Jared Andresen et al v. International Paper Company et al

Filing 163

MINUTES OF Various Motions in Limine Hearing held before Judge Christina A. Snyder: The Court finds and concludes as to the two consolidated cases [Farris EDCV 13-00485 CAS (SPx) and Andresen CV 13-02079 CAS (AJWx)] as follows: The Court GRANTS Plain tiff Farris's Motions in Limine No. 1 To Preclude Evidence of Farris's Business "My Three Sons" (Farris ECF No. 185). The Court DENIES Plaintiff Farris's Motions in Limine No. 2 To Preclude Evidence of Farriss Previously Clai med Damages (Farris ECF No. 186) without prejudice to a request for a limiting instruction if the evidence is offered at trial. The Court reserves judgment on Plaintiff Farris's Motions in Limine No. 3 To Exclude or Limit Expert Testimony of Rob ert Crandall (Farris ECF No. 191). Defendant is to file, no later than 11/24/2014, a brief updated summary of Crandall's expected trial testimony, not to exceed 10 pages. Crandall may not opine on ultimate issues to be decided by the jury. The C ourt GRANTS IN PART Plaintiff Farris's Motion in Limine No. 4 To Preclude Witnesses and Documents Set Forth in IP's Consolidated Amended Initial Disclosure (Farris ECF No. 187) insofar as it seeks to exclude Harrington from testifying at Ph ase I of the trial. The Court DENIES IN PART the motion insofar as it seeks to exclude Harrington from Phase II of the trial. The request to depose Harrington is DENIED without prejudice to being renewed. The Court GRANTS Plaintiff Farris's Moti on in Limine No. 5 To Preclude Evidence of or Argument About Farris's Alleged Scheme to Fabricate Vacation Claims (Farris ECF No. 188, joinder ECF No. 205). The Court DENIES Plaintiff Farris's Motion in Limine No. 6 For a Legal Determinatio n of Plaintiff's Final Rate of Pay (Farris ECF No. 189). The Court DENIES Plaintiff Farris's Motion in Limine No. 7 To Exclude Testimony by Gale Leach and Edith Rocha Regarding IP's Vacation Policy (Farris ECF No. 190) without prejudic e to its being renewed at trial. The Court GRANTS Plaintiff and Third-Party Defendant Bekiarian's Motion In Limine To Preclude Evidence of Maria Anaya (Farris ECF No. 102) to the extent that he seeks to exclude any reference to Anaya or an alleg ed affair. Bekiarian has also filed a notice that he joins in Farris's motion in limine number 5, which seeks to exclude evidence of an alleged scheme to fabricate vacation claims. (See Farris ECF No. 205) At oral argument, plaintiffs' coun sel clarified that Andresen and Duffy also joined in this motion. The Court GRANTS IN PART Plaintiffs Andresen, Bekiarian, and Duffy's Motion In Limine No. 1 To Preclude Evidence of Maria Anaya and Alleged Affairs (Andresen 133 ), ordering that defendants may not introduce any evidence pertaining to Anaya, any alleged affair, or Bekiarian's wife's absence on the purported trip to Las Vegas. The motion is DENIED IN PART only so that defendant may introduce any otherwise admissible evidence that Bekiarian himself was in Las Vegas for non-business reasons on a non-holiday workday but did not report it or denied it, to the extent such evidence is relevant to defendant's argument that Bekiarian's claimed vacation days s hould be reduced by vacation Bekiarian took to Las Vegas at the stated time. The Court GRANTS IN PART Plaintiffs Andresen, Bekiarian, and Duffy's Motion In Limine No. 2 To Preclude Evidence of Business Plaintiffs or Their Families Engaged in Out side of Working for IP and its Predecessors (Andresen 134 ). The Court will revisit at trial, if necessary, whether defendant may, for impeachment purposes only, ask questions aboutbut not offer extrinsic evidence ofAndresen and Duffy's alleged failure to report or tell the truth about the businesse. The Court GRANTS Plaintiffs Andresen, Bekiarian, and Duffy's Motion In Limine No. 3 To Preclude Allegations of Theft (Andresen 135 ). The Court GRANTS Plaintiffs Andresen, Bekiarian, and Duffy's Motion In Limine No. 4 To Preclude Evidence of Attorney-Client Privileged Correspondence (Andresen 136 ). Plaintiffs Andresen, Bekiarian, and Duffy's Motion In Limine No. 5 To Preclude Evidence Not Disclosed During Discovery (Andr esen 137 ) is GRANTED IN PART in that Harrington may not testify in Phase I of the bifurcated trial. The motion is MOOT insofar as it seeks to exclude photographic evidence because the Court finds that such evidence should be excluded for other reas ons. The Court grants Plaintiffs Andresen, Bekiarian, and Duffy's Motion In Limine No. 6 To Preclude Evidence of Alleged Misconduct Not Relating to Vacation Accruals (Andresen 138 ). The Court GRANTS Plaintiffs Andresen, Bekiarian, and Duffy� 39;s Motion In Limine No. 7 To Preclude Use of Photographs at Trial (Andresen 139 ). The Court reserves judgment on Plaintiffs Andresen, Bekiarian, and Duffy's Motion In Limine No. 8 To Exclude Expert Witness Lloyd Aubry, Jr. (Andresen 155 ). Defendant is to file, no later than 11/24/2014, a brief updated summary of Aubry's expected trial testimony. The Court DENIES Defendant IP's Motion In Limine No. 1 To Exclude Evidence Regarding Unused, Accrued Vacation for Periods of Time f or Which Plaintiffs Failed to Produce Documentation (Farris ECF No. 192). The Court GRANTS Defendant IP's Motion In Limine No. 2 To Exclude Evidence of Unrelated Complaints About IP (Farris ECF No. 193). The Court DENIES Defendant IP's Moti on In Limine No. 3 To Exclude Testimony of Other Commissioned Sales Representatives (Farris ECF No. 203). As the Court explained at oral argument, however, testimony from as many as nine sales employees in addition to plaintiffs would be cumulative a nd time-consuming. Therefore, barring unforeseen developments, plaintiffs will only be permitted to call three such witnesses. The Court reserves judgment on Defendant IP's Motion In Limine No. 4 To Exclude Evidence or Argument Regarding Labor C ommissioner Complaints Filed by Duffy and Other Sales Representatives (Farris ECF No. 194). The Court DENIES Defendant IP's Motion In Limine No. 5 To Exclude Evidence Related to Third-Party Witnesses Bob Renaud and Bob Kocis (Farris ECF No. 195) without prejudice to its being renewed at trial. The Court reserves judgment on Defendant IP's Motion In Limine No. 6 To Exclude Farris's Expert Rebuttal Witness Miles E. Locker (Farris ECF No. 196). Farris is to file, no later than 11/24/ 2014, a brief updated summary of Locker's expected trial testimony. The Court GRANTS Defendant IP's Motion In Limine No. 7 To Exclude Evidence Regarding IP's Profits, Financial Condition, Net Worth, or Size (Farris ECF No. 197). Nevert heless, the Court will revisit the issue if IP suggests that it is unable to pay any of the claims at issue or otherwise makes its finances relevant. The Court GRANTS Defendant IP's Motion In Limine No. 8 To Exclude Evidence Regarding Bekiarian& #039;s Dismissed Claims for Indemnification (Farris ECF No. 198) insofar as it seeks to exclude evidence or argument concerning those provisions. The Court DENIES Defendant IP's Motion In Limine No. 9 To Exclude Evidence that Bekiarian Was Entit led to Vacation Pay (Farris ECF No. 199). The Court GRANTS Defendant IP's Motion In Limine No. 10 To Preclude Video Deposition Testimony of Available Witnesses (Farris ECF No. 200) insofar as it seeks to exclude video deposition testimony at the se stages of trial. The Court DENIES AS MOOT Defendant IP's Motion In Limine No. 11 To Exclude Testimony Regarding Christopher Farris (Farris ECF No. 201) insofar as it seeks to exclude Christopher Farris as a witness, and will address the issue of any documentary evidence addressing him if and when any plaintiff attempts to offer it at trial. The Court DENIES Defendant IP's Motion In Limine No. 12 To Bifurcate Commission and Severance-Based Claims (Farris ECF No. 202). the Court reser ves judgment on Defendant IP's Motion In Limine No. 13 To Exclude Rebuttal Expert Daniel M. Cornet (Andresen 152 ). Farris is to file, no later than 11/24/2014, a brief updated summary of Cornet's expected trial testimony. Court Reporter: Pat Cuneo. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

5:13-CV-00485-CAS(SPx)
2:13-CV-02079-CAS(AJWx)

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

Present: The Honorable

Date

‘O’

November 17, 2014

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Pat Cuneo
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Andrew Jacobson
Jared Beilke
Paul Traina
Douglas Silverstein
Lauren Morrison

Amy Gillinger
Marcus Torrano
Jason Campbell
Attorneys Present for Third Party
Defendant:
Douglas Silverstein
Lauren Morrison

Proceedings:

VARIOUS MOTIONS IN LIMINE

On February 6, 2013, Daniel Farris (“Farris”) filed an action against International
Paper Company, Inc. (“IP” or “defendant”) and Does 1-100 in San Bernardino County
Superior Court. The operative second amended complaint (“SAC”) asserts claims for
failure to pay vested vacation wages upon termination, in violation of Labor Code §
227.3,1 failure to pay wages and waiting time penalties pursuant to Labor Code §§
202–03, violation of the Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§
17200, et seq., and violation of the record-keeping provisions set forth in Labor Code §
226. Farris ECF No. 21.
On February 13, 2013, plaintiffs Jared Andresen (“Andresen”), Yeghia Bekiarian
(“Bekiarian”), and John Duffy (“Duffy”) (collectively “Andresen plaintiffs”) filed a
lawsuit against IP and Does 1-50 in Los Angeles County Superior Court. See Andresen
ECF No. 1. The operative Second Amended Complaint (“SAC”) asserts claims on behalf
of all three plaintiffs for (1) failure to pay vested vacation wages upon termination, in
violation of Cal. Labor Code § 227.3; (2) waiting period penalties in violation of Labor
Code §§ 202, 203; (3) violations of California’s Unfair Competition Law (“UCL”), Cal.
1

References to “Labor Code” are to the California Labor Code.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

5:13-CV-00485-CAS(SPx)
2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

Bus. & Prof. Code §§ 17200 et seq.; and (4) violations of record-keeping provisions in
Cal. Labor Code § 226. Andresen ECF No. 21. The SAC also asserts claims on behalf of
Andresen and Duffy for failure to pay wages, including commissions, and on behalf of
Andresen only for (1) breach of contract and (2) promissory estoppel. Id.
On October 1, 2014, the Court consolidated the two aforementioned cases. See
ECF No. 169. Phase I of the consolidated trial is set to begin on December 2, 2014. Id.
On November 17, 2014, the Court held a hearing on numerous motions in limine. After
considering the parties’ arguments, the Court finds and concludes as follows.
A.

Legal Standard

A motion in limine is “a procedural device to obtain an early and preliminary
ruling on the admissibility of evidence.” Goodman v. Las Vegas Metro. Police Dep’t,
963 F. Supp. 2d 1036, 1046 (D. Nev. 2013). Trial courts have broad discretion when
ruling on such motions. See Jenkins v. Chrysler Motor Corp., 316 F.3d 664, 664 (7th
Cir. 2002). Moreover, such rulings are provisional and “not binding on the trial judge”
on the court. Ohler v. United States, 529 U.S. 753, 758 n.3 (2000). “Denial of a motion
in limine does not necessarily mean that all evidence contemplated by the motion will be
admitted at trial. Denial merely means that without the context of trial, the court is unable
to determine whether the evidence in question should be excluded.” Ind. Ins. Co. v. Gen.
Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004).
Many of the motions in limine discussed below seek to exclude evidence as
irrelevant or unfairly prejudicial under Federal Rules of Evidence 401, 402, and 403.
Under these rules, evidence is relevant if “it has any tendency to make a fact more or less
probable than it would be without the evidence,” and “the fact is of consequence in
determining the action.” Fed. R. Evid. 401. Rule 402 provides that “[i]rrelevant
evidence is not admissible,” and that “[r]elevant evidence is admissible unless” the
United States Constitution, a federal statute, the Federal Rules of Evidence, or another
rule prescribed by the Supreme Court provides otherwise. Fed. R. Evid. 402. Pursuant to
Rule 403, the Court should exclude relevant evidence if its probative value is
“substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

5:13-CV-00485-CAS(SPx)
2:13-CV-02079-CAS(AJWx)

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

B.

