COUNCIL ON AMERICAN-ISLAMIC RELATIONS ACTION NETWORK, INC., et al v. GAUBATZ et al
Filing
258
MEMORANDUM OPINION AND ORDER granting in part and denying in part the Gaubatz Defendants' #247 Motions in Limine. With regard to the seven Motions in Limine contained therein, Defendants' Motion in Limine No. 4 is GRANTED; Motions in Limine Nos. 2 and 7 are DENIED; Motion in Limine No. 1 is DENIED AS MOOT; and Motions in Limine Nos. 3, 5, and 6 are GRANTED IN PART and DENIED IN PART. Signed by Judge Colleen Kollar-Kotelly on 3/26/2018. (DM) Modified event title on 3/27/2018 (znmw).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
COUNCIL ON AMERICAN-ISLAMIC
RELATIONS ACTION NETWORK, INC., et
al.,
Plaintiffs,
Civil Action No. 09-02030 (CKK)
v.
PAUL DAVID GAUBATZ, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
(March 26, 2018)
Pending before this Court are the [247] Gaubatz Defendants’ Motions in Limine
(“Motions”), containing seven motions in limine presented in summary form, and the [252]
Plaintiffs’ Responses to Gaubatz Defendants’ Motions in Limine (“Responses”), equally in
summary form. The Gaubatz Defendants (“Defendants”) did not file a reply to the Plaintiffs’
Responses. The Court will address the seven motions contained in the [247] Motions in the order
in which they were presented by Defendants.
Motion in Limine No. 1
Defendants seek to preclude Nadhira Al-Khalili, former in-house legal counsel to CAIRF, from testifying regarding the contents of the video recordings made by Chris Gaubatz. 1
Defendants rely on a stipulation proffered by Ms. Al-Khalili during her deposition that “she would
not offer any testimony regarding her viewing of the video recordings made by Chris Gaubatz.”
1
This identification of Ms. Al-Khalili’s role is taken from the [239] Joint Pretrial Statement. See
ECF No. 239 at 31.
See Motions at 2. Defendants indicate that based on that stipulation, they declined to further
question Ms. Al-Khalili regarding this topic. See id. Defendants would thus be prejudiced by their
reliance on Ms. Al-Kahlili’s stipulation if she were to testify at trial regarding the contents of the
video recordings.
Plaintiffs agree that Ms. Al-Khalili “will not testify as to her review of any of the audiovideo recordings made by Chris Gaubatz” but assert that this should not preclude Ms. Al-Khalili
from testifying as to her memory of actual events, as opposed to her review of the audio-video
recordings. See Responses at 1. Because Plaintiffs have agreed that Ms. Al-Khalili will not address
the contents of the audio-video recordings, which seems to be the focus of Defendants’ motion in
limine, Defendants’ Motion in Limine No. 1 shall be DENIED AS MOOT. Ms. Al-Khalili is not
precluded from testifying as to her memory of actual events.
Motion in Limine No. 2
Defendants request that this Court bar statements by Nihad Hammad or others on his
behalf, which claim that “CAIR is like African American Civil Rights organizations and/or Mr.
Hammad like Martin Luther King, Jr.” 2 See Motions at 3. Defendants claim that because these
statements are “emotionally loaded” and they “strongly favor” the Plaintiffs, they should be
disallowed pursuant to Federal Rule of Evidence 403, which addresses the exclusion of evidence
based on prejudice or confusion. In support thereof, Defendants cite to deposition testimony by
Mr. Hammad whereby he states that CAIR is a civil rights organization working on Muslim civil
rights, and indicates his admiration for his “role model,” Martin Luther King. See Motions at 4-5,
citing Hammad deposition.
2
Mr. Hammad is the founder of CAIR-AN and current Executive Director of CAIR-F. See Joint
Pretrial Statement at 31.
2
Plaintiffs contend that if Defendants ask CAIR witnesses about the CAIR organization and
its purposes, the witnesses should be able to respond that it is a civil rights group. The Court
declines to preclude statements by CAIR witnesses that compare the organization to other civil
rights organizations, in the context of such witnesses proffering their opinion as to the organization
and its purposes. Accordingly, Defendants’ Motion in Limine No. 2 shall be DENIED.
Motion in Limine No. 3
Defendants seek to require witnesses to refer to CAIR-F and CAIR-AN rather than CAIR
or CAIR-National, consistent with the manner in which this Court has characterized the two CAIR
entities operating out of Washington, D.C. Defendants recognize an exception for people who “do
not know the difference between the “CAIR” entities with the effect that their reference to “CAIR”
is necessarily generic.” See Motions at 7. Plaintiffs contend that this request is overly broad and
thus, unenforceable, and they assert that Defendants may question witnesses regarding any generic
reference to CAIR.
The Court finds that resolution of this motion requires an equal burden on counsel for the
parties and the witnesses. First, counsel shall attempt to structure their questions to specify the
CAIR entity at issue, if the question relates to one of the CAIR entities and not the other. Second,
the witnesses shall be instructed by counsel to make distinctions between the CAIR entities if they
are only speaking about one entity or the other, to the extent that such witnesses can distinguish
between CAIR-F and CAIR-AN in response to questions. These practices are to ensure that the
record in this case is clear and limit the number of objections at trial. The Court notes that CAIRF and CAIR-AN are the abbreviations that will be used throughout the trial. Accordingly,
Defendants’ Motion in Limine No. 3 is GRANTED IN PART AND DENIED IN PART.
