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  • Writer's pictureShelly Albaum

Pretrial Motion Score Card

UPDATED SEP 14: I swapped added proposed point values, allocating 100 points among the various motions. If ChromaDex's motion is granted in full, all the points go to ChromaDex; if ChromaDex's motion is denied in full, all the points go to Elysium. Same with Elysium's motions. For partial grants -- for example, an expert's testimony might be mostly allowed or mostly excluded -- we'll have to decide how to allocate the points.

Allocation of points among motions is highly subjective. You can see that I think that the each party's attempt to get rid of the other's major causes of action (Patent Misuse, Fraudulent Inducement, and Trade Secret Theft), are what matters most, along with efforts to exclude expert testimony necessary to support those causes of action.

But someone else could value it differently. And who knows how to weigh the personal conduct evidence, since we don't know what it is or what it would show? Still, it's my best guess, and we'll see where the chips fall.


I think there might be a thousand pages of argument and exhibits in support of something like 23 pre-trial motions.

While we are waiting for Judge Carney to resolve it, I put together a score card that might help us sort it out what's at stake:

The important thing to remember is that not all of the 23 points in contention are equally important. For example, Elysium would like to exclude Carla Kagel's supplemental expert report relating to whether there was ever Acetamide in Niagen, but it is much more important for Elysium to get the Iain Cockburn testimony excluded -- which would make it difficult for ChromaDex to recover damages, or to get the Personal Conduct Evidence excluded, because they seem to view its potential admission as "fatally prejudicial" to Elysium's claims.

So if Elysium wins on 19 and 21 but loses on 20, we won't count that as 67%; we will count that as a huge win. Conversely, if Elysium loses on 19 and 21 but wins on 20, we won't view that as 33%; we will count that as a devastating loss.

The same is true with all the other claims. For example, ChromaDex loses on 11 and has all its trade secret claims knocked out, it will be small consolation that it won on 14 and is still able to assert a breach of confidentiality claims based on Morris's July agreement, because the potential damages are dramatically higher on 11 than on 14.

So that's why there is a column on the far right for "value," where you can assign a certain number of points to how much you think that ruling matters in the bigger scheme of things.

Another challenge with this exercise will be partial rulings. For example, suppose that Judge Carney allows the jury to see one message that includes Personal Conduct Evidence, but excludes a hundred others. Is that a huge win for Elysium or a huge loss, or something in between? It's impossible to know without seeing the messages and having some sense of what the evidence would be, but even if it COULD see the evidence, it would still be a difficult guess as to whether the partial ruling was a very bad thing or a very good thing for either party.

What Are My Guesses?

I'm not ready to fill out the score card myself, but would say that I think the most important claims up there are 1, 2, 11, 15, 19, and 21.

If ChromaDex is able to knock out Elysium's Patent Misuse and Fraudulent Inducement claims, then Elysium might be left with just lower-value breach of contract claims, including claims like 8, for which damages are not a sure thing even if there were liability. There wouldn't be much left of Elysium's case.

On the other hand, if Elysium were able to wipe out ChromaDex's trade secret claims (11) or the evidence on which those claims relies (19), then ChromaDex would have lost the most important part of its case.

I won't review all of the arguments and evidence because we have covered them, but I think it is highly unlikely Elysium will get 11 or 19 granted, and I think it is very likely that ChromaDex will get 1 granted.

I don't have a guess as to whether ChromaDex will win 2 at summary judgment, or have to prove its case at trial, although I think it will win 2 sooner or later.

Elysium can take comfort in the fact that it is very likely to get at least some of its personal conduct evidence excluded. I highly doubt that every single message will prove admissible. However, whether Elysium will end up with a partially favorable judgment or a completely favorable judgment is a closer call, and depends on whether the personal conduct evidence is only valuable as impermissible impeachment on a collateral matter, as Elysium says, or is also valuable for other reasons, as ChromaDex says. We have no way of knowing.

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