Marceline et al v. Delgado

Filing 113

ORDER granting in part and denying in part 108 Motion in Limine. See attached Order. Signed by Judge Vanessa L. Bryant on 2/16/2012. (Fernandez, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHARLES MARCELINE,
KIMBERLY MARCELINE,
PLAINTIFFS,

v.
MIRIAM DELGADO,
A STAMFORD POLICE OFFICER,
DEFENDANT.

:
:
:
: CIVIL ACTION NO. 3:09cv1591(VLB)
:
: FEBRUARY 16, 2012
:
:
:
:

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION IN
LIMINE [Dkt. #108]
i. Testimony and evidence regarding the preservation orders and the
production and retention of documents by the Darien and Connecticut
State Police Departments
Defendant seeks to preclude as irrelevant testimony and evidence relating
to two preservation orders issued by a Connecticut Superior Court judge in
Plaintiff Charles Marceline’s 2009 state criminal proceeding which was
commenced in May of 2009 and which culminated in a nolle in October of 2009.
These preservation orders were directed to the Darien Police Department and the
Connecticut State Police Department who are both non-parties to this action.
Defendant also seeks to preclude as irrelevant evidence and testimony regarding
what documents were retained and produced by the Darien Police Department
and the Connecticut State Police Department as well as evidence and testimony
regarding the document retention policies and practices of both police
departments. The Court reminds the Plaintiffs that the sole Defendant in this
action was an employee of the Stamford Police Department and not the Darien or
the Connecticut State Police Departments.
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The issue of the relevancy of this evidence regarding the preservation
orders, the Darien and the Connecticut State Police Departments’ production of
documents and their records and retention policies and practices has already
been the subject of a prior motion in limine, objections raised in the Joint Trial
Memorandum, a discovery dispute request, a further request to reopen discovery
on the eve of trial, a motion for reconsideration and were also raised and
discussed during the pretrial conference held on September 29, 2011. See [Dkt.
## 48, 53, 56, 58, 65, 82, 91 and 106]. Based on the factual and legal arguments
made by the Plaintiffs repeatedly, the Court has already ruled that the
preservation orders are of “questionable relevance” and that Plaintiffs “assertion
of spoliation is unsupported by the record and its absence of probative value is
out-weighted by its prejudice.” See [Dkt. #91]. In addition, the Court found that
“Plaintiffs' counsel has not shown that the potential non-compliance by a nonparty with a Superior Court Preservation Order in a case disposed of in 2009 is
relevant in this action. Further, Plaintiffs' counsel has not shown that a sanction
for spoliation by a third party should be imposed against the Defendant in this
action.” See [Dkt. # 106]. 
In particular, Defendant seeks to preclude the testimony of Darien Police
Department Witnesses Chief Lovello, Officer Moore, Sergeant Johnson, retired
Darien Police Department employee Mr. LaBella, a Darien Police Department
Representative and a Connecticut State Police Department Representative. In
the Joint Trial Memorandum, Plaintiffs have indicated that these witnesses will
testify about the following topics: police records including documents,
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videotapes, the Darien and State Police Department records retention and
records preserved and produced regarding this incident. Defendant also seeks
more generally to preclude evidence relating to the two preservation orders
themselves. Defendant argues that none of this evidence is relevant to the
causes of action at issue in as it has no “tendency to make a fact more or less
probable than it would be without the evidence.” Fed. R. Evid. 401.
Plaintiffs argue that the Darien Police Department prepared the incident
report and produced several reports and CDs containing recordings of 911 calls.
Plaintiffs argue that the testimony of these witnesses will be necessary to
authenticate documents or the voices on the CD recordings. However, Plaintiffs
concede that not all four witnesses may be necessary to authenticate the
documents and cds and that one witness may be more appropriate. The Court
agrees that only one witness is appropriate. Accordingly, Plaintiffs will be
allowed to call one witness from the Darien Police Department and one witness
from the Connecticut State Police Department for the sole purpose of
authenticating any relevant and admissible evidence before the Court at trial.
Plaintiffs also argue that these witnesses may be able to identify the Darien
police officers on the scene and that “the identity of the Darien police officers on
the scene, what they witnessed and were told in terms of excessive force used
against the Plaintiffs is relevant.” See [Dkt. #112, Pl. Mem. at 2-3]. Plaintiffs
appear to be suggesting that such evidence is relevant to establishing what force
Delgado allegedly used in detaining Plaintiffs. However, since the Darien and
Connecticut State police officers were not present when Defendant Delgado
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allegedly used excessive force any testimony regarding what they were told after
the fact would be inadmissible hearsay as it would be an out of court statement
offered to prove the truth of the matter asserted. Further, the identities of the
officer who arrived on the scene after Defendant Delgado’s alleged excessive use
of force are also irrelevant as those officers do not have any personal knowledge
of Defendant Delgado’s allegedly unlawful behavior and again whatever
testimony they could give as to what Delgado did or did not do would likely be
inadmissible hearsay. Further, Plaintiffs have not established that such evidence
is subject to an appropriate hearsay exception.
In addition, Plaintiffs have indicated in the Joint Trial Memorandum that the
these witnesses will testify about what records were produced and retained by
these non-party police departments and not about Defendant Delgado’s alleged
use of force. Plaintiffs have also indicated in their opposition to the motion in
limine that they wish to call the representative from both the Darien and
Connecticut State Police Departments to testify regarding video recordings since
to date no video recordings from police vehicles have been produced by either
department. See [Dkt. #112, Pl. Mem. at 3].
Once again, Plaintiffs have failed to demonstrate such material ever
existed, that the preservation order was in effect and imposed a duty to possess
such material in 2011 when Plaintiffs sought it, that the preservation order was
violated, or assuming it was violated the relevance of a non-party’s noncompliance with a preservation ordered issued in another matter by another court
to the present action. Plaintiffs are reminded that this case is against Defendant
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Delgado and Defendant Delgado alone. Plaintiffs have not brought suit against
the Darien Police Department or the Connecticut State Police Department.
Plaintiffs have not demonstrated how the issues of what documents were
retained and produced or what document retention policies and practices were in
place at the Darien or the Connecticut State Police Departments are relevant to
demonstrating that Defendant Delgado, a Stamford Police Department Officer,
employed excessive force and engaged in an intentional infliction of emotional
distress.
To the extent that Plaintiffs’ agenda in repeatedly attempting to introduce
evidence regarding the Darien and the Connecticut State Police Departments’
failure to produce documents and their non-compliance with the Superior Court
preservation orders is to advance a “blue shield” theory and obtain an adverse
inference instruction, Plaintiffs have entirely failed to demonstrate any legal
basis whatsoever why the conduct of third parties to the action should be
attributed to Defendant Delgado and why what is really a sanction for spoliation
against the Darien Police and Connecticut State Police Departments should be
imposed against the Defendant who was an employee of the Stamford Police
Department.
Lastly, Plaintiffs argue that preservation orders themselves include a
certified copy of the Darien Police Department’s incident report, narrative and list
of officers on duty the day of the incident. Plaintiffs suggest that “using a
‘generous’ definition of relevant evidence, the incident report is directly relevant”
to the events at issue. See [Dkt. #112, Pl. Mem. at 4]. However, an independent
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and separate copy of the police incident report is already identified as a separate
exhibit in the Joint Trial Memorandum. Plaintiffs have not made any showing why
the police incident report should be introduced within the preservation orders.
Here, Plaintiffs are trying to bootstrap the preservation orders into the police
incident report in a blatant attempt to pull the proverbial wool over the Court’s
eyes. Plaintiffs have not even attempted to make a legal argument as to why the
preservation orders themselves would be relevant to demonstrate that Defendant
Delgado used excessive force and engaged in an intentional infliction of
emotional distress. Instead Plaintiffs solely argue that the police incident reports
are relevant.
Once again, Plaintiffs have failed to demonstrate that the Superior Court
preservation orders and evidence regarding the production and retention of
documents by the Darien and Connecticut State Police Departments are relevant
to demonstrate that Defendant Delgado engaged in excessive force and an
intentional infliction of emotional distress. Plaintiffs are therefore precluded from
offering evidence and testimony regarding the preservation orders and the
production and retention of documents (or failure to produce and retain
documents) by the Darien and Connecticut State Police Departments.
Accordingly, the Court grants Defendant’s motion in limine to preclude Plaintiffs
from offering the testimony of Chief Lovello, Officer Moore, Sergeant Johnson,
Mr. LaBella and the representatives of the Darien and Connecticut State Police
Departments.

