Marshall v. Helena-West Helena, City of

Filing 47

ORDER denying 39 defendants' motion to strike certain of Barbara Marshall's exhibits. The Lenore depositions are admissible evidence. Signed by Judge Brian S. Miller on 6/6/2024. (ljb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
DELTA DIVISION
BARBARA MARSHALL
v.

PLAINTIFF
CASE NO. 2:22-CV-00201 BSM

CITY OF HELENA-WEST HELENA, et al.

DEFENDANTS

ORDER
Defendants’ motion to strike certain of Barbara Marshall’s exhibits [Doc. No. 39] is
denied because the exhibits at issue, several depositions taken in Lenore v. City of
Helena-West Helena, Case No. 2:22-cv-00052 (E.D. Ark.) (the “Lenore depositions”), are
admissible under the Federal Rules of Civil Procedure.
Federal Rule of Civil Procedure 32(a)(8) allows depositions taken in previous cases
to be used in “a later action involving the same subject matter between the same parties, or
their representatives or successors in interest, to the same extent as if taken in the later
action,” and also “as allowed by the Federal Rules of Evidence. Fed. R. Civ. P. 32(a)(8).
The Lenore depositions do not fall within the first category by which a previously taken
deposition may be used because the plaintiffs and much of the subject matter differ between
this case and the Lenore case. They do, however, fall within the second category because
they are admissible under the Federal Rules of Evidence.
Federal Rule of Evidence 804(b)(1) makes admissible testimony given by a witness
at a lawful deposition, including in a different case, which is offered against a party who had
an opportunity and similar motive to develop the testimony through direct or cross-

examination, if the witness is unavailable for trial. The Lenore case was brought by Patricia
Lenore against the City of Helena-West Helena and its then-mayor for alleged employment
discrimination and retaliation. See Compl., Doc. No. 1 (Lenore v. City of Helena-West
Helena). That case is factually intertwined with this one: Lenore testified in her deposition
that she was retaliated against for providing information in Marshall’s first case and for not
cutting off her relationship with Marshall, see Deposition of Patricia Lenore 61:18–64:14,
Doc. No. 27-5, and deponents in the Lenore case testified about many events at issue in this
case. See generally id.; Deposition of Bernice Miller, Doc. No. 27-2; Deposition of Kevin
Smith, Doc. No. 27-3; Deposition of Helen Halbert, Doc. No. 27-6. Moreover, all of those
deponents are identified in Marshall’s initial disclosures as potential witnesses. Resp. Mot.
Strike Ex. H, Doc. No. 45-6.
Defendants were represented in the Lenore depositions by their current firm, the
Arkansas Municipal League, and had the opportunity to develop testimony through direct or
cross-examination. They also had a similar motive to do so. First, the Lenore case, like this
one, involved a City employee alleging wrongdoing in the City’s employment practices.
See Compl. ¶¶4–25, (Lenore v. City of Helena-West Helena). Second, defendants were
aware that Marshall had listed the deponents as witnesses, see Resp. Mot. Strike Ex. H, and
that their testimony touched on matters at issue in this case, which was ongoing at that time.
See McKnight ex rel. Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1410 (8th Cir. 1994)
(deposition testimony of plaintiff who brought prior suit against manufacturer for defect in
same product admissible). For these reasons, the Lenore depositions would be admissible
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at trial if the witnesses are unavailable. The depositions are therefore admissible evidence.
IT IS SO ORDERED this 6th day of June, 2024.

________________________________
UNITED STATES DISTRICT JUDGE

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