Verizon Directories Corp. v. Yellow Book Usa, Inc.

331 F.Supp.2d 136

VERIZON DIRECTORIES CORP., Plaintiff, v. YELLOW BOOK USA, INC., Defendant.

No. 04-CV-0251(JBW).

United States District Court, E.D. New York.

August 19, 2004.

Charles B. Molster, III, Winston & Strawn, Washington, DC, Dan K. Webb, Winston & Strawn, Chicago, IL, John P. Frantz, John Thorne, Verizon Communications, Arlington, VA, Peter Dykema, Lawrence O. Kamin, Willkie, Farr & Gallagher, LLP, Richard Henry Dolan, Schlam, Stone & Dolan, LLP, New York, NY, James M. Koukios, Steven G. Bradbury, Steven A. Engel, Kirkland & Ellis LLP, Washington, DC, for Plaintiff.

Carolyn Lisa Miller, Willkie, Farr & Gallagher, LLP, Matthew A. Leish, Robert D. Balin, Samuel M. Leaf, Sharon Lee Schneier, Victor A. Kovner, Davis Wright Tremaine LLP, Lawrence O. Kamin, Willkie Farr & Gallagher, LLP, New York, NY, for Defendant.

MEMORANDUM & ORDER

WEINSTEIN, Senior District Judge.

I. Introduction

Verizon Directories Corporation has sued Yellow Book USA, Inc., alleging that the defendant has used false or misleading representations in advertising and in sales and marketing communications. See 15 U.S.C. § 1125(a). The current phase of the litigation is a bench trial to determine preliminary injunctive relief, permanent injunctive relief and liability (damages issues, if any, to be put off for later jury determination).

The parties have presented almost all exhibits in computer-generated formats as well as by hard copy. They were dubious about the admissibility of the many pedagogical devices (often called "demonstratives") used in the trial. For the reasons stated below, the court finds that the scores of pedagogical devices used at trial, except for those stricken for error or lack of utility, are admitted into evidence.

II. Pedagogical Devices

A. Computer-Generated Pedagogical Devices

The applicable literature identifies four overlapping main categories of computer generated exhibits: static images, animations, simulations, and computer models. See, e.g., Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 Harv. J. Law & Tech. 161, 177-81 (2000); Lori G. Baer & Christopher A. Riley, Technology in the Courtroom: Computerized Exhibits and How to Present Them, 66 Def. Couns. J. 176 (1999); Timothy W. Cerniglia, Computer-Generated Exhibits-Demonstrative, Substantive or Pedagogical-Their Place in Evidence, 18 Am. J. Trial Advoc. 1, 4-5 (1994). Presentations are frequently in a "power point" format with the attorney calling up data and images as needed from huge files.

The first category "consists of static images that are simply projected onto a large screen or computer panel or to individual monitors by a computer display system." Galves, supra, at 177. These representations are common in courtrooms. They include tables, graphs, maps and diagrams.

Animations are, in their simplest terms, moving pictures. The computer allows otherwise static images to be "shown in rapid succession to create the [illusion] of motion." Baer & Riley, supra, at 177. The graphics are often crude or oversimplified. Animations are not intended "to recreate or simulate an event." See Cerniglia, supra, at 5.

The third category is "simulations" or "recreations." Computer functions allow the user to simulate actual events — or, more properly, the opinion of the creator as to the nature of the events. Most simulations are detailed and realistic. The recreated computer image of the event can be manipulated. It can be portrayed from different angles or from the viewpoints of different witnesses. A common use involves the recreation of accidents. See, e.g., Datskow v. Teledyne Continental Motors, 826 F.Supp. 677, 685-86 (W.D.N.Y.1993) (noting that defendant objected to the "use of a videotaped computer-generated animation which illustrated [ ] theory of where the fire began inside the engine and how it spread.").

The fourth category, computer models, are "nothing more than a compilation of mathematical formulae and expressions that are integrated into a sophisticated computer program or series of programs." Cerniglia, supra, at 6. An expert witness may test multiple hypotheses with the model and form opinions based on the results, producing graphics explicating the results.