Date

‘O’

November 17, 2014

Plaintiff Farris’s Motions in Limine
1.

To Preclude Evidence of Farris’s Business “My Three Sons” (Farris
ECF No. 185)

Farris moves to preclude evidence or argument concerning his current, business,
My Three Sons Container Corporation (“My Three Sons”), which sells boxes and
corrugated packaging. He argues that this business is irrelevant to this case because it
does not affect whether he was entitled to vacation, and if so how much and at what rate
of pay. Farris argues that IP has produced “no evidence to support an argument that
[Farris] took anytime [sic] away from his work at IP and [a predecessor] to engage in
activities with My Three Sons.” Farris ECF No. 185 at 4. He also argues that mention of
My Three Sons could unfairly prejudice Farris by painting him “as a two-timing
employee who engaged in a competing business while still employed by his employer,
only to resign, and steal his employer’s customers for his own benefit.” Id. at 1.
In opposition, defendant contends that evidence of Farris’s work for My Three
Sons is relevant to the amount of vacation days Farris took and, accordingly, to his
potential damages. Defendant reasons that any time Farris took off from IP to set up My
Three Sons should be counted as vacation time, and suggests that a significant drop in
Farris’s sales in the last month before his resignation could be attributed to his diverting
IP’s clients to My Three Sons. Defendant also argues that, because Farris’s credibility is
crucial to his claims that he was entitled to paid vacation and did not take all of his
vacation time over a multi-decade period, Farris’s setting up of a competing business is
relevant evidence. Defendant contends that Farris incorporated My Three Sons in his
wife’s name to avoid company policy against competing businesses, making it more
likely that his vacation claims are incredible and contrived.
On the record before it, the Court does not see any showing that evidence of My
Three Sons is relevant to plaintiffs’ vacation claims or damages. The Court finds
defendant’s invitation to speculate that Farris’s sales must have dropped because he was
taking unreported time off from IP too speculative to justify introducing evidence that
could confuse the jury or otherwise unfairly prejudice Farris. Defendant has not
cited—and the Court has been unable to find—any legal provision that would bolster the
relevance of My Three Sons evidence. Nor, on the present showing, does the Court find
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

5:13-CV-00485-CAS(SPx)
2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

evidence of My Three Sons relevant to the issue of Farris’s credibility. Therefore, the
Court GRANTS Farris’ Motion in Limine No. 1.
2.

To Preclude Evidence of Farris’s Previously Claimed Damages (Farris
ECF No. 186)

Farris seeks to preclude defendant from introducing evidence pertaining to or
mentioning his initially claimed damages of over eight million dollars. Farris argues that
this evidence is irrelevant given his superseding disclosure claiming a reduced amount of
damages, and would unfairly prejudice him by impugning his credibility or characterizing
him as an employee seeking to “strong arm his employer for millions of dollars.” Farris
ECF No. 186 at 5. At oral argument, Farris’s counsel explained that the earlier damages
figure was a pre-discovery estimate. Farris also argues that this evidence could confuse
the jury as to the amount at stake.
In opposition, defendant argues that the initial claimed damages figure, as stated in
an initial disclosure and Farris’s deposition testimony, is relevant to Farris’s credibility,
and is admissible as a prior inconsistent statement. Defendant contends that any unfair
prejudice can be minimized with an instruction that “in hearing any evidence of prior
inconsistent statements or testimony about Plaintiff’s claimed vacation pay owed, the jury
is not to consider the evidence as proof or disproof of a fact, but can consider the
evidence in assessing Farris’ claim that he was entitled to paid vacation at all, and
regarding the reliability (or lack thereof) of his damages’ [sic] calculations.” Farris ECF
No. 264, Memo. at 5.
Given that the evidence Farris now seeks to preclude comes from his own
discovery disclosure, the Court does not find that its introduction would lead to
significant unfair prejudice. The Court therefore DENIES Farris’s Motion in Limine No.
2 without prejudice to a request for a limiting instruction if the evidence is offered at trial.
3.

To Exclude or Limit Expert Testimony of Robert Crandall (Farris ECF
No. 191)

Farris seeks to exclude the expert testimony of Robert Crandall (“Crandall”) in its
entirety or, in the alternative, limit any testimony he gives to the opinions set forth in his
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

5:13-CV-00485-CAS(SPx)
2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

existing expert report and deposition. Crandall is an economist who opines that Farris
was not entitled to paid vacation, and that even if he was, he has overstated both the
number of days to which he is entitled and the correct rate at which those vacation days
should be compensated. In doing so, Crandall relies on general economic theory and
market observations, his experience with other companies’ employment policies,
employment handbooks and memoranda from IP and its predecessors, and other
documentary evidence. Crandall relies on one opinion letter by the Labor Commissioner
for the proposition that “[i]n most instances, when a salesperson is on a draw plus
commission, that person receives the draw during the vacation period and any
commissions for the period prior to the vacation and pay this amount during the vacation
period.” See Crandall Decl. at 10.
Farris argues that these opinions “encompass the ultimate legal issues that the
Court and jury will ultimately decide,” and therefore are not a proper subject for expert
testimony. Farris ECF No. 191, Memo. at 3–4. Farris also argues that Crandall’s expert
opinions are inadmissible because he is not qualified and cannot present “reliable”
testimony within the meaning of Federal Rule of Evidence 702. Farris contends that
because Crandall is not a lawyer, let alone a labor lawyer, he has no “specialized”
knowledge that would qualify him to opine on Farris’s entitlement to vacation. Farris
also argues that Crandall misstates California law. Finally, Farris asserts that Crandall’s
opinions concerning “industry standards” for vacation policy are irrelevant and could
mislead the jury, mandating their exclusion.
In opposition, defendant argues that Crandall’s testimony is admissible because
under Federal Rule of Evidence 704, an “expert may give his opinion even if it embraces
an ultimate issue to be decided by the jury.” United States v. Rogers, 769 F.2d 1418,
1425 (9th Cir. 1985). Defendant contends that Crandall will not testify as to whether a
legal standard has been satisfied, but rather to “facts that, if found, would support a
conclusion that the legal standard at issue was [not] satisfied.” Burkhart v. Wash. Metro.
Area Transit Auth., 112 F.3d 1207, 1212–13 (D.C. Cir. 1997). Defendant further
contends that Crandall’s opinions are based on “economic and labor market
observations,” not legal conclusions. Farris ECF No. 265, Memo. at 4. Defendant argues
that it is irrelevant to Crandall’s qualifications that he is not a lawyer, because he will
offer economic labor market opinions, not legal conclusions.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

5:13-CV-00485-CAS(SPx)
2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

To the extent IP seeks to file a supplemental expert report by Crandall, Farris
asserts that any such report should be stricken pursuant to Federal Rule of Civil
Procedure 37(c)(1). Farris contends that any such report would be unfair given the
rapidly approaching trial date and the accordingly limited opportunity to depose Crandall,
so that IP cannot “substantially justify” a supplemental report filed months after
Crandall’s initial report filed on June 16, 2014. Defendant objects to this attempt to limit
Crandall’s testimony, arguing that “[s]ince Mr. Crandall’s deposition in July 2014,
thousands of pages of documents have been produced and multiple depositions have been
taken.” Farris ECF No. 265, Memo. at 9. Defendant contends that it would be unfair to
prevent Crandall from incorporating this new discovery into his opinions, and argue that
any prejudice has been cured by producing Crandall for further deposition on November
11, 2014.
Having reviewed the parties’ arguments, the Court has some concerns as to the
scope of Crandall’s testimony, but does not find that he should be excluded from trial
entirely. Accordingly, the Court reserves judgment on Farris’s Motion in Limine No. 3.
Defendant is to file, no later than November 24, 2014, a brief updated summary of
Crandall’s expected trial testimony, not to exceed 10 pages. Crandall may not opine on
ultimate issues to be decided by the jury.
4.

To Preclude Witnesses and Documents Set Forth in IP’s Consolidated
Amended Initial Disclosure (Farris ECF No. 187)

This motion is based on IP’s Consolidated Amended Initial Disclosure, served on
October 27, 2014. This amended disclosure lists a new fact witness: Jack Harrington,
IP’s Regional General Manager. Farris argues that the disclosure was not made in a
“timely manner” under Federal Rule of Civil Procedure 26 because it was served three
months after the close of discovery in the Farris matter, and one month after the
discovery cutoff in the Andresen matter. Farris further contends that, because Harrington
was known to IP long before he was disclosed, and because discovery has closed and trial
is rapidly approaching, IP cannot meet its burden of showing that the untimely disclosure
was “substantially justified or is harmless” under Rule 37(c)(1), and that the witness must
therefore be excluded. Farris additionally argues that the addition of Harrington as a
witness is improper because it is not intended to fill in a gap or correct an inaccuracy in
IP’s initial disclosures, but rather is intended to strengthen IP’s case on the eve of trial.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

5:13-CV-00485-CAS(SPx)
2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

In opposition, defendant argues that Harrington’s testimony will not be unfairly
prejudicial to Farris or any other party because he was already identified on Bekiarian’s
witness list on September 15, 2014, and there is thus no unfair surprise in IP adding him
to its own witness list. Defendant asserts that it only determined that Harrington could
offer relevant testimony after reviewing Bekiarian’s witness list.
At oral argument, the parties clarified the circumstances behind Harrington’s
disclosure. After considering the parties’ arguments, the Court determines that
Harrington is only relevant to Phase II of the bifurcated trial. Therefore, the Court
GRANTS IN PART Farris’s Motion in Limine No. 4 insofar as it seeks to exclude
Harrington from testifying at Phase I of the trial. The Court DENIES IN PART the
motion insofar as it seeks to exclude Harrington from Phase II of the trial. The request to
depose Harrington is DENIED without prejudice to being renewed.
5.

To Preclude Evidence of or Argument About Farris’s Alleged Scheme to
Fabricate Vacation Claims (Farris ECF No. 188)

Farris moves to preclude IP from referring to an alleged scheme between Farris,
Bekiarian, and other IP employees to fabricate vacation wage claims against IP. Farris
anticipates that IP will point to (1) an email from Bekiarian to another commission-based
sales employee wherein Bekiarian assists that employee in calculating his accrued
vacation on a spreadsheet, and (2) a consultation with an attorney in July 2012 attended
by Bekiarian, Andresen, and three other IP employees (but not Farris). Farris asserts that
any such evidence used against him would be irrelevant and based on speculation. Farris
further contends that any probative value that does exist would be substantially
outweighed by the risk of misleading or inflaming the jury.
In opposition, defendant argues that evidence of the alleged scheme is relevant to
Farris’s credibility and IP’s central defense, that Farris was not entitled to vacation pay.
Defendant asserts that it intends to present evidence that Farris’s vacation claim “is
nothing more than a fraudulent scheme and conspiracy [Farris] concocted along with
Bekiarian and other sales representatives, well before [Farris] resigned.” Farris ECF No.
267, Memo. at 2. Defendant argues that such evidence “goes not only to the lack of
credibility of [Farris’s] claims but also to the credibility of Bekiarian’s recent assertion
that commissioned sales representatives were entitled to paid vacation” based on
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

5:13-CV-00485-CAS(SPx)
2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

assertions from Bekiarian himself. Id. Defendant also asserts that evidence of efforts
between the employees to solidify evidence of accrued vacation in the last months of
their employment is relevant to IP’s defense of unclean hands.
Accepting arguendo that Farris was planning to sue IP before he resigned, the
Court does not see how evidence of this is relevant to the claims and defenses at issue in
this case, or to Farris’s credibility as a witness. This is especially so since it appears that
Farris is not directly implicated by the objected-to evidence, and the jury would be asked
to infer Farris’s involvement from evidence of his co-plaintiffs’ actions. Therefore, the
Court GRANTS Farris’s Motion IN LIMINE No. 5.
6.

