Center for Individual Rights v. Chevaldina

Filing 259

ORDER granting in part and denying in part 207 Plaintiff's Motion in Limine. Signed by Magistrate Judge Edwin G. Torres on 8/3/2018. See attached document for full details. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-20905-Civ-KING/TORRES
CENTER FOR INDIVIDUAL RIGHTS,
Plaintiff,
v.
IRINA CHEVALDINA,
Defendant.
______________________________________/
ORDER ON PLAINTIFF’S MOTION IN LIMINE
This matter is before the Court on the Center for Individual Rights’
(“Plaintiff” or “CIR”) motion in limine against Irina Chevaldina (“Defendant” or
“Chevaldina”) to exclude as evidence (1) an email sent on December 14, 2015 and
any other settlement communications, and (2) Plaintiff’s communications with its
donors, tax returns, or audited financial statements.

[D.E. 207].

Chevaldina

responded on June 20, 2018 [D.E. 229] to which Plaintiff replied on June 27, 2018.
[D.E. 237]. Therefore, Plaintiff’s motion is now ripe for disposition. After careful
consideration of the motion, response, relevant authority, and for the reasons
discussed below, Plaintiff’s motion is GRANTED in part and DENIED in part.
I.

APPLICABLE LEGAL PRINCIPLES AND LAW

The purpose of a motion in limine is to aid the trial process by enabling the
Court to rule in advance of trial on the relevance of certain forecasted evidence, as
to issues that are definitely set for trial, without lengthy argument at, or
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interruption of, the trial.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp.
2d 173, 176 (S.D.N.Y. 2008) (citing Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.
1996)). Under the Federal Rules of Evidence, evidence is considered relevant as
long as it has the tendency to make a fact of consequence more or less probable. See
Fed. R. Evid. 401(a)-(b). The Rules permit the exclusion of relevant evidence when
the probative value is substantially outweighed by danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, and/or
needlessly presenting cumulative evidence. See Fed. R. Evid. 403 (emphasis added).
Courts are cautioned to use Rule 403 sparingly, see, e.g., United States v. King, 713
F.2d 627, 631 (1983), in part because the federal rules favor admission of evidence
and in part because relevant evidence is inherently prejudicial to a criminal
defendant. See id. (citing to other sources).
The term Aunfair prejudice@ in and of itself speaks to the ability of a piece of
relevant evidence to lure the fact finder into declaring a defendant=s guilt on
grounds other than specific proof of the offense charged. Old Chief v. United States,
519 U.S. 172, 180 (1997). It also signifies an undue tendency to suggest guilt on an
improper basis, commonly an emotional one. See id.

In the context of a Rule 403

balancing test, the more essential the piece of evidence is to a case, the higher its
probative value; the higher a piece of evidence=s probative value, the less likely it
should be excluded on 403 grounds. See King, 713 F.2d at 631.
Rule 404(b) provides that – while evidence of a defendant=s other crimes,
wrongs, or acts is inadmissible to prove a defendant=s actions conform with his
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character – such evidence may be admitted for other purposes such as Aproof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.@

Fed. R. Evid. 404(b).

Essentially, Rule 404(b) Aprotects

against the introduction of extrinsic act evidence when that evidence is offered
solely to prove character.@ Huddleston v. United States, 485 U.S. 681, 687 (1988).
For evidence of other crimes or acts to be admissible under Rule 404(b), (1) the
evidence must be relevant to an issue other than defendant=s character, (2) there
must be sufficient proof to enable a jury to find by a preponderance of the evidence
that the defendant committed the extrinsic act(s) in question, and (3) the probative
value of the evidence cannot be substantially outweighed by undue prejudice. See,
e.g., United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000). The evidence
must also pass a 403 balancing test. Id. To meet the second prong of the three-part
test above, the movant need only make a sufficient showing under which a jury
could believe the act actually happened. See generally Huddleston, 485 U.S. 681.
Evidence falls outside the scope of Rule 404(b) when it is (1) an uncharged
offense that arose out of the same transaction or series of transactions as the
charged offense, (2) necessary to complete the story of the crime, or (3) inextricably
intertwined with the evidence regarding the charged offense.

United States v.

Baker, 432 F.3d 1189, 1205 n.9 (11th Cir. 2005) (quoting another source).
Evidence not part of the crime charged but [that] pertain[s] to the
chain of events explaining the context, motive[,] and set-up of the
crime, is properly admitted if linked in time and circumstances with
the charged crime . . . forms an integral and natural part of an account
of the crime, or is necessary to complete the story of the crime for the
jury.
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United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998). Such evidence must
also still satisfy the requirements of Rule 403. See Baker, 432 F.3d at 1189.
II.
A.

