SABRE INTERNATIONAL SECURITY v. TORRES ADVANCED ENTERPRISE SOLUTIONS, LLC

Filing 445

MEMORANDUM OPINION to the Order on the Motions in Limine. Signed by Judge Gladys Kessler on 10/30/14. (CL, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SABRE INTERNATIONAL SECURITY,
Plaintiff,

v.

Civil Action No. 11-806 (GK)

TORRES ADVANCED ENTERPRISE
SOLUTIONS, LLC, et al.,
Defendants. ·

MEMORANDUM OPINION

Pending

before

filed by Plaintiff
six

Motions

Enterprise

in

the
Sabre

Limine

Solutions

Court

are

twelve

International
filed

by

("Torres") . 1

Motions

Security

Defendant
Upon

in

Limine

("Sabre")

Torres

and

Advanced

consideration

of

the

Motions and Responses, and the entire record herein, and for the
reasons stated below, the Court rules as follows.
SABRE'S MOTIONS IN LIMINE
I.

Sabre's Motion in Limine to Exclude Torres' Spreadsheet of
Alleged Costs Incurred [Dkt. No. 390] ("Sabre's Motion in
Limine No. 1")

Sabre's

Motion

in

Limine

No.

1

seeks

to

exclude,

as

hearsay, four versions of a financial spreadsheet Torres used to
track
1

payments

it

made

to

Sabre

and

expenses

it

allegedly

In accordance with the Pretrial Order entered on August 26,
2014 [Dkt. No. 382], the parties filed their Motions in Limine
on September 9, 2 014 [Dkt. Nos. 3 85-4 03] and their respective
Oppositions on September 23, 2014 [Dkt. Nos. 411-428] .

incurred on Sabre's behalf (the "Tracking Sheet") . 2

Torres

contends

both

that

the

Tracking

business record under Fed.

Sheet

R.

is

admissible

Evid.

803(6)

as

a

and as a summary of

voluminous writings under Fed. R. Evid. 1006.
A.

The

Rule 803{6)

"business

record"

rule

creates

an

hearsay rule for a "record of an act, event,

exception

to

the

condition, opinion

or diagnosis" if:
(A) the record was made at or near the time by - or
from
information
with
transmitted
someone
by
knowledge;

(B) the record was kept in the course of a regularly
conducted
activity
of
a
business,
organization,
occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of
the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12)
or with a statute permitting certification; and
(E) the opponent does not show that the source
information
or
the
method
or
circumstances
preparation indicate a lack of trustworthiness.

of
of

Fed. R. Evid. 803(6).

2

The four versions of the Tracking Sheet at issue are dated
between October 20, 2010, and January 7, 2011, Pl.'s Mot. at 1,
and contain entries dated from January 1, 2010, to December 31,
2010. See generally id. Exs. 1-4.
-2-

Sabre's primary argument against admission of the Tracking
Sheet is its contention that Torres created the Tracking Sheet
in anticipation of litigation and not as a "regularly conducted
activity."

Pl.'s Mot. at 2. 3

Torres claims,

however,

that it created the Tracking Sheet

before it was on notice of any legal action.
It has submitted the Declaration of its
Officer

( "CFO") ,

Kathryn

Jones,

who

Def.'s Opp'n at 1.

former Chief Financial

explains

that

she

created

the Tracking Sheet on or around August 27,

2010,

as an "ongoing

accounting

that

were

being

above normal business operating expenses."

See

Kathryn
Jones
Torres

of

Jones

states
[]

to

extraordinary

("Jones
that

Decl.")

"[i] t

track

expenses

[the]

was

<JI

the

4

regular

expenses

3

Ex.

2

Declaration of

[Dkt.

business

[included

in

incurred

No.

427-1].

practice
the

of

Tracking

Sabre is correct that business records created for purposes of
litigation
do
not
satisfy
Rule
803 (6)
because
they
are
inconsistent with one of the central assumptions behind the
exception: that "the employees who generate [business records]
have a strong motive to be accurate and none to be deceitful."
Certain Underwriters at Lloyd's, London v. Sinkovich, 232 F. 3d
200,
205
(4th Cir.
2000).
Therefore,
records created in
anticipation of litigation do not fall within the business
records
exception because
they are
not created "for the
systematic conduct and operations of the enterprise but for the
primary purpose of litigating."
Id.; see also United States v.
Feliz, 467 F.3d 227, 234 (2d Cir. 2006) ("We know that because
Rule 803(6) requires business records to be kept in the regular
course of a business activity, records created in anticipation
of litigation do not fall within its definition.").

-3-

Sheet]

in order to support variance analysis for the company's

financial

statements"

and

in

situations

issues with a subcontractor arose."
expressly

denies

anticipation
<]I

of

that

the

Id.

Tracking

litigation or

for

a

<]I

where

"performance

Furthermore,

4.

Sheet

was

litigious

prepared

she
"in

purpose."

Id.

5.

Based on this
April

Declaration,
29,

2011,

and because this

filed

until

approximately

Jones

claims to have created the

case was

not

nine

months

after

Tracking Sheet,

Torres

shall

have the opportunity at trial to demonstrate that the Tracking
Sheet

was

not

created

in

anticipation

admissible as a business record.

of

litigation

and

is

Sabre's Motion to exclude the

Tracking Sheets under Rule 803(6) shall therefore be denied.
B.

Rule 1006

Torres also argues that the Tracking Sheet is admissible
under Rule 1006, which permits the use of a "summary, chart, or
calculation" to prove the content of "voluminous writings
that cannot be conveniently examined in court."
1006.

"For

a

summary

of

documents

to

be

Fed.

R.

admissible,

Evict.
the

documents must be so voluminous as to make comprehension by the
jury difficult and inconvenient;
be admissible;

the documents themselves must

the documents must be made reasonably available

-4-

for

inspection

and

copying;

the

summary must

be

accurate

and

nonprejudicial; and the witness who prepared the summary should
introduce it."

United States v.

Fahnbulleh,

(D.C. Cir. 2014)

752 F.3d 470,

479

(citation omitted).

Torres contends that it "has underlying documentation for
amounts reflected in the spreadsheet,
receipts and invoices."
Daniel

Cotter

Consequently,

Def. 's

Decl.")

("Cotter
Torres

Opp~

shall

have

including wire transfers,
n at 2;
3

the

see also Decl.

[Dkt.

opportunity

No.
at

of

427-6].
trial

to

demonstrate that the Tracking Sheet is admissible as a summary
of voluminous records pursuant to Fed. R. Evid. 1006. 4
For

both

of

the

foregoing

Limine No. 1 shall be denied.

reasons,

Sabre's

Motion

in

However, the Tracking Sheet shall

not be admitted into evidence unless and until Torres has laid
the

proper

foundation

at

trial

testimony of former CFO Jones,
4

by

establishing,

through

the

current CFO Cotter, or any other

Sabre contends that the Tracking Sheet is inaccurate because it
commingles TWISS I and TWISS II costs.
Pl.'s Mot. at 4.
The
Tracking Sheet does not, however, purport to be limited to TWISS
II expenses.
Thus, the inclusion of TWISS I costs does not
render it inaccurate; it merely reflects that the Tracking Sheet
includes information that may not be relevant to Sabre's claims.
Sabre also contends that other entries in the Tracking Sheet are
inaccurate, but in support of this assertion, it misquotes CEO
Jerry Torres' deposition testimony.
Jerry Torres did not
testify that the Tracking Sheet was erroneous; he testified that
"I do not know [why certain charges were included] .
You have to
ask [CFO] Kathy [Jones]." Pl.'s Mot. Ex. 30 at 314:7-8.
-5-

qualified witness,
all

of the

and any necessary documentary evidence,

requirements

of Rule

803(6)

and/or

Rule

that

1006 have

been met.
II.

Sabre's
Motion
in
Limine
to
Exclude
Torres
from
Introducing Evidence of TWISS II Equipment Purchases or
Sabre's Performance Deficiencies [Dkt. No. 392] ("Sabre's
Motion in Limine No. 2")

Sabre's

Motion

in Limine

No.

2

seeks

to

exclude

Torres

from introducing any evidence that it breached its contractual
obligation to provide adequate equipment for the Team's TWISS II
Task

Orders.

Sabre

argues

that

Torres

is

estopped

from

challenging the adequacy of such equipment because it invoiced
the Government for the full amount due on each Task Order,
representing

that

including

Sabre's

See

Mot.

Pl.'s

at

all

aspects

provision
2.

of

Sabre

of

the

Team's

equipment

also

argues

performance

was
that

thus

satisfactory.

Torres

has

not

presented evidence of any expenses incurred as a result of any
equipment deficiencies.