For a Legal Determination of Plaintiff’s Final Rate of Pay (Farris ECF
No. 189)

Farris moves for a legal determination that, pursuant to California Labor Code
section 227.3, any vacation wages Farris is found to be owed must be paid at a rate of
$83,3880.80 a month. Farris contends that he was earning a fixed monthly salary in this
amount at the time of his separation from IP, and that as a matter of law, he is entitled to
be compensated based on this figure.
In support of this position, Farris cites Drumm v. Morningstar, Inc., 695 F. Supp.
2d 1014, 1019 (N.D. Cal. 2010). In Drumm, the court explained that in California, vested
vacation time is paid out “at the rate at which the employee would have been paid during
a vacation, had he taken one.” Id. Farris also cites a Division of Labor Standards
Enforcement letter that states that “there could be numerous combinations of draws and
commissions available as a basis for setting a vacation policy.” See DLSE Opinion
Letter 1986.11.17.6. Farris argues that defendant’s argument that any wages should only
be calculated based on his draw of $1,000 per week are based on “superseded, pre-March
2012" compensation, and that it is undisputed that plaintiff was paid a fixed salary at the
time of separation.
Defendant argues that this motion in limine is a disguised motion for summary
adjudication, and that it would be improper for the Court to rule as a matter of law that
any accrued vacation wages must be paid “based on [Farris’s] monthly commissions in
the last two months of his employment” instead of, as defendant contends, on his “draw”
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

5:13-CV-00485-CAS(SPx)
2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

of $2,000 per month. See Farris ECF No. 268. Defendant points to this Court’s order
denying defendant’s motion for summary judgment as showing that the final rate of pay
issue is a factual one. See Farris ECF No. 116. Defendant also points out that in Drumm,
the jury determined the final rate of pay, and the court held that the jury had properly
relied only on the plaintiff’s annual salary—excluding commissions—in calculating the
amount of vacation pay owed. 695 F. Supp. 2d at 1020.
The Court agrees with defendant that, as previous Court orders have stated, the
final rate of pay for any vacation pay found to be owed is a factual issue not properly
determined through a motion in limine. The Court therefore DENIES Farris’s Motion in
Limine No. 6.
7.

To Exclude Testimony by Gale Leach and Edith Rocha Regarding IP’S
Vacation Policy (Farris ECF No. 190)

Farris moves to preclude testimony from IP employees Gale Leach or Edith Rocha
to the effect that IP’s vacation policy did not apply to commission-based sales employees.
First, Farris argues that any testimony from these witnesses regarding IP’s vacation
policy is irrelevant and lacks foundation because neither held a “supervisory, policymaking role[],” and that because “[t]hey did not make or participate in making the policy
. . . their recitation or interpretation of the policy has no bearing on how the policy was
actually applied to Daniel Farris.” Farris ECF No. 190, Memo. at 3. Farris also contends
that if any such policy existed at IP, IP would be able to produce a document containing
it, instead of relying on testimony from Leach or Rocha, further undermining any
probative value. Farris asserts that he would be unfairly prejudiced by the introduction of
unreliable and “self-serving” evidence.
In opposition, defendant counters that Leach and Rocha gained personal
knowledge of vacation policies through years of experience at the SFSC facility. See
Farris ECF No. 269. Defendant submits evidence that Leach “worked at the SFSC
Facility for approximately 30 years, and acted as the sole Human Resources Manager at
the Facility, responsible (along with Bekiarian) for implementing vacation policies and
practices.” Id., Memo. at 2. Defendant also contends that Rocha “was the Controller at
the SFSC Facility for approximately 15 years, and was responsible (along with
Bekiarian) for financial reporting, including payroll, and tracking vacation accruals and
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2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

liabilities.” Id. Defendant further asserts that Leach and Rocha’s testimony will be
admissible to impeach Bekiarian’s anticipated testimony that commissioned sales
representatives at the SFSC Facility were entitled to paid vacation, because Leach and
Rocha will offer prior inconsistent statements and directions from Bekiarian. The Court
agrees with defendant that, at least at this juncture, it cannot be said that Leach and
Rocha’s testimony is excludable as irrelevant. Leach and Rocha appear to have had
significant experience with the vacation policies central to the case to be tried, even if
they did not formulate the policies.
Farris also argues that testimony by Leach or Rocha as to IP’s alleged vacation
policy would constitute inadmissible hearsay because the witness’s purported knowledge
of the policy is based on alleged statements by Bekiarian. “Hearsay is defined as ‘a
statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.’ ” United States v.
Bochicchio, 23 Fed. App’x 751, 755 (9th Cir. 2001) (quoting Fed. R. Evid. 801).
Hearsay is generally inadmissible. See Fed. R. Evid. 802. Farris argues that the
testimony he seeks to preclude would be hearsay because it would be offered to prove the
truth of the matter asserted: that commissioned sales representatives are not entitled to
paid vacation. He also argues that the testimony would not be admissible against Farris
as a party-opponent admission under Federal Rule of Evidence 801(d)(2) because the
alleged out-of-court statements were made by Bekiarian, not Farris, and at times when
Bekiarian was an agent and employee of IP. Farris additionally contends that the
testimony does not fit under the prior inconsistent statement provision of Rule
801(d)(1)(A) because Bekiarian’s alleged prior statements were not made under oath.2

2

Based on the purported hearsay nature of the witness’s conversations with
Bekiarian, Farris also argues that testimony from Leach or Rocha would be improper lay
opinion. Under Federal Rule of Evidence 701, a lay witness may only offer opinions
“rationally based on the witness’s perception.” Fed. R. Evid. 701. Moreover, a lay
witness is not “ ‘allowed . . . to testify based on hearsay information, and to couch [her]
observations as generalized opinions rather than as firsthand knowledge.’ ” United States
v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007) (further internal quotation marks omitted)
(quoting Jinrno Am. Inc. v. Secure Invest., Inc., 266 F.3d 993, 1004 (9th Cir. 2001)).
Farris contends that the only foundation Leach or Rocha have for their alleged knowledge
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Case No.

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2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

Defendant argues that Leach and Rocha’s testimony as to Bekiarian’s statements
regarding the vacation policy applicable to plaintiffs is admissible as non-hearsay
because it will be offered to show the effect on Leach and Rocha—that is, why they never
paid, tracked, or accounted for vacation accruals by commission-based sales employees at
the SFSC Facility. See, e.g., United States v. Payne, 944 F.2d 1458, 1472 (9th Cir. 1991)
(admitting an out-of-court statement introduced not for its truth, but to show its effect on
the listener). Defendant further argues that the statements are admissible as those of a
party-opponent, since Bekiarian is an adverse party to IP in this lawsuit. Finally,
defendant argues that Leach’s and Rocha’s testimony is admissible under the “residual”
hearsay exception set forth in Federal Rule of Evidence 807. See Fed. R. Evid. 807(a)
(providing that a hearsay statement not otherwise covered by an exception in Rule 803 or
804 is admissible if “(1) the statement has equivalent circumstantial guarantees of
trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on
the point for which it is offered than any other evidence that the proponent can obtain
through reasonable efforts; and (4) admitting it will best serve the purposes of [the
Federal Rules] and the interests of justice”). Defendant argues that the fact that neither
Leach, Rocha, nor Bekiarian ever tracked vacation liabilities for commissioned sales
representatives, and the fact that Leach and Rocha have no direct interest in the litigation,
constitute significant circumstantial guarantees of trustworthiness. Defendant further
contends that the evidence is relevant to the central issue of whether plaintiffs were
entitled to paid vacation, and is highly probative.
Leach and Rocha appear to have had significant personal experience with the way
vacation policies were applied at the SFSC Facility, and it would be inappropriate to
preclude them from speaking about the matter entirely. And to the extent that Bekiarian’s
alleged out-of-court statements to Leach and Rocha are inconsistent with his testimony at
trial regarding vacation pay, they may be admitted for impeachment purposes. See Fed.
R. Evid. 613; United States v. Tafollo-Cardenas, 897 F.2d 976, 980 (9th Cir. 1990). To
the extent that defendant wishes to offer Bekiarian’s alleged statements to Leach and
Rocha about vacation policies for substantive evidentiary purposes, the Court finds on the

about IP’s vacation policies comes from “conversations with other people at IP, including
Lee Bekiarian,” which “constitute inadmissible hearsay” for the reasons discussed above.
Farris ECF No. 190, Memo. at 5.
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Case No.

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2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

record before it that such statements would be admissible against Farris as showing their
effect on Leach and Rocha, or Leach and Rocha’s state of mind. Therefore, the Court
DENIES Farris’s Motion In Limine No. 7 without prejudice to its being renewed at trial.
Farris has also filed notices to the effect that he joins in the Andresen plaintiffs’
motions in limine numbers 5 and 7, discussed below. See Farris ECF No. 207.
C.

Plaintiff and Third-Party Defendant Bekiarian’s Motion In Limine To
Preclude Evidence of Maria Anaya (Farris ECF No. 102)

Bekiarian moves to preclude evidence or argument that Bekiarian purchased with
his personal credit card plane tickets for a woman named Maria Anaya, to whom he was
not married. Credit card statements to this effect were produced in the Andresen matter.
Bekiarian contends that this evidence is irrelevant to his claims and any issues in the case,
would unfairly prejudice him by insinuating that he was having an affair, and would
constitute inadmissible character evidence. Because this motion overlaps with the
Andresen plaintiffs’ first motion in limine, the Court addresses these motions together,
below. As indicated below, the Court GRANTS Bekiarian’s motion to the extent that he
seeks to exclude any reference to Anaya or an alleged affair.
Bekiarian has also filed a notice that he joins in Farris’s motion in limine number 5,
discussed above, which seeks to exclude evidence of an alleged scheme to fabricate
vacation claims. See Farris ECF No. 205. At oral argument, plaintiffs’ counsel clarified
that Andresen and Duffy also joined in this motion.
D.

Plaintiffs Andresen, Bekiarian, and Duffy’s Motions In Limine
1.

To Preclude Evidence of Maria Anaya and Alleged Affairs (Andresen
ECF No. 133)

The Andresen plaintiffs move to preclude defendant from introducing evidence
that “Bekiarian had alleged affairs, had Victoria Secret catalogs delivered to his office,
had merchandise delivered to his office from Victoria Secret, had women’s underwear
[in] his desk drawer, and purchased plane tickets for a woman named Maria Anaya
(“Anaya”) with his personal credit card” in order to insinuate that he was having an affair
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UNITED STATES DISTRICT COURT
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Case No.

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2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

while married. See Andresen ECF No. 133 at 4. Bekiarian contends that this evidence is
irrelevant to his claims and any issues in the case, would unfairly prejudice him by
insinuating that he was having an affair, and constitutes inadmissible character evidence.
In opposition, defendant argues that, if Bekiarian testifies at trial, defendant should
be permitted to question him about his allegedly untruthful testimony regarding taking
vacation with Anaya during his employment with IP and its predecessors. Defendant
contends that Bekiarian’s credit card statements and his wife’s testimony show that
Bekiarian went on a shopping trip with Anaya in Las Vegas from November 7 to 9, 2007,
and that his testimony that he never took “time off of work that would constitute vacation
time in order to spend time with Maria Anaya in any location” was untruthful. Therefore,
defendant argues that the evidence is admissible under Federal Rule of Evidence 608(b),
which allows a party to cross-examine a witness about specific instances of the witness’s
conduct in order to attack the witness’s character for truthfulness. Fed. R. Evid. 608(b),
(b)(1).3 Moreover, defendant argues that because Bekiarian’s credibility is central to all
plaintiffs’ claims, the probative value of this impeachment evidence is high and
outweighs any unfair prejudice to Bekiarian.
Whether Bekiarian was on vacation with another woman is wholly irrelevant to the
claims or defenses at issue in this trial, and carries obvious risk of unfair prejudice.
Therefore, the Court GRANTS IN PART the Andresen plaintiffs’ Motion in Limine No.
1, ordering that defendants may not introduce any evidence pertaining to Anaya, any
alleged affair, or Bekiarian’s wife’s absence on the purported trip to Las Vegas. The
motion is DENIED IN PART only so that defendant may introduce any otherwise
admissible evidence that Bekiarian himself was in Las Vegas for non-business reasons on
a non-holiday workday but did not report it or denied it, to the extent such evidence is
relevant to defendant’s argument that Bekiarian’s claimed vacation days should be
reduced by vacation Bekiarian took to Las Vegas at the stated time.