ANALYSIS

Whether Chevaldina Should be Precluded from Introducing Any
Evidence of Plaintiff’s Fundraising Efforts, Donations, Tax
Returns, or Audited Financial Statements

In the discovery phase of this case, Chevaldina filed into the record Plaintiff’s
donation letters, tax returns, and financial statements as a way to argue that CIR
received outside funding when it represented Chevaldina in the Eleventh Circuit.
Plaintiff contends that these items should be excluded at trial because they were
irrelevant months ago and the same is true today. Chevaldina opposes Plaintiff’s
motion because these items are purportedly relevant to the extent that they can
show how much Plaintiff was compensated by outside sources when representing
her in the Eleventh Circuit. In other words, Chevaldina argues that these items
cannot be excluded because “contract interpretation is a matter of law and cannot
be done at the discovery stage.” [D.E. 229 at 11]. Because Plaintiff’s fundraising
efforts, donations, tax returns, and audited financial statements are relevant to the
disposition of Plaintiff’s breach of contract claim, Chevaldina concludes that these
documents must be available for use at trial.
We have previously considered Chevaldina’s motions to compel Plaintiff’s
donations, tax returns, and financial statements on at least two prior occasions and
found that there is no support that the financing – via donations or otherwise – of a
public interest law firm undermines a breach of contract claim. [D.E. 92, 136]. We
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found that if Chevaldina’s position was correct, it would allow any party to willingly
breach a contract with a public interest law firm – without any consequences – as
long as the law firm receives other sources of revenue during its representation of a
client.

We further determined that Chevaldina’s position was without merit

because it would lead to unforeseen consequences and allow other sources of
financing to eviscerate breach of contract claims.
On that basis, we denied Chevaldina’s prior motions to compel because the
question of how Plaintiff was compensated as a public interest firm – even if
Chevaldina establishes that Plaintiff received contributions specifically earmarked
to cover the costs of her case (which Plaintiff argues does not exist) – would not
change Chevaldina’s contract with Plaintiff to pay a reasonable attorneys’ fee at the
conclusion of her prior case. When we considered the relevance of these documents,
we also found that Chevaldina lacked any authority for the contention that
charitable contributions to a public interest law firm and attorney fee awards are
similar. Therefore, we concluded that Chevaldina’s request for Plaintiff’s financial
documents were irrelevant to the facts of this case and denied her motions to
compel.1
Plaintiff seeks to apply the same reasoning to its motion in limine because
CIR’s financial documents are irrelevant to the facts of this case. But, Plaintiff’s
motion is unpersuasive – at this stage of the case – because Chevaldina could, at

Because we denied Chevaldina’s prior motions to compel, we assume that
Chevaldina obtained Plaintiff’s financial records in a method that is available to the
general public.
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the very least, introduce these items for the limited purpose of impeachment.
Plaintiff’s motion can therefore be denied on this basis alone because a “decision
regarding an advance ruling on the admissibility of impeachment evidence is
addressed to the sound discretion of the trial court.” United States v. York, 722 F.2d
715, 716 (11th Cir. 1984) (citing United States v. Rivers, 693 F.2d 52 (8th Cir.
1982); United States v. Tercero, 640 F.2d 190 (9th Cir. 1980)). And assuming that
Chevaldina can authenticate2 these documents, it is within the purview of the
District Judge to determine whether these items are admissible or not.
Accordingly, Plaintiff’s motion to preclude Chevaldina from introducing CIR’s
financial records is DENIED.
B.

Whether Chevaldina Should be Precluded from Introducing Any
Evidence of Plaintiff’s Settlement Discussions

The next issue is whether an email regarding Plaintiff’s settlement
discussions should be allowed at trial.

