record indicates that the video was
discussed between the Parties, known to at least one witness for Keezio, was the subject of
questioning at that Keezio witness’s deposition, located and discussed in a prior Order issued by
Judge Demarchi during fact discovery, and thus known to the Parties. The fact that neither Party
downloaded a copy of the Shark Tank Video and put a Bates number on that copy is not dispositive
of admissibility. There is no prejudice or surprise here with regard to this video.
The Court DENIES WITHOUT PREJUDICE Keezio’s motion to the extent Keezio
objects on grounds of lack of foundation and authenticity. At this time, the Shark Tank Video is
NOT preadmitted. 	As SlumberPod admits, the admissibility of this video is subject to laying
foundation and establishing authenticity at trial.
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The Court DENIES WITHOUT PREJUDICE Keezio’s motion to the extent Keezio
objects on hearsay grounds. SlumberPod explicitly states it does not intend to use the video for the
truth of the matter asserted, thus the video does not constitute hearsay. As noted, at this time, the
Shark Tank Video is NOT preadmitted. As SlumberPod admits, how the video is used at trial and
the reasons for its submission will depend on the specific questioning/testimony and ways in which
it will be used at trial. Resolution of the admissibility issue will therefore depend on resolution of
the hearsay objection raised in connection with specific questions. The Court notes that, if the video
is presented to the jury on the grounds SlumberPod asserts (that is, that the Shark Tank Video is not
being offered for the truth of the matters asserted), then the Court will consider providing limiting
instructions to the jury.
For similar reasons, the Court DENIES WITHOUT PREJUDICE Keezio’s motion to the
extent based on Rule 403. Whether the probative value is or is not substantially outweighed by the
prejudice will depend on the specific questioning/testimony and ways in which it will be used at
trial. Resolution of the Rule 403 objection will therefore depend on the context in connection with
specific questions, not on a blanket basis prior to trial.
At the Final Pretrial Conference, SlumberPod argued that pre-patent copying is indicative of
willfulness, and cited for the first time multiple cases in support of this. See Kaufman Co., Inc. v.
Lantech, Inc., 807 F.2d 970, 978-79 (Fed. Cir. 1986) (rejecting the argument that copying was
irrelevant because it took place before the patent issued); see also Nox Med. Ehf v. Natus Neurology
Inc., No. 15-709-RGA, 2018 WL 4062626, at *13 (D. Del. Aug. 27, 2018) (“Deliberate copying of
the commercial product of the patent owner before issuance of the patent . . . can be evidence of
willfulness to the extent it demonstrates [Defendant’s] state of mind[.]”) (citation omitted). 	The
Court gave Keezio leave to file a short letter brief by September 30, 2026, addressing this newly
presented case law. Keezio did not file by the deadline. Because the new case law is not materially
different from the case law relied upon by the Court in the Tentative Ruling, the Court’s conclusion
remains the same.
/ / /
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IT IS SO ORDERED.
Dated: October 8, 2026
PETER H. KANG
United States Magistrate Judge
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