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To the extent that Plaintiffs seek to call the representatives of the Darien
and Connecticut State Police Departments for the sole purpose of authentication
they may do so. In addition, the Court grants Defendant’s motion in limine to
preclude Plaintiffs from offering evidence relating to the preservation orders
including the copies of the orders.
This is now the seventh time that Plaintiffs have raised this issue regarding
the preservation orders and the retention and production of documents by the
Darien and Connecticut State Police Departments without citing any supporting
law or showing that the preservation order survived the nolle of the case in which
it was issued. As this case proceeds to trial, should Plaintiffs raise this issue for
an eighth time, the Court will seriously consider whether sanctions pursuant to
Rule 11 are warranted. The Court reminds the Plaintiffs that in the Second Circuit
sanctions are warranted where “it is clear that: (1) a reasonable inquiry into the
basis for a pleading has not been made; (2) under existing precedents there is no
chance of success; and (3) no reasonable argument has been advanced to
extend, modify or reverse the law as it stands.” Cross & Cross Properties, Ltd. v.
Everett Allied Co., 886 F.2d 497, 504 (2d Cir. 1989); see also U.S. v. Int’l
Brotherhood of Teamsters, 728 F. Supp. 924, 925 (S.D.N.Y. 1989) (expressing
concern that the motions made by one of the parties “may run afoul of Rule 11,
since they raise the exact same legal issues which I decided less than one month
ago” and concluding that “Rule 11 requires that attorneys file motions in good
faith, and such frivolous motions in the future will result in sanctions”).
ii. Deposition Transcripts
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Defendant seeks to preclude the introduction of numerous deposition
transcripts that Plaintiffs have indicated they intend to introduce at trial as
inadmissible hearsay. Under Federal Rule of Evidence 804 (b) deposition
testimony only qualifies an exception to the hearsay rule if the declarant is
unavailable as a witness. Fed. R. Evid. 804(b). Plaintiffs indicate that they intend
to introduce the deposition transcripts only for impeachment purposes or in the
event that a witness is unavailable. The Court emphasizes that the party seeking
to offer deposition testimony bears the burden of showing unavailability,
notwithstanding due diligence. See U.S. v. Amato, 3-cr-1382(NGG), 2006 WL
1788190, at *1 (E.D.N.Y. June 26, 2006). In the event a witness is unavailable,
Plaintiffs must demonstrate first that the deposition testimony is relevant and
second that it is admissible under the Federal Rules of Evidence before they will
be allowed to introduce it. Therefore to the extent that the deposition testimony
itself contains hearsay, Plaintiffs will have to demonstrate that an appropriate
hearsay exception applies. In addition, for example, if Plaintiffs attempt to
introduce deposition testimony relating to the Darien Police Department’s failure
to produce video recordings from police vehicles, since Plaintiffs have not
demonstrated that such testimony is relevant they may not introduce it even if the
declarant is unavailable.
iii. CD Recordings received from State Police on 9/20/2011
Defendant seeks to preclude a CD recording relating to the
communications between non-party police departments as irrelevant and
inadmissible hearsay. Plaintiffs argue that the CD contains eyewitness