3

The Court notes that Rule 608(b) does not allow the admission of “extrinsic
evidence . . . to prove specific instances of a witness’s conduct in order to attack or
support the witness’s character for truthfulness.”
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Case No.

5:13-CV-00485-CAS(SPx)
2:13-CV-02079-CAS(AJWx)

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.
2.

Date

‘O’

November 17, 2014

To Preclude Evidence of Business Plaintiffs or Their Families Engaged
in Outside of Working for IP and its Predecessors (Andresen ECF No.
134)

The Andresen plaintiffs move to exclude evidence regarding any businesses
plaintiffs or their families engaged in outside of their employment with IP and its
predecessors. Specifically, plaintiffs seek to exclude mention of “JackPack,” “Andresen
Packaging,” “Cabrillo Packaging,” “Crockett Packaging,” plaintiffs’ current employment,
and any customers plaintiffs or their families worked with while conducting business for
these entities. Plaintiffs argue that such evidence has no relevance to their claims and
would unfairly prejudice them by depicting them as “disloyal employees” who competed
with their employer. Plaintiffs also deny that defendant has produced any evidence that
plaintiffs took time away from their work at IP or its predecessors to engage in any work
with outside businesses.
With respect to JackPack, Andresen Packaging, and Cabrillo Packaging, which
defendant terms “plaintiffs’ side-businesses,” defendants argue that evidence of these
businesses is relevant to plaintiffs’ credibility and claimed damages. Defendant submits
deposition testimony indicating that Cabrillo Packaging, also known as Andresen
Packaging, is owned by Andresen’s wife, Debra. Debra Anderson testified that her
husband does not have any responsibility with regard to Cabrillo Packaging, but
“answered [her] questions initially,” with regard to the business. See Debra Anderson
Depo. at 105:18–20, 109:11-15. Debra Anderson later testified that, with regard to
Andresen Packaging in 2006, her husband “facilitated” providing customers with “certain
items,” including contacting suppliers by email. Id. at 123:3–12, 125:7–10. Defendant
also submits evidence that JackPack, which sells self-packaging supplies including
corrugated boxes, is owned by Duffy and his wife Cynthia. Cynthia Duffy Depo., Vol. I,
at 98:2–11. Cynthia Duffy testified that her husband receives orders, and that she “just
push[es] the paper.” Id. at 101:11–16. She also testified that she and her husband have
been running the company since about 1988, id. at 101:20–24, and that customers
“probably call [her husband’s] personal cell phone, which is also his work phone,” id. at
108:4–5.
Defendant argues that because plaintiffs’ own testimony is crucial to their claims,
so is plaintiffs’ credibility. Defendant contends that plaintiffs’ deposition testimony
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Case No.

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November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

regarding their side and subsequent employment conflicts with that of their wives,
impeaching their credibility. For example, defendant submits that Andresen testified that
he had “very little” role in Cabrillo Packaging and never “sold anything on [his] wife’s
behalf in her business,” although she occasionally asked him “technical questions.” See
Jared Andresen Depo. Vol. I at 215:20–22, 244:3–12. Defendant argues that this is in
tension with his wife’s testimony, discussed above. Similarly, defendant offers Duffy’s
testimony that his wife used the “JackPack” name and email address to “run any little
businesses that she worked out of the house,” but that although it sold packaging
supplies, it was not a “box business.” Duffy Depo. Vol. I, at 187:1–25. Although Duffy
clarified that his wife’s company “did sell some corrugated boxes,” id. at 188:1–8,
defendant contends that Duffy’s testimony is nevertheless in tension with that of his wife.
Defendant also asserts that after Cabrillo Packaging and JackPack were formed,
Andresen and Duffy falsely signed forms attesting to Temple-Inland that they had no
competing businesses, further impugning Andresen’s and Duffy’s credibility.4 Defendant
also argues that evidence of these businesses is relevant to damages because Andresen
and Duffy may have taken time off from IP to set up or perform work for the side
businesses.
With respect to Crockett Packaging, plaintiffs’ current employment, and any
customers plaintiffs or their families worked with while conducting business for these
entities, defendant objects that plaintiffs “present no argument whatsoever to explain why
evidence related to these additional entities should be excluded, and their request should
therefore be regarded.” Andresen ECF No. 146, Memo. at 1 n.1. Defendant submits
evidence that Andresen and Duffy now work at a company called Packaging Corporation
of America, for which Bekiarian is a manager. Defendant requests that “to the extent the
Court believes evidence related to these additional entities should also be excluded . . .
the Court require briefing on these issues.” Id. at 1 n.1.

4

Defendant submits signed “Standards of Business Conduct” forms signed on July
26, 2011 (Duffy) and July 27, 2011 (Andresen), in which both plaintiffs certified that
they did not have “additional employment that needs to be disclosed” and did not have
any “financial or ownership interest” in any “customers or competitors of TempleInland.” See Andresen ECF No. 146-9, 146-10.
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UNITED STATES DISTRICT COURT
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Date

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Case No.

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2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

For reasons discussed in connection with Farris’s motion to exclude evidence of
My Three Sons, the Court is not persuaded that evidence of plaintiffs’ alleged side
businesses is relevant to the claims or defenses at issue. Therefore, the Court GRANTS
IN PART the Andresen plaintiffs’ Motion in Limine No. 2. The Court will revisit at trial,
if necessary, whether defendant may, for impeachment purposes only, ask questions
about—but not offer extrinsic evidence of—Andresen and Duffy’s alleged failure to
report or tell the truth about the businesse.
3.

To Preclude Allegations of Theft (Andresen ECF No. 135)

The Andresen plaintiffs anticipate that defendant will attempt to introduce
evidence that they “removed property from Defendant’s facilities and stole customers
from Defendant during and after their employment.” Andresen ECF No. 135 at 4.
Plaintiffs contend that such allegations are irrelevant to their vacation pay claims, and
would be unfairly prejudicial and confusing. Moreover, the Andresen plaintiffs argue
that defendant instructed its employees not to divulge what customer information or
property was allegedly stolen, preventing plaintiffs from doing any discovery on the
matter or refuting the allegations, so that defendant’s introduction of theft evidence
would be even more prejudicial.
Defendant responds that evidence that plaintiffs took IP property and customers to
use in subsequent competing businesses is relevant to IP’s defense that plaintiffs’
vacation claims are part of a scheme they concocted along with other sales
representatives before leaving the company. Defendant further argues that the alleged
theft is relevant to its defense of unclean hands.5 Moreover, defendant argues that the
evidence will be admissible to impeach the credibility of testimony given by plaintiffs.

5

“In California, the unclean hands doctrine applies not only to equitable claims, but
also to legal ones.” Adler v. Fed. Rep. Of Nigeria, 219 F.3d 869, 877 (9th Cir. 2000), as
amended on denial of reh’g and reh’g en banc (Aug. 17, 2000) (citing Jacobs v. Universal
Dev. Corp., 53 Cal. App. 4th 692, 699 (1997)). California courts determining whether
the defense applies consider “the analogous case law, the nature of the misconduct, and
the relationship of the misconduct to the claimed injuries.” Blain v. Doctor’s Co., 222
Cal. App. 3d 1048, 1060 (1990).
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Case No.

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2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

Finally, defendant argues that “it is of no consequence that [IP] instructed witnesses not
to specify the customers that were allegedly stolen because the actual names are not
relevant to the underlying point, i.e., that Plaintiffs left with International Paper’s
property/customers, which they have admitted.”6 Andresen ECF No. 147, Memo. at 3.
Defendant also asserts that plaintiffs’ argument about the witnesses is “disingenuous . . .
since their counsel also forbade witnesses from testifying as to the names of these
customers.” Id. at 4.
On the record before it, the Court does not find relevant to the claims and defenses
asserted evidence of alleged taking of IP customers or property. Moreover, the Court
finds that such evidence carries an obvious risk of unfairly prejudicing the jury.
Therefore, the Court GRANTS the Andresen plaintiffs’ Motion in Limine No. 3.
4.

To Preclude Evidence of Attorney-Client Privileged Correspondence
(Andresen ECF No. 136)

Bekiarian anticipates that defendant will attempt to introduce at trial evidence of a
May 2012 email correspondence between Bekiarian and his attorney John Pringle, in
which Pringle referred Bekiarian to a labor attorney. See Andresen ECF No. 136 Ex. B.
Bekiarian argues that these email communications, which he avers were inadvertently
saved in an Outlook file and which defendant obtained by doing a forensic examination
of Bekiarian’s computer after he retired from IP, are covered by the attorney-client
privilege because Pringle was Bekiarian’s attorney at the time. Bekiarian also argues that
the correspondence is irrelevant to the claims at issue.
In opposition, defendant first argues that the emails were not privileged because
Bekiarian’s request for a referral does not qualify as seeking “legal advice” within the
meaning of the privilege. Even if the emails would otherwise have been privileged,
defendant asserts that Bekiarian waived any possible attorney-client privilege because he

6

Andresen testified that most of his customers at IP, and about forty percent of his
sales volume, followed Andresen when he left IP. See Andresen Depo., Vol I, at 104:4 –
105:7. Duffy testified that sixty-five or seventy percent of his customers followed him
when he left IP. See Duffy Depo., Vol. I, at 88:21 – 89: 1.
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UNITED STATES DISTRICT COURT
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Case No.

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2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

had no reasonable expectation of privacy with respect to activity on his work computer,
including emails. See Griffith v. Davis, 161 F.R.D. 687, 694 (C.D. Cal. 1995) (“Courts
have consistently refused to apply the privilege to information that the client intends or
understands may be conveyed to others.”). Defendant points to IP’s “Acceptable Use
Policy,” which applied to Bekiarian and provided that employees’ activities on company
computers are not private.7 See Holmes v. Petrovich Dev. Co., 191 Cal. App. 4th 1047,
1068–72 (2011) (holding that emails sent by to an attorney from a company computer
were not privileged in light of a company policy stating that activities conducted on the
company computer was not private and could be monitored by the employer). Defendant
also argues that the emails are relevant to impeach Bekiarian’s credibility and establish
IP’s defense and third-party claim that Bekiarian conspired with other plaintiffs to create
false vacation wage claims while they were still employed at IP.
Having reviewed the Acceptable Use Policy and case law submitted by defendant,
it appears that the emails in question were not privileged. However, the Court does not
see how the fact that Bekiarian consulted with a labor attorney prior to his resignation is
relevant to the claims and defenses to be tried. Therefore, the Court GRANTS the
Andresen plaintiffs’ Motion in Limine No. 4.

7

This Acceptable Use Policy, attached to Derrick Bates’s declaration in support of
defendant’s opposition to this motion in limine, applied “to all International Paper
Company employees.” See Andresen ECF No. 148-8. The policy stated that IP was the
“sole and exclusive owner of its IT Resources and Information Assets, including User
files, e-mails, instant messages, and any electronically stored information composed, sent,
received or stored using company-provided systems and devices.” Id. It stated that users
“have no expectation or right to provacy of any kind related to their use of the company’s
IT Resources or its Information Assets,” and warned that “the company retains the right,
with or without cause or any additional notice to the User, to access and monitor its IT
Resources . . . . including those marked ‘private,’ ‘personal,’ or ‘confidential.’ ” Id. The
policy further provided that “[u]sers expressly consent to the access, monitoring, and
recording of their use of the company’s IT Resources, and waive any right of privacy or
similar right in their use of the IT Resources or any Information Assets.” Id.
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Case No.