Id. at 3.

It is well established that "motions in limine are a means
for arguing why

'evidence should or should not,

for evidentiary

reasons, be introduced at trial'" and "are not another excuse to
file

dispositive

Graves v. D.C.,
added)

motions

disguised

as

850 F. Supp. 2d 6, 10-11

( citations omitted) .

motions

in

limine."

(D. D.C. 2011)

(emphasis

In other words,
-6-

a Motion in Limine

is

not

a

"vehicle

sufficiency of
what

the

Sabre asks

excluding

all

obligations

for

a

party to

evidence [,]"

the

Court

evidence

to

provide

to

ask

the

Court

at

11,

which

id.

do

that

as

a

it

basis

for

breached

to weigh
is

precisely

categorically
contractual

its

equipment. 5

satisfactory

the

Therefore,

Sabre's Motion in Limine No. 2 shall be denied.

III.

Sabre's
Motion
in
Limine
to
Exclude
Torres
from
Introducing Evidence of Alleged Costs for Vehicles or
Sabre's Performance Deficiencies in Providing TWISS II
Vehicles [Dkt. No. 393] ("Sabre's Motion in Limine No. 3")
Sabre's

Motion

in

Limine

No.

3

seeks

to

exclude

all

evidence relating to any "offset or defense to Sabre's Count 2
claims,

including

the

defense

that

Sabre

allegedly

failed

perform all of Sabre's contract obligations to Torres
to

vehicles."

Pl.'s

Limine No.

2,

claim that

Sabre

Mot.

at

1.

As

with

Sabre's

to

relating

Motion

in

this Motion is directed at the merits of Torres'
failed

to

provide

satisfactory vehicles,

and

the sufficiency of evidence to support that claim,

rather than

any

is

5

specific

admissibility

issues.

Therefore,

it

not

the

Furthermore,
contrary to Sabre's contention,
Torres has
presented evidence that it purchased equipment after concluding
that Sabre's equipment was inadequate.
For example, Torres has
presented documentary and testimonial evidence that Sabre failed
to provide uniforms, boots, body armor, vehicles, and other
equipment it was contractually required to provide under the
Teaming Agreement, and that Torres purchased and provided such
equipment after concluding that Sabre had not satisfactorily
done so.
See Def.'s Opp'n Exs. 1-9 [Dkt. No. 413].
-7-

proper subject of a motion in limine.

See Graves,

850 F.

Supp.

2d at 10-11.
Furthermore,
contrary

to

as

Sabre's

already

noted

contention,

in

Torres

footnote

has

5

presented

supra,
evidence

that Sabre failed to provide serviceable vehicles in accordance
with

its

obligations

make up for

Sabre's

lease

vehicles

extra

Def.'s
Dyer)

Opp'n

Ex.

1

at 74:21-75:3

under

the Teaming Agreement

failures,
to

it was

satisfy

(Rule

the

30(b)(6)

and that,

to

required to purchase and
Government.

deposition

tr.

See,
of

e.g.,
Rebekah

("[W]e bought new vehicles to replace ones

that Sabre tried to pass off as new to the government because
they actually complained about the quality of the vehicles.") ;
id. Ex. 4 (deposition tr. of Jerald Barnes) at 74:9-14
the Victory Base Complex we had to lease vehicles.
us

a

broke-down

inspection[.]")

truck

[Dkt.

that

No.

wouldn't

415].

Finally,

have

passed

("Even at
Sabre gave
anybody's

Sabre admits that the

record includes evidence of "vehicle deficiencies at some sites
on some days."

Mot. at 4.

For these reasons,

Sabre's Motion in Limine No.

denied.

-8-

3 shall be

IV.

Sabre's
Motion
in
L~ine
to
Exclude
Torres
from
Introducing Evidence of Alleged Uniform Purchases or
Sabre's
Performance Deficiencies in Providing TWISS II
Uniforms [Dkt. No. 394] ("Sabre's Motion in Limine No. 4")

Sabre's
evidence

Motion

or

in

argument

Limine

that

No.

Sabre's

4

seeks

provision

to

any

uniforms

of

exclude

for

TWISS II Task Orders was deficient.

Sabre contends that Torres

has

failed

to

Mot.

at 1.

proper

to

present

any

evidence

As discussed above,

vehicle

to

address

support of a claim.

the

Moreover,

support

such

a

claim.

a motion in limine is not the
sufficiency of

the

evidence

in

contrary to Sabre's assertions,

Torres has presented evidence that it purchased uniforms Sabre
failed

to provide.

See

supra

note

Consequently,

5.

Sabre's

Motion in Limine No. 4 shall be denied.
V.

Sabre's
Motion
in
L~ine
to
Exclude
Torres
from
Introducing Evidence of Alleged Payments of Third Country
National Guard Salaries [Dkt. No. 395] ("Sabre's Motion in
L~ine No. 5")

Sabre's
from

Motion

introducing

National

("TCN")

to provide.

Limine

evidence

No.

that

it

5

seeks
paid

to
for

exclude
Third

Torres
Country

guard services Sabre was contractually required

To the extent Sabre seeks to categorically exclude

such evidence,
as

in

Motion Nos.

the Motion shall be denied for the same reasons
2-4:

first,

that

a

Motion in Limine

proper vehicle to argue the merits of a claim,
-9-

is

not

a

and second, that

Torres

has

produced evidence

that,

as

shortages and other performance issues,
services

even

allocated to

though
Sabre.

that
See

a

result

of

TCN

guard

it paid for TCN guard

responsibility

Def.'s Opp'n at

was
Exs.

contractually
1-8

[Dkt.

No.

argument

that

the

416] .
Sabre

also

Tracking Sheet

makes

a

more

specific

in particular must be excluded as

evidence of

Torres' TCN guard costs because it includes guard costs for Task
Orders

not

at

issue

in

this

case,

specifically TWISS

I

Task

Orders and the FOB Cruz Morris Task Order, which was a TWISS II
Task Order in which Sabre was not involved.

Pl.'s Mot.

at 1-4.

Sabre argues that such costs are irrelevant and their inclusion
in the Tracking Sheet renders it "erroneous," "inaccurate," and
likely to be unnecessarily confusing to the jury.

Pl.'s Mot. at

1-3.

Torres argues,

by contrast,

that

inclusion of TCN guard

costs incurred at FOB Cruz Morris is appropriate because it "is
entitled to seek these costs given Sabre's anticipatory breach
and repudiation of its obligations under the Teaming Agreement,
causing Torres
and stand-up

[]

to take over TWISS II operations and bid for

[i.e.,

equip the Task Order site at]

without Sabre's involvement."

Def.'s Opp'n at 4.
-10-

Cruz Morris

As both sides agree,

damages

in connection with TWISS

Task Orders are not at issue in this case.
Limine No.

1 at 1-2

[Dkt.

No.

385].

See Def. 's Mot.

Therefore,

I
in

any expenses

Torres paid for TWISS I TCN guard services are not relevant and
shall

not

However,

be

because

anticipatorily
provide

admitted
Torres

breached

adequate

Orders

at

TCN

trial.

has

including at

asserted

the

guard

See

Teaming
force

Fed.

a

R.

services

for

Sabre

failing

TWISS

II

to
Task

TCN

guard costs

resulting from the alleged anticipatory breach at

Cruz Morris

are

relevant.

Moreover,

the

entries

its

by

402.

that

defense

Agreement

FOB Cruz Morris

Evid.

for

TCN

guard

costs

at

TWISS II sites at which Sabre did participate are also relevant.
Because
relevant,

some

of

the

entries

in

the

Tracking

Sheet

are

exclusion of the entire document is only appropriate

if its probative value is "substantially outweighed" by a danger
of

unfair

prejudice,

jury

confusion,

undue

delay,

or

the

needless presentation of cumulative evidence" resulting from the
inclusion of irrelevant entries.

See Fed.

R.

Evid.

This

403.

standard is not met.
First,

Sabre

has

not

explained

why

redaction

entries related to the TWISS I costs is not sufficient,
than exclusion of the entire document.
-11-

Second,

of

the

rather

Sabre has only

identified

a

handful

redaction,

confusing

to

examination
the

specific

a

items

in

the

Tracking

Sheet

2.

Even

these entries are not

so numerous

as

to be

jury.

may,

I

and the

TCN costs.

use

expenses

reducing the
seek

the

line

at

pertaining to TWISS
without

of

Third,
of

that

chance of any

jury instruction

See P 1 . ' s

Sabre

demonstrative
are

not

at

Mot .

evidence

issue,

jury confusion.

instructing

the

through
-

cross-

highlight

thereby

Fourth,

jury that

further

Sabre may
it may not

consider TWISS I costs as evidence.
In

sum,

entirety as
entries

the Tracking Sheet

evidence

related

to

of

shall not be excluded in its

Torres'

Torres'

TCN guard costs;

TWISS

I

TCN

guard

however,

costs

the

shall

be

redacted and excluded.
For the foregoing reasons,

Sabre's Motion in Limine No.

