Full opinion text
OPINION AND ORDER LEISURE, District Judge. Plaintiff Highland Capital Management, L.P. (“Highland”) brings this action to recover in contract from the defendants, Leonard Schneider, Leslie Schneider, Scott Schneider, and Susan Schneider (collectively, “the Schneiders”) for their refusal to sell certain promissory notes, valued at $69 million, to Highland and third-party-defendant and counterclaimant, RBC Capital Markets Corporation, formerly known as RBC Dominion Securities Corporation (“RBC”). The parties have filed multiple motions in limine in anticipation of trial. BACKGROUND The factual and procedural background of this case is explained in detail in the Court’s recent summary judgment Opinion, dated January 16, 2008, familiarity with which is assumed. See Highland Capital Mgmt, L.P. v. Schneider, No. 02 Civ. 8098, 2008 WL 152778, 2008 U.S. Dist. LEXIS 3235 (S.D.N.Y. Jan.16, 2008). Any additional relevant facts are included in the discussion. DISCUSSION I. Motions in Limine and Federal Rules of Evidence A district court’s inherent authority to manage the course of its trials encompasses the right to rule on motions in limine. See Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Indeed, “[t]he purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.” Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.1996) (internal quotation marks omitted); see also Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc., No. 01 Civ. 3796, 2005 WL 1026515, at *3, 2005 U.S. Dist. LEXIS 7902, at *9 (S.D.N.Y. May 2, 2005) (Leisure, J.) (“The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain fore-casted evidence.”). “The court’s ruling regarding a motion in limine is ‘subject to change when the case unfolds.’ ” Id., 2005 WL 1026515, at *4, 2005 U.S. Dist. LEXIS 7902, at *11 (quoting Luce, 469 U.S. at 41, 105 S.Ct. 460). Accordingly, this Opinion and Order constitutes a preliminary determination subject to change. Rule 402 of the Federal Rules of Evidence provides that “[a]ll relevant evidence is admissible, except as otherwise provided by ... Act of Congress, [or] by these rules.... Evidence which is not relevant is not admissible.” Fed.R.Evid. 402. The “standard of relevance established by the Federal Rules of Evidence is not high.” United States v. Southland Corp., 760 F.2d 1366, 1375 (2d Cir.1985) (Friendly, J.). Evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” is relevant. Fed.R.Evid. 401. Under Rule 403 of the Federal Rules of Evidence, the trial court has “broad discretion to exclude even relevant evidence if its probative value is substantially outweighed by the danger of confusion of the issues or if it would be needlessly cumulative.” United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1193 (2d Cir.1989) (citing Fed.R.Evid. 403; United States v. Carter, 801 F.2d 78, 83 (2d Cir.1986); United States v. Martinez, 775 F.2d 31, 37 (2d Cir.1985)). Rule 403 also provides for the exclusion of relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403. Evidence is prejudicial under Rule 403 if it “involves some adverse effect ... beyond tending to prove the fact or issue that justified its admission into evidence.” United States v. Gelzer, 50 F.3d 1133, 1139 (2d Cir.1995). The Court mil exclude such evidence if it has “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Fed.R.Evid. 403, advisory committee’s notes. Because Rule 403 excludes relevant evidence, “it is an extraordinary remedy that must be used sparingly.” George v. Celotex Corp., 914 F.2d 26, 31 (2d Cir. 1990). The “district court retains broad discretion to balance the evidence’s potential prejudice ... against its probative value.” United States v. Downing, 297 F.3d 52, 59 (2d Cir.2002). II. Highland’s Objections to Magistrate’s Opinion and Order Striking Expert Testimony of Sean F. O’Shea On July 19, 2005, Magistrate Judge Gabriel W. Gorenstein issued an Opinion and Order granting the Schneiders’ Motion to Exclude Proposed Expert Testimony of Sean O’Shea and denying Highland’s request to supplement the O’Shea Report (the “Gorenstein Order”). See Highland Capital Mgmt., L.P. v. Schneider, 379 F.Supp.2d 461 (S.D.N.Y.2005). On July 29, 2005, Highland objected to Magistrate Gorenstein’s Opinion and Order. The Schneiders responded on August 10, 2005. The Court stayed ruling on Highland’s objection because of the Court’s dismissal of the case on July 25, 2005. However, in light of the Second Circuit’s decision in this case, and the forthcoming trial, the Court now addresses Highland’s objection. For the reasons that follow, Highland’s objection is DENIED. Rule 72(a) of the Federal Rules of Civil Procedure governs the Court’s review of objections to a magistrate judge’s nondis-positive pre-trial order. Rule 72(a) states that “[t]he district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). A district court is justified in finding a magistrate judge’s ruling “clearly erroneous” where, “ ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Labarge v. Chase Manhattan Bank, No. 95 Civ. 173, 1997 WL 583122, at *1, 1997 U.S. Dist. LEXIS 13803, at *3 (N.D.N.Y. Sept. 3, 1997) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)); accord Am. Rock Salt Co., LLC v. Norfolk S. Corp., 371 F.Supp.2d 358, 360 (W.D.N.Y.2005) (“[R]eversal is warranted only if the reviewing court is ‘left with the definite and firm conviction that a mistake has been committed.’ ” (quoting Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001))); United Parcel Serv. of Am., Inc. v. The Net, Inc., 222 F.R.D. 69, 70-71 (E.D.N.Y.2004) (“An order is ‘clearly erroneous’ only when ‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” (quoting Thompson v. Keane, No. 95 Civ. 2442, 1996 WL 229887, at *1 (S.D.N.Y. May 6, 1996))). Consequently, “parties seeking to overturn the Magistrate’s discovery rulings ‘bear a heavy burden.’ ” Citicorp v. Interbank Card Ass’n, 87 F.R.D. 43, 46 (S.D.N.Y. 1980); accord Comr-Tech Assocs. v. Computer Assocs. Int’l, Inc., 753 F.Supp. 1078, 1099 (E.D.N.Y.1990) (same); 12 Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 3069, at 350-51 (2d ed. 1997) (“[I]t is extremely difficult to justify alteration of the magistrate judge’s nondispositive actions by the district judge.”). Given such a highly deferential standard of review, magistrate judges are afforded broad discretion and “reversal is appropriate only if that discretion is abused.” Commodity Futures Trading Com’n v. Standard Fo-rex, Inc., 882 F.Supp. 40, 42 (E.D.N.Y. 1995); accord Doe v. Marsh, 899 F.Supp. 933, 934 (N.D.N.Y.1995) (stating abuse-of-discretion standard applies). The Court has reviewed the Goren-stein Order and finds no clear error. In considering expert testimony, the Court must determine whether the testimony would “usurp either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it.” United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir.1999) (quoting United States v. Duncan, 42 F.3d 97, 101 (2d Cir.1994)) (internal quotation marks omitted). Magistrate Judge Gorenstein fairly and appropriately applied the law in this Circuit. He considered each section of the O’Shea Report in turn and found each section to be inadmissible. It was not clear error for Magistrate Judge Gorenstein to hold that O’Shea’s testimony would impermissibly impinge upon the province of both the fact finder, Highland Capital Mgmt., 379 F.Supp.2d at 469-70, and the Court, id. at 470-72, and is not relevant or necessary to assist the jury, id. at 473. Additionally, Magistrate Judge Goren-stein’s denial of Highland’s request to defer consideration of the motion and supplement the report was appropriate. “Preclusion of testimony is an entirely appropriate measure when, as at present, the testimony a party seeks to present is simply inadmissible.” Taylor v. Evans, No. 94 Civ. 8425, 1997 WL 154010, at *2 (S.D.N.Y. Apr.l, 1997). Furthermore, the “curative measures” put forth by Highland would not have “alleviate[d] the underlying defects” in O’Shea’s proffered testimony. Id. Magistrate Judge Gorenstein’s analysis was sound, and certainly does not amount to clear error. The Court therefore accepts the Gorenstein Order, and affirms its grant of defendants’ motion to exclude O’Shea’s proffered testimony in its entirety and denial of Highland’s request to supplement the O’Shea Report. III. Expert Witnesses Rule 702 of the Federal Rules of Evidence provides: 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 rehable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702. Furthermore, Rule 702 grants the district judge discretionary authority “to determine [the] reliability [of an expert’s testimony] in light of the particular facts and circumstances of the particular case.” Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 158, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In securities cases, federal courts have admitted expert testimony to assist the trier of fact in understanding trading patterns, securities industry regulations, and complicated terms and concepts inherent in the practice of the securities industry. See, e.g., United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir.1991) (“Particularly in complex cases involving the securities industry, expert testimony may help a jury understand unfamiliar terms and concepts.”); S.E.C. v. Lorin, 877 F.Supp. 192, 196 (S.D.N.Y.1995), modified, 76 F.3d 458 (2d Cir.1996); Marx & Co., Inc. v. Diners’ Club, Inc., 550 F.2d 505, 511 (2d Cir.1977), cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977). In Marx, the Second Circuit recognized that while an expert “may testify to an ultimate fact, and to the practices and usages of a trade, we think care must be taken lest, in the field of securities law, he be allowed to usurp the function of the judge.” 550 F.2d at 511. In Daubert v. Merrell Dow Pharms., Inc., the Supreme Court focused on the “admissibility of scientific expert testimony,” and discussed specific factors in evaluating the reliability of that testimony, such as “testing, peer review, error rates and ‘acceptability’ in the relevant scientific community, some or all of which might prove helpful in determining reliability of a particular scientific ‘theory or technique.’ ” Kumho Tire Co., Ltd., 526 U.S. at 141, 119 S.Ct. 1167 (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). The Court has subsequently held that, “whether Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine,” and that, in fact, “the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination”. Kumho, 526 U.S. at 142, 153, 119 S.Ct. 1167. Rule 704 of the Federal Rules of Evidence provides that “testimony in the form of an opinion or an inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Under Rule 704(a), an expert witness may testify to the ultimate issue of fact in the case, “but such opinions may not be ‘phrased in terms of inadequately explored legal criteria.’ ” Media Sport & Arts v. Kinney Shoe Corp., No. 95 Civ. 3901, 1999 WL 946354, at *1, 1999 U.S. Dist LEXIS 16035, at *3 (S.D.N.Y. Oct.16, 1999) (Leisure, J.) (quoting Fed.R.Evid. 704(a), advisory committee’s notes). While the expert can make factual conclusions that embrace an ultimate issue to be decided by the fact-finder, the expert cannot give testimony stating ultimate legal conclusions based upon those facts, nor can that testimony track the language of the statute or the law that the defendants are accused of violating. See Bilzerian, 926 F.2d at 1294; United States v. Scop, 846 F.2d 135, 140, modified, 856 F.2d 5 (2d Cir.1988); Marx & Co., Inc., 550 F.2d at 510-11. A. The Schneiders’ Motion in Limine No. 1 to Exclude Proposed Expert, Testimony Proffered by Highland and RBC The Schneiders move pursuant to Rules 104, 401, 402, 403 and 702 of the Federal Rules of Evidence and Rule 37 of the Federal Rules of Civil Procedure to exclude proposed expert testimony proffered by Highland and RBC. The Schneiders’ motion relates to ten witnesses proffered by Highland, one of whom also was proffered by RBC. Highland and RBC oppose the motion. 1. Sean O’Shea The Schneiders move to preclude Highland and RBC from introducing any opinion testimony by O’Shea. As discussed above, Highland objected to the Goren-stein Order granting the Schneiders’ motion to exclude O’Shea’s testimony. In light of the Court’s denial of Highland’s objection and affirmance of the Gorenstein Order excluding O’Shea, the Schneiders’ motion to preclude Highland and RBC from introducing any opinion testimony by O’Shea is GRANTED. 2. John J. Duval, Sr. The Schneiders assert that the proposed testimony of John J. Duval, Sr. (“Duval”) is inadmissible and should be excluded. The Schneiders state that Du-val’s opinion consists of “ipse dixit conclusions, based upon Duval’s interpretation of the ‘facts’ and the law, and his views as to how the law, as he perceives it, ought to be applied to the facts as he interprets them and are all inadmissible.” (Defs.’ Mot. No. 1 at 18.) As an initial matter, Duval is qualified to testify. He has over twenty years of experience in the securities industry, as a retail broker and NASD and NYSE arbitrator. (Duval Report.) Duval also has extensive experience as a consultant and expert witness. (Id.) Duval may testify as to the customs and practices of the industry. “Particularly in complex cases involving the securities industry, expert testimony may help a jury understand unfamiliar terms and concepts.” Bilzerian, 926 F.2d at 1294; see also S.E.C. v. U.S. Envtl, Inc., No. 94 Civ. 6608, 2002 WL 31323832, at *2, 2002 U.S. Dist. LEXIS 19701, at *7 (S.D.N.Y. Oct. 16, 2002) (Leisure, J.). Industry custom and practice is relevant to the issues remaining in this case. Therefore, this testimony is admissible and helpful to the jury. The Court notes that “ ‘[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means’ of attack.” In re Blech Sec. Litig., No. 94 Civ. 7696, 2003 WL 1610775, at *25, 2003 U.S. Dist. LEXIS 4650, at *69-70 (S.D.N.Y. Mar. 26, 2003) (Sweet, J.) (quoting Daubert, 509 U.S. at 596, 113 S.Ct. 2786). This may include attack on what is the relevant industry, or what are the relevant customs and practices, for a transaction that the Schneiders assert concerns “a limited number of unusual instruments.” (Defs.’ Mot. No. 1 at 26-27.) Therefore, these “ ‘conventional devices, rather than wholesale exclusion’ are ‘the appropriate safeguards,’ ” for the Schneid-ers to attack Duval’s testimony. Blech Sec. Litig., 2003 WL 1610775, at *25, 2003 U.S. Dist. LEXIS. 4650, at *70 (quoting Daubert, 509 U.S. at 596, 113 S.Ct. 2786). “[T]he jury can best form a judgment when presented with ... experts’ competing theories.” Id., 2003 WL 1610775, at *20, 2003 U.S. Dist. LEXIS 4650, at *55. The certified question posed to the New York Court of Appeals by the Second Circuit in this case established that the notes in question are “securities.” Highland Capital Mgmt., L.P. v. Schneider, 8 N.Y.3d 406, 834 N.Y.S.2d 692, 866 N.E.2d 1020 (2007). Because this is a settled issue, Duval need not opine on whether or not the notes are securities. (Defs.’ Mot. No. 1 at 15; Ash Deck Ex. 8 at 3.) To the extent that the status of the notes as securities may inform Duval’s testimony on other relevant issues, Duval may offer his opinion on those other relevant issues. However, Duval’s opinion as to the credibility of witnesses is inadmissible. See Scop, 846 F.2d at 142 (“[T]he credibility of witnesses is exclusively for the determination of the jury.”). Duval may not testify regarding the credibility of Leonard Schneider, Glen Rauch (“Rauch”), or other witnesses. Such subjective review of the evidence is improper, and Duval does not have “personal knowledge of the underlying facts.” See Blech Sec. Litig., 2003 WL 1610775, at *21-22, 2003 U.S. Dist. LEXIS 4650, at *62-65 (internal quotation marks omitted). Further, Duval’s factual narrative of events giving rise to this action is inadmissible. Duval has no personal knowledge of these facts and they are lay matters that the jury is capable of understanding and deciding without Duval’s testimony. See, e.g., In re Rezulin Prods. Liab. Lit, 309 F.Supp.2d 531, 541 (S.D.N.Y.2004). Duval also cannot testify as to ultimate legal conclusions. “[Although an expert may opine on an issue of fact within the jury’s province, he may not give testimony stating ultimate legal conclusions based on those facts.” Bilzerian, 926 F.2d at 1294. Duval, therefore, cannot state that he knows that Leonard Schneider or Rauch had authority to bind the Schneiders, or that there was a binding agreement. “Even if his testimony is couched in terms of industry practices, the expert still may not, under any circumstances, opine on the ultimate legal issue in the case.” Media Sport & Arts s.r.l., 1999 WL 946354, at *3, 1999 U.S. Dist. LEXIS 16035, at *10 (citing Bilzerian, 926 F.2d at 1295). Duval can, however, based upon his experience, point to factors indicating to him that Leonard Schneider or Rauch had authority to bind the Schneiders or that there was an agreement. See Blech Sec. Litig., 2003 WL 1610775, at *22-23, 2003 U.S. Dist. LEXIS 4650, at *62-65. Duval’s testimony will likely prove helpful in allowing the trier of fact to better understand the evidence and providing the trier of fact with the tools necessary to make an ultimate determination. The Schneiders also argue that Highland should be precluded from offering Duval’s opinion from his Declaration, dated February 7, 2005, and submitted as part of Highland’s Exhibit 169 in the Appendix in Support of Plaintiffs Opposition to the Schneiders’ Motion for Summary Judgment. Specifically, the Schneiders contest Duval’s addition of a new opinion with respect to the phrase in the Letter Agreement that “the consummation of any transaction remains in the sole discretion and satisfaction of the holders and RBC.” (Defs.’ Mot. No. 1 at 32-34.) The Schneid-ers oppose this testimony on the grounds that it is unsupported and that it goes beyond the scope of Duval’s Rule 26 report. Highland fails to respond to the Schneiders’ contentions on these issues. Rules 26 and 37 of the Federal Rules of Civil Procedure guide the Court’s consideration here. Rule 26(e) governs supplementation of expert disclosures. Rule 37(c)(1) provides sanctions for failure to comply with the requirement to supplement. When considering whether to exclude the evidence under Rule 37, Courts in this Circuit have considered four factors: “(1) the party’s explanation for the failure to comply ..., (2) the importance of the testimony of the precluded witness, (3) the prejudice suffered by the opposing party ...; and (4) the possibility of a continuance.” Softel, Inc. v. Dragon Medical and Scientific Communications, Inc., 118 F.3d 955, 961 (2d Cir.1997) (citing Outley v. City of New York, 837 F.2d 587, 590 (2d Cir.1988)); see also In re Motel 6 Secs. Litig., 161 F.Supp.2d 227, 243 (S.D.N.Y.2001). Here, Highland provides no explanation, and this limited portion of Duval’s testimony is not of great importance. Further, Duval’s Declaration was filed after discovery was closed, therefore, the Schneiders would be prejudiced and a continuance would have been impractical. Thus, the factors favor exclusion. Duval’s Declaration should be stricken and Duval cannot testify as to these new opinions. 3. Gerald A. Guild Both Highland and RBC proffer Gerald A. Guild (“Guild”) as an expert witness. Guild is qualified to testify. He has over forty years of experience in the securities industry and has testified numerous times in securities actions. (Guild Report.) As with Duval’s testimony on industry custom and practice, Guild, for the same reasons, may testify as to the customs and practices of the industry. It is relevant to this case and may prove helpful to the jury. The Court again reiterates that the Schneiders can, and should, use cross-examination, contrary evidence, and competing expert opinion to attack Highland’s and RBC’s experts’ opinions. See Blech Sec. Litig., 2003 WL 1610775, at *25, 2003 U.S. Dist. LEXIS 4650, at *69-70. Guild also may opine as to RBC’s lost business damages. Lost business damages remains a relevant issue in this case. Guild’s opinion is based on sufficient facts, rehable principles, and reliable application of the principles to the facts. Guild adopts a conservative approach to estimating a minimum spread, based on industry experience and available data. See, e.g., U.S. Envtl., Inc., 2002 WL 31323832, at *3, 2002 U.S. Dist. LEXIS 19701, at *12-13 (holding that expert’s conclusions based on analysis of documents and knowledge of standard practices in the securities industry were admissible where expert had over thirty years experience in the industry and testified as an expert in numerous securities actions). Thus, it is admissible. The Schneiders assert that Guild’s lost business damages opinion is speculative and unfounded. (Defs.’ Mot. No. 1 at 28.) The proper remedy for the Schneiders is to use conventional methods at trial to attack Guild’s opinion. For example, as discussed further below, their own expert, Michael Stupay, may provide a competing opinion on lost business damages. Nonetheless, Guild’s testimony on lost business damages may prove helpful in providing the jury with the tools to make a determination, should such a determination be necessary, and the jury may afford Guild’s opinion whatever weight it deems appropriate. Guild may not, however, opine on a party’s state of mind, including that of Leonard Schneider. (Guild Report at 9.) In his report, Guild states: “Clearly on that date Leonard Schneider believed that the value of these two issues of SPNs was a deeply discounted price, likely circa 40 to 50% at best.” (Guild Report at 9.) Opining about a party’s state of mind, as Guild does here, is impermissible. See Rezulin, 309 F.Supp.2d at 547 (“Inferences about the intent or motive of parties or others lie outside the bounds of expert testimony.”); Taylor v. Evans, No. 94 Civ. 8425, 1997 WL 154010, at *2, 1997 U.S. Dist. LEXIS 30107, at *5 (S.D.N.Y. Apr.l, 1997) (holding that expert’s “musings as to defendants’ motivations” were inadmissible). Guild’s belief about a party’s state of mind is an improper subject for expert testimony and cannot be saved by couching his opinion as “industry custom and practice.” (Defs.’ Mot. No. 1 at 27.) Further, Guild’s opinion as to the credibility of witnesses is inadmissible. See Scop, 846 F.2d at 142 (“[T]he credibility of witnesses is exclusively for the determination of the jury.”). Guild may not opine as to the credibility of Leonard Schneider, Rauch, RBC employees, or other witnesses. (Defs.’ Mot. No. 1 at 19-20.) Such subjective review of the evidence is improper, and Guild does not have “personal knowledge of the underlying facts.” See Blech Sec. Litig., 2003 WL 1610775, at *21-22, 2003 U.S. Dist. LEXIS 4650, at *59 (internal quotation marks omitted). Additionally, Guild’s factual narrative of events giving rise to this action is inadmissible. Guild has no personal knowledge of these facts and they are lay matters that the jury is capable of understanding and deciding without Guild’s testimony. See, e.g., Rezulin, 309 F.Supp.2d at 541. Guild also cannot testify as to ultimate legal conclusions. “[Although an expert may opine on an issue of fact within the jury’s province, he may not give testimony stating ultimate legal conclusions based on those facts.” Bilzerian, 926 F.2d at 1294. Guild, therefore, cannot state that he knows that Rauch was the Schneiders’ agent, that there was a “firm offer,” that a binding agreement was formed, or that the Scheinders breached that agreement. (Defs.’ Mot. No. 1 at 21.) “Even if his testimony is couched in terms of industry practices, the expert still may not, under any circumstances, opine on the ultimate legal issue in the case.” Media Sport & Arts s.r.l, 1999 WL 946354, at *3, 1999 U.S. Dist. LEXIS 16035, at *10 (citing Bilzerian, 926 F.2d at 1295). Guild can, however, point to factors indicating to him that Rauch was the Schneiders’ agent, that there ;was a “firm offer,” that a binding agreement was formed, or that the Schein-ders breached that agreement. See Blech Sec. Litig., 2003 WL 1610775, at *22-23, 2003 U.S. Dist. LEXIS 4650, at *62-65. 4. Highland and RBC Officers and Employees The Schneiders also seek to exclude Highland’s proposed expert testimony of seven present or former officers or employees of Highland or RBC: Jim Dondero (“Dondero”), Mark Okada (“Okada”), Mike Rich (“Rich”), Ethan Underwood (“Underwood”), Ken Ambrecht (“Ambrecht”), Jim Wood (“Wood”), and Peter Parent (“Parent”). (Defs.’ Mot. No. 1 at 23-24.) In its expert witness disclosures, Highland describes the proffered testimony of Dondero, Okada, Underwood, and Rich in nearly identical language. For example, for Underwood, Highland states that: Mr. Underwood may opine that the Notes were securities, that 51% of the face value of the Notes represented a fair price for the Notes in March 2001, and that agreeing orally to the price and size of a trade “subject to documentation” is binding in the industry and consistent with industry customs, practice, and course of dealing. Mr. Underwood may also opine that refusing to document a trade after agreeing to the price and size of a trade “subject to documentation” violates NASD regulations and is an actionable breach of the agreement to trade the securities. Based on the facts and circumstances in this case, Mr. Underwood may also opine that on March 14, 2001, Defendants entered into an oral agreement to sell the Notes at 51% of their face value. (PTO at 41.) Highland’s description of Dondero’s testimony is identical to Underwood’s. Descriptions of Okada’s and Rich’s testimony are the same as Underwood and Dondero, with the addition of one sentence: “Mr. Okada may also opine as to the amount of pre-judgment interest owed to Highland.” (PTO at 41.) Similarly, Highland’s descriptions of the proffered testimony of Wood, Ambrecht, and Parent are identical to each other, stating that each one “may opine that the Notes were securities and that 51% of the face value of the Notes represented a fair price for the Notes in March 2001.” (PTO at 42.) Rule 403 of the Federal Rules of Evidence provides that “[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the ... considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403; see also Int’l Minerals & Res., S.A. v. Pappas, 96 F.3d 586, 596 (2d Cir.1996) (“A district judge has discretion to exclude evidence if it is cumulative of evidence already in the record.”); United States v. Holmes, 44 F.3d 1150, 1157 (2d Cir.1995) (“Absent a clear abuse of discretion, a trial judge retains a wide latitude to exclude irrelevant, repetitive, or cumulative evidence.”); Rezulin, 309 F.Supp.2d at 550. The proffered testimony of Dondero, Okada, Underwood, Rich, Wood, Ambrecht, and Parent is needlessly cumulative. Any admissible opinion testimony that they would offer could be addressed by either Duval or Guild. See F.H. Krear & Co. v. Nineteen Named Trs., 810 F.2d 1250, 1258 (2d Cir.1987) (affirming district court’s exclusion of expert testimony as cumulative where at least four other witnesses testified on the same subject). It is unnecessary and would be a waste of time for all of these experts to opine on the same subjects. Therefore, Highland is precluded from offering expert testimony from Dondero, Okada, Underwood, Rich, Wood, Ambrecht, and Parent. In sum, the Schneiders motion to preclude the testimony of Duval and Guild is DENIED, subject to the limitations discussed above, and the motion to preclude the testimony of Dondero, Okada, Underwood, Rich, Wood, Ambrecht, and Parent is GRANTED. The Court advises Highland and RBC and their experts to be mindful, in the testimony given at trial, of the fine line between conclusions based upon a review of the facts, and legal conclusions, wherein the expert invades upon the function of the trier of fact by instructing the Court on the law. Furthermore, the Court may alter its decision on the admissibility of specific testimony when the context of the trial renders more apparent whether such testimony is sufficiently relevant. See Luce, 469 U.S. at 41, 105 S.Ct. 460. B. RBC’s Motion to Preclude the Testimony of Defendants’ Expert Witnesses Michael E. Stupay and William H. Purcell RBC moves pursuant to Rules 403, 702, and 704 of the Federal Rules of Evidence to preclude the Schneiders from offering any evidence or testimony at trial by expert witnesses Michael E. Stupay (“Stu-pay”) and William H. Purcell (“Purcell”). RBC asserts that both experts are unqualified and lack support for their opinions and conclusions. (RBC’s Expert Mot. at l.) The Schneiders oppose this motion. 