Equal Employment Opportunity Commission v. Autozone, Inc.

Filing 155

ORDER - IT IS HEREBY ORDERED that by Friday, 5/1/09, the parties shall submit a stipulation regarding the lost records to the Court, or alternatively, designate one witness to testify regarding Dft's record keeping and retention policies. FURTHE R ORDERED that should Pla wish to use additional witnesses' testimony in objection, Pla must provide the Court with the reasons why such testimony is necessary and how it differs from the testimony of the witness designated by the parties by Friday, 5/1/09. Signed by Judge Stephen M McNamee on 4/8/09. (SAT)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. AUTOZONE, INC., a Nevada corporation, Defendant.

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No. CV 06-926-PHX-SMM ORDER

In the Proposed Pretrial Order, the parties designated certain witnesses who would appear via videotape deposition (Doc. 132). At the Final Pre-Trial Conference, the Court agreed to address and rule on the parties' objections to the designated testimony prior to trial so that the parties could edit the videotapes of the depositions in accordance with the Court's order. In reviewing the six depositions provided by the parties, the Court notes that the depositions address one primary subject, Defendant's record keeping and retention policies. The testimony on this subject is extremely repetitive, cumulative, and fractious. Furthermore, the objections often occur within the middle of questions and are devoid of the necessary context for the Court to make an informed ruling. Defendant has suggested that the solution is a proposed stipulation regarding the lost records which has yet to be finalized. It appears that the records were lost or destroyed and the Court has already entered orders on this subject as the case progressed. Indeed, the Court twice denied Plaintiff's request for an adverse inference. At the

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summary judgment stage, the Court determined that an adverse inference was not warranted since the issue of evidence spoliation was a discovery offense, and Plaintiff had never raised the issue during the discovery period (Doc. 115). Likewise, the Court denied Plaintiff's motion in limine for the same reasons (Doc. 142). Going forward at this juncture would lead to inconsistent rulings on the objections because of the overlapping questions. Therefore, the Court orders the parties to attempt to finalize a stipulation regarding the lost records. If the parties are unable to reach such a stipulation, the Court will allow one witness to be called to testify about Defendant's record keeping and retention policies. The parties shall be responsible for designating that person and supplying the Court with a complete transcript of that person's deposition, highlighting in yellow those portions to which objections are made. Accompanying the transcript shall be a separate document designating the pages and line numbers to be read or shown via video to the jury and noting counsel's objections and giving the reason for the objections. Moreover, should Plaintiff wish to provide additional witnesses' testimony in objection, Plaintiff shall provide the Court with specific reasons why such testimony is necessary and how it differs from the testimony of the witness designated by the parties. Accordingly, IT IS HEREBY ORDERED that by Friday, May 1, 2009, the parties shall submit a stipulation regarding the lost records to the Court, or alternatively, designate one witness to testify regarding Defendant's record keeping and retention policies. The complete deposition testimony of any such designated witness shall be provided to the Court with the portions objected to highlighted in yellow. A separate document shall accompany the transcript indicating the pages and line numbers to be read or shown to the jury and noting counsel's objections and reasons for the objections. IT IS FURTHER ORDERED that should Plaintiff wish to use additional witnesses' testimony in objection, Plaintiff must provide the Court with the reasons why

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such testimony is necessary and how it differs from the testimony of the witness designated by the parties by Friday, May 1, 2009. DATED this 8th day of April, 2009.

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