5

shall be granted in part and denied in part.
VI.

Sabre's
Motion
in
Limine
to
Exclude
Torres
Introducing Evidence of Medical Costs [Dkt. No.
("Sabre's Motion in Limine No. 6")
Sabre's

Motion

in

Limine

No.

6

seeks

to

exclude

from
396]

Torres

from introducing any evidence that it paid for medical services
Sabre

was

contractually obligated to

provide.

Sabre

contends

that Torres has not presented evidence to support such a claim.
Pl.'s Mot. at 1.

-12-

As

with

Motion

Nos.

2-5,

a

motion

in

limine

is

not

a

proper vehicle to address the sufficiency of evidence underlying
a

claim.

has

Furthermore,

produced

result
TWISS

of

evidence

Sabre's

of

medical

allegedly

II Task Orders.

418] .

contrary to

Therefore,

Sabre's

assertions,

expenses

deficient

it

incurred

performance

See Def.'s Opp'n at Exs.

Sabre's

Motion

in

Limine

Torres

on

1-4

No.

as

certain

[Dkt.

6

a

shall

No.
be

denied.
VII.

Sabre's
Motion
in
L~ine
to
Exclude
Torres
from
Introducing Evidence of Alleged Damages Relating to the
FOB Adder, Cruz
Morris, Doura, Cobra, Bucca, and Ramadi
Task Order Competitions [Dkt. No. 397]
("Sabre's Motion
in L~ine No. 7")

Sabre's

Motion

in

Limine

No.

7

seeks

from introducing "evidence of any alleged
or 'lost profits'

to

exclude

'breach of contract'

relating to its Forward Operating Base

("FOB")

Adder Task Order Counterclaim,

or alleged br.eaches

FOB Cruz Morris,

and Ramadi Task Orders."

Doura,

Cobra,

Torres

relating· to
Pl.'s

Mot. at 1.
Sabre's Motion is again directed to the merits of Torres'
claims and the sufficiency of the evidence to prove them,
than

the

admissibility

Pl.'s Mot.

at

any

'breach'

Sabre

3

of

any

("Torres has
or

loss

specific
no

reasonable basis

relating

-13-

evidence.

to

the

FOB

See,
for

rather
e.g.,

claiming

Cruz

Morris

competition.") ; id.

("Torres also has not produced or identified

any documentary evidence in support of these breach claims.") .
As

explained

repeatedly above,

appropriate

vehicle

to

seek

not

at

issue

in

motion

in

dispositive

Moreover,

sufficiency of evidence.
are

a

Sabre's

limine

relief

is

not

based

the

on

the

although these Task Orders

claim

for

breach

of

contract

in

Count 2, they are relevant to Torres' counterclaim for breach of
contract.
Consequently,

Sabre's

Motion

in

Limine

No.

7

shall

be

denied.
from
Torres
VIII. Sabre's
Motion
in
Limine
Exclude
to
of
Introducing
the
Evidence
of
Alleged
Termination
Parties' Teaming Agreement [Dkt. No. 398] ("Sabre's Motion
in Limine No. 8")

Sabre's

Motion

in

Limine

No.

8

seeks

to

exclude

"any

evidence or argument at trial of an alleged termination of the
parties'

Teaming Agreement[.]"

Pl.'s Mot.

at 1.

To the extent

this Motion seeks to categorically exclude any and all evidence
claim

that

Torres'

terminated,

that request shall be denied for the reasons stated

throughout this Memorandum Order:
proper

vehicle

to

seek

disposal

defense.

-14-

Teaming

the

Agreement

was

supporting

a Motion in Limine is not the
of

a

substantive

claim

or

Sabre also seeks to exclude a

specific letter terminating

the Teaming Agreement, which Torres claims to have sent to Sabre
on

or

around

September

30,

2010

(the

"Termination

Letter").

Sabre claims that the Termination Letter is inadmissible because
Torres
See

has

not

presented any

Pl.'s Mot.

at

evidence

Contrary to

1-3.

that
this

it

was

ever

assertion,

there

Torres'

evidence that the Termination Letter was sent:

sent.
is

former

Vice President Rebekah Dyer testified that she sent the letter
via Federal Express.
deposition tr.
Letter was

Pl.'s Mot.

at 194:5-7) . 6

not

sent,

at 2

&

Moreover,

Sabre has

not

Ex.

5

(Dyer R.

30(b)(6)

even if the Termination

identified any evidentiary

principal requiring its exclusion on that basis alone.
Sabre

also

excluded because

contends
it

is

that

the

hearsay.

Termination
The

hearsay

Letter must
rule

be

applies

to

statements that "a party offers in evidence to prove the truth
of

the

matter

801(c)(2).
for

its

asserted

truth

6

1369,

the

statement."

Fed.

R.

Evid.

It does not apply to evidence that is not offered
but

for

party's state of mind.
F.3d

in

1374

(D.C.

another

purpose,

See Whitbeck v.
Cir.

1998)

such

as

to

Vital Signs,

(holding

that

prove
Inc.,

"[w]e

have

a

159
no

Sabre argues that Dyer's testimony lacks "credibility" due to
the absence of any Federal Express records establishing that the
letter was mailed.
Dyer's credibility is an issue for the jury.
-15-

doubt that the magistrate judge erred in excluding" out of court
statement that "would have explained [plaintiff's] state of mind
[and] was relevant for this non-hearsay purpose") .
In addition,

it is well-established that the hearsay rule

does not apply to "verbal acts" or out-of-court statements that
have

"independent

Stover,

legal

329 F.3d 859,

significance."

870

See

(D.C. Cir. 2003)

United

States

v.

(noting that "verbal

acts" and "statements that have independent legal significance"
are not hearsay)
Corp.

v.

(lOth

Household

Cir~

"where

(citation omitted);

the

2001)

Retail
(holding

out-of-court

Servs.,
that

see also Echo Acceptance

Inc.,

hearsay

statement

267

F.3d

rule

is

actually

1068,

1087

inapplicable

'affects

the

legal

rights of the parties, or where legal consequences flow from the
fact that the words were said'")

(citation omitted).

To the extent the Termination Letter is offered for a nonhearsay purpose,
example,

it need not be excluded under Rule 802.

For

Torres may attempt to demonstrate that the Termination

Letter terminated the parties' contractual relationship, thereby
having

independent

Investments,
Cir.

1999)

"contractual

legal

significance.

Inc. v. Berg Prod.

Design,

Inc.,

See

Remington

172 F.3d 876

(9th

(holding that hearsay rule was "not implicated" by
documents").

Moreover,
-16-

Torres

has

asserted

a

defense

of

accord

and

satisfaction,

which

requires

it

to

establish the existence of a bona fide dispute as to amounts due
under

the

Teaming

Agreement.

The

fact

that

Torres

wrote

a

letter purporting to terminate the Teaming Agreement is evidence
that it believed there was a dispute,

separate and apart from

whether

assertions

any

Termination
Limine No.

of

the

Letter

specific
are

factual

true.

Therefore,

made

Sabre's

in

Motion

the
in

8 to exclude the Termination Letter shall be denied

to the extent Torres seeks to admit the Termination Letter for
any non-hearsay purposes. 7
Torres

also

argues

that

admissible for hearsay purposes,
of

the

first,

statements

made

the
i.e.,

therein.

It

Termination

Letter

is

as evidence of the truth
advances

two

arguments:

that the Termination Letter is admissible as a "business

record" under Rule 803(6), and second,

that it is admissible as

a prior consistent statement under Rule 801(d) (1) (B).
As

discussed,

to

satisfy the

business

record exception,

Torres must establish that the Termination Letter "was kept in
the course of a
[such

a]

record

803(6) (B)-(C).
7

regularly conducted activity" and that "making
was

a

regular

Furthermore,

practice[.]"

to be admissible,

Fed.

R.

Evict.

the record must

The Court emphasizes, however, that all evidence is subject to
the authenticity requirements of Rule 901(a).
-17-

be

"typical

of

entries made

systematically or

as

a

matter

of

routine to record events or occurrences, to reflect transactions
with

others,

or

to

provide

internal

controls."

Palmer

v.

Hoffman, 318 U.S. 109, 113 (1943).
Torres has presented the Declaration of its current Chief
Financial Officer,
regular

business

Daniel P.
practice

Cotter, who states that "[i]t is a
of

Torres

[]

to

conclude

relationships with others when appropriate."
Ex.

