United States v. Hoskins

          RULING ON GOVERNMENT'S MOTION TO LIMIT EXPERT TESTIMONY AND COMPEL COMPLIANCE WITH STANDING ORDER

          Janet Bond Arterton, U.S.D.J.

         The Government "moves the Court to significantly limit the proposed testimony of the defendant's expert witness, law professor Ronald J. Gilson, and compel the defendant's compliance with the Standing Order on Discovery." (Mot. to Limit [Doc. # 535] at 1.) Defendant opposes. ([Doc. #539].)

         I. Background

         The Court assumes the parties' familiarity with the underlying facts of this case. On December 18, 2018, Defendant notified the Government by letter that "he may call Professor Ronald J. Gilson as an expert witness on the topic of corporate governance, Alstom, S.A.'s (together with its affiliates, 'Alstom's') corporate governance and structure, and Mr. Hoskins's position in that structure." (Ex. 1 (December 2018 Notice) to Mot. to Limit [Doc. # 535-1] at 1.) The December 2018 Letter set out Professor Gilson's qualifications and indicated that he

will testify about: 1) principles of corporate governance and corporate structure, including the manner in which a corporation relies on establishing a clear hierarchy of authority in managing its business; 2) Alstom's corporate governance structure during the period in which Mr. Hoskins was employed by Alstom; and 3) Mr. Hoskin's [sic] position in that structure, including his authority within the Alstom organization with respect to the retention of local agents.

(Id. at 2.) Professor Gilson's testimony "regarding principles of corporate governance and corporate structure" would be "based on his academic research and professional experience." (Id.) His testimony "regarding Alstom's structure and Mr. Hoskins's position" would be "based on his academic research and professional experience as well as documents previously provided by the government in discovery, including: corporate organizational charts; internal Alstom presentations and memoranda; and documents from Mr. Hoskins's personnel file, as well as publicly available corporate records." (Id.) Mr. Hoskins also "reserve[d] the right to elicit additional testimony from Professor Gilson to further elucidate these topics or to rebut evidence introduced by the government." (Id.)

         On September 18, 2019, Defendant disclosed to the Government his witness list, which includes Professor Gilson. (Mot. to Limit at 3.) On September 25, 2019, the Government sent a letter to counsel for Defendant to request additional detail regarding Professor Gilson's testimony. (Ex. 2 (September 2019 Letter) to Mot. to Limit [Doc. # 535-2].) The September 2019 Letter described the content of the December 2018 Notice as "more a list of topics than it is a summary of the testimony and opinions you intend to elicit from Professor Gilson." (Id. at 1.) The Government requested additional summary of the opinions to be elicited and the specific bases of those opinions. (Id. at 1-2.)

         On October 8, 2019, Defendant provided to the Government an additional notice regarding Professor Gilson's testimony. (Ex. 3 (Revised Notice) to Mot. to Limit [Doc. # 535-3].) The Revised Notice provides a "more detailed description of Professor Gilson's anticipated testimony and the bases for his conclusions." (Id. at 1.) The Revised Notice explains that "Professor Gilson is an expert in complex business entities, including corporations, and corporate governance and will testify-about the nature and structure of corporations generally." (Id.) The Revised Notice goes on to describe general aspects of typical corporate structure and governance. (Id. at 1-2.) The Revised Notice also states that "Professor Gilson will testify that, during the relevant time period, Alstom, S.A. was a French public limited liability company" which "was not an operating entity but rather managed the performance of and provided services to Alstom's many operating units." (Id. at 2.) He also "will testify about the structure of the Alstom conglomerate" and that "Alstom Power Inc. ('API') was a U.S. operating entity within the Alstom conglomerate that was part of the power Sector." (Id. 2-3.) Professor Gilson will explain that "API was owned by Alstom Inc., the holding company of Alstom in the United States, which was ultimately wholly owned by Alstom, S.A." (Id. at 3.)

         As to Mr. Hoskins, Professor Gilson will testify "that, throughout his employment at Alstom, Mr. Hoskins was contractually employed by Alstom UK Ltd., a subsidiary of Alstom in the United Kingdom, but was formally assigned to work for Alstom Resource Management, S.A., another subsidiary, based at Alstom's Paris headquarters." (Id.) Professor Gilson will describe Mr. Hoskins's role as an "Area Senior Vice President in an Alstom headquarters component known as 'International Network'," which "was a component of the central Alstom management structure that operated separately from the Sectors." (Id.) He will explain that the International Network "performed a service for the operating entities but functioned as an instrument of Alstom, S.A., the parent entity" and was "not subject to the control of any Sector President or Operating entity" and that its "reporting and authority obligations were set by Alstom, S.A.'s central management team." (Id.) Professor Gilson will testify that Mr. Hoskins "had a variety of duties and responsibilities, including the authority to approve or disapprove requests by Alstom operating entities within the various Sectors to retain local agents or consultants" but "did not report to any Sector President or to anyone with an operating entity." (Id.) Instead, "Mr. Hoskins reported to Etienne De, who in turn reported to Alstom, S.A.'s executive management team." (Id.) Professor Gilson will conclude that "[a]s such, Mr. Hoskins was not employed by API and did not report to anyone who worked for API," and "[t]herefore, based on the organizational structure of Alstom and the applicable corporate policies and procedures, no employee of Alstom Power Inc. had the authority to control or supervise Mr. Hoskins with respect to the retention of local agents." (Id.)

         According to the Revised Notice, the bases for Professor Gilson's opinions are his "extensive[]" writings "on the topic of corporate governance" as "set forth in detail in Professor Gilson's curriculum vitae" and "inter alia, 1) Alstom's annual reports filed on Form 20-F with the Securities & Exchange Commission for the years 2002, 2003 and 2004 (which are publicly available); and 2) documents included on the defendant's preliminary exhibit list submitted to [the Government] on September 18, 2019, including exhibits 1, 2, 3A, 5, 6, 7, 10, 11, 13, 14, 16, and 17A."(Mat4.)

         II. Discussion

         The Government claims that the Revised Notice and the scope of Professor Gilson's proposed testimony are improper in two ways. First, the Government argues that some of Professor Gilson's opinions will "improperly instruct the jury on legal terms and what conclusions to draw from the evidence in this case," while others are "entirely irrelevant." (Mot. to Limit at 4.) Second, the Government argues that Defendant has "failed to disclose a specific basis for any of Professor Gilson's opinions, in violation of Federal Rule of Criminal Procedure 16 and this Court's Standing Order on Discovery.

         A. Scope of Professor Gilson's Testimony

         "An opinion is not objectionable just because it embraces an ultimate issue." Fed.R.Evid. 704. But "Rule 704 was not intended to allow experts to offer opinions embodying legal conclusions." United States v. Scop, 846 F.2d 135, 139 (2d. Cir. 1988). Rather, "under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach . . . [and] also stand ready to exclude legal opinions phrased ...