Plaintiff claims that Chevaldina has

The Federal Rules of Evidence are clear that “[t]o satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims
it is.” Fed. R. Evid. 901(a). Under that rule, “documents must be properly
authenticated as a condition precedent to their admissibility.” United States v.
Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000). “To authenticate a document, Rule
901 only requires a proponent to present sufficient evidence to make out a prima
facie case that the proffered evidence is what it purports to be . . . [a]fter meeting
the prima facie burden, the evidence may be admitted, and the ultimate question of
authenticity is then decided by the jury.” United States v. Lebowitz, 676 F.3d 1000,
1009 (11th Cir. 2012) (citations and internal quotation marks omitted); see also
United States v. Lanzon, 639 F.3d 1293, 1301 (11th Cir. 2011) (similar). Where an
objection is raised to the admissibility of evidence on authenticity grounds,
the trial court’s inquiry is whether the proponent of the evidence has shown
authentication “by evidence sufficient to support a finding that the matter in
question is what its proponent claims.” United States v. Siddiqui, 235 F.3d 1318,
1322 (11th Cir. 2000).
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2

previously relied upon an email dated December 14, 2015 from CIR’s General
Counsel Michael Rosman (“Mr. Rosman”) to Adam Schacter (“Mr. Schacter”) – the
latter of which is an attorney with the firm of Gelber, Schacter, and Greenberg, P.A.
(“GSG”) and Chevaldina’s counsel in state court. Plaintiff claims that Mr. Schacter
was attempting to negotiate a resolution of a separate motion for attorneys’ fees in
state court. Mr. Katz was seeking $114,000 in fees and expenses to collect on a
judgment against Chevaldina. Mr. Schacter asked CIR’s General Counsel (1) what
Chevaldina was seeking as fees in the Eleventh Circuit, and (2) whether CIR would
accept something less. After internal consultation – and as a favor to Chevaldina
who was facing a potential six-figure fee liability against her in state court – CIR
claims that it was willing to compromise. Mr. Rosman emailed Mr. Schacter and
told him that CIR would accept $75,000 for its work as opposed to the full amount
stated in the retainer agreement. That offer never materialized because Plaintiff
alleges that Chevaldina resolved her fees motion in state court without acquiring
the $75,000 that CIR agreed to receive in return for its work in the Eleventh
Circuit.
Plaintiff argues that the December 14, 2015 email constitutes a settlement
offer as to the amount that Chevaldina owes CIR under the retainer agreement and
that Federal Rule of Evidence 408 precludes its admission, including any other
settlement communications that Chevaldina intends to rely upon at trial.
Chevaldina’s response is that the December 14 email is not a settlement
communication, but evidence “that CIR hired GSG to represents its interest in the
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settlement negotiation in the appeal case.” [D.E. 229]. Chevaldina also argues that
CIR has not shown that there was a dispute with her about the fees owed under the
retainer agreement.

And because a settlement negotiation requires an actual

dispute or a difference of opinion between the parties as to the validity of a claim,
Chevaldina concludes that Plaintiff’s motion in limine must be denied.
Federal Rule of Evidence 408 provides that evidence of “furnishing,
promising, or offering--or accepting, promising to accept, or offering to accept--a
valuable consideration in compromising or attempting to compromise [a] claim,” is
not admissible “on behalf of any party to prove or disprove the validity or amount of
a disputed claim or to impeach by a prior inconsistent statement or a contradiction.”
Fed. R. Evid. 408. The Rule also states that “conduct or a statement made during
compromise negotiations about the claim,” is inadmissible except for limited
circumstances in criminal cases.

By its plain language, Rule 408 precludes the

admission of evidence concerning an offer to compromise “a claim” for the purpose of
proving (or disproving) the fact or amount of “the claim.” In other words, Rule 408
requires “as to which a settlement offer was made and the claim at issue in the
litigation in which the offer is proffered as evidence must be the same claim in order
for the Rule to apply and call for the evidence’s exclusion.” McClandon v. Heathrow
Land Co. P’ship, 2010 WL 336345, at *3 (M.D. Fla. Jan. 22, 2010) (citation and
quotation marks omitted).
Here, the communication between Mr. Rosman and Mr. Schacter relates to
settlement negotiations between two attorneys, the former of which represented
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Chevaldina in federal court and the latter in state court. The email in question is
CIR’s offer to lower its fee award under the retainer agreement (where Chevaldina
prevailed against Katz in federal court) to $75,000 in order to assist Chevaldina
from a fee liability (where Katz prevailed against Chevaldina) in state court.
Chevaldina argues that Plaintiff cannot show that there was an actual dispute or at
least an apparent difference of opinion on the amount owed under the retainer
agreement to justify its exclusion under Rule 408.
But, Chevaldina’s contention misses the mark because the email from Mr.
Rosman was a response to a request from Mr. Schacter about the amount of the fee
award that CIR would accept. And even though the settlement negotiation occurred
in relation to another case, it still constitutes the same claim3 as the one in this case
because it relates to the amount of fees that Plaintiff is entitled to under its retainer

