Whitney Information, et al v. Xcentric Ventures, et al

Filing 171

MOTION in limine regarding deposition of Dixon Woodard by Xcentric Ventures, LLC. (Speth, Maria)

Maria Crimi Speth, #012574 (Admitted Pro Hac Vice)
JABURG & WILK, P.C.
3200 North Central Avenue, Suite 2000
Phoenix, Arizona 85012
[phone]
Attorneys for Defendants

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA

WHITNEY INFORMATION NETWORK,
INC.; a Colorado corporation,
Plaintiffs,
v.

Case No: 2:04-CV-47-ftm-29
DEFENDANTS’ MOTION IN LIMINE
REGARDING DEPOSITION OF
DICKSON WOODARD

XCENTRIC VENTURES, LLC, an
Arizona limited liability company;
BADBUSINESSBUREAU.ORG, an
Arizona limited liability company; and ED
MAGEDSON, an individual,
Defendants.

Defendants request that this Court enter an order in limine precluding mention of
prior testimony about Defendants provided by Dickson Woodard in a lawsuit to which
neither of the instant parties were a party. Dickson Woodard, a non-party in this action,
has provided unsubstantiated testimony about Defendants in at least one known case from
Texas. Plaintiff has indicated in its draft of the Joint Pretrial Statement, and elsewhere,
that Plaintiff intends to rely on the deposition testimony of Mr. Woodard. This reliance is
misguided. Moreover, the jury should not hear any reference to any statements made by
Mr. Woodard about Defendants as such information is hearsay and therefore not
admissible. This Motion is supported by the following Memorandum of Law and by the
Court’s file in this case.

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Memorandum of Points and Authorities
Rip-off Report is a website which is a public forum for consumers to post
complaints about businesses. There are over 300,000 postings on Rip-off Report and
forty-eight of those postings were filed about Whitney Information Network.
Other companies who have been the subject of postings on Rip-off Report have
filed lawsuits similar to the instant lawsuit claiming that postings about their company
were defamatory. Companies have also taken to filing lawsuits against persons who
claim to be the true authors of the postings about their company.
One company – GW Equity – sued Dickson Woodard in a Texas state court.
During that Texas lawsuit, the deposition of Mr. Woodard was taken by counsel for GW
Equity. Neither Plaintiff nor Defendants were a party to this Texas action. Neither
Plaintiff nor Defendants participated in any way in the Texas action. Neither Plaintiff nor
Defendant was in attendance at the deposition of Mr. Woodard, nor were they invited to
participate in, or even have knowledge of, the deposition of Mr. Woodard in any way.
The deposition of Mr. Woodard is inadmissible hearsay. Federal Rules of Civil
Procedure Rule 32 governs the use of depositions at trial. No possible permissible use
exists under Rule 32 to allow the use of the deposition of Mr. Woodard at trial. Counsel
for Defendants was not present at the deposition of Mr. Woodard, and has not had the
opportunity to examine Mr. Woodard’s statements while Mr. Woodard is under oath.
Further, Mr. Woodard’s deposition was taken in the context of litigation that does not
involve a single statement on Rip-off Report that is at issue in the present litigation.
Even if a permissible use did exist (which it does not), the evidentiary balancing test
necessarily weighs in favor of Defendants, as the deposition of Mr. Woodard is far more
prejudicial to Defendants than probative to Plaintiff.
In summary, Dickson Woodard’s deposition testimony should not be mentioned at
trial. It is entirely irrelevant that Mr. Woodard made representations in a case premised
not only on different facts here, but in a case where neither Plaintiff nor Defendants’
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counsel was present to question Mr. Woodard. Plaintiff should not be permitted to cite or
even make allusions to the statements made by Dickson Woodard in front of a jury that
can be easily confused as to the significance of false statements made in a deposition
from a completely different case.
DATED February 5, 2008.
JABURG & WILK, P.C.

s/Maria Crimi Speth
Maria Crimi Speth, Esq.
Attorneys for Defendants

CERTIFICATE OF CONFERENCE PURSUANT TO LOCAL RULE 3.01(g)
I hereby certify that on the 5th day of February 2008, I caused my associate to
communicate with opposing counsel requesting that opposing counsel respond to the
discovery stipulate to resolve the issues raised by this motion, but opposing counsel
would not agree.
DATED February 5th, 2008.
JABURG & WILK, P.C.
s/Maria Crimi Speth
Maria Crimi Speth, Esq.
Attorneys for Defendants
CERTIFICATE OF SERVICE
I hereby certify that on the 5th day of February 2008, I caused the attached
document to be electronically transmitted to the Clerk’s Office using the CM/ECF
System for filing and transmittal of a Notice of Electronic Filing to the following
CM/ECF Registrants:
Steven Neil Lippman
Shawn L. Birken
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Scott W. Rothstein
Rothstein Rosenfeld Adler
Suite 1650
401 E Las Olas Blvd
Ft Lauderdale, FL 33301
Attorneys for Plaintiff
Brian J. Stack
Stack, Fernandez, Anderson,
Harris & Wallace, P.A.
1200 Brickell Ave., Suite 950
Miami, FL 33131-3255
Attorneys for Defendant

s/Maria Crimi Speth

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