1. Michael E. Stupay The Schneiders propose to use the testimony of Stupay “to discuss and explain broker-dealers’ recordkeeping and record making practices and to evaluate a proffered computation of alleged lost profits by a broker-dealer.” (Defs.’ Opp. to RBC Expert Mot. at 5.) The Schneiders contend that the absence of records of an alleged purchase of the notes is probative evidence from which a jury might conclude that no agreement was reached, contrary to RBC’s and Highland’s assertions. (Defs.’ Opp. to RBC Expert Mot. at 24.) RBC argues that Stupay’s testimony and report should be excluded because he is not qualified, and his opinions are irrelevant, unreliable, and improper legal conclusions. RBC further asserts that any probative value is outweighed by the risk of unfair prejudice and confusion. As the proponent of the proposed testimony, the Schneiders have the burden of establishing admissibility by a preponderance of the evidence. See Fed. R.Evid. 104(a), 702; Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). The Court notes that “the rejection of expert testimony is the exception rather than the rule.” Fed. R. Evid, 702 advisory committee’s notes. The Schneiders have met their burden. Stu-pay is a certified public account who also holds a NASD Series 27 license. (Stupay Report at 3.) He has experience auditing the records of registered broker-dealers. (Id.) Contrary to RBC’s assertions, Stupay need not have trading experience in order to be qualified to opine on recordkeeping customs and practices; his experience auditing records of broker-dealers is sufficient. Therefore, Stupay is qualified to opine on recordkeeping and record making customs and practices. An evaluation of Stupay’s testimony should be left to the jury and RBC’s criticisms should be raised on cross-examination. RBC also asserts that Stupay’s testimony regarding recordkeeping is irrelevant to the issues in this case. RBC argues that because it that admitted there was no documentation of the alleged agreement, any opinion on recordkeeping practices is irrelevant. However, the Court holds that such testimony is relevant. Even with RBC’s admission, without industry context, the jury may have no understanding of the importance, or lack of importance, of such documentation. The jury may find that the absence of records goes directly to the central issue in this case — whether there was an agreement. RBC is free to attack Stupay’s opinion at trial, however, it is relevant. RBC claims that Stupay’s opinion is unreliable because it consists of unsupported, conclusory assertions. (RBC’s Expert Mot. at 8.) The trial court has flexibility in determining reasonable measures of reliability. See Kumho, 526 U.S. at 152, 119 S.Ct. 1167; see also E.E.O.C. v. Morgan Stanley & Co., 324 F.Supp.2d 451, 456 (S.D.N.Y.2004). Therefore, while the Court must focus “solely on principles and methodology, not on the conclusions that they generate,” Daubert, 509 U.S. at 595, 113 S.Ct. 2786, it maintains discretion in determining how to-assess reliability. See Kumho, 526 U.S. at 152, 119 S.Ct. 1167. Stupay’s opinion regarding recordkeeping and record making practices in the industry is reliable; it is grounded in industry rules, practices, and guidelines, as well as Stupay’s experience. See Blech Sec. Litig., 2003 WL 1610775, at *20, 2003 U.S. Dist. LEXIS 4650, at *56-57 (“In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.” (quoting Fed.R.Evid. 702 advisory committee’s notes)). Contrary to RBC’s assertions, Stupay’s testimony should not be excluded as unfairly prejudicial to RBC or due to a risk of confusion for the jury. See Fed.R.Evid. 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....”). “In conducting this balancing test, ‘the general rule is that the balance should be struck in favor of admission.’” Blech Sec. Litig., 2003 WL 1610775, at *24, 2003 U.S. Dist. LEXIS 4650, at *68 (quoting United States v. Dennis, 625 F.2d 782, 797 (8th Cir.1980)). Although the risk of confusion is heightened with expert witness testimony, see Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir.2005), after carefully weighing the risk of prejudice and confusion, the Court finds that wholesale exclusion would be inappropriate here. Because the Schneiders’ negligence claim was dismissed on summary judgment, see Highland Capital Mgmt, 2008 WL 152778, 2008 U.S. Dist. LEXIS 3235, there is no risk of confusion between Stupay’s testimony and the negligence standards. (RBC Expert Mot. Reply at 6.) Further, as discussed below, Stupay is precluded from concluding that RBC violated the governing rules and guidelines. Therefore, Stupay’s testimony would not be a waste of time or needlessly cumulative because, as discussed above, Stupay’s testimony regarding industry practices is relevant to the central issues of this case and may prove helpful to the jury. Under the Rule 403 balancing test, the probative value of the evidence outweighs any risk of confusion or prejudice. Stupay’s testimony should not be completely excluded under Rule 704. (RBC Expert Mot. Reply at 8-9.) Stupay can testify as to what industry customs and practices are for recordkeeping and record making. His expert opinion may be helpful to the jury by providing context for RBC’s admitted lack of documentation. He cannot conclude, however, that RBC violated NYSE, NASD, or compliance manual rules. Such testimony is improper in this case and must be excluded from both his report and his testimony at trial. Stupay’s industry customs and practices testimony may include a discussion of regulatory rules and other guidelines, however, he may not opine as to whether such rules and guidelines were violated. Stu-pay can provide context that is helpful to the jury without making impermissible legal conclusions. In addition, Stupay cannot conclude whether or not there was a binding agreement. For example, his conclusion that “there was never a trade” is precluded. (Stupay Report at 9.) He is not qualified to opine on that issue and it is an impermissible legal conclusion. The Schneiders also offer Stupay as a rebuttal expert regarding Guild’s lost profit damages opinion. RBC seeks to exclude Stupay’s opinion on these issues. “Courts have often allowed expert testimony for the sole purpose of critiquing and thereby helping to explain the work of an expert witness retained by another party.” Blech Sec. Litig., 2003 WL 1610775, at *20, 2003 U.S. Dist. LEXIS 4650, at *56-57. Stu-pay’s opinion of Guild’s methodology should be assessed and weighed by the trier of fact. Stupay is qualified to testify on the damages issue and his testimony is sufficiently reliable to be presented to the jury. Any deficiency in Stupay’s data analysis goes to the weight of Stupay’s opinion, not its admissibility. See, e.g., McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1043 (2d Cir.1995). The jury will be able to best form a judgment by hearing the competing theories of Guild and Stu-pay. 2. William H. Purcell The Schneiders have met their burden of showing that Purcell is qualified to testify. With thirty-five years of experience in the investment banking industry and extensive experience as an expert witness, Purcell is qualified to offer his opinion in this action. (Purcell Report at ¶ 2-5.) Purcell need not have trading experience of the exact type at issue in this case in order to be qualified to opine about industry customs and practices that may be helpful to the jury. RBC’s attacks on Purcell’s experience may impact his opinion’s probative weight, but not its admissibility. See, e.g., McCulloch, 61 F.3d at 1043. Purcell’s proposed testimony regarding industry customs and practices for private placement transactions is relevant and reliable. Although RBC contests whether Purcell’s private placement opinions apply to the transaction at issue in this case, the record supports the Schneiders assertion that it is relevant. (Defs.’ Opp. to RBC Expert Mot. at 13.) RBC asserts that the specialized field of high-yield debt trading is not subject to the customs and practices of private placements on which Purcell opines. RBC, through cross examination and its own expert testimony, may put forth the customs and practices it claims are applicable, and attack Purcell’s opinion. As a result, the jury will decide what weight to grant Purcell’s opinion. Furthermore, Purcell’s opinion is reliable. His opinion rests on industry principles and Purcell’s extensive experience. See Blech Sec. Litig., 2003 WL 1610775, at *20, 2003 U.S. Dist. LEXIS 4650, at *56-57. Just as the Court has precluded Duval, Guild, and Stupay from testifying as to ultimate legal conclusions, Purcell also is precluded from doing so. As discussed above, Duval and Guild cannot testify regarding whether there was a binding contract or whether Rauch had authority to bind the Schneiders. As a rebuttal expert of Guild and Duval, Purcell also is precluded from testifying as to those, or similar, legal conclusions. See Fed.R.Evid. 704. Such ultimate legal conclusions cannot be saved by couching them in terms of industry practices. Media Sport & Arts s.r.l, 1999 WL 946354, at *3, 1999 U.S. Dist. LEXIS 16035, at *3 (citing Bilzerian, 926 F.2d at 1295) (“Even if his testimony is couched in terms of industry practices, the expert still may not, under any circumstances, opine on the ultimate legal issue in the case.”). Additionally, Purcell cannot provide a factual narrative or opine on a party’s state of mind. Duval and Guild have been precluded from offering a recitation of the facts and Purcell also cannot do so; an expert’s factual narrative is unnecessary and Purcell has no personal knowledge of the underlying facts. See, e.g., Rezulin, 309 F.Supp.2d at 541. Further, Purcell cannot state assumptions or make inferences regarding the knowledge and intent of RBC employees. See id. at 547 (“Inferences about the intent or motive of parties or others lie outside the bounds of expert testimony.”). This includes, for example, opining that RBC “appeared] concerned,” (Purcell Report ¶ 24), as well as whether an individual “was pleased,” (Id. ¶ 35), or “frustrated.” (Id. ¶¶ 37-38). A jury is capable of understanding and deciding these issues without an expert’s opinion. Under the Rule 403 balancing test, the probative value of Purcell’s testimony outweighs any potential unfair prejudice. See Fed.R.Evid. 403. The limitations on Purcell’s testimony that are set forth above sufficiently diminish RBC’s risk of unfair prejudice from his testimony. Further, as discussed above, Purcell is clearly qualified to testify in this action. Any lack of experience with the specific type of transaction may be raised at trial and considered by the jury in affording Purcell’s opinion whatever weight it deems appropriate. In sum, RBC’s motion to preclude the testimony of Stupay and Purcell is DENIED, subject to the above-stated limitations on their testimony and reports. The Court advises the Schneiders and their experts, however, to be mindful, in the testimony given at trial, of the fine line between conclusions based upon a review of the facts, and legal conclusions, wherein the expert invades upon the function of the trier of fact by instructing the Court on the law. The Court reserves the right to alter its decision on the admissibility of specific testimony until the context of the trial renders more apparent whether such testimony is sufficiently relevant. See Luce, 469 U.S. at 41,105 S.Ct. 460. IV. Taped Telephone Conversations A. Designation of the Recorded Conversations Much of the evidence in this case is found on audio tape recordings of telephone conversations between RBC personnel and other parties. The Schneiders, who have specifically designated the portions of the recordings they intend to use as trial exhibits, object to Highland’s and RBC’s designations of those recordings. Both Highland and RBC have generally designated the recordings, describing what they plan to use at trial as “Recorded Conversations” and “All Recorded Conversations,” respectively. With nearly thirty hours of recorded conversations, the Court agrees with the Schneiders that such broad language serves to subvert the very purpose of designations in the pre-trial order. By February 8, 2008, Highland and RBC should inform the Schneiders of the particular tape segments it reasonably anticipates introducing at trial. Moreover, the Court does not expect the task to be onerous for Highland or RBC, who have already created indices of the various CD’s and a “Compilation CD,” highlighting the conversations most relevant to this action. B. Hearsay and Relevance The Schneiders seek a ruling excluding all taped conversations between Highland and RBC, between Fidelity and RBC, and amongst RBC employees. At this juncture, the Court cannot issue an in limine ruling excluding all of these taped conversations. Each conversation ultimately introduced by Highland and RBC may have unique features that require unique consideration by the Court, particularly as it may relate to hearsay. As such, the Schneiders’ motion is DENIED without prejudice to its renewal upon objection at trial. Notwithstanding the premature nature of the objection, the Court generally is not persuaded by the Schneiders’ argument that these tapes are irrelevant because they do not involve any of the Schneiders or Rauch. These tapes, which might show, for instance, that Highland and RBC believed a contract existed, appear relevant under the liberal requirements of Rule 401. See Fed.R.Evid. 401 (“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.”). The Schneiders’ contention that “[w]hatever Ambreeht tells a fellow employee, or RBC and Highland say to each other, cannot possibly be relevant or attributable to the Schneiders,” (Defs.’ Mot. No. 3 Reply at 7), is not germane to Rule 401, but rather is an argument to be made to the jury. C. Written Transcripts The Schneiders next seek to introduce into evidence written transcripts of the taped telephone conversations; alternatively, they request a ruling that the transcripts may be used as an aid to the jury while they listen to the tapes. Highland and RBC oppose this request and cross-move to exclude the transcripts. As the Court indicated at the December 17, 2007 hearing on this matter, based upon prior experience, “to the extent it’s helpful to the jury as an aid to have a transcript where they’re following the recording and reading from the transcript, I found that to be helpful.” (12/17/07 Tr. at 28.) Neither Highland nor RBC adequately has explained to the Court why transcripts would not be similarly helpful in this case. After hearing samples of the tapes at the December 17 hearing, the Court agrees with the Schneiders that audibility could be an issue at trial. Consequently, while listening to a recording, a juror should have the option to use a transcript as an aid. That the parties disagree as to the accuracy of parts of the transcripts is an issue easily resolved by any or all of the following; (1) competing transcripts submitted by Highland and/or RBC; see United States v. Chalarca, 95 F.3d 239, 246 (2d Cir.1996) (approving the district court’s ruling that a party challenging the accuracy of a transcript “could offer an alternative transcript”); (2) Highland and/or RBC arguing to the jury in summation that one or several of the transcripts provided were deficient in some way; and (3) the Court giving a limiting instruction to the jury that “the transcripts themselves are not evidence and may be used as aids in listening to the audio tapes and as nonbinding guides that are subject to the jurors’ own assessment of the transcripts’ accuracy.” United States v. Rosa, 17 F.3d 1531, 1548 (2d Cir.1994). With these available safeguards, the risk of confusion without a transcript is greater than the risk of confusion with a transcript. Accordingly, the Schneiders’ motion to allow transcripts of the taped conversation is GRANTED for use as a demonstrative aid for the jury; the transcripts will not be admitted into evidence. See, e.g., United, States v. Gay, 85 Fed.Appx. 794, 795 (2d Cir.2004) (referencing a district court’s decision to allow a transcript to be used as an aid to the jury but not as an admitted piece of evidence). Highland’s and RBC’s cross-motions to exclude all transcripts are therefore DENIED to the extent they seek to completely eliminate the use of transcripts at trial. D. Attorney-Created Indices Defendants’ Exhibit 308 is an index, created by the Schneiders, which lists all recordings in chronological order. Exhibit 176 is a subset of Exhibit 308, listing recorded conversations from March 12, 2001 through March 14, 2001. The Schneiders seek a ruling that the exhibits are admissible as evidence under Federal Rule of Evidence 1006, or, at the very least, that the exhibits may be used as demonstrative evidence. Highland and RBC oppose the request to admit the indices into evidence and cross-move to exclude them. Rule 1006, an exception to the best evidence rule, states that “[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.” Fed.R.Evid. 1006. The Schneiders do not allege that the recordings, illuminated by the use of transcripts, are confusing in content. Indeed, because the content is relatively straightforward, the recordings will conveniently be examined in court by the jury. See 6 Weinstein’s Fed. Evid. § 1006.03 (“Under Rule 1006, charts, summaries, and calculations are only admissible to prove the content of Voluminous’ writings, recordings or photographs that cannot be conveniently examined in court.”). Thus, the indices cannot be admitted into evidence under Rule 1006. The Schneiders nevertheless believe that the indices should be used as demonstrative aids to allow the jury to “more readily understand the dates, times and sequence of the recorded conversations and the participants.” (Defs.’ Mot. No. 3 at 12.) The Court disagrees for several reasons. First, the indices are more confusing than they are helpful. The Schneiders provide no reason for why it might be helpful for the jury to actually see the file number (e.g. “3.12.19”), the length of the conversation, or the CD from which the recording came (e.g. “17252”). While this information, as an organizational tool, may have helped the Schneiders’ counsel prepare for depositions and trial, it is largely insignificant to jurors and may very well confuse them. Second, to the extent that the indices provide some important information, namely the dates of the conversations and the identities of the parties, such information is duplicative as it can be found in the Schneiders’ transcripts. Third, through effective lawyer-ing, and without the need for any indices, the jury should be able to accurately ascertain the chronology of conversations and events in this case. Accordingly, the Schneiders’ motion to admit Exhibits 308 and 176 into evidence, or to alternatively use them as demonstrative aids, is DENIED; RBC’s and Highland’s cross-motions seeking to exclude the same are GRANTED. E. Exhibit 80C — Compilation CD Highland created a compilation CD of the conversations it believed to be most relevant to this case. The Schneiders move to exclude this CD — Exhibit 80C— from evidence because it has not been properly authenticated under Fed.R.Evid. 901. The Court agrees. The February 9, 2005 Declaration of Jamie R. Welton does not serve to authenticate the compilation, nor does the Schneiders’ lack of objection to the CD during discovery. Like the indices that the Schneiders’ sought to use, the compilation CD may have been a useful tool for Highland to organize the recorded conversations for depositions and for trial preparation. At trial, however, the jury should hear from the five authenticated CD’s originally produced by RBC, and not a compilation thereof. As stated above, because Highland has already made a compilation CD, the Court does not expect it to be overly burdensome for them to now select the files they wish to play from the original CD’s. Thus, the Schneid-ers’ motion to exclude Highland’s Exhibit 80C is GRANTED. Y. The Schneiders’ Additional Motions in Limine A. Motion in Limine No. 2 The Schneiders second motion in limine generally seeks to exclude evidence and comments by any party suggesting that the Schneiders engaged in improper or illegal conduct. The Schneiders wish to preclude Highland and RBC from: (1) suggesting in the presence of jurors that any of the Schneiders or any nonparty associated with the Schneiders violated federal law or state law or regulation, violated McNaughton Apparel Group, Inc. (“McNaughton”) internal policy, engaged in illegal or improper insider trading, breached any duties to McNaughton or any other nonparty, or improperly provided, received, or used documents or information; (2) suggesting in the presence of jurors that Leonard Schneider’s sale of McNaughton common stock was illegal, improper, breached a duty to McNaughton, or violated any internal policy of McNaughton; (3) using, in the presence of jurors, the terms or labels “securities fraud,” “inside information,” “inside confidential information,” “inside non-public information,” “insider trading,” “market manipulation,” “illegal trading,” “illegal inside information,” “tippers,” “tippees,” or similar words or labels; and (4) introducing in evidence any testimony, deposition testimony, or exhibits related to (1), (2), or (3). Highland opposes the Schneiders’ motion in full, stating that, if granted, an “enormous” amount of relevant evidence would be excluded. Specifically, Highland believes that the jury would be deprived of: (1) information showing that the Schneiders wanted to leave McNaughton, which indicates that they intended to sell promptly their promissory notes; (2) the fact that the Schneiders received nonpublic information from McNaughton, which caused them to be willing to sell their notes at a discounted value; (3) corroboration from Peter Boneparth (“Boneparth”) that the Schneiders were prepared to sell their notes; (4) evidence showing that testimony by the Schneider children, denying that they intended to sell their notes or authorized Leonard Schneider to engage Rauch on their behalf, is incredulous; and (5) evidence showing that the Schneiders received nonpublic information that the notes would be paid out in full, which caused them to renege on the oral contract. “[T]he decision whether to admit potentially prejudicial evidence is entrusted to the sound discretion of the district judge and will not be disturbed absent an abuse of discretion.” United States v. Gantzer, 810 F.2d 349, 351 (2d Cir.1987). All evidence tending to demonstrate a defendant’s liability, by its nature, will be preju-clidal in some respect to the defendant; Rule 403 is designed to exclude only unfair prejudice. See Perry v. Ethan Allen, Inc., 115 F.3d 143, 151 (2d Cir.1997) (“Although any evidence that tends to establish liability is prejudicial to the interests of the defendant, the prejudice is unfair only if the evidence has ‘an undue tendency to suggest decision on an improper basis.’ ” (quoting Fed.R.Evid. 403 advisory committee’s note)). Highland asserts that “[t]he truth may hurt, but Rule 403 does not make it inadmissible on that account.” (Pl.’s Opp. to Defs.’ Mot. No. 2 at 38.) While Highland’s proposition is correct, it fails to expound on the more nuanced interpretation of Rule 403, namely whether the Schneiders seek to exclude unfairly prejudicial evidence from the trial. Highland goes to great lengths — approximately thirty-seven pages in its opposition — to illustrate the fairly complex factual background in this case. And while there are documents and communications that tend to support Highland’s recitation of the facts, Highland at no point explains why such evidence needs to be colored with terms such as “securities fraud.” Nor does Highland explain why, in order to prove its third-party beneficiary breach of contract claim, it must also show that the Schneiders committed a securities law violation or breached a fiduciary duty to McNaughton. As the Schneiders suggest, the only apparent reason for such trial strategy would be to show the jury “that defendants are bad people.... ” (Defs.’ 2d Reply Mot. No. 2 at 3.) See Empire Gas Corp. v. Am. Bakeries Co., 646 F.Supp. 269, 276 (N.D.Ill.1986) (finding that testimony showing that the party and its lawyers were “bad people” was prejudicial, confusing, and misleading where the principal issue for the jury to decide whether there was a breach of contract). Highland lists five broad categories of evidence that would be excluded should the Court grant the Schneiders’ motion in limine. In so doing, Highland misconstrues the fairly narrow scope of the Schneiders’ motion. For example, Highland claims that it will be precluded from showing that, based upon nonpublic information regarding McNaughton’s financial condition, the Schneiders were willing to sell their notes at a discount. To the contrary, the effect of the Court’s ruling will not be to conceal this relevant information from the jury, but to help the jury focus on this and other issues central to the case. Highland is thus precluded from coloring its case and wasting the jury’s time with misleading and confusing testimony and evidence regarding securities law. RBC does not go as far as Highland in its opposition to the Schneiders’ motion. It does not seek to prove or use evidence to show that the Schneiders violated securities laws or breached duties to McNaughton and does not oppose the Schneiders’ request to preclude use of the terms “securities fraud,” “illegal,” “market manipulation,” or “insider trading.” On the other hand, RBC opposes the motion to the extent that it seeks to preclude them from: (1) using evidence that shows that the Schneiders received nonpublic information; and (2) using the terms “material nonpublic information,” “inside information,” “inside confidential information,” and “inside nonpublic information.” First, RBC states that it should be able to use the October 26, 2000 letter from Boneparth to the Schneiders, the November 6, 2000 letter from Amanda Bokman (“Bokman”) to Bruce Madnick (“Mad-nick”), and evidence related to the March 9, 2001 phone call. While the Schneiders “have never contested the admissibility of competent testimony concerning the March 9, 2001 Conversation,” (Defs.’ Reply Mot. No. 2 at 3), they argue that the October and November letters are irrelevant, presumably under Federal Rule of Evidence 401, because they do not contain any information that might show that the Schneiders entered into an oral contract and reneged on that contract. In this respect, the Schneiders’ motion fails because: Evidence to be relevant does not by itself have to prove the ultimate proposition for which it is offered; nor does it have to make that ultimate proposition more probable than not. It is enough that the evidence has a tendency to make a consequential fact even the least bit more probable or less probable than it would be without the evidence. The question of relevance is thus different from whether evidence is sufficient to prove a point. Fed.R.Evid. 401 emt. Here, the October and November letters meet the Rule 401 threshold for relevance and thus may be used at trial. Second, RBC seeks to use terms such as, inter alia, “material nonpublic information,” “inside information,” “inside confidential information,” and “inside nonpublic information.” The Schneiders believe that such characterizations of the evidence are inflammatory and are not necessary to prove any of Highland’s or RBC’s claims. The Court agrees with the Schneiders that the evidence should not be labeled as “inside” information. Given the notoriety of insider trading, mere use of the term “inside information” may lead a juror to believe that the Schneiders engaged in improper or illegal conduct. Thus, any probative value of the term is outweighed by its misleading nature. Highland and RBC may, however, use the term “material nonpublic information” to refer to the information received by the Schneiders. Such a term does not have the same pejorative connotation as “inside” information. In sum, the Schneiders’ motion is GRANTED to the extent it seeks to exclude evidence and testimony related to securities fraud or a breach of fiduciary duty to McNaughton. Further, Hxghland and RBC may not characterize admissible evidence and testimony as “securities fi’aud,” “illegal,” “insider trading,” “inside information,” and “market manipulation.”