Accord Uforma/Shelby Business Forms, Inc. v. National Labor Relations
Board, 111 F.3d 1284, 1293–94 (6th Cir. 1997) (“‘Rule 408 only bars the use of
compromise evidence to prove the validity or invalidity of the claim that was the
subject of the compromise, not some other claim.’”) (quoting 23 Charles A. Wright &
Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5314 (1st ed.
1980)); Broadcort Capital Corp. v. Summa Medical Corp., 972 F.2d 1183, 1194 (10th
Cir. 1992) (Rule 408 does not apply when the settlement discussions “involved a
different claim than the one at issue in the current trial”); Bradbury v. Phillips
Petroleum Co., 815 F.2d 1356, 1363 (10th Cir. 1987) (“Read literally, the rule does
not appear to cover compromises and compromise offers that do not involve the
dispute that is the subject of the suit, even if one of the parties to the suit was also a
party to the compromise.”); see also Zurich American Insurance Co. v. Watts
Industries, Inc., 417 F.3d 682, 689 (7th Cir. 2005) (“The balance is especially likely
to tip in favor of admitting evidence when the settlement communications at issue
arise out of a dispute distinct from the one for which the evidence is being
offered.”); Fiberglass Insulators, Inc. v. Dupuy, 856 F.2d 652, 655 (4th Cir.
1988) (appearing to recognize that “offering an item of evidence is not in terms
barred by Rule 408” if it is not offered “to show the validity or invalidity of the
compromised claim”).
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3

agreement with Chevaldina. There is no question that there is a dispute on the
amount of fees owed under the retainer agreement because Plaintiff claims that it is
entitled to the full amount allowed under the contract whereas Chevaldina
concludes that the amount is zero.
It also appears that Chevaldina believes that the December email cannot be
precluded under Rule 408 because there was never mutual intent to negotiate a
compromise. But, Rule 408 provides that offers to settle are excluded even if no
additional negotiations follow. See United States v. Davis, 596 F.3d 852, 859 (D.C.
Cir. 2010) (“If one party attempts to initiate negotiations with a settlement offer,
the offer is excluded from evidence even if the counterparty responds: ‘I'm not
negotiating with you.’”); Ramada Dev. Co. v. Rauch, 644 F.2d 1097, 1107 (5th Cir.
1981) (“[Rule 408] does not indicate that there must be a pre-trial understanding or
agreement between the parties” as to whether the evidence was furnished for the
purpose of compromise); Polk v. BP Amoco Chem. Co., 586 F. Supp. 2d 619, 621–22
(D.S.C. 2008) (concluding that a letter from the defendant outlining the defendant’s
position was covered by Rule 408, even though the plaintiff never made
any settlement offer of his own and never expressed any willingness to settle for
less than the full amount of his claim). And even assuming that intent has to be
mutual in order for Rule 408 to apply, the email in question suggests that CIR and
Mr. Schacter (as Chevaldina’s state court counsel) were open to the possibility of
settling Chevaldina’s fee award in the Eleventh Circuit as well as her fee liability in

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state court. Therefore, Plaintiff’s motion to preclude the December 14, 2015 email is
GRANTED under Rule 408.
As

for

Plaintiff’s

request

to

preclude

all

remaining

settlement

communications, Plaintiff fails to present this argument with any specificity.
Plaintiff merely claims that Chevaldina has referred in her motions to other
settlement conversations with CIR during the course of this litigation and that she
should be precluded from introducing these items at trial. Plaintiff is correct that
Rule 408 prohibits introduction of “[e]vidence of [settlement offers] to prove or
disprove the validity or amount of a disputed claim,” but appears to overlook the
exception that allows such evidence “for another purpose.” Fed. R. Evid. 408.
Without any clarity on what other communications Plaintiff seeks to preclude, it
would be premature to conclude that all settlement communications are per se
barred under Rule 408 without any specifics on what these communications may be.
Rule 408 does not come into play unless there is a dispute as to the validity or
amount of a claim. And if a communication meets that requirement, it may still be
admitted for “proving a witness’s bias or prejudice, negating a contention of undue
delay, or proving an effort to obstruct a criminal investigation or prosecution.” Id.
Therefore, Plaintiff’s motion to preclude all other settlement communications that
Chevaldina raised in this case is DENIED with leave to renew with the District
Judge at trial.

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III.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiff’s motion in limine [D.E. 207] is GRANTED in part and DENIED in part:
1.

Plaintiff’s motion to preclude Chevaldina from introducing CIR’s

financial records at trial is DENIED.
2.

Plaintiff’s motion to preclude Chevