Impey v. Office Depot, Inc.

Filing 204

ORDER FOLLOWING PRETRIAL CONFERENCE. Signed by Magistrate Judge Elizabeth D. Laporte on 8/11/2011. (awb, COURT STAFF) (Filed on 8/11/2011)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
DANIEL IMPEY,
11
For the Northern District of California

United States District Court

10
Plaintiff,

No. C-09-01973 EDL

12
v.

ORDER FOLLOWING PRE-TRIAL
CONFERENCE

13
THE OFFICE DEPOT, INC.
14
Defendant.
15
_______________________________/
16
17

On August 9, 2011, the Court held a pretrial conference in this case. For the reasons stated at

18

the conference and in this Order, the Court orders as follows.

19

TRIAL SCHEDULE AND PROCEDURE

20

1.

21

of “mini opening statements” (five minutes or less), jury selection, opening statements, and reading of

22

the preliminary jury instructions. Counsel shall report to the courtroom no later than 8:30 a.m.

23

2.

24

a 45 minute lunch. Counsel shall arrive by no later than 8:30 a.m. to set up and discuss any outstanding

25

issues with the Court outside of the presence of the jury.

26

3.

27

of trial time to present its defense. The trial shall be completed (at least as to everything except, if

28

necessary, presentation of evidence of Office Depot’s financial condition for consideration of punitive

Trial in this case will begin on September 6, 2011 at 9:00 a.m. The first day of trial will consist

Generally, the trial schedule shall be from 9:00 a.m. to 4:00 p.m. with two 15 minute breaks and

Plaintiff shall have 22 hours of trial time to present his case, and Defendant shall have 15 hours

1

damages, which has been bifurcated), and the case turned over to the jury by no later than Friday,

2

September 16, 2011.

3

4.

The parties agree that the jury will consist of eight jurors and no alternates.

4

5.

The parties shall meet and confer on an agreed-upon jury questionnaire and provide an electronic

5

copy of the questionnaire to the Court by no later than August 12, 2011. If possible, the questionnaire

6

will be presented to the jury during an early hardship screening the week before trial begins. If this is

7

not possible, the questionnaire will be presented to the jury the morning of September 6, 2011. The

8

parties shall also meet and confer on what, if any, modifications to the agreed-upon voir dire questions

9

are necessary in light of the jury questionnaire. The parties shall provide the Court with blind electronic
copies of the jury questionnaire and the voir dire questions.

11
For the Northern District of California

United States District Court

10

6.

12

the jury during voir dire.

13

7.

14

challenges and three “for cause” challenges to take place outside of the presence of the jury.

15

WITNESSES AND EVIDENTIARY OBJECTIONS

16

1.

17

Emma Millan, Charles Coleman, Serafin Miranda, Jaime Riblett, Rick Larson, and Vivian Fernandez)

18

is SUSTAINED, and Plaintiff shall not call these witnesses at trial.

19

2.

20

determine which exhibits will be withdrawn. The parties will notify the Court by no later than Friday,

21

August 12, 2011 of the results of this meet and confer effort.

22

3.

23

performance evaluations so that Plaintiff need not introduce each of his performance evaluations as a

24

separate exhibit.

25

4.

26

various portions of the deposition of Cheryl Coulombe. Defendant will confer with Ms. Coulombe to

27

determine whether she will appear voluntarily for Plaintiff’s case. The parties will notify the Court by

28

no later than Friday, August 12, 2011 of the results of this meet and confer effort.

The parties shall meet and confer and submit a joint, neutral statement of the case to be read to

The parties agree that during jury selection, each side will be able to exercise three peremptory

Defendant’s objection to eight of Plaintiff’s non-expert witnesses (Bob Harris, Sherly Vallot,

The parties shall meet and confer regarding Defendant’s objections to Plaintiff’s exhibits, and

The parties shall meet and confer to reach a stipulation summarizing Mr. Impey’s earlier

The parties shall meet and confer regarding Defendant’s objections to Plaintiff’s designation of

2

1

5.

2

discovery requests, is OVERRULED.

3

MOTIONS IN LIMINE

4

1.

5
6
7

Defendant’s objections to Exhibits 3 through 7 of Ms. Coulombe’s deposition, its responses to

The Court rules on the parties’ Motions in Limine as follows:
a.

Plaintiff’s Motion in Limine to exclude evidence of non-discrimination of two similarly

situated employees is DENIED.
b.

The Court requires further briefing before ruling on Defendant’s Motion in Limine 1 to

of no more than ten pages by Friday, August 12, explaining who made the other alleged claims of

10

discrimination and how they are similar to Plaintiff’s claims such that the evidence could be admissible

11
For the Northern District of California

exclude Plaintiff’s evidence of claims of discrimination by other employees. Plaintiff shall file a brief

9

United States District Court

8

as appropriate “me too” evidence and where this information was previously disclosed. Defendant shall

12

have until August 26, 2011 to respond to Plaintiff’s brief.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

c.

Defendant’s Motion in Limine 2 to exclude evidence of its financial condition is

GRANTED as unopposed.
d.

Defendant’s Motion in Limine 3 to exclude evidence of statements made during

settlement or mediation is GRANTED.
e.

Defendant’s Motion in Limine 4 to exclude evidence of conduct that occurred more than

one year prior to Plaintiff’s administrative charge is DENIED.
e.

Defendant’s Motion in Limine 5 to exclude opinion evidence of Jose Felix’s

qualifications is GRANTED as unopposed.
f.

Defendant’s Motion in Limine 6 to exclude non-party witnesses from viewing the trial

is GRANTED as unopposed.
g.

Defendant’s Motion in Limine 7 to exclude evidence of the Dublin store not being

certified as a training store is DENIED.
h.

Defendant’s Motion in Limine 8 to exclude evidence of the Court’s prior rulings on pre-

trial motions is GRANTED as unopposed.
i.

Defendant’s Motion in Limine 9 to exclude evidence of Plaintiff’s expert Barry Ben-

Zion’s “tax neutralization” theory is DENIED.

3

1

j.

Defendant’s Motion in Limine 10 to exclude evidence or argument to establish Plaintiff’s

2

claim for punitive damages is DENIED. However, the Court may reconsider its position on this issue

3

on a Rule 50 motion after all of the evidence is presented.

4
5

k.

payment of meal period penalties to employees is DENIED.

6
7

l.

Defendant’s Motion in Limine 12 to exclude evidence of Defendant’s decision not to

involve Greg Lindo or the loss prevention department in its investigation of Plaintiff is DENIED.

8
9

Defendant’s Motion in Limine 11 to exclude evidence of Plaintiff’s previous

m.

Defendant’s Motion in Limine 13 to exclude evidence of Plaintiff’s economic

damages due to his failure to mitigate is DENIED.
JURY INSTRUCTIONS

11
For the Northern District of California

United States District Court

10

1.

12

exceptions discussed during the pre-trial conference and below.

13

2.

14

Witness) is unnecessary and shall not be read unless it becomes necessary during trial.

15

3.

16

not be presented to the jury.

17

4.

18

to the jury: Ninth Circuit Model Jury Instruction 3.4 (Additional Instructions of Law); CACI Form

19

Instruction 221 (Conflicting Expert Testimony); and “Prohibition on Use of Electronic Technology.”

20

5.

21

(Burden of Proof - Preponderance of the Evidence) to include additional information on which issues

22

this instruction relates to.

23

6.

24

previously jointly proposed, and Plaintiff’s newly proposed CACI Form Instruction s 2400 and 2407

25

that he contends should be given instead. The parties will notify the Court by no later than Friday,

26

August 12, 2011 of the results of this meet and confer effort.

27

7.

28

by the Court relating to “Compensatory Damages - Proof/Measure of Types of Damages” and an

The Court shall adopt the parties’ jointly proposed jury instructions with a few limited

The parties agree that Ninth Circuit Model Jury Instruction 2.8 (Impeachment Evidence-

The parties agree that CACI Form Instruction 3904B as well as its Worksheet and Table A shall

The parties agree that the following additional instructions proposed by the Court may be read

The parties shall meet and confer on a modification to Ninth Circuit Model Jury Instruction 1.3

The parties shall meet and confer on a dispute over CACI Form Instruction 3962, which was

The parties shall meet and confer regarding two additional or alternative instructions proposed

alternative to the parties’ jointly proposed instruction on punitive damages which includes the names
4

1

of individuals whom Plaintiff’s claims may subject Office Deport to punitive damages. The parties will

2

notify the Court by no later than Friday, August 12, 2011 of the results of this meet and confer effort

3

and whether they will agree to these additional or alternative instructions.

4

8.

5

the Court that would allow for interim jury deliberations when all jurors are present during trial, and

6

would allow jurors to propose questions for witnesses during trial. The parties will notify the Court by

7

no later than Friday, August 12, 2011 of the results of this meet and confer effort and whether they will

8

agree to these additional instructions.

9

9.

The parties shall meet and confer regarding two additional procedural instructions proposed by

The Court will not read Defendant’s proposed Special Instructions 1 through 9 to the jury.

However, the Court will read Plaintiff’s proposed alternative instead: “You are not being asked to

11
For the Northern District of California

United States District Court

10

determine the wisdom of Office Depot’s business decisions. It does not violate California law for an

12

employer to make decisions adverse to an employee for a reason that is incorrect or even mistakenly

13

believed to be correct, as long as the decision is not a violation of law.” The Court will also advise the

14

jury that ‘Conjecture and speculation do not constitute evidence.”

15

10.

16

meet and confer regarding Plaintiff’s Special Instruction 1, and particularly whether the title of the

17

instruction should be included in the information given to the jury.

18

VERDICT FORM

19

1.

20

whether it should include a place for the jury to name the individual or individuals, if any, whose

21

conduct gives rise to an award of punitive damages. The parties will notify the Court by no later than

22

Friday, August 12, 2011 of the results of this meet and confer effort and submit an electronic blind copy

23

of any agreed-upon verdict form.

24

12.

25

instructions to be given to the jury at the beginning of the trial. The parties will notify the Court by no

26

later than Friday, August 12, 2011 of the results of this meet and confer effort and provide the Court

27

with

The Court will not read Plaintiff’s proposed Special Instruction 2 to the jury. The parties shall

The parties shall meet and confer regarding their dispute over the verdict form, and specifically

The parties shall meet and confer on a joint proposal for a subset of the substantive jury

28

5

1

a copy of this subset of instructions.

2
3

IT IS SO ORDERED.

4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Dated: August 11, 2010
_______________________________________
ELIZABETH D. LAPORTE
United States Magistrate Judge