A fifth category should be admitted. It is "enhanced images," occupying the space between static images and animations. For the most part, an enhanced image is static, but the attorney or witness may manipulate the image through, for example, highlighting, enlarging particular areas, and presenting side-by-side split screen presentations or video-taped depositions with printed commentary or transcript moving below in tandem with the image and audio of the deponent. Different colors can be used to emphasize particular elements of the presentation or to show which parts of a deposition are being presented by one side or the other. The parties may highlight selected text, enlarge graphics, modify images, or enlist other special effects to illuminate a relevant point. See, e.g., Galves, supra, at 177 ("The computer technology here, therefore, simply makes those functions easier, quicker, and more legible and understandable.").

A sixth category, easel writings and diagrams created by an expert or attorney during the trial and in the presence of the trier, is old-hat. The technique is now improved by almost instantaneous computer creation of printed versions that can be projected onto the screen and converted to hard copy for the trier's notebook.

B. Use of Pedagogical Devices in the Instant Trial

Computer-generated exhibits in this trial are predominantly of the "enhanced images" type. The judge, witness, court reporter, and lawyers have computer monitors at their respective stations. There is a large screen in the courtroom. The particular documents relied on by a witness or lawyer are displayed on the personal monitors and projected onto the large screen as appropriate. Nearly every static image of a document is enhanced by highlighting in color the portion of the text believed by counsel to be telling, and by enlarging the selected text in a superimposed box.

Relevant video deposition testimony is shown on the monitors and large screen. The image of the deposition is supplemented by subtitles. Questions by plaintiff — and the concomitant responses are displayed in red — colored text. Defendant's questions and responses are shown in blue-colored text. Documents and other data may be simultaneously shown on split screens. The portions of depositions relied upon and counter designations are broken up into "themes," explained by what amount to mini-summations.

The parties use graphics to complement testimony, showing graphs, numerical collections of raw and analyzed data from surveys, pie and bar charts, and cartoonish images of persons, stacks of books or other objects, and "thought bubbles." Although rudimentary, the images are effective in clarifying sometimes dense expert testimony, statistical surveys and theories. They also utilize easel writings and diagrams. When showing the television commercials at issue, images may be "freeze-framed." The information is projected onto the large screen in the courtroom and individual monitors from the party-operated computers or overhead projector (referred to by counsel as "the Elmo," a brand of projector not actually used in this trial).

Tens of thousands of "bates-numbered" pages that are part of comprehensive collection of documents may be called up by the computer as needed. "Bates" labeling is commonly used to assign numbers to pages identified during pretrial or at trial. The term comes from the name of a brand of number stamping machine. Internal indexes and other controls of documents in litigation often use these identifying numbers. The numbers are now often automatically affixed during electronic rapid scanning by litigation support software and services providers.

Computer-generated evidence as shown in the court is largely transient. The computer technician electronically highlights text only for an instant. The superimposed text boxes last only as long as the selected text is germane to the testimony. Thus, preserving some computer generated evidence in its original form for appellate review requires planning.

The parties provided the court with large numbers of notebooks containing traditional documents, witness lists, and identifying data in conjunction with the techniques already discussed, and pedagogicals. Were this a jury trial, including some of this information in individual juror notebooks with pictures and identifying data for witnesses would be appropriate.

The possibility of compression of evidence for record-keeping purposes is substantial. For example, plaintiffs' exhibits filling seventeen large storage boxes were reduced to two CDROM disks.

It should be noted that while the present phase of the case is a bench trial, should the court decide there is liability, the damages phase will be tried before a jury. It would seem sensible to allow a jury determining damages, if this event should come to pass, to be assisted by the same pedagogical devices the court relied upon in determining liability.

III. Law

A. General Current Practice Excluding as Evidence

Pedagogical devices or demonstratives have long been recognized in the form of summaries, charts and other aids used by parties "to organize or aid the jury's examination of testimony or documents which are themselves admitted into evidence." See 6 Margaret A. Berger, et al., Federal Evidence, § 1006.04 [2] (Joseph McLauglin, ed.2000). It is a common view among courts that such pedagogical devices "are not evidence themselves, but are used merely to aid the jury in its understanding of the evidence that has already been admitted." United States v. Janati, 374 F.3d 263, 273 (4th Cir.2004) (citations omitted); see also...