WILLIAM H. STEELE, District Judge.
This matter comes before the Court on Defendants' Motion in Limine to Exclude Plaintiff's Business Records from Edward Jones and Merrill Lynch (doc. 137), Defendants' Motion in Limine to Exclude Certain Expert Witnesses and Reports (doc. 138), and Plaintiff's Omnibus Motion in Limine to Exclude Certain Witnesses from Testifying at Trial (doc. 139). All of these motions have been briefed and are ripe for disposition.
Among the exhibits designated by plaintiff, SE Property Holdings, LLC ("SEPH"), in the Joint Pretrial Document (doc. 129) are certain financial account statements for defendants' accounts held with third—party investment brokers Edward Jones and Merrill Lynch. SEPH obtained these records from Edward Jones and Merrill Lynch directly via subpoenas, rather than from defendants via requests for production of documents. Along with the responsive documents, the third parties furnished SEPH with certain certifications. The certification forms utilized by Edward Jones and Merrill Lynch were apparently their own preprinted forms, as opposed to certification forms provided by plaintiff. SEPH intends to utilize those certificates to lay an evidentiary foundation to support introduction of these Edward Jones and Merrill Lynch account statements into evidence at trial pursuant to the business records exception to the hearsay rule. In their Motion in Limine, defendants identify purported defects in the certification forms that they contend forbid SEPH from being able to utilize the business records exception.
With regard to the Edward Jones custodian affidavits, defendants point to language stating, "I am the designee of Edward Jones' Custodian of Records." (Doc. 137, Exh. A.) Defendants reason that a "designee" of a custodian of records is not the same as a "custodian of records," which they contend is a significant distinction for admissibility purposes. To qualify for the business record exception to the hearsay rule, a record must be: (i) "made at or near the time [of an act, event, condition, opinion, or diagnosis] by — or from information transmitted by — someone with knowledge;" (ii) "kept in the course of a regularly conducted activity of a business;" and (iii) made as "a regular practice of that activity." Rule 803(6)(A)—(C), Fed.R.Evid. Critically, the Federal Rules of Evidence require that these three conditions be "shown by the testimony of the custodian or other qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification." Rule 803(6)(D), Fed.R.Evid. A Rule 902(11) certification is "a certification of
This objection is not well—taken. The affiant who signed the Edward Jones certifications, Sevmek Fulton, is identified in the certification forms with the title "Edward Jones — Security Processing Department." The certification forms reflect that Fulton is "personally acquainted with the facts herein stated," including that the subject records were kept by Edward Jones in the regular course of business, that it was in the regular course of Edward Jones' business for an employee with knowledge to make the record or transmit information for inclusion in the record, and that the record was made at or near the time of the event. (Doc. 137, Exh. A.)
With regard to the Merrill Lynch custodian affidavits, defendants focus on affiant's statement that "[s]aid records are kept in the regular course and scope of business of Merrill Lynch." (Doc. 137, Exh. B, ¶ 4.) Defendants' objection is that these certifications "fail to state that the records were made in the course of a regularly conducted business activity, or that the regular practice of Merrill Lynch was to have made such a record." (Doc. 137, at 6.) Defendants thus maintain that the Merrill Lynch certifications do not comport with the requirement of Rule 803(6)(B) that they show "the record was kept in the course of a regularly conducted activity of a business," nor the requirement of Rule 803(6)(C) that they show that "making the record was a regular practice of that activity."
Defendants' objection predicated on Rule 803(6)(B) is not persuasive, as the Merrill Lynch certifications' statement that the subject records "are kept in the regular course and scope of business" is sufficiently similar to Rule 803(6)(B)'s requirement that the certification show that the records are "kept in the course of a regularly conducted activity of a business." Id. However, the Rule 803(6)(C) objection stands on a different footing. The rule is plain that "[t]o lay a proper foundation for a business record, a custodian or other qualified witness must [certify] that the document was kept in the course of a regularly conducted business activity
In its brief, SEPH describes other indicia of reliability that these "standard, run—of—the—mill account statements" have. (Doc. 145, at 6.) SEPH points out that these are defendants' own account statements, and therefore readily accessible to them as account holders if they doubt their veracity. (Id.) SEPH also states that defendant Amy Brown's husband is employed by Merrill Lynch and works with the defendant LLCs' accounts, and that defendants' own accountant deems these account statements reliable. (Id. at 7.) All of that may well be true. The trouble for SEPH is that Rule 803(6) is not flexible in its foundational requirements. It does not provide alternative means of qualifying for the business exception if the custodian certification has a technical defect.