3

(Decl.

shows

of Daniel P.

that

Cotter)

Torres

sometimes

it

relationships;

not

does

4.

<J[

See Def.'s Opp'n

This testimony merely

terminates

establish

business

that

business

its

it

"routinely"

or

"systematically" does so through letters of termination or that
the

Termination

Letter

at

issue

is

routinely used in other circumstances.
Consequently,

Torres

has

not

"typical"
Palmer,

demonstrated

of

letters

318 U.S. at 113.

that

Rule

803 ( 6) (B)

and (C) are satisfied.
Second,

Torres

admissible as a
permits

the

argues

that

the

Termination

prior consistent statement.

introduction of

such

statements

Letter

is

Rule 801 (d) (1) (B)
if

the

testifies and is subject to cross-examination about

"declarant
[the]

prior

statement, and the statement" is "offered to rebut an express or
implied

charge

that

the

declarant
-18-

recently

fabricated

it

or

acted

from

a

recent

testifying [.]"
Torres
'recently
De f . ' s

improper

influence

or

motive

is

correct

fabricating'

Opp' n

at

that
that

Sabre
a

has

"Ms.

Dyer

of

Termination

However,

1-2.

accused

the

Letter

Rule 801 (d) (1) (B)

was

"declarant"
not Ms.

sent."
of

the

Dyer,

as

See Pl.'s Mot.

it is his signature that appears at the bottom.
2 at 5.

so

Fed. R. Evid. 801 (d) (1) (B).

Termination Letter is Torres CEO Jerry Torres,

Ex.

in

does not authorize the use of a

prior consistent statement of one witness to rebut a charge that
a

See Fed.

different witness is fabricating her testimony.

Evid.

801 (d) (1) (B)

been made

by

the

R.

(requiring prior consistent statement to have
same

"declarant"

accused

of

fabricating

her

testimony) .
Moreover,

the only part of the Termination Letter that is

"consistent" with Dyer's testimony is a line at the top of one
of the earlier versions of the Termination Letter stating that
it

was

sent

"VIA FEDERAL EXPRESS AND

deleted

in

Torres'

Opposition,

sent.

Thus,

the

version

of

which

the
is

E-MAIL."

Termination

the

version

This

Letter
Dyer

line was

attached

claims

to

to

have

the Termination Letter on which Torres relies does

not include any reference to the method of transmission and is
not,

therefore,

consistent with Dyer's testimony that

-19-

she sent

the Termination Letter by Federal Express.

See Torres'

Opp' n

Ex. 1 [Dkt. No. 426-1].
Finally,

even if Torres

sought

to

introduce

the

earlier

version of the Termination Letter stating that it has been sent
"VIA FEDERAL EXPRESS AND E-MAIL," Dyer testified that she only
sent the Termination Letter by Federal Express,
Pl.'s Mot.

Ex.

5

(Dyer R.

30 (b) (6)

not email.

deposition tr.

See

at 194:2-4).

Therefore, the earlier version of the Termination Letter is not,
in fact,
these

For all of

entirely consistent with Dyer's testimony.

reasons,

the

Termination Letter is

not

admissible

under

Rule 801 (d) (1) (B).
Sabre's Motion in Limine No. 8 shall be granted insofar as
it seeks to exclude the Termination Letter for the truth of the
statements made therein and otherwise shall be denied.
IX.

from
Sabre's
Motion
in
Limine
Exclude
Torres
to
Introducing
Alleged
Evidence
or
Argument
of
any
Impropriety of Sabre's Proposed Pricing for TWISS II Task
Orders [Dkt. No. 399] ("Sabre's Motion in Limine No. 9")

Sabre's
"evidence

or

Motion

in

argument

Limine
at

trial

No.
of

9

seeks

any

to

alleged

exclude

any

impropriety

relating to Sabre's pricing proposals for TWISS II Task Orders"
on

the

basis

that

"[s]uch

claims

are

unsubstantiated

irrelevant" and should be excluded under Rule 403.

-20-

and

Contrary to Sabre's contention,
documentary

and

testimonial

evidence

proposals were uncompetitive.
testimony and emails
high.

Torres has presented both
that

Sabre's

pricing

Such evidence includes deposition

complaining that

Sabre's prices

were

too

See Pl.'s Mot. at 1 & Exs. 2-3; Def.'s Opp'n at 2.
This evidence is highly relevant to several issues at the

heart of this case.

First, it is relevant to explain why Torres

objected to Sabre's prices and ultimately reduced such prices in
Second,

the Team's proposals to the Government.
to Torres'
to

claim that Sabre breached its contractual obligation

provide

Section

it is relevant

Torres

with

5.2(A) (3)

relevant

to

parties

for

of

whether

"most

the
a

bona

purposes

satisfaction.

In

of

sum,

pricing proposals

were

favored

Teaming
fide

too

dispute

high

or

existed

defense

that

pricing
Third,

Agreement.

Torres'

evidence

customer"

Torres

of

it

is

between

the

accord

and

believed

not competitive

relevant and not unfairly prejudicial,

under

is

Sabre's
highly

and therefore shall not

be excluded under Rules 402 or 403.
Sabre

also

contends,

introduce testimony that
Sabre's

pricing

as

however,

Government

"fraudulent"

and

that

Torres

officials

-21-

seek

to

complained about

"unethical."

clear from Torres' Opposition whether it will,

will

It

in fact,

is

not

seek to

introduce

such

testimony

testimony will be.

or,

if

so,

Consequently,

what

the

basis

of

such

if Torres seeks to introduce

such testimony, it shall be required to lay a foundation for the
admissibility
objections.

of

such

evidence

and

overcome

any

hearsay

Moreover, because such testimony, even if otherwise

admissible, may be unfairly prejudicial

(or,

alternatively, may

be highly probative), Sabre may renew its Rule 403 objection at
that time.
For the foregoing reasons, Sabre's Motion in Limine No.
shall

be

denied without prejudice

as

to

any

testimony

9

about

Government officials' view of Sabre's prices as "fraudulent" or
"unethical" and shall otherwise be denied.
X.

Sabre's
Motion
in
Limine
to
Exclude
Torres
from
Introducing
Evidence,
Representations
of
Counsel
or
Argument of Investigations or A2leged Criminal Misconduct
of Sabre or Members of the Sabre Executive Group [Dkt. No.
400] ("Sabre's Motion in Limine No. 10")

Sabre's Motion in Limine No.
relating to:
( "DCAA")

(1)

10 seeks to exclude evidence

an audit by the Defense Contract Audit Agency

of another Government contract involving Sabre that is

unrelated to this case

(the "IRD Audit");

(2)

a

DCAA audit of

Sabre's invoices for the TWISS program, which is referred to in
an August 30, 2010, letter from Torres CEO Jerry Torres to Sabre
CEO

Frank

McDonald

(the

"DCAA
-22-

TWISS

Audit");

and

(3)

any

evidence

that

management

either

team

misconduct.

Sabre

were

or

members

investigated

of

for

civil

Sabre seeks to exclude this

executive

its

criminal

or

evidence as

hearsay,

lacking in foundation, and unfairly prejudicial under Rule 403.
The

Court

has

already

ruled

that

relevant, and Torres has stated that it
[that]

ruling."

Def.'s Opp'n at 1

the

IRD Audit

~will

is

not

of course abide by

[Dkt. No.

419].

Therefore,

Sabre's Motion is granted insofar as it seeks exclusion of the
IRD Audit.
As

to

the

DCAA TWISS Audit,

audit was conducted.

Torres

Def. 's Opp'n at

admits

1

Ex.

&

that

1.

no

such

Therefore,

Sabre's Motion shall be denied as moot.
Torres has,

however,

presented evi'dence of audits by the

Defense Contract Management Agency

regarding the Team's

(~DCMA")

performance of TWISS Task Orders,

which led to the issuance of

several

~corrective

~Letters

of Concern" and

See Def.'s Opp'n Exs. 2-5.
by

the

Government

are

These audits and the related actions
directly

relevant

adequately performed its TWISS obligations.
are

potentially

permits
~matter

the
[s]

admissible

introduction
observed

while

Action Requests."

under

of

Rule

public

under
-23-

a

whether

Sabre

Furthermore,

803(8) (A) (iii),

records
legal

to

if

duty

they
to

they
which

set

out

report"

and

"factual findings
"neither

the

indicate

a

from a

source
lack

legally authorized investigation" and

of

information

other

trustworthiness."

of

803 (8) (A) (ii)- (iii),

nor

(B).

Therefore,

circumstances

Fed.

Evid.

R.

to the extent Sabre seeks

to exclude evidence of the DCMA TWISS audits,

that request is

denied without prejudice.

