Warfield et al v. Stewart et al

Filing 329

ORDER: The Court declines to exclude the Whitney Affidavit. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 8/5/2009. (KAK)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION KENNARD WARFIELD, JR., et al., v. Plaintiffs, Case No. 2:07-cv-332-FtM-33SPC

JAMES A. STEWART, et al., Defendants. _______________________________/ ORDER This cause is before the Court pursuant to the Whitney Affidavit (Doc. # 167). Defendants filed a motion in limine

on July 6, 2009 (Doc. # 269) seeking exclusion of the Whitney Affidavit. On July 31, 2009, the Court directed Plaintiffs to respond to Defendants' request to exclude the Whitney

Affidavit.

Plaintiffs filed their supplemental memorandum in

opposition to Defendants' motion in limine (Doc. # 320) on August 3, 2009. For the reasons that follow, the Court

declines to exclude the Whitney Affidavit. Analysis Defendants assert that the Whitney Affidavit is pure hearsay and should be excluded pursuant to Rule 801 of the Federal Rules of Evidence. Plaintiffs offer two separate grounds for admitting the Whitney Affidavit into evidence. argue that the Whitney First, Plaintiffs correctly is proper impeachment

Affidavit

material because Defendants plan to utilize Ms. Whitney's deposition testimony at trial. Plaintiffs may impeach the

deposition testimony with inconsistent portions of the Whitney Affidavit. Second, the Whitney Affidavit may be admitted under the residual exception to the hearsay rule, Rule 807 of the Federal Rules of Evidence. Plaintiffs, as proponents of the

Whitney Affidavit, have satisfied the five requirements of Rule 807: (1) circumstantial guarantees of trustworthiness; (2) materiality; (3) probative value; (4) interest of justice; and (5) notice. Accordingly, the Court will deny Defendants' request to exclude the Whitney Affidavit. Accordingly, it is now ORDERED, ADJUDGED, and DECREED: The Court declines to exclude the Whitney Affidavit. DONE and ORDERED in Ft. Myers, Florida, this 5th day of August 2009.

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