SEPH's "Omnibus Motion in Limine" seeks to exclude defense witnesses Martin Sandel, Darrell Melton, Jim Pope, and Thomas Bealle from testifying at trial. In the Joint Pretrial Document filed on January 6, 2017, defendants listed all four of these individuals among their witnesses. (Doc. 129, at 8.)
Beginning with Martin Sandel, plaintiff articulates several objections; however, the Court need look no further than plaintiff's assertion that "Sandel was never disclosed by Defendants as someone with knowledge regarding this case or someone they may call at the trial of this case until witness lists were exchanged for trial." (Doc. 139, at 2.)
In the Rule 16(b) Scheduling Order, Magistrate Judge Cassady directed the parties that "[t]he initial disclosures required by Fed.R.Civ.P. 26(a)(1) shall be exchanged not later than
Notwithstanding these requirements, it is undisputed that defendants did not disclose Sandel as someone with knowledge regarding the case or someone they may call at trial until trial witness lists were exchanged.
With respect to defense witness Darrell Melton, SEPH again objects that defendants never disclosed him as someone with knowledge about the case until witness lists were exchanged for trial. Plaintiff describes its dilemma in plain terms, to—wit: "SEPH has not had the opportunity to do discovery into what relevant knowledge Mr. Melton has, or what relevant knowledge Defendants believe Mr. Melton has." (Doc. 139, at 2.) Underscoring the point that plaintiff does not know what this witness will say, SEPH goes on to speculate that perhaps defendants intend to call him to testify as to the creditor/debtor relationship or lack thereof. Of course, this is precisely why the Federal Rules of Civil Procedure and the applicable Scheduling Order require advance disclosure of the identities of those likely to have discoverable knowledge that parties may use to support their claims or defenses. In the absence of such timely, appropriate disclosures, the result would be trial by ambush, with litigants preparing for trial based on nothing more than guesswork and conjecture about what testimony a late—disclosed witness might give.
In their Response to SEPH's Motion in Limine, defendants do not address the untimely—disclosure argument as to this witness. Defendants make no argument that they complied with Rule 26(a), Rule 26(e) or Scheduling Order deadlines with regard to the disclosure of witness Melton, nor do they identify any circumstances that might either justify the untimely disclosure or render it harmless. The Court finds that exclusion of this witness pursuant to Rule 37(c)(1) is the appropriate sanction for defendants' failure timely to disclose him. Plaintiff's Motion in Limine is
SEPH also seeks to exclude the testimony of defense witness Jim Pope, who was an accountant for the Trammells. As with Sandel and Melton, plaintiff's objection is that Pope "was not listed on Defendants' Initial Disclosures or otherwise identified as a potential trial witness until witness lists were exchanged." (Doc. 139, at 3.)
The trouble with SEPH's objection to the timeliness of Pope's nondisclosure is that, by its own admission, plaintiff was made aware during discovery that Pope was the Trammells' primary accountant. That revelation certainly sufficed to place SEPH on notice that Jim Pope was someone with discoverable information relating to the Trammells' assets that defendants might utilize at trial. As such, it was unnecessary for defendants formally to supplement their disclosures to list Pope by name. See Rule 26(e)(1)(A), Fed.R.Civ.P. (supplementation of disclosures is required only "if the additional or corrective information has not otherwise been made known to the other parties during the discovery process"). Defendants correctly note that, based on information known to plaintiff, SEPH could have arranged to take Pope's deposition, but elected not to do so. That omission is not tantamount to a violation of defendants' disclosure obligations that might warrant exclusion of Pope's testimony at trial pursuant to Rule 37(c)(1).
Notwithstanding the foregoing, SEPH maintains that the reason it did not take Jim Pope's deposition was that, in the Rule 30(b)(6) deposition of the Trammells' accounting firm, Jackson Thornton & Co., P.C., Richard Powell testified as the 30(b)(6) deponent. Evidently, Pope is also affiliated with the Jackson Thornton firm. During Powell's deposition, defendants' counsel expressly stated, "I will be calling [Powell] to trial. So he will be there." (Doc. 139, Exh. A, at 44.) SEPH now argues, "If it had been disclosed that Mr. Pope, not Mr. Powell, was the Defendants' potential trial witness, SEPH would have taken his deposition in addition to Mr. Powell's." (Doc. 139, at 3.) This apparent attempt to attribute plaintiff's failure to take Pope's deposition to misleading statements by defense counsel cannot succeed. As an initial matter, defendants' counsel never represented that Pope would not testify, only that Powell would testify. Moreover, that Jackson Thornton designated Powell as its Rule 30(b)(6) representative in no way suggests that defendants did not plan to call Pope to testify on his own behalf as to his accounting work for the Trammells. It is entirely proper for one witness employed by an entity to testify as the entity's 30(b)(6) representative about information known or reasonably available to the entity, and for another witness employed by the same entity to testify as to information within his or her personal knowledge. Finally, plaintiff's suggestion that defendants are now calling "Mr. Pope, not Mr. Powell, [as] the Defendants' potential trial witness" is inaccurate. The first two names on defendants' witness list in the Joint Pretrial Document are Richard Powell and Jim Pope. In short, there is no indication and no information before the Court that would support an inference that defendants' counsel lulled or misled plaintiff into thinking that Jim Pope (whom plaintiff knew to be the Trammells' primary accountant) would not be called as a witness at trial. His disclosure was timely.