Finally, neither party has presented any evidence of civil
or criminal misconduct.
to

exclude

evidence

Consequently, to the extent Sabre seeks
of

criminal

or

civil

misconduct,

that

request is also denied without prejudice.
For the foregoing reasons, Sabre's Motion in Limine No. 10
shall be granted in part and denied in part.
XI.

.

\

Sabre's Mot1on in Limine to Exclude Torres'
Proposed
Trial
Baryamujuru
Exhibit
No.
412
(Declaration
of
("Moses") Matsiko)
[Dkt. No. 401]
("Sabre's Motion in
Limine No. 11")

Sabre's

Motion

in

Limine

No.

11

seeks

Declaration allegedly executed by Baryamujuru
on January 27,

2014

to

exclude

("Moses")

Matsiko

(the "Torres Matsiko Declaration"),

accompanying letter of the same date

a

and an

(the "Watertight Letter"),

stating that "[a]ll monies relating to TWISS I and TWISS II have
been paid in full to Watertight Services."
an

affiliate

of

Pinnacle

Security/Pinnacle

-24-

Watertight Services,
Group,

is

a

guard

force company located in Uganda,
the TWISS program.
Although

which supplied TCN guards for

Matsiko is its Chief Executive Officer.

Sabre

has

not

authenticity of the Torres Matsiko
exclusion,
purportedly

it

has

signed

submitted
by

a

Moses

Declaration as
different

Matsiko,

the

challenged

directly

a

basis

also

Declaration,

which

states

for

that

the

Watertight Letter ·and the Torres Matsiko Declaration are "false"
and a "forgery" and that "both Torres [] and Sabre owes [sic] us
money and its extremely shocking and bizarre that I would say,
write, swear or even think otherwise."

Pl.'s Mot. Ex.

2

(Decl.

of Baryamujuru Matsiko, dated Mar. 17, 2014) ~~ 4-6. 8
Sabre contends that the Torres Matsiko Declaration and the
Torres has made

Watertight Letter must be excluded as hearsay.
clear,
Matsiko
the

however,

it

Declaration as

Declaration

Watertight

8

that

Letter

is

does

evidence.

to
under

lay
Rule

a

not

seek

to

Rather,
foundation
803(6).

admit

the

Torres

the sole purpose of
for
Def.'s

admitting
Opp'n

at

the
1.

To distinguish Sabre's Declaration from the one submitted by
Torres, the Court shall refer to it as the "Sabre Matsiko
Declaration."
-25-

Consequently,

the

Court

need

not

the

whether

consider

Declaration is independently admissible. 9
As to the Watertight Letter,

Torres

seeks to admit that

Letter under the business
business

admissible

As discussed,

records exception.

"neither

record
the

is

source

circumstances

of

trustworthiness."
Sabre

has

preparation

of

of

if,

among

information

preparation

other

things,

the

indicate

method

or

a

nor

lack

of

Fed. R. Evid. 803(6) (E).
shown
the

trustworthiness.
Matsiko

only

a

that

circumstances

Watertight

In

Declaration,

the

Letter

particular,
which

it

states

indicate

has

that

surrounding
a

produced

the

lack
the

Watertight

the
of

Sabre
Letter

proffered by Torres "is not authentic" and that the signature on
the letter appears to be forged.
Matsiko

Decl.)

~~

A(4)

& B(4)

See Pl.'s Mot.
[Dkt.

No.

Ex.

401-2].

2

(Sabre

Moreover,

although Torres contends that the Watertight Letter was sent in
response to a January 8, 2014, letter of its current CFO, Daniel
Cotter,

Torres has not presented any sworn declaration of its

own officers to that effect.
fact,

9

See Def.'s Opp'n Exs.

1-4.

In

Torres has not proffered any sworn testimony of its own

Preliminary questions regarding the admissibility of evidence
except
those
of
are
not
governed by evidentiary rules,
privilege. See Fed. R. Evid. 104(a).
-26-

witnesses
Thus,

regarding the

the

Court

authenticity of the Watertight Letter.

concludes

that

the

Watertight

Letter

is

not

trustworthy, and, therefore, is inadmissible under Rule 803(6) . 10
Sabre's

Motion

in

Limine

No.

11

shall

therefore

be

granted.
XII.

Sabre's Motion in Limine to Exclude Torres from Calling
Daniel P. Cotter as a Witness [Dkt. No. 402] ("Sabre's
Motion in Limine No. 12")

Sabre's Motion

in Limine

No.

12

seeks

to prevent

from calling CFO Cotter as a witness at trial.
that

CFO

events

Cotter

at

incompetent

was

issue
to

not

in

testify

employed

the

case

as

a

by

Torres

and,

lay

personal knowledge of the matters at issue."
Torres
knowledge.

does

not

Civ.

CFO

after

that

because

the
is

"has

he

he

no

Pl.'s Mot. at 1.

Cotter

lacks

personal

corporate designee for purposes of Fed.

P .. 30 (b) (6).

depositions
Corp.

v.

1999)

("Rule

10

that

until

It claims, however, that his testimony is admissible

because he was Torres'
R.

deny

Sabre contends

therefore,

witness

Torres

for

Islamic

Rule

purposes
Republic

30(b) (6)

is

30(b) (6)

pertains

of

discovery.

See,

of

Iran,

intended

185
to

F.R.D.

streamline

to

corporate

e.g.,
70,
the

McKesson

79

(D.D.C.

discovery

Having so concluded, the Court need not decide whether the
other elements of the business-record exception are satisfied.
-27-

process.").

It does not govern the admissibility of testimonial

evidence at trial. 11
Moreover, Rule 602 of the Federal Rules of Evidence, which
does govern the admissibility of testimonial evidence at trial,
clearly states that "[a] witness may testify to a matter only if
evidence is introduced sufficient to support a finding that the
witness has personal

knowledge of the matter."

Fed.

R.

Evid.

602; see also L-3 Commc'ns Corp. v. OSI Sys., Inc., No. 02-9144,
I
I
I

2006 WL 988143, at *2

(S.D.N.Y. Apr. 13, 2006)

(holding that, at

a jury trial, a non-adverse party "may only offer testimony from
[its own Rule 30(b) (6)

witness]

as a fact witness based on his

personal knowledge and in compliance with

,

of Evidence

]

testimony

.

CFO

of

)

[the]

Federal Rule[s]

Consequently, Torres may not offer the live
Cotter

on

any

matter

for

which

he

lacks

personal knowledge.
As to the use of Cotter's recorded deposition testimony at
trial, that issue is governed by Rule 32 of the Federal Rules of
Civil

11

Procedure,

which

states

that

deposition

testimony

is

Torres cites a number of cases recognizing that, at a
deposition conducted pursuant to Rule 30 (b) ( 6) of the Federal
Rules of Civil Procedure, the corporate designee need not have
personal knowledge of the matters on which he or she testifies.
However, each of these cases involved testimony given at a
deposition; none pertained to the introduction of live testimony
at a jury trial.
-28-

admissible at trial only "to the extent it would be admissible
under the Federal Rules of Evidence if the deponent were present
and testifying[.]"

Fed.

R.

Civ.

P.

32 (a) (1) (B).

As discussed,

CFO Cotter's testimony is inadmissible under Fed.
because he lacks personal knowledge.

Therefore,

R.

Evict.

602

his deposition

testimony is also inadmissible and Sabre's Motion in Limine No.
12 shall be granted.
XIII. Conclusion as to Sabre's Motions in Limine

For

all

of

the

foregoing

reasons,

Sabre's

Motions

in

Limine Nos.

1-12 shall be granted in part and denied in part as

set

above.

forth

An

Omnibus

Order

shall

accompany

this

Memorandum Opinion.
TORRES' MOTIONS IN LIMINE
I.

Torres' Motion in Limine to Exclude Evidence of Portions
of the First Amended Complaint that Have Been Rendered
Irrelevant by the Court's Summary Judgment Rulings [Dkt.
No. 385] ("Torres' Motion in Limine No. 1")

Torres'
pertaining
dismissed

to

Motion in Limine No.
claims

either

summary

relating

pursuant

judgment.

evidence

that

In
to

<JI<JI

are
to

no

1

longer

Fed.

particular,
47-56,

seeks to exclude evidence

R.

pending,

Civ.
Torres

99-102,

P.

12 (b) (6)

seeks

117-128,

and Counts 3 and 4 of the First Amended Complaint
No. 242].
-29-

I

having

to

137,

been
or

on

exclude
143-145,

("FAC")

[Dkt.

A.

Paragraphs 47-56 and 143-145 of the FAC

Paragraphs 47-56 and 143-145 of the FAC allege that Torres
failed to pay Sabre for work performed under the TWISS I MATOC.
See FAC

<JI<JI

47-56,

143-145.

Torres does not take the "blanket

position" that all TWISS I matters are necessarily irrelevant,
but

it

argues

that

"the

specific

allegations

of

damages

and

alleged wrongdoing by Torres in connection with the TWISS I task
orders" are not

relevant

and would create a

prejudice and jury confusion.
First,

Sabre

danger of unfair

The Court agrees.

acknowledges

that

its

TWISS

I

claims

were

dismissed by the Court on October 27, 2011 [Dkt. No. 39] and, as
a result, it "is not claiming TWISS I damages."
1

[Dkt. No.

411].

P1 . ' s Opp' n at

Consequently, whether Torres breached any of

the parties' several contracts relating to the TWISS I MATOC is
not

relevant.

In

allegations in FAC
Second,
TWISS

I

fact,
<JI<JI

Sabre

Orders

concedes

143-145 are irrelevant."

even if Torres'

Task

expressly

were

that

"the

Id. at 1 n.2.

alleged breaches relating to any
marginally

relevant,

the

minimal

probative value of that evidence is substantially outweighed by
the

significant

risk

of

juror confusion and undue

would result from its introduction.

delay that

Even without any TWISS

I

evidence, this case will require the jury to pay close attention
-30-

to - and distinguish among - a substantial number of technically
complex

contracts,

Task

Orders,

Requests

Proposals,

In so

Proposals, pricing sheets, invoices, and other paperwork.
doing,

the

jury

will

be

required

industry-specific terminology and

dated Sept.

22,

navigate

familiarize

substantial

itself with more

See Joint List of Acronyms and

than five pages of acronyms.
Contracts,

to

for

2014

[Dkt.

No.

410-1].

There is no

reason whatsoever to overwhelm the jury and confuse the issues
by introducing evidence relating to TWISS I Task Orders that are
not at issue in the case.
Consequently,
extent

it

seeks

Torres'

exclusion

Motion
of

shall

evidence

be

granted

pertaining

to

to

the

specific

TWISS I Task Orders or any claim of breach related thereto,

as

alleged in paragraphs 47-56 and 143-145 of the FAC. 12

12

The parties may, however, briefly address their relationship
under the TWISS I MATOC in order to provide a factual background
for the events related to the TWISS II MATOC.
Moreover, matters
that are otherwise relevant to the parties' claims under TWISS
II MATOC, are not rendered inadmissible simply because they
touch on or are intertwined with issues relating to the TWISS I
MATOC.
However, to the extent either party seeks to introduce
evidence touching on the TWISS I MATOC, they should inform the
Court beforehand in order to discuss protocols for minimizing
jury confusion.
-31-

Paragraphs 99-102 of the FAC 13

B.

Paragraphs

99-102

of

the

FAC

pertain

to

Sabre's

now-

dismissed claims that Torres unjustly enriched itself by bidding
on and performing Task Orders at FOB Cruz Morris and COS Garry
Owen without Sabre's involvement. 14
seeks

to

exclude

any

evidence

See FAC

<JI<JI

supporting

99-100.

these

Torres

allegations

because "the task orders that Torres allegedly obtained on its
own" -

namely,

those at FOB Cruz Morris and COS Garry Owen -

"are not included among the seven TWISS II task orders that will
be the subject of the trial[.]"
Elsewhere, however, Torres has asserted that its TCN guard
costs

at

Cruz

Morris

are

recoverable

because

Sabre

anticipatorily breached the Teaming Agreement, thereby requiring
13

The parties also mention paragraphs 103-10 9.
However, Torres
does not seek specific relief relating to these paragraphs.
See
Def.'s Mot. at 3 & n.2.
14

The Task Orders at FOB Cruz Morris and COS Garry Owen were
TWISS II Task Orders that Torres allegedly bid for, obtained,
and performed on its own, without ever seeking Sabre's input or
involvement. Although these Task Orders fell within the scope of
the exclusivity provisions of the Teaming Agreement, Sabre did
not include them in its breach of contract claim in Count 2 and
instead sought to recover under a theory of unjust enrichment.
The Court recently granted summary judgment to Torres on Sabre's
unjust enrichment claims because, as our Court of Appeals has
consistently recogni~ed, "there can be no claim for unjust
enrichment when an express contract exists between the parties."
Mem. Op., dated Aug. 20, 2014, at 54 [Dkt. No. 373] (quoting
Albrecht v. Comm. on Employee Benefits of Fed. Reserve Employee
Benefits, Sys., 357 F.3d 62, 69 (D.C. Cir. 2004)).
-32-

it to "stand up Cruz Morris without Sabre's involvement."

See

Def.'s Opp'n to Pl.'s Mot. in Limine No. 5, at 4 [Dkt. No. 416].
Consequently,

facts

relating

to

the

Task

Order

at

FOB

Cruz

Morris are relevant to Torres' defense.
Relatedly,

Torres'

undisputed

decision

submit

to

unilateral bids for the Task Orders at FOB Cruz Morris and COS
Garry

Owen

reflects

its

response

to

the

parties'

ongoing

disagreement over pricing, which extended to the Task Orders at
issue

in

Count

Management

2.

Committee

Torres'
meeting

alleged
(and

failure

otherwise

to

convene

coordinate

a

with

Sabre regarding TWISS II Task Order Proposals) also reflects the
degree to which it attempted to resolve these pricing disputes,
which is a central point of contention in this case.

Therefore,

Torres Motion to exclude evidence pertaining to paragraphs

99-

102 shall be denied.
C.

Paragraphs 117-128 and 222(b)-(c) of the FAC

Paragraphs

also

117-128

refer

to

Torres'

unilateral

submission of Task Order Proposals for FOB Cruz Morris and COS
Garry

Owen.

As

discussed

above,

these

issues

are

generally

relevant to the parties' ongoing disagreement on prices.
However,

paragraphs

222 (b)

and

(c)

assert

that

Sabre

is

entitled to "full payment of the revenue received by Torres" in
-33-

connection

with

the

Cruz

Morris

and

Garry

Owen

Task

Orders.

Sabre has not brought a claim for breach of contract related to
these Task Orders, and its previously-asserted claims for unjust
enrichment

relating

Accordingly,
amount

of

Sabre

revenue

to
may

such
not

Torres

Morris and Garry Owen,

Task

Orders

introduce

received

have

been

evidence

for

dismissed.

related

to

work performed at

the
Cruz

nor may it argue that it is entitled to

such revenue.
Therefore,

Torres'

Motion shall be granted insofar as

it

seeks to exclude evidence of the amount of revenue Torres earned
from work at FOB Cruz Morris and Garry Owen and shall otherwise
be denied.
D.

Paragraph 137 of the FAC

Paragraph

137

of the

FAC alleges

that

"Torres

concealed

from Sabre the fact that Torres had applied for and was in the
process of receiving"

its own PSC license.

FAC

<JI

This

137.

allegation is not relevant to any currently pending claim,
does
shall

Sabre
be

contend
granted

otherwise.
insofar

as

Consequently,
it

pertaining to paragraph 137.

-34-

seeks

to

Torres'
exclude

nor

Motion
evidence

E.

Counts 3 and 4 of the FAC

In Counts

3

and

4 of

the

FAC,

Sabre

originally alleged

that Torres breached the Teaming Agreement by failing to convene
a Management Committee meeting to address actions taken by the
United States Government in connection with Task Orders at JSS
Shield and COS Warrior.
summary

judgment

consequently,

in

On August 20,
Torres'

2014,

favor

on

the Court granted

these

and

Counts,

See Mem.

they are no longer pending in the case.

Op., dated Aug. 20, 2014, at 42-47 [Dkt. No. 373].
Sabre

argues

that

these

allegations

are

claims in Count 2 alleging breach of contract.
at 4.

However,

both

factually

Op.,

to

its

See Pl.'s Opp'n

that theory in Count 2 is completely distinct and

theories presented
Mem.

relevant

from

legally

(and now dismissed)

dated Aug.

20,

2014,

the

breach

of

contract

in Counts 3 and 4.

at 42-47

[Dkt.

No.

See
Thus,

373].

even if the factual allegations underlying Counts 3 and 4 have
any marginal
relevance

relevance

is

Fed.

any

substantially

"conf~sin~ the

time."

to

R.

pending

claim or

outweighed

by

issues, misleading the jury,
Evict.

403.

Therefore,

-35-

Torres'

defense,

the

danger
[and]

that
of

wasting

Motion shall be

granted insofar as

it seeks to exclude evidence pertaining to

Counts 3 and 4. 15
For all of the foregoing reasons, Torres' Motion in Limine
No.