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statements that would qualify under the present sense impression or excited
utterance exceptions to the Hearsay Rule. See Fed. R. Evid. 803(1) and (2). To
the extent that the CD contains the present sense impression or excited
utterances of eyewitnesses who observed Defendant Delgado’s use of force
against the Plaintiffs, such evidence would be relevant and admissible under the
hearsay rules. Plaintiffs may introduce only the portions of the recordings that
constitute those relevant present sense impressions and excited utterances of
the purported eyewitnesses.
iv. Unnamed Civilian Witness
Defendant has asked the Court to preclude the testimony of the witness
that Plaintiffs have listed in the Joint Trial Memorandum as an unnamed “civilian
witness.” In response, Plaintiff indicates that the unnamed “civilian witness’ is
an individual who can be heard on a CD which was produced by the Connecticut
State Police Department on September 20, 2011 and that the Plaintiffs believe that
the witness is Thomas Sniffen who is already listed as a witness in the Joint Trial
Memorandum. Plaintiffs indicate that if they determine that the individual is not
Mr. Sniffen and his identity is learned prior to trial they would want the newly
identified individual to testify at trial. The purpose of Rule 26 disclosures and
discovery in general as well the filing of the joint trial memorandum is to provide
notice to each party of the individuals who have relevant information and to
enable both sides to adequately prepare for trial. Here, it would be prejudicial to
Defendant to allow an individual who has not been previously identified to testify
at trial without affording the Defendant at least an opportunity to depose that

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individual prior to trial. Consequently, Plaintiffs must identify the unnamed
witness at least one month prior to trial to afford Defendant the opportunity to
depose the individual. If Plaintiffs fail to identify the individual one month prior
to trial, Plaintiffs will not be permitted to introduce that individual’s testimony at
trial absent good cause and undue prejudice to the Defendant.
v. Other Objections Raised in the Joint Trial Memorandum
On October 13, 2011, the Court issued an amended scheduling order in
which the Court ordered that “[a]ll new objections raised in the Joint Trial
Memorandum should be the subject of a motion in limine due by 11/30/2011.”
See [Dkt. # 102]. It does not appear that either party has complied with the
Court’s Order as there appears to be new objections raised in the Joint Trial
Memorandum that have not been briefed in a separate motion in limine. Should
the parties desire the Court to rule on these new objections they must file a joint
motion in limine by February 29, 2012. The joint motion in limine should contain
the party’s objection including citations to relevant Federal Rules of Evidence
and Second Circuit case law as well as the opposing parties’ opposition to the
objection. All objections that are not the subject of the joint motion in limine will
be deemed waived.
Conclusion
Based upon the above reasoning, the Defendant’s [Dkt. #108] motion in
limine is GRANTED IN PART and DENIED IN PART.

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IT IS SO ORDERED.

______/s/__________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: February 16, 2012

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