                            COURT OF CHANCERY
                                  OF THE
 SAM GLASSCOCK III          STATE OF DELAWARE                COURT OF CHANCERY COURTHOUSE
  VICE CHANCELLOR                                                     34 THE CIRCLE
                                                               GEORGETOWN, DELAWARE 19947


                        Date Submitted: November 7, 2017
                        Date Decided: November 13, 2017

 Gregory V. Varallo, Esquire                   William B. Chandler, III, Esquire
 Rudolf Koch, Esquire                          Ian R. Liston, Esquire
 Robert L. Burns, Esquire                      Wilson Sonsini Goodrich & Rosati, P.C.
 Richards, Layton & Finger, P.A.               222 Delaware Avenue, Suite 800
 One Rodney Square                             Wilmington, DE 19801
 920 North King Street
 Wilmington, DE 19801                          Lewis H. Lazarus, Esquire
                                               Meghan A. Adams, Esquire
                                               Morris James LLP
                                               500 Delaware Avenue, Suite 1500
                                               Wilmington, DE 19801

                                               David S. Eagle, Esquire
                                               Sean M. Brennecke, Esquire
                                               Klehr Harrison Harvey Branzburg LLP
                                               919 Market Street, Suite 1000
                                               Wilmington, DE 19801


              Re: Great Hill Equity Partners IV, LP, et al. v. SIG Growth Equity
              Fund I, LLLP, et al., Civil Action No. 7906-VCG

Dear Counsel:

      As discussed at the pretrial conference, this Letter Opinion will address the

Defendants’ Motion in Limine No. 1. For the reasons that follow, the Motion in

Limine is denied without prejudice to object at trial and to seek to exclude

consideration of evidence in post-trial briefing.
        Motion in Limine No. 1 seeks to exclude portions of proposed testimony from

the Plaintiffs’ industry expert, Dr. Thomas Layman. The Defendants’ Motion

focuses on two purported problems with Dr. Layman’s proposed testimony. First,

the Defendants point out that the body of Dr. Layman’s report contains a recitation

of facts upon which he relied in forming his opinion. The Defendants argue that this

recitation of facts is cherry-picked and self-serving, and expressed the concern that

it may improperly skew my view of the facts, which I must determine based on

testimony at trial, not second-hand evidence received via an expert’s report. I have

no doubt, however, that I will be able to separate the two. Dr. Layman is permitted

to set forth the facts as he understood them in formulating his opinion.1 The

Defendants, of course, are free to cross-examine Dr. Layman and point out the

deficiencies or inaccuracies of the purported facts upon which he bases his opinion.

But I see no need to exclude Dr. Layman’s testimony through a ruling in limine.2

        Next, the Defendants argue that Dr. Layman should not be permitted to opine

on the subjective knowledge or intent of individuals in the guise of providing insight


1
  See D.R.E. 702 (“If scientific, technical or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training or education may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.” (emphasis added)).
2
   See Beard Research, Inc. v. Kates, 2009 WL 7409282, at *6 (Del. Ch. Mar. 31, 2009)
(“[A]lthough it is critical in a jury trial for a court to exercise its gatekeeper function in advance of
allowing an expert to testify, the importance of addressing issues raised under Daubert and Rule
702 before an expert testifies is more attenuated in a bench trial.”).
                                                   2
into the industry in which Plimus did business. The Plaintiffs have responded that

they are not anticipating any such testimony. The Defendants are free to object to

any question which they feel improperly solicits views outside Dr. Layman’s area of

expertise.3

       For the foregoing reasons, the Defendants’ Motion in Limine No. 1 is denied

without prejudice, as described in the body of this Letter Opinion. To the extent that

the foregoing requires an order to take effect, IT IS SO ORDERED.

                                                     Sincerely,

                                                     /s/ Sam Glasscock III

                                                     Sam Glasscock III




3
  See Hoechst Celanse Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 1994 WL 721624, at
*1 (Del. Ch. Apr. 20, 1994) (holding that “subjective testimony regarding the plaintiffs’ subjective
intent with respect to property damage is not admissible as expert testimony pursuant to Delaware
Rule of Evidence 702.”).
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