1 shall be granted insofar as it seeks to exclude evidence

pertaining to paragraphs 47-56, 137, 143-145, and Counts 3 and 4
of the FAC,

and denied insofar as it seeks .to exclude evidence

pertaining to paragraphs 99-102 and 117-128 of the FAC.
II.

Torres' Motion in Limine to Exclude Evidence Pertaining to
Former Counts 15-17 and 19-21 of the FAC Which Were
Dismissed from the Case [Dkt. No. 386] ("Torres' Motion in
Limine No. 2") .

Torres'
pertaining

Motion in Limine No.

to

Counts

15-17

2 seeks to exclude evidence

and

19-21

of

the

FAC,

which

originally asserted claims of fraud arising out of the parties'
contractual

relationship.

On

January

dismissed these claims under Fed.
to Choharis v.
2008),

which

State Farm Fire
mandates

R.

30,

Civ.

P.

Cas. Co.,

&

dismissal

of

2014,

the

12 (b) (6)

Court

pursuant

9ul A.2d 1080

fraud

claims

that

(D.C.
are

entirely intertwined with and duplicative of claims for breach
of

contract.

Op."),
15

at

8-9

See Mem.
[Dkt.

No.

Op.

of

288].

Jan.

30,

Torres

2014
seeks

("Jan.
to

30

exclude

Mem.
all

Sabre also argues that the evidence related to Counts 3 and 4
is potentially admissible as impeachment evidence. The Court's
Order on Torres' Motion in Limine No. 1 does not extend to any
evidence that is properly used for impeachment purposes under
the Federal Rules of Evidence.
-36-

evidence pertaining to these dismissed Counts on the basis that
they are now irrelevant.
Sabre has,

See Def.'s Mot. at 2-4.

however,

identified several evidentiary topics

related to these dismissed Counts which are also relevant to its
breach

of

contract

claim

in

Count

These

2.

include

Torres'

alleged repeated promises to pay Sabre's invoices and its denial
of the
TWISS

fact
II

that

it had reduced Sabre's prices

proposals

cannot be

to

the Government.

used to prove

prove that Torres

a

claim of

in the

Although this

fraud,

it

Team's

evidence

can be

used to

did agree to Sabre's proposed prices and to

demonstrate the absence of . a bona fide dispute for purposes of
Torres' defense of accord and satisfaction.
Moreover,
is

while Torres vaguely argues

substantially

more

prejudicial

than

that

such evidence

probative,

and

thus

should be excluded under Fed. R. Evid. 403, it fails to identify
which specific evidence it seeks to exclude under Rule
explain

how

such

evidence

Motion in Limine No.

is

unfairly

403 or
Torres'

prejudicial.

2 shall therefore be denied to the extent

it seeks to exclude all evidence underlying Counts 15-17 and 1921.
However,

the

terms

"fraud"

and

"fraudulent"

terms describing claims that have been dismissed.
-37-

are

legal

The use of

these terms at trial would be both inflammatory and confusing to
the

jury.

Therefore,

Torres'

Motion

shall be granted to the

extent it seeks to preclude Sabre from using the terms "fraud"
or "fraudulent" to describe its conduct in front of the jury.
Torres'

Motion in Limine No.

2 shall be granted in part

and denied in part, consistent with the foregoing.
Torres' Motion in Limine to Preclude Karl Thorne From
Testifying at Trial [Dkt. No. 387] ("Torres' Motion in
Limine No. 3")

III.

Torres'

Motion

in

Limine

testimony of Karl Thorne, CPA.
be

precluded

from

disclose him as
their

Joint

372],

and

a

3

seeks

to

because

( 1)

Sabre

witness prior to the parties'
Statement

because

exclude

the

Torres argues that Thorne should

testifying

Pretrial
(2)

No.

on

Torres

August

expects

12,

him

to

submission of

2014
to

failed

[Dkt.

offer

No.

expert

testimony in violation of Rules 701 and 702 of the Federal Rules
of

Evidence

and

Rule

2 6 (a) ( 2)

of

the

Federal

Rules

of

Civil

Procedure.
Sabre

concedes

that,

even

though

Torres

propounded

interrogatory requesting identification of all witnesses

an

to be

called at trial, it failed to disclose Thorne as a witness until
August 11, 2014 - well after the close of discovery.

Under the

Federal Rules of Civil Procedure and this Court's Local Rules, a
-38-

party

who

fails

to

provide

requested

information

during

discovery "is not allowed to use that information or witness ...
at

a

trial,

harmless."
has

not

unless

the

failure

was

substantially

justified or

Fed. R. Civ. P. 37(c) (1); see also LCvR 26.2.

even

attempted

to

demonstrate

that

its

Sabre

failure

to

disclose Thorne during discovery was justified as it has given
no explanation for why it failed to identify him as a potential
witness

until

submitted

August

their

failure harmless,

Joint

11,

2014,

Pretrial

the

day

before

the

parties

Nor

was

Sabre's

Statement. 16

as Torres was thus deprived of an opportunity

to depose Thorne.
Consequently,

Torres'

Motion

in

Limine

No.

3

shall

be

granted.

16

Sabre contends that it objected to Torres' Interrogatory as
premature.
But even if Torres' interrogatory was premature on
January 9, 2012, when it was propounded, Sabre was required to
supplement its response in a timely manner as it identified
witnesses for trial.
See Fed. R. Civ. P. 26(e) ("A party who
has .
. responded to an interrogatory .
. must supplement or
correct its disclosure or response[] in a timely manner if the
party learns that in some material respect the disclosure or
response is incomplete or incorrect[.]"
Moreover,
in its
response to Torres' interrogatory, Sabre promised "to provide
this information."
-39-

IV.

Torres'
Motion
in
L~ine
to
Preclude
Plaintiff's
Introduction
of
Declarations
of
Alex
Rutwaza
and
Baryamujuru Matsiko as Evidence at Trial [Dkt. No. 388]
("Torres' Motion in Limine No. 4")

Torres' Motion in Limine No.

4 seeks to exclude as hearsay

Sabre's Declaration of Alex Rutwaza

("Rutwaza Declaration")

accompanying Declaration of Baryamujuru Matsiko
Declaration").
admits

that

Def.'s Mot.

these

Exs.

Declarations

1
are

&

2

[Dkt.

hearsay,

("Sabre Matsiko

No.
but

and

Sabre

388].
contends

that

they are admissible under the Residual Exception to the hearsay
rules,
by

which provides that "a hearsay statement is not excluded

the

rule

against

hearsay

even

if

the

statement

is

not

specifically covered by a hearsay exception in Rule 803 or 804"
so long as all of the following criteria are met:
( 1)
the
statement
has
equivalent
guarantees of trustworthiness;

circumstantial

(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 these
rules and the interests of justice.
Fed. R. Evid. 807.
Sabre

has

not

shown

that

the

Declarations

have

circumstantial guarantees of trustworthiness equivalent to other
exceptions

to

the

hearsay

rule.
-40-

To

the

contrary,

the

Declarations are self-serving, as they claim outstanding sums of
money

from

both

Sabre

and

authenticity is disputed.

And,

their

Furthermore,

Torres.

even if genuine,

they are not

signed in a manner that,

if falsely made, would subject Matsiko

and

penalties

Rutwaza

to

criminal

allegedly signed.·

in

Uganda,

where

they were

See Fed. R. Evid. 902(1) and (12).

Finally, the Court has already held that Torres' analogous
Declaration
hearsay.

of

Matsiko

must

be

excluded

as

untrustworthy

The interests of justice require exclusion of Sabre's

Declarations for the same reason.

Torres' Motion in Limine No.

4 shall therefore be granted.

v.

Torres'
Motion
in
Limine
to
Exclude
Objectionable
Deposition Designations by Sabre [Dkt. No. 391] ("Torres'
Motion in Limine No. 5")
Torres'

exclusion

Motion

of

in

nearly

Limine
seven

designations and exhibits.

No.

5

hundred

objects
pages

to

and

seeks

deposition

of

See generally Def.'s Mot.

Exs.

1-5.

Sabre claims that the parties have not yet meaningfully met and
conferred

on

these

provided

any

positions

that

admissible.

objections.

substantive
the

explanations

designations

Consequently,

Moreover,

and

neither

for

exhibits

their
are

party

has

respective
or

Torres' Motion in Limine No.

are

not

5 shall

be denied without prejudice to reconsideration after the parties
-41-

conduct a more substantive meet and confer on their respective
deposition

designations.

The

parties to 100 exhibits.

Court

has

already

limited

the

It will now limit them to 200 pages of

deposition designations.
VI.