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Motion in Limine No. 4
Defendants request that the Court require that non-D.C. based CAIR entities be referenced
by their location, such as CAIR-Maryland and CAIR-Virginia, in order to avoid confusion.
Plaintiffs assert that because there is no explanation offered for the request other than the need to
maintain corporate distinctions, it should be denied.
The Court finds Plaintiffs’ response to Defendants’ request non-responsive as it seems
obvious on its face that Defendants seek to avoid confusion regarding the various CAIR entities.
Nor have Plaintiffs indicated that this request imposes any undue burden on counsel or the
witnesses. Accordingly, Defendants’ Motion in Limine No. 4 is GRANTED.
Motion in Limine No. 5
Defendants request that counsel not be permitted to use “’spirited’ dialog” during
questioning, such as characterizing documents as “stolen.” See Motions at 9. In support of Motion
No. 5, Defendants provide the Court with three examples, two of which involve witness proffers
made by Plaintiffs and which use the term “stolen,” and one which states that “Chris Gaubatz was
given access to confidential, proprietary, and trade secret information about CAIR. . .,” a statement
made in the context of Plaintiffs’ motion for summary judgment. See Motions at 9-10.
Plaintiffs argue that this request not only seeks to preclude them from using the term
“stolen” when referring to the documents taken from CAIR’s offices, but it also seeks to limit the
use of other “adjectives” by Plaintiffs, who should not be expected to comply with a request that
does not specify with sufficient clarity such other adjectives. Plaintiffs argue that they should be
able to use the word “stolen” as “even Chris Gaubatz does not deny that he stole certain
documents.” See Responses at 3.
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For purposes of this Motion in Limine No. 5, the Court confines its ruling to the examples
provided by Defendants. The Court shall grant Defendants’ Motion in Limine No. 5, with regard
to prohibiting the use of the word “stolen” when discussing the documents taken by Chris Gaubatz,
because this term involves a legal conclusion and its use is prejudicial to the Defendants. With
regard to the third example provided by Defendants, which discusses “confidential, proprietary,
and trade secret information,” the Court sees no reason to prohibit Plaintiffs’ witnesses from
describing their documents in this manner, recognizing that Defendants may cross-examine such
witnesses regarding the type of documents which were taken by Chris Gaubatz.
Defendants’
Motion in Limine No. 5 is thereby GRANTED IN PART AND DENIED IN PART.
Motion in Limine No. 6
Defendants seek to prohibit generic references to “CAIR employees” by witnesses as
opposed to such witnesses specifying which employees performed which actions. Defendants
provide several examples of use of the term “CAIR employees,” in the context of Plaintiffs’
briefing on summary judgment and in certain exhibits. Defendants acknowledge however that the
terms “CAIR employees” and “CAIR staff” may be used during opening and/or closing arguments.
Plaintiffs assert that this request, as written, is too broad to be enforced, and any deficiencies can
be cured through cross-examination of a witness.
Similar to the rationale used to resolve Defendants’ Motion in Limine No. 3 herein,
resolution of this motion requires an equal burden on counsel for the parties and the witnesses to
avoid conflating CAIR employees with the CAIR entities. First, counsel shall attempt to structure
their questions to ascertain the CAIR employees who performed various actions, or to ask followup questions on direct or cross-examination to clarify which CAIR employees are responsible for
which actions. Second, witnesses shall be instructed by counsel to specify the CAIR employees’
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names instead of using the generic term “CAIR employees,” when they have such knowledge, in
response to questions. These actions will aid in limiting objections at trial and help to ensure that
the record in this case is clear. Accordingly, Defendants’ Motion in Limine No. 6 is GRANTED
IN PART AND DENIED IN PART.
Motion in Limine No. 7
Defendants request that the Court pre-instruct the jury that there are no claims for libel,
slander, or reputational damage, on grounds that the jury will be confused if there is no preinstruction because “[t]his case seems like a libel/slander case to the average person.” See Motions
at 13. Plaintiffs argue that such “pre-instruction” will “prime the jury into believing that the
unfounded allegations made against CAIR are in fact true, based on the ‘absence of allegations of
libel/slander.’” See Responses at 4.
The Court finds that it would confuse the jury to pre-instruct them about claims that do not
exist in this case and thus, declines to give such pre-instruction, and therefore, Defendants’ Motion
in Limine No. 7 is DENIED. The Court does caution the parties not to use words such as libel or
slander or reputational damage during opening, closing or in questioning witnesses as this case
does not involve those claims, and those words have a legal meaning. Accordingly, it is this 26th
day of March, 2018, hereby
ORDERED that Defendants’ [247] Motions in Limine is GRANTED IN PART and
DENIED IN PART.
Specifically, Defendants’ Motion in Limine No. 4 is GRANTED;
Defendants’ Motions in Limine Nos. 2 and 7 are DENIED; Defendants’ Motion in Limine No. 1
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is DENIED AS MOOT; and Defendants’ Motions in Limine Nos. 3, 5, and 6 are GRANTED IN
PART AND DENIED IN PART.
___________/s/_________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
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