United States District Court, D. Connecticut
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 ...