For all of these reasons, Plaintiff's Motion in Limine is
Finally, plaintiff's Motion in Limine seeks to exclude the testimony of Thomas Bealle. According to the Motion, Bealle is a real estate appraiser whom defendants retained in the related Bama Bayou litigation in state court "to perform an appraisal of the Bama Bayou and Marine Park property as of March 2009." (Doc. 139, ¶ 11.) Defendants listed Bealle in their Rule 26(a) initial disclosures in this case as an "individual likely to have discoverable information." However, that disclosure was not sufficient because defendants intend to call Bealle at trial to testify as an expert witness. By the clear terms of Judge Cassady's Order dated June 16, 2016, defendants' expert disclosures and expert reports were due by no later than August 15, 2016. (See doc. 63, at 2 ("The expert reports as required by Rule 26(a)(2)(B) shall be produced . . . by defendant[s] on or before
In response, defendants explain their delays in disclosing Bealle as an expert witness and in producing his expert report by reference to developments in the Bama Bayou litigation in state court. According to defendants,
(Doc. 147, at 2 (emphasis added).)
This argument overcomes SEPH's untimely—disclosure objection.
For all of the foregoing reasons, plaintiff's Motion in Limine is
In their final Motion in Limine (doc. 138), defendants seek exclusion of plaintiff's witnesses Daniel Green, Claud Clark, III, Jennifer McDade, Scott McDade, and Mike Rogers. These witnesses are real estate appraisers.
By all appearances, Defendants' "Motion in Limine to Exclude Certain Expert Witnesses and Reports Proffered by Plaintiff" is now moot. After all, one week after filing that Motion, defendants' counsel reported to the Court as follows: "Thomas Bealle stands in the same position as . . . Daniel Green, Claud Clark, III, Jennifer McDade, Scott McDade, and Mike Rogers. . . .
Even if Defendants' Motion in Limine were not moot, the Court would deny the exclusionary relief requested therein. Defendants object that plaintiff disregarded the relevant expert disclosure deadlines by tarrying so long before disclosing its appraiser experts. It is certainly true that SEPH's disclosures occurred well after the deadlines prescribed in the Scheduling Order. But it is equally true that SEPH's decision to name these individuals as trial witnesses was a direct reaction to defendants' designation of Thomas Bealle as an expert witness. (See doc. 144, at 3 ("Plaintiff does not presently intend to call the Bama Bayou appraisers at trial unless Thomas Bealle is permitted to testify . . . .").) As noted supra, defendants did not designate Bealle as an expert until December 22, 2016, which was several months after the applicable deadlines. Simply put, defendants cannot rely on noncompliance with court—ordered disclosure deadlines to bar plaintiff from calling witnesses whose trial testimony it requires in order to address the opinions of a defense witness who was designated in a manner that failed to comply with those very same disclosure deadlines. The Court will not enforce deadlines against plaintiff that defendants likewise failed to observe.
Also included in Defendants' Motion in Limine is an objection to the admissibility of the written appraisals of plaintiff's expert witnesses. Defendants' sole objection is framed in terms of timeliness; indeed, defendants state, "The appraisals, which are expert reports, were not disclosed on or by August 1, 2016, as required by this Court's Scheduling Order." (Doc. 138, at 4.) It appears that this aspect of the Motion in Limine is
In the alternative, defendants posit that "this Court should reopen discovery and extend the discovery deadline for the limited purpose of allowing Defendants to depose" Green, Clark, J. McDade, S. McDade and Rogers. (Doc. 138, at 5.) This request is
Finally, the Court recognizes that plaintiff's rebuttal expert, Mike Rogers, has not prepared a written report. As discussed in footnote 9, Rogers' ability to fashion such a report has been impaired by the fact that Thomas Bealle (the defense witness whose opinions he will address via rebuttal testimony) has also not prepared a written report. Nonetheless, in the interests of fairness and avoiding delay, defendants are entitled to know Rogers' anticipated expert opinions before trial. Defendants have previously been directed to furnish plaintiff with a written summary of Thomas Bealle's opinions, as well as the basis and reasons for them and the facts or data considered, no later than
For all of the foregoing reasons, it is
DONE and ORDERED.