Torres' Motion in Limine to Preclude Evidence
Federal Rules 401, 402, and 403 [Dkt. No. 403]
Motion in Limine No. 6")

Finally,

Torres'

Motion in Limine No.

Based on
("Torres'

6 seeks to exclude

two other categories of evidence - evidence of alcohol abuse and
employee

bonuses

as

both

irrelevant

and

substantially more

prejudicial than probative under Rules 401-403.
A.

Evidence of Alcohol Abuse

First,

Torres

seeks

to

exclude

any

"references

and

innuendoes that [its CEO] Defendant Jerry Torres is an alcoholic
and/or abuses alcohol."

Def.'s Mot.

In its Opposition,

at 2.

Sabre contends that there is evidence, which it has presented in
four

exhibits

to

its

Opposition,

"significant alcohol abuse problem."
argues

that

this

evidence

Torres' credibility."
Rule
attacked .
having

a

608

is

that

Jerry

P1 . ' s

admissible

Torres

Opp' n at 1 .
for

had

a

Sabre

"impeaching

Mr.

Id.

provides

that

a

"witness's

credibility may be

. by testimony about the witness's reputation for
character

for

truthfulness
-42-

or

untruthfulness,

or by

testimony in the form of an opinion about that character."
R.

Evid.

608 (a).

Extrinsic

evidence,

criminal conviction under Rule

60 9,

however,

other

Fed.

than

a

is not admissible to prove

specific instances of a witness's conduct in order to attack or
support the witness's character for truthfulness.

Fed. R. Evid.

608 (b) .
As a preliminary matter,

three of these four exhibits on

which Sabre relies do not even refer to Jerry Torres'
consumption

at

all.

See

Pl.'s

Opp'n

at

2

&

alcohol
3-5.

Exs.

Therefore, the only evidence Sabre has identified that refers to
Jerry

Torres'

Torres

employee

which he
appears
that

alleged

alcohol

Christopher

referred to a
to

he

have

no

believed

abuse

is

Herman's

a

deposition

particular affidavit

relevance
this

to

affidavit

this

portion

of

former

testimony

in

in a matter which

case.

contained

Herman
false

testified

allegations

because "you could just tell by the text and the wording that it
was written by Jerry Torres when he was intoxicated,
often.

And that is a fact."

Pl.'s Opp'n,

Ex.

which was

6 {Herman tr. at

642:21-643:1).
Given that it is unclear how this affidavit is r-elevant to
the

case,

Sabre

or

shall

whether
be

it

permitted

will
to

be
use

-43-

introduced
such

by

evidence

either
for

party,

only

the

following narrow impeachment purpose:

If Torres presents Jerry

Torres as a witness, Sabre may impeach his credibility by crossexamining him about the truthfulness
affidavit
See

and whether he

Fed.

Evict.

R.

was

of his

statements

intoxicated when
("[E]xtrinsic

608(b)

he

in the

wrote

evidence

them.

is

not

admissible to prove specific instances of a witness's conduct in
order

to

attack

truthfulness.
them

to

But

be

[witness's]

or

support

the

court may,

inquired
character

into
for

the

if

witness's

character

on cross-examination,
they

are

truthfulness

probative

or

Herman's testimony regarding Jerry Torres'

for
allow

of

the

untruthfulness.").

drinking habits,

and

any other such evidence, shall otherwise be excluded.
Torres' Motion in Limine No.

6 shall therefore be granted

in part and denied in part, consistent with the foregoing.
B.

Evidence of Bonuses

Torres also seeks to exclude,

as irrelevant,

any evidence

of the bonuses paid to its former Vice President Rebekah Dyer
and former CFO Kathryn Jones in 2010 and 2011.
Sabre

claims

Dyer's and Ms.
conceal

Torres'

Count 2[.]"

that

these

bonuses

"are

relevant

to

Ms.

Jones' motivation for taking improper actions to
price

reductions

Pl.'s Opp'n at 3.

and

Torres'

breaches

under

Count 2, however, is a claim for
-44-

breach

of

contract.

irrelevant

to

a

It

claim

Athridge v. Aetna Cas.

is

for

well-established
breach

& Sur. Co., No.

at *3 (D.D.C. Mar. 2, 2001)

Thyssenkrupp Materials,

Inc.

1248, 2014 WL 335595, at *1
'generally

motive
See,

contract.

is

e.g.,

96-2708, 2001 WL 214212,

("[M]otive is irrelevant to a breach

of contract action[.]"), aff'd,

is

of

that

irrelevant

351 F.3d 1166

v.

Bulk Carriers A/S,

W.

(S.D.N.Y.
in

(D.C. Cir.

Jan. 22, 2014)

breach

of

contract

2003);
No.

13-

("[M]otive
actions.'")

Therefore, the bonuses are not relevant to

(citations omitted) .

Sabre's breach of contract claim in Count 2.
Sabre
claims

for

argues

that

conversion

establishes
converted

also

that,

of

of

selling it to a third party.
at 6 7

[ Dkt . No . 3 7 3] .

directly

involved

in

bonuses

property

sometime

$150,000-worth

the

in

after

are

Count

The

18.
31,

March

equipment

relevant

to

its

record
Torres

2012,

belonging

to

Sabre

by

See Mem. Op., dated Aug. 20, 2014,

Sabre contends that Dyer and Jones were
these

activities,

and

were

thereafter

"handsomely rewarded with substantial annual bonuses for 2010 of
$1,773,139 for Ms. Dyer and $79,077 for Ms. Jones."

Pl.'s Opp'n

at 4.
The
insofar

as

Court
it

recently
seeks

to

granted
hold

summary

Torres
-45-

liable

judgment
for

for

Sabre

conversion

of

property

in

Count

18

but

denied

See Mem. Op.,

claim for punitive damages.
at 67

[Dkt. No. 373].

2014,

issued

summary

judgment

on

dated Aug.

Sabre's

20,

2014,

In a Memorandum Opinion dated October 30,

concurrently

with

this

Memorandum

Opinion,

the

Court granted summary judgment for Jones on Count 18 and denied
summary
Jerry

judgment

Torres.

with

respect

Consequently,

to
the

the
only

claims

against

conversion

Dyer

claims

and
that

remain pending are the claims against Dyer and Jerry Torres and
the claim for punitive damages. 17
Even assuming that motive is relevant to these claims, the
conversion of equipment at issue did not occur until after the
completion of the JSS Shield Task Order on March 31,
Mem.
fails

Op.,

dated Aug.

20,

2014,

at

61

[Dkt.

No.

2012.

373].

to establish how bonuses paid in December 2010

See
Sabre

and 2011

are relevant to a tort that did not occur until after March 31,

17

Under District of Columbia law, " [p] unitive damages may be
awarded 'only if it is shown by clear and convincing evidence
that the tort committed by the defendant was aggravated by
egregious conduct and a state of mind that justifies punitive
damages[]'
. such as maliciousness, wantonness, gross fraud,
recklessness
and
willful
disregard
of
another's
rights.'"
Chatman v. Lawlor, 831 A.2d 395, 400 (D.C. 2003)
(citations
omitted) .
-46-

2012.

Based

on

this

timeline,

the

Court

concludes

that

the

bonuses are not relevant to the outstanding conversion claims. 18
In
Torres'

sum,

the

bonuses

are

Motion in Limine No.

not

relevant.

Consequently,

6 shall be granted insofar as it

seeks to exclude evidence of bonuses received by Dyer and Jones
for the years 2010 and 2011.
For the foregoing reasons,
shall

be

denied

to

the

Torres' Motion in Limine No.

limited

extent

Herman's testimony regarding Jerry Torres'

Sabre

seeks

to

6

use

intoxication for the

limited impeachment purpose identified by the Court,

and shall

otherwise be granted.

18

Sabre points to a series of emails dated November 28, 2010, in
which Torres personnel, including Dyer, discussed the equipment
at issue in light of the Government's recent decision to extend
the Task Order at JSS Shield by an additional six months.
See
Pl.'s Opp'n, Ex. 16.
In particular, Sabre relies on statements
by Dyer and Jerry Torres opining that the equipment could not be
removed from the Task Order site until it was closed.
See id.
---at 2.
These statements do not suggest that Dyer was then
planning to convert Sabre's property much less that such a plan
had anything to do with her annual bonus.
-47-

VII.

Conclusion as to Torres' Motions in Limine
For

all

of

the

foregoing

reasons,

Torres'

Motions

in

Limine Nos.

1-6 shall be granted in part and denied in part as

set

above.

forth

An

Omnibus

Order

shall

accompany

Memorandum Opinion.

October 30, 2014

Gla~s~r~

United States District Judge

Copies to: attorneys on record via ECF

-48-

this