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2:13-CV-02079-CAS(AJWx)

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.
5.

Date

‘O’

November 17, 2014

To Preclude Evidence Not Disclosed During Discovery (Andresen ECF
No. 137)

The Andresen plaintiffs seek to preclude on the ground of late disclosure (1) fact
witness Jack Harrington, added to defendant’s Amended Initial Disclosure on October
27, 2014 and discussed above in connection with Farris’s fourth motion in limine, and (2)
17,026 photographs and videos of plaintiffs and their families “from some unidentified
source” disclosed on November 3, 2014.8 See Andresen ECF No. 137, at 3. Plaintiffs
argue that these disclosures were not “timely” under Federal Rule of Civil Procedure
26(e) and would unfairly prejudice plaintiffs, and should accordingly be excluded under
Rule 37(c)(1).
As to Harrington, defendant argues that plaintiffs have not been surprised by the
late identification because Bekiarian himself identified Harrington as a witness for trial,
and Bekiarian is represented by the same counsel as Andresen and Duffy. As to the
photographs and videos, defendant asserts that they were disclosed after they were
recently obtained and only after IP “timely requested them in discovery and Plaintiffs
utterly refused to produce them.” Andresen ECF No. 149, Memo. at 1. Specifically,
defendant asserts that it obtained the photographs only after the magistrate judges
assigned to this case granted multiple motions to compel, and IP retained a forensic
specialist to review IP’s hard drives that were used by Bekiarian. Defendant avers that
after it received on October 17, 2014, a report from this specialist that the hard drive may
contain vacation photos, it “promptly produced all relevant photographs and videos to
Plaintiffs on November 3, 2014.” Id. at 5–6. Defendant further contends that there can
be no unfair surprise from these photographs because “they are inclusive of the
photographs that [the magistrate judges] have already ordered Plaintiffs to produce and
because Bekiarian surely knew of their existence,” since they were discovered on his own
work computer. Id. at 6. Defendant argues that the photographs are probative of
Bekiarian’s credibility and damages, and should not be excluded.

8

According to defendant, the photographs were recovered from an IP hard drive
used by Bekarian. See Andresen ECF No. 149, Memo. at 1.
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UNITED STATES DISTRICT COURT
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Date

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Case No.

5:13-CV-00485-CAS(SPx)
2:13-CV-02079-CAS(AJWx)

November 17, 2014

Title

DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

For the same reasons discussed above in connection with Farris’s Motion in Limine
No. 4, the Andresen plaintiff’s Motion in Limine No. 5 is GRANTED IN PART in that
Harrington may not testify in Phase I of the bifurcated trial. The motion is MOOT
insofar as it seeks to exclude photographic evidence because the Court finds that such
evidence should be excluded for other reasons, as set forth below.
6.

To Preclude Evidence of Alleged Misconduct Not Relating to Vacation
Accruals (Andresen ECF No. 138)

Bekiarian anticipates that defendant will attempt to introduce evidence that he
engaged in “misconduct such as removing property, unlawfully competing, stealing
customers, and other unfounded rumors during and after his employment.” Andresen
ECF No. 138 at 3. Bekiarian contends that such evidence is irrelevant to the issues for
trial, is unfairly prejudicial, and constitutes inadmissible character evidence. Bekiarian
also asserts that because defendant instructed its witnesses not to divulge what was
allegedly stolen, and witnesses who have testified about the alleged misconduct did so
after the discovery cutoff, he has been unable to conduct discovery on the basis of these
allegations.
For reasons discussed above with regard to other motions in limine, defendant
counters that this evidence is relevant to IP’s defense and cross-complaint that Bekiarian
conspired with other plaintiffs to fabricate the vacation claims at issue in this suit, as well
as to Bekiarian’s credibility. See generally Andresen ECF No. 150. Defendant also
asserts that Bekiarian’s alleged misconduct is relevant to its unclean hands defense.
For the same reason the Court grants the Andresen plaintiffs’ Motion in Limine No.
3, the Court GRANTS the Andresen plaintiffs’ Motion in Limine No. 6.
7.

To Preclude Use of Photographs at Trial (Andresen ECF No. 139)

The Andresen plaintiffs, joined by Farris, move to exclude the use of photographs
at trial. They anticipate that defendant will attempt to introduce photographs allegedly
showing plaintiffs on vacation during the time periods at issue. Plaintiffs argue that the
photographs “do not actually have dates on them, do not tell the jury whether the
photograph was a day a Plaintiff used a vacation day, or whether the photograph was on a
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November 17, 2014

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DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

weekend day.” Andresen ECF No. 139 at 5. Plaintiffs contend that these photograph
violate privacy rights (including those of third parties and juveniles), and would be
unfairly prejudicial.
Defendant counters that the photographs are relevant to the plaintiffs’ credibility
and claimed damages, especially in the absence of other documentary absence of vacation
for long periods at issue in this case. IP avers that an inspection of photographs has
already “reflected an additional 26 days on which [Farris] was on vacation on a work day,
which he did not identify in sworn testimony or discovery responses.” Andresen ECF
No. 151, Memo. at 3. Attempting to rebut the argument that the photographs will not
identify when they were taken—and thus, whether they reflect vacation days—defendant
argues that “the photographs contain metadata that establishes the dates that the
photographs were taken,” and that “some images themselves display the dates on which
the photographs were taken and clearly indicate where the photograph was taken.” Id. at
5–6.
Defendant additionally argues that because plaintiffs’ claims are based in part on
alleged conversations with Bekiarian in which Bekiarian said that all of the plaintiffs
were entitled to paid vacation, credibility is especially important in this case, and that the
photographs are relevant to show that plaintiffs have not been entirely truthful in their
testimony and discovery responses regarding vacations taken while employed by IP and
its predecessors. To the extent that the photographs implicate privacy rights of third
parties and juveniles, defendant asserts that it is “more than willing to work with
Plaintiffs and the Court to fashion an appropriate method of protecting third-party
privacy rights short of an overbroad across-the-board exclusion.” Andresen ECF No.
151, Memo. at 6. Finally, defendant avers that although the photographs were disclosed
after the discovery cutoff, they were promptly disclosed in good faith after defendant
obtained them, in compliance with Federal Rule of Civil Procedure 26.
As the Court has previously stated, vacation photographs carry a serious risk of
unfair prejudice, and are not necessary for proving vacations taken by the plaintiffs.
Moreover, the fact that photographs were ordered produced during discovery does not
make them automatically admissible at trial. To the extent that the photographic informs
defendant when and where it believes plaintiffs were on undisclosed vacations, defense
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counsel is free to ask plaintiffs about those alleged instances. Therefore, the Court
GRANTS Andresen plaintiffs’ Motion in Limine No. 7.
8.

To Exclude Expert Witness Lloyd Aubry, Jr. (Andresen ECF No. 155)

The Andresen plaintiffs move to exclude IP’s expert witness Lloyd Aubry, Jr.
(“Aubry.”). Aubry is an attorney who formerly worked at the California Department of
Industrial Relations, and as California’s State Labor Commissioner. See Andresen ECF
No. 155-1 at 25. In his submitted declaration, Aubry opines that California law does not
require that employers provide vacation benefits, and that it is “not uncommon for
employers not to provide paid vacation or vested vacation pay to commissioned
salespersons especially in those circumstances where the employee is compensated on the
basis of a recoverable draw against commissions.” Id. Aubry also refers to an opinion
letter he wrote as Labor Commissioner in 1986. Id.
Movants argue that Aubry’s opinions are based on insufficient facts and are
unreliable because they rely on general knowledge of vacation policies and California
law, and not on IP’s specific policies or a factual analysis of the evidence in this case.
Movants contends that his testimony about what employers generally do is “completely
irrelevant” and would confuse the jury and waste the Court’s time.
In opposition, defendant argues that Aubry will provide relevant opinion, based on
experience, about industry standards relating to commissioned sales representatives’
entitlement to vacation and the computation of vacation wages, not legal conclusions.
Having considered the parties’ arguments, the Court has concerns that some of
Aubry’s proposed testimony may constitute improper legal conclusions about ultimate
issues in the case. Nevertheless, it appears that there is some foundation for Aubry to
testify based on his relevant experiences. Therefore, the Court reserves judgment on the
Andresen plaintiffs’ Motion in Limine No. 8. Defendant is to file, no later than
November 24, 2014, a brief updated summary of Aubry’s expected trial testimony, not to
exceed 10 pages.

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DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

E.

Date

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November 17, 2014

Defendant IP’s Motions In Limine
1.

To Exclude Evidence Regarding Unused, Accrued Vacation for Periods
of Time for Which Plaintiffs Failed to Produce Documentation (Farris
ECF No. 192)

Defendant moves to exclude evidence regarding any unused, accrued vacation for
any periods of time that plaintiffs failed to produce documents reflecting vacations
actually taken. Defendant argues that each plaintiff has failed to produce documentation
of vacations taken for the majority of the long time spans for which he now seeks
compensation, and that it would be unfair to allow plaintiffs to introduce “solely their owself-serving testimony and discovery responses regarding the amount of vacation they
allegedly accrued but did not use.” Farris ECF No. 192, Memo. at 1. Defendant submits
that because it is plaintiffs’ burden to prove how much unused vacation they accrued, and
because employers are only required to maintain personnel and wage records for three
years under California law, plaintiffs are required to produce documentation reflecting if,
when, where, and how much vacation they actually took. However, defendant argues,
each plaintiff has failed to list specific vacation dates for certain time periods in discovery
responses, and has failed to produce documentary evidence reflecting vacations taken for
long stretches of time. Defendant contends that, without any documentary evidence for
these periods, plaintiffs’ testimony as to vacation taken during these periods would be
speculative, incompetent, and unduly prejudicial. Accordingly, defendant requests that
the Court exclude “any and all alleged vacation claims” pertaining to 1983 to 2006 for
Farris, 1977 to 2001 for Andresen, 1986 to 1998 for Duffy, and 1973 to 1991 for
Bekiarian.
In opposition, Farris argues that defendant improperly seeks summary judgment
through a motion in limine by attempting to throw out all evidence directed at the vast
majority of Farris’s claimed damages. Farris also argues that he has produced “thousands
of pages supporting his vacation claim,” including (1) personal calendars from 1988 to
2012 reflecting his daily activities and vacation days, (2) monthly auto expense reports
submitted to IP and its predecessors, (3) cellular telephone records submitted to IP’s
predecessors, (4) credit card and bank statements for “all available periods of time,” and
(5) vacation photographs. Farris ECF No. 242, Memo. at 1. Farris points out that he has
also provided discovery responses and deposition testimony on how much vacation he
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took and accrued. In their opposition, the Andresen plaintiffs similarly argue that they
have provided detailed interrogatory responses and produced credit card statements,
vacation request forms, vacation photographs, and deposition testimony on taken
vacations. See Farris ECF No. 253. The Andresen plaintiffs argue that “[a]ny argument
that this is insufficient evidence goes to the weight of the evidence, not its admissibility.”
Id. at 4.
Farris and the Andresen plaintiffs also cite Hernandez v. Mendoza, 199 Cal. App.
3d 721 (1988). In that case, the California Court of Appeal reversed the trial court’s
determination that an hour-and-wage plaintiff had failed to meet his burden of showing
the amount of unpaid wages he was owed with the requisite certainty. Id. at 727. The
court reasoned that because the employer had failed to keep accurate time records as
required by statute, “imprecise evidence by the employee [could] provide a sufficient
basis for damages.” Id. The court relied on the U.S. Supreme Court’s decision in
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–88 (1946), superseded by
statute on other grounds as stated in Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 875
(2014). In that Fair Labor Standards Act case, the Supreme Court explained that while
the employee “has the burden of proving that he performed work for which he was not
properly compensated,” public policy and the “fact that it is the employer who has the
[statutory] duty . . . to keep proper records” informs the application of that burden. See
id. at 686–87. The Court held that “where the employer’s records are inaccurate or
inadequate” in violation of a “statutory duty,” “an employee has carried out his burden if
he proves that he has in fact performed work for which he was improperly compensated
and if he produces sufficient evidence to show the amount and extent of that work as a
matter of just and reasonable inference.” Id. at 687. If the employee does so, the “burden
then shifts to the employer to come forward with evidence of the precise amount of work
performed or with evidence to negative the reasonableness of the inference to be drawn
from the employee’s evidence. If the employer fails to produce such evidence, the court
may then award damages to the employee, even though the result may only be
approximate.” Id. at 687–88.
Anticipating arguments based on Hernandez, defendant argues that the case is
inapposite because IP, which was only required to keep records for three years, has not
failed to keep any records required by statute. Defendant points out that California Labor
Code § 226(a), on which Farris relies to argue that defendant failed to keep records
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required by law, provides that wage statements “shall be kept on file by the employer for
at least three years.” Cal. Labor Code § 226(a).
The Court agrees with plaintiffs that defendant’s arguments duplicate ones rejected
on summary judgment, and go to the weight, rather than the admissibility, of evidence for
older vacation claims. Therefore, the Court DENIES defendant’s Motion in Limine No.
1.
2.

To Exclude Evidence of Unrelated Complaints About IP (Farris ECF
No. 193)

Defendant seeks to exclude plaintiffs from offering testimony regarding their and
other employees’ dissatisfaction with, and other complaints or negative opinions
regarding, IP as an employer. Defendant argues that such complaints—including charges
that IP “tried to take commissions away from sales representatives, unfairly changed their
commission plans, generally did not treat its employees well, and had a poor reputation
for service to its customers”—have no bearing on the issues for trial, would be unfairly
prejudicial if admitted, and would constitute inadmissible character evidence. Farris ECF
No. 193, Memo. at 2.
In opposition, Farris argues that defendant’s motion is overbroad, and seeks to
exclude relevant evidence. See generally Farris ECF No. 243. Farris contends that the
“complaints” IP seeks to exclude include those about IP’s alleged failure to pay accrued
vacation wages and how sales employees’ final rates of pay should be calculated, which
are key issues in dispute. Farris also argues that evidence regarding IP’s decision to “take
commissions away from sales representatives” and “change[] their commission plans” are
directly relevant to whether Farris’s final rate of pay constituted a fixed salary. Farris
further asserts that, to the extent other commission-based sales employees have similar
“complaints,” that evidence is also directly relevant to establishing whether Farris was in
fact entitled to paid vacation. He argues that such “other acts” evidence is admissible
under Rule 404(b) because it tends to prove the material point of how the final rate of pay
should be calculated, and will not be offered simply to prove that IP acted in accordance
with its character by failing to pay Farris accrued vacation wages. The Andresen
plaintiffs offer substantially identical arguments in a separate opposition. See
generally Farris ECF No. 254.
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November 17, 2014

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DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

On the record before the Court, it appears that complaints made by other parties
about IP are not relevant to plaintiffs’ specific claims. Moreover, the Court is not
persuaded that the evidence will be offered for a permissible “other purpose” under
Federal Rule of Evidence 404(b). Therefore, the Court GRANTS defendant’s Motion in
Limine No. 2.
3.

To Exclude Testimony of Other Commissioned Sales Representatives
(Farris ECF No. 203)

Defendant seeks to preclude testimony from a series of other commissioned sales
representatives, who defendant expects to “proclaim their belief that Plaintiffs were
entitled to accrue paid vacation, that they too were entitled to vacation pay, and that
International Paper also deprived them of vacation pay (or, conversely, that International
Paper in fact paid them vacation, and that it should have done the same for Plaintiffs).”
Farris ECF No. 203, Memo. at 1.9
First, defendant argues that each of these witnesses lack personal knowledge
regarding whether the individual plaintiffs were entitled to accrue paid vacation.
Defendant also contends that Leavitt, Cwieka, and Skrede lack personal knowledge about
the facility at which plaintiffs worked because Cwieka never worked there, while Leavitt
and Skrede only worked there “for a short time, many years ago,” and that none of the
three have “any knowledge of what policies or practices applied to Plaintiffs” as regards
vacation. Id. at 9. To the extent that plaintiffs intend to offer the testimony of these
employees as to those employees’ personal experiences with vacation pay, defendant
contends that such testimony is irrelevant because it does not shed light on the individual
plaintiffs’ contracts with IP. Defendant further argues that any probative value from
these employees’ individual experiences is substantially outweighed by the risk of
misleading the jury “through the effect of cumulative evidence of other witnesses’
dissatisfaction with the company and its vacation policies and practices,” confusing the

9

The specific employees whose testimony defendant seeks to exclude are James
Campbell, Mike Cwieka, Chris Farris, Donald Fry, Robert Jones, Larry Leavitt, Eric
Radtke, Donald Skrede, and Donald Zenser.
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jury “as to the actual legal standard to apply” and the policies and contracts that actually
applied to each plaintiff, and engendering irrelevant “mini-trials.” Id. at 12–13.
In opposition, Farris argues that, as fellow commission-based sales representatives,
the witnesses have personal knowledge regarding (1) how IP tracked vacation days for
commissioned sales employees, (2) what interactions they had with human resources
departments regarding vacation, and (3) whether they personally did or did not receive
vacation pay. Farris contends that such knowledge is relevant because the witnesses
“share the exact same job title that IP proclaims is not entitled to paid vacation.” Farris
ECF No. 244, Memo. at 2. He notes that IP has not argued that some commission-based
sales employees were entitled to vacation and others were not. The Andresen plaintiffs
offer similar arguments in a separate opposition. See Farris ECF No. 255. They add that
“IP itself intends to call former commissioned sales representative Scott Winder to testify
at trial, thus completely undermining any argument that other commissioned sales
representatives’ testimony is irrelevant.” Id., Memo. at 1–2.
The Court is not persuaded by defendant’s arguments that the testimony of other
commission-based sales employees is wholly irrelevant, given that IP strenuously argues
that such employees were not entitled to paid vacation. Therefore, the Court DENIES
defendant’s Motion in Limine No. 3. As the Court explained at oral argument, however,
testimony from as many as nine sales employees in addition to plaintiffs would be
cumulative and time-consuming. Therefore, barring unforeseen developments, plaintiffs
will only be permitted to call three such witnesses.
4.

To Exclude Evidence or Argument Regarding Labor Commissioner
Complaints Filed by Duffy and Other Sales Representatives (Farris
ECF No. 194)

Defendant seeks to preclude plaintiffs from offering evidence or argument
pertaining to claims filed by Duffy and any other former sales employees against IP with
the California Labor Commissioner (“Labor Commissioner”) for disputes over
commissions that are not at issue in this lawsuit.
Defendant anticipates that plaintiffs will attempt to offer evidence of a claim Duffy
filed with the Labor Commissioner for commissions he alleged were owed for the month
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DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

of March 2012, a claim which was settled and dismissed in August 2012. Defendant
contends that this settled claim is irrelevant to Duffy’s claim for unpaid commissions in
this lawsuit, which relates to commissions allegedly earned in or around November 2012.
Other former IP employees who have filed claims with the Labor Commissioner include
Donald Fry and Larry Leavitt, both of whom have been identified by plaintiffs as
witnesses for trial, and who filed and closed claims with the Labor Commissioner in 2012
or 2013. Defendant argues that these complaints are not relevant to the issues to be tried.
Moreover, defendant argues that all of the evidence it seeks to preclude through this
motion constitutes inadmissible character evidence and would unfairly prejudice
defendant by confusing the issues and adding needless delay. Finally, defendant submits
that the settlement of any of these claims is inadmissible to prove the validity of
plaintiffs’ vacation claims or Duffy’s commission claim pursuant to Federal Rule of
Evidence 408(a)(1).
Farris states that the only administrative complaint filed with the Labor
Commissioner he intends to introduce is Donald Fry’s claim for vacation pay, so that the
motion in limine is mostly moot. With respect to Fry’s claim, Farris argues that it is
directly relevant because Fry and Farris were both commission-based sales employees for
IP and its predecessors, and IP’s defense throughout the litigation has been that such
employees were not entitled to paid vacation. Farris argues that, if Fry is not allowed to
testify about his administrative claim, the “jury will be left in the dark as to why [he]
would forego [sic] his legal rights and question the credibility of his testimony.” Farris
ECF No. 245, Memo. at 1.
The Andresen plaintiffs, who apparently intend to offer broader evidence of Labor
Commissioner claims, argue that such evidence must be admitted because it “goes
directly to willfulness, an essential element of Labor Code § 203.”10 Farris ECF No. 256

10

This provision provides in part: “If an employer willfully fails to pay, without
abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and 205.5,
any wages of an employee who is discharged or who quits, the wages of the employee
shall continue as a penalty from the due date thereof at the same rate until paid or until an
action therefor is commenced; but the wages shall not continue for more than 30 days.”
Cal. Labor Code § 203(a). An employer acts “willfully” when it “ ‘intentionally fail[s] or
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at 2. In addition to arguments raised by Farris and discussed above, the Andresen
plaintiffs contend that the complaints show that “[d]uring the time that [IP] purports it
had no obligation to pay Plaintiffs’ vested vacation wages, it knew that various other
employees had already raised nearly identical Labor Code claims with the Labor
Commissioner for their own vested wages.” Id. In support of this argument that the
evidence is relevant to proving willfulness, the Andresen plaintiffs cite Weeks v. Baker &
McKenzie, 63 Cal. App. 4th 1128, 1163 (1998) (admitting under the California Evidence
Code for punitive damages purposes only evidence of a supervisor’s past conduct with
employees other than the plaintiff, and resulting discipline, as tending to prove that the
supervisor was aware of the harmfulness of the conduct).
The Court is not persuaded that Fry’s testimony will be discredited if he is unable
to testify about his unrelated and apparently settled claim against IP. Because section 203
contains a willfulness element, however, any adverse judgment or other indicator of
knowledge on the part of IP could be relevant to plaintiffs’ claims. Because this motion
is linked to which sales representatives plaintiffs choose to call at trial, and because the
Court is unable to determine the issue on the record before it, the Court reserves
judgment on defendant’s Motion in Limine No. 4.
5.

To Exclude Evidence Related to Third-Party Witnesses Bob Renaud
and Bob Kocis (Farris ECF No. 195)

Bob Renaud (“Renaud”) is a former Regional Human Resources Manager who was
responsible for overseeing Temple-Inland facilities in California but who, according to
defendant, never established or implemented vacation policies as to Crockett Division
facilities, including the Santa Fe Springs Facility (“SFSC Facility”) at which plaintiffs
worked. Defendant initially identified Renaud as a potential witness, but now maintains
that he “has no relevance to this action as the Crockett Division Facilities, including the
SFSC Facility, operated independently from other [Temple-Inland] Facilities, and
operated pursuant to Crockett policies.” Farris ECF No. 195, Memo. at 1 n.4. Bob Kocis

refuse[s] to perform an act which was required to be done.’ ” Choate v. Celite Corp., 215
Cal. App. 4th 1460, 1468 (2013) (quoting Barnhill v. Robert Saunders & Co., 125 Cal.
App. 3d 1, 7 (1981)).
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DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

(“Kocis”) is a Regional Human Resources manager who, according to plaintiffs, oversees
human resources matters for facilities in Texas, Arizona, and New Mexico. Farris has
indicated that he intends to introduce as an exhibit at trial an email from Kocis
concerning vacation policies at the Imperial Valley Facility, a non-Crockett facility.
Defendant seeks to exclude testimony by or evidence concerning Renaud, Kocis, and
“any other irrelevant third party witnesses,” as well as any evidence “concerning vacation
policies at Non-Crockett Facilities.” Id. at 2.11
Defendant submits that the aforementioned witnesses and evidence are irrelevant
because the Crockett Division and the SFSC Facility employed distinct policies from
those that Renaud and Kocis had experience with, and because the SFSC Facility had “its
own management and human resources department.” Id. at 3. Defendant argues that
Kocis never oversaw any Crockett Division Facility, let alone the SFSC Facility, and
indeed had no involvement with the SFSC Facility; therefore, defendant contends, he
“has absolutely no knowledge regarding the vacation practices” employed there. Id. at 4.
Similarly, defendant argues that because Crockett Division facilities operated
independently from [Temple-Inland] facilities, Renaud had no experience with vacation
policies at the SFSC Facility. Therefore, defendant argues that any testimony by Kocis or
Renaud regarding vacation policies at the SFSC Facility “lacks foundation and is
irrelevant.” Id. at 6. Defendant further contends that such evidence would confuse and
mislead the jury and waste the Court’s time.
Farris opposes the motion, arguing that the evidence is relevant. See Farris ECF
No. 246. He points to an email from Kocis to Don Skrede, another commission-based
sales employee of IP’s, stating, “[a]ll of your earned and unused vacation will be paid to
you at leaving.” ECF No. 246, Jacobson Decl., Ex. 1. Farris argues that Kocis would not
have agreed to pay Skrede accrued vacation wages if Skrede, as a commission-based
sales employee, was not entitled to paid vacation. Farris argues that defendant has not
submitted evidence to support a theory the policies at the SFSC Facility and other

11

At oral argument, counsel for plaintiffs clarified that no plaintiff intends to call
Renaud as a witness, though plaintiffs do intend to offer documentary evidence related to
Renaud. Counsel for plaintiffs intends to show video deposition testimony of Kocis, over
whom the Court does not have subpoena power.
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facilities were unrelated. He contends that defendant relies on “a self-serving declaration
by Derrick Bates, and excerpts of deposition testimony from Mr. Bekiarian, Ms. Leach,
and Ms. Rocha where they simply state that they are ‘unaware’ of the vacation policies
for other facilities.” Farris ECF No. 246, Memo. at 3 n.2. Farris further contends that
available documentation of vacation policies for Crockett and Temple-Inland facilities do
not suggest a marked difference between policies at the different facilities. Farris argues
that both Kocis and Renaud will testify to their personal knowledge of vacation policies
at Temple-Inland facilities, and that Farris will proffer other evidence “demonstrating that
the vacation policies at both the Crockett facilities and Temple-Inland facilities are nearly
identical.” Id. at 4.
In addition to arguments raised by Farris and discussed above, the Andresen
plaintiffs point to an email from Renaud to Bekiarian and IP Human Resources managers
Derrick Bates, Ottie Dicckson, and Michael Paquin in anticipation of a conference call to
discuss Farris’s entitlement to be paid out accrued vacation. See Farris ECF No. 257,
Morrison Decl. Ex. 2. This email set forth California Labor Code provisions relating to
vacation pay. The Andresen plaintiffs contend that defendant’s arguments on Kocis and
Renaud’s testimony go to weight, not admissibility.
In the absence of undisputed evidence that the policies with which Kocis and
Renaud had experience are completely unrelated to the policies that governed plaintiffs’
entitlement to vacation pay (or lack thereof), the Court does not find it appropriate to
exclude the objected-to evidence, which appears to have some tendency to undermine
IP’s defense that commission-based sales employees were not entitled to paid vacation.
Therefore, the Court DENIES defendant’s Motion in Limine No. 5 without prejudice to
its being renewed at trial.
6.

To Exclude Farris’s Expert Rebuttal Witness Miles E. Locker (Farris
ECF No. 196)

Miles Locker (“Locker”), a labor and employment attorney who previously worked
with the DLSE, is Farris’s damages rebuttal expert. See generally ECF No. 196-2. In his
submitted declaration, Locker attempts to rebut each of the opinions in Crandall’s
declaration, generally opining that Farris was entitled to significant accrued vacation pay
measured at a high final rate of pay. Based on documentary evidence and his experience
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DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

with commissioned employees in California, Locker opines that Farris’s compensation
always included a salary component. Locker Decl. at 5–6. Citing his experience
litigating at the DLSE, as well as a DLSE opinion letter and his awareness of court cases
involving claims of vacation wages owed to commissioned sales employees, Locker
opines that there is nothing unusual about providing paid vacation to commissioned
employees. Id. at 7. Citing documentary and testimonial evidence, as well as Labor
Code section 227.3 and related case law, Locker asserts that Farris was entitled to paid
vacation. Id. at 7–8. Drawing on case law and disputing Crandall’s interpretation of the
evidence, Locker opines that Farris was never subject to a lawful cap on vacation accrual.
Id. at 9–10. Locker also opines on the timeliness of Farris’s claims under California law
and the correct rate at which Farris’s vacation pay should be calculated. Id. at 10–13.
Finally, citing Labor Code provisions and related cases, Locker opines that Farris is
entitled to waiting time penalties. Id. at 13–14.
On July 21, 2014, the Court denied defendant’s motion to strike Locker on the
ground that he was not a proper rebuttal expert. See Farris ECF No. 65. In that ruling,
the Court ruled that Locker, like plaintiff’s expert Crandall, opined on “whether [Farris]
is entitled to vacation pay,” the “same subject matter” as Crandall. Id. at 3. The Court
acknowledged that Locker “cites to legal authority in his report that is not present in
Crandall’s report,” but still found that it would not be appropriate to strike Locker or
allow defendant to designate another rebuttal witness. Id. The Court did, however, note
that “after reviewing both parties’ expert reports, [it] has significant questions as to
whether these reports invade the province of the jury.” Id. at 3 n.2. The Court cautioned
that “[a]t trial, the Court may substantially limit the admissibility of the opinions
contained in the reports.” Id. Defendant anticipates that Locker would opine at trial that
Farris was legally entitled to and did accrue paid vacation while working for IP, and that
he should be compensated for this unused vacation at a high rate of pay. Defendant
argues that Locker should be precluded from testifying pursuant to Federal Rules of
Evidence 401, 402, 403, and 702.
First, defendant argues that Locker will offer inadmissible personal opinion
regarding ultimate issues of California law. Defendant cites previous cases in which
Locker has been excluded as an expert witness for improperly giving opinions as to legal
conclusions. In opposition, Farris argues that because the Court previously found that
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DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

Locker is a proper rebuttal expert, Locker can be excluded for opining on ultimate issues
of law only to the extent that Crandall is excluded on the same ground.
Second, defendant argues that Locker lacks “the basic qualifications necessary to
appropriately render an expert economic opinion as to Farris’ damages.” Farris ECF No.
196, Memo. at 4. Defendant contends that “[n]othing in Locker’s credentials demonstrate
[sic] that he has any expert knowledge of economics or damages analysis,” and that
Locker has admitted that he is not an economics or statistics expert and did not use
financial modeling to calculate Farris’s economic damages. Id. at 4–5. In opposition,
Farris points to Locker’s decades of employment at the Division of Labor Standards
Enforcement, where he regularly analyzed data of hours worked, wages earned, and
amounts owed to individual employees. Farris argues that no economics or statistics
expertise is required to offer Locker’s opinions, because the proper methodology is to
determine the relevant vacation policy, subtract the number of vacation days actually
taken, then multiply the amount of remaining vacation days by the final rate of pay. To
the extent that defendant objects to this simple methodology, Farris maintains that
defendant can cross-examine Locker to expose any weaknesses.
Next, defendant asserts that Locker’s opinions are based on improper assumptions
and are inherently unreliable. Defendant argues that, rather than performing an
“independent investigation” and using a reliable methodology under Daubert v. Merrel
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Locker performed pencil-and-paper
calculations based on unverified assumptions adopted from Farris’s response to an
interrogatory request as to the vacation he used between 1984 and 2012. In opposition,
Farris responds that there is nothing improper about an expert witness relying on
deposition transcripts, discovery responses, and pleadings in forming an opinion.
Pointing to deposition testimony that establishes that Crandall did not review the second
volume of Farris’s transcript before forming his opinion on Farris’s entitlement to
vacation pay, Farris argues that it is Crandall, not Locker, who based his opinions on
speculation. To the extent that Farris is found to have provided inaccurate information
that Locker relied on, Farris admits that this would affect the amount of damages he is

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entitled to, but contends that such flaws are grounds for cross-examination, not wholesale
exclusion of an expert witness.12
Based on the briefing and Locker’s submitted declaration, the Court is concerned
that some of Locker’s proposed testimony would consist of improper legal conclusions.
Nevertheless, there appears to be a foundation for Locker to testify that, based on his
experience, vacation pay may be owed to commission-based employees, and to other
matters insofar as his testimony rebuts that of defendant’s experts and does not extend to
legal conclusions on ultimate issues. Accordingly, the Court reserves judgment on
defendant’s Motion in Limine No. 6. Farris is to file, no later than November 24, 2014, a
brief updated summary of Locker’s expected trial testimony, not to exceed 10 pages.
7.

To Exclude Evidence Regarding IP’s Profits, Financial Condition,
Net Worth, or Size (Farris ECF No. 197)

Defendant moves to exclude evidence regarding IP’s profits, financial condition,
net worth, or size. Defendant argues that such evidence is not relevant to any of
plaintiffs’ claims, especially since plaintiffs are not seeking punitive damages. Defendant
also contends that such evidence would unfairly prejudice IP by suggesting that it
“should be found liable because it allegedly has the financial resources to pay a verdict
against it.” Farris ECF No. 197, Memo. at 2.
Farris does not object to this motion in the main, and “agrees not to affirmatively
raise the issues” of IP’s profits, financial condition, net worth, or size. Farris ECF No.
248. Farris does note that the “door could be opened” if “IP makes certain arguments or
introduces evidence which would call into question their size or economic viability,” and
requests a side bar with the Court if that should occur. Id. The Andresen plaintiffs, in
contrast, oppose the motion, arguing that by counter-suing Bekiarian for breach of
fiduciary duties, IP has made its corporate structure and size relevant because they pertain
to “IP’s operation and Bekiarian’s role within it.” Farris ECF No. 259 at 4. They also
argue that IP has put its finances at issue by suing Bekiarian and “claiming it has not been

12

The Andresen plaintiffs have submitted a separate opposition that appears to be
substantially identical to the one filed by Farris. See Farris ECF No. 258.
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able to manage its contingent liabilities or labor costs.” Id. The Andresen plaintiffs
appear to argue that because IP has claimed Bekiarian’s failure to track vacation time
prevented IP and its predecessors from “managing, mitigating, setting reserves for, and/or
precluding and preventing any purported paid vacation accrual liability,” its general
finances are fair game. Id. at 4 (quoting IP’s Amended Answer and Cross Claims ¶ 19).
The Court finds IP’s size and financial condition irrelevant to the claims and
defenses at issue, and is not persuaded by the Andresen plaintiffs’ arguments to the
contrary. Although the portion of defendant’s business overseen by Bekiarian may be
relevant to a determination in Phase II of the trial of whether he was a corporate officer,
that inquiry would not require the introduction of evidence of net worth or other financial
indicia. As indicated at oral argument, to the extent that Bekiarian’s job responsibilities
are relevant to his defense at Phase II of the trial, he may present argument without
reference to numbers that would indicate defendant’s financial condition or size.
Therefore, the Court GRANTS defendant’s Motion in Limine No. 7. Nevertheless, the
Court will revisit the issue if IP suggests that it is unable to pay any of the claims at issue
or otherwise makes its finances relevant.
8.

To Exclude Evidence Regarding Bekiarian’s Dismissed Claims for
Indemnification (Farris ECF No. 198)

In the Farris matter, in which he is a third-party defendant, Bekiarian asserts a
counterclaim for indemnity against IP. See Farris ECF No. 75. In this counterclaim,
Bekiarian argues that IP is required to reimburse and indemnify him pursuant to
California Labor Code § 2802, California Corporations Code § 317, and IP’s corporate
bylaws. Id. The Court granted with prejudice IP’s motion to dismiss Bekiarian’s claim
for indemnity insofar as it is based on Labor Code § 2802 and corporate bylaws, but
denying the motion insofar as Bekiarian’s claims are based on Corporations Code § 317.
See Farris ECF Nos. 170, 178. Defendant now argues that any evidence regarding or
reference to these already-adjudicated bases for indemnification should be excluded as
irrelevant and unfairly prejudicial.
Because it has already determined through a motion to dismiss that claims based on
Labor Code § 2802 and IP’s corporate bylaws are not viable, the Court GRANTS
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defendant’s Motion in Limine No. 8 insofar as it seeks to exclude evidence or argument
concerning those provisions.
9.

To Exclude Evidence that Bekiarian Was Entitled to Vacation Pay
(Farris ECF No. 199)

Defendant argues that, as the principal onsite officer in charge of the SFSC
Facility, it was Bekiarian’s job to track and accrue his own vacation time and verify the
accuracy of financial reporting that should have included, but omitted, the allegedly
accrued but unused vacation Bekiarian seeks in this lawsuit. Defendant argues that
Bekiarian’s failure to track or report his allegedly accrued vacation is “tantamount to
spoliation” because it prevented IP and its predecessors from learning about the potential
existence and extent of the vacation claims Bekiarian now asserts, and asks the Court to
prohibit any evidence or argument that Bekiarian was entitled to any pay for accrued and
unused vacation.
The Court agrees with Bekiarian that this motion in limine essentially reasserts
arguments already rejected by the Court’s orders on motions for summary judgment, and
that defendant’s spoliation analogy is inapt. Therefore, the Court DENIES defendant’s
Motion in Limine No. 9.
10.

To Preclude Video Deposition Testimony of Available Witnesses (Farris
ECF No. 200)

According to defendant, plaintiffs have indicated that they intend to play
videotaped testimony of available witnesses who will testify at trial, during plaintiffs’
opening statements and before examinations of those witnesses. Defendant moves to
preclude plaintiffs from doing so.
First, defendant argues that this practice is disfavored in federal court. See, e.g.,
Hynix Semiconductor Inc. v. Rambus Inc., 2008 WL 190990 (N.D. Cal. Jan. 21, 2008)
(disallowing the playing of videotaped testimony in opening statements because
“[v]ideotaped testimony may seem more believable or important to the lay jury because it
can both see and hear the witness” and because a video deposition can be shown multiple
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times in the exact same form, “exalt[ing] the relevance of those videotaped shreds of
evidence over live testimony”).
Citing Federal Rule of Civil Procedure 32(a), defendant also contends that “since
all of the witnesses are available and plan to testify, there is no legitimate reason to play
the videotaped testimony absent impeachment.” Farris ECF No. 200, Memo. at 1.
Finally, defendant argues that video deposition testimony should be excluded as unfairly
prejudicial and cumulative under Federal Rule of Evidence 403. No opposition has been
filed to this motion in limine.
The Court’s general practice is that, absent an agreement between the parties,
videotaped testimony may not be offered during opening argument or before live witness
testimony. Therefore, the Court GRANTS defendant’s Motion in Limine insofar as it
seeks to exclude video deposition testimony at these stages of trial.
11.

To Exclude Testimony Regarding Christopher Farris (Farris ECF No.
201)

Based on pretrial disclosures, defendant anticipates that one or more plaintiff will
attempt to offer evidence or argument regarding former sales representative Christopher
Farris, who is plaintiff Farris’s son. According to defendant, IP requested that plaintiff
Farris’s counsel accept a deposition subpoena on behalf of Christopher, but was told that
Christopher had moved out of state and was no longer in contact with plaintiff Farris.
Defendant contends that when it finally tracked down Christopher and scheduled an
interview with him, plaintiff Farris’s counsel informed IP that he represented
Christopher, and prohibited IP from communicating with him. Defendant also avers that
plaintiff Farris’s counsel has refused to produce Christopher for a noticed deposition.
Defendant requests that the Court, under its inherent powers and as a sanction for alleged
bad faith conduct by plaintiff Farris, exclude evidence, testimony, or argument relating to
Christopher Farris.
Farris states that he does not intend to refer to or elicit any evidence regarding
Christopher Farris, or call him as a witness at trial, but asserts that he should be permitted
to rebut or impeach any evidence regarding Christopher Farris that IP offers at trial.
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DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

Farris ECF No. 249. The Andresen plaintiffs filed a joinder in Farris’s opposition, and
request that the Court deny the motion. See Farris ECF No. 262.
The Court finds this motion moot insofar as it seeks to exclude Christopher Farris
as a witness, since no party has indicated that they wish to call him at trial. At oral
argument, defense counsel expressed concern that one or more plaintiff may attempt to
introduce a personnel document referencing Christopher Farris. The Court DENIES AS
MOOT defendant’s Motion in Limine No. 11 insofar as it seeks to exclude Christopher
Farris as a witness, and will address the issue of any documentary evidence addressing
him if and when any plaintiff attempts to offer it at trial.
12.

To Bifurcate Commission and Severance-Based Claims (Farris ECF No.
202)

Finally, defendant moves the Court for an order pursuant to Federal Rule of Civil
Procedure 42(b) bifurcating Andresen’s and Duffy’s commission claims and Andresen’s
severance claims from the plaintiffs’ “principal claims” for paid vacation. This Rule
provides for separate trials of claims or issues if bifurcation will “further . . . convenience
or . . . avoid prejudice, or when separate trials will be conducive to expedition and
economy.” Fed. R. Civ. P. 42(b). “Whether to bifurcate is a decision reserved to the trial
court’s sound discretion.’ ” Estate of Gonzalez v. Hickman, 2007 WL 3237635, at *10
n.18 (C.D. Cal. June 28, 2007) (citing Davis & Cox v. Summa Corp., 751 F.2d 1507,
1517 (9th Cir. 1985)). “In exercising this discretion, a court should consider such factors
as the ‘potential prejudice the parties, potential confusion to the jury, and the relative
convenience and economy which would result.’ ” Id. (quoting Cravens v. Cnty. of
Wood, 856 F.2d 753, 755 (6th Cir. 1988)).
Defendant argues that the commission and severance claims are factually and
legally distinct from the vacation claims, the latter of which are “novel” and require
adjudication of a variety of complex issues spanning a time period of three decades. See
Farris ECF No. 202, Memo. at 2–3. Defendant contends that simultaneous trial of the
commission and severance claims would further muddy the issues at bar, and could
prejudicially confuse the jury.

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DANIEL FARRIS v. INTERNATIONAL PAPER INC.; ET AL.

Opposing the motion, the Andresen plaintiffs argue that bifurcation would be
inefficient because Andresen, Duffy, Derrick Bates, and Carlton Jones will testify to the
vacation claims as well as to the severance and commission claims. The Andresen
plaintiffs further contend that the severance and commission claims “will take minimal
time to address during the first phase of trial,” and that bifurcation would lengthen trial
for no reason. Farris ECF No. 261 at 2.
The Court sees no reason to “trifurcate” an already bifurcated trial, and does not
find that any risk of confusion or unfair prejudice would justify the further delay that
would be caused by such an order. Therefore, the Court DENIES defendant’s Motion in
Limine No. 12.
13.

To Exclude Rebuttal Expert Daniel M. Cornet (Andresen ECF No. 152)

Defendant moves to exclude the Andresen plaintiffs’ economic damages rebuttal
expert, Daniel M. Cornet (“Cornet”). See generally Cornet Decl. (ECF No. 152-2).
Cornet has a B.A. in Sociology from the University of California, Santa Barbara. He is a
former Senior Deputy Labor Commissioner of the DLSE and, in his work for that
department, enforced compliance with the California Labor Code and Industrial Welfare
Commission orders. Id. ¶¶ 1–4. Plaintiffs retained Cornet to rebut the opinions of
Crandall and Aubry on whether the plaintiffs are entitled to vacation pay and unpaid
commissions, the amount of any vacation pay they are entitled to, and whether waiting
time penalties under Labor Code section 203 are applicable. Id. ¶ 10.
Based on his experience at the DLSE, Cornet opines that commission-based
compensation and vacation wages are not inconsistent. Id. ¶ 12. Citing a Labor Code
provision, case law, and defendant’s employee handbook, Cornet asserts that plaintiffs
were not responsible for tracking their own vacation time. Id. ¶¶ 13, 14. Cornet also
discusses vacation pay requirements under California law and the applicable statute of
limitations for vacation pay claims. Id. ¶¶ 15–17. Citing documentary evidence and his
experience, Cornet asserts that a commissioned salesperson’s “draw” is “akin to a
salary.” Id. ¶¶ 18, 19. Drawing on the defendant’s “written policies, procedures and
practices,” Cornet disagrees with Crandall’s conclusion that plaintiffs were not entitled to
paid vacation. Id. ¶¶ 20–27. Cornet also takes issue with Crandall’s testimony that it
would be unusual for an employer not to cap vacation accruals, and opines that a part of
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IP’s vacation policy as reflected in a 1997 document appears to conflict with the Labor
Code. Id. ¶¶ 28, 29. Although he claims not to offer a final conclusion on the issue,
reserving it for the court, Cornet also offers significant testimony on considerations
germane to the issue of successor liability. Id. ¶¶ 30–32. Crandall then asserts that based
on his experience with the DLSE, the methodology for determining accrued vacation pay
is to “determine the total number of days accrued, then subtract the total number of
vacation days used, and then multiply the remaining days times the employee’s final rate
of pay.” Id. ¶ 34. Cornet then applies this methodology to data provided by plaintiffs.
Id. ¶¶ 35, 36. Finally, citing both legal authorities and documentary evidence, Cornet
opines that plaintiffs were entitled to waiting time penalties pursuant to Labor Code
section 203 and to claimed but unpaid commissions. Id. ¶¶ 37–43.
First, defendant argues that Cornet will provide inadmissible personal opinion
regarding the meaning of California law, invading the Court’s province of instructing the
jury on the applicable law. Plaintiffs respond that Cornet only rebuts testimony from
Crandall and Aubry and that, to the extent that Cornet’s testimony is excluded, Crandall’s
and Aubry’s must be excluded as well.
Next, defendant contends that Cornet lacks the qualifications to opine on potential
damages because he is “not an expert in economics, surveys, data analysis, statistics,
labor economics, financial modeling for damages analysis, has never done any
professional work related to serving as an economic damages expert, and indeed has
never been qualified in [California or federal court] to testify as a damages expert.”
Andresen ECF No. 152 at 4. Plaintiffs respond—and the Court agrees—that given the
subject matter, a qualified expert need not have the technical expertise defendant
suggests.13
Finally, defendant argues that Cornet’s opinions are not based on a reliable
methodology under Daubert. Defendant asserts that the calculations rest on “incorrect

13

Defendant also avers that Cornet is biased because he has only served as an expert
for employees, not employers. But “[g]enerally, evidence of bias goes toward the
credibility of a witness, not his competence to testify, and credibility is an issue for the
jury.” United States v. Abonce-Barrera, 257 F.3d 959, 965 (9th Cir. 2001).
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and speculative assumptions” gleaned from plaintiffs’ interrogatory responses, rather than
an independent investigation, and that Cornet ignored or did not read “critical evidence,”
including the deposition testimony of Leach and Rocha. Andresen ECF No. 152 at 7.
But Cornet states in his declaration and deposition that he read Rocha’s declaration and
the deposition testimony of Leach, but decided that the preponderance of the evidence
supported a conclusion contrary to their assertions. See Andresen ECF No. 152-2 at 32;
Andresen ECF No. 152-3 at 14–16.
Having considered the parties’ arguments, the Court is concerned that much of
Cornet’s proposed testimony would constitute improper legal conclusions. As a general
matter, it appears that it may be proper for Cornet to render opinions based on written
policies and his experience with employment policies, but he cannot offer legal
conclusions on the ultimate issues in this case. Accordingly, the Court reserves judgment
on defendant’s Motion in Limine No. 13. Farris is to file, no later than November 24,
2014, a brief updated summary of Cornet’s expected trial testimony, not to exceed 10
pages.
IT IS SO ORDERED.
01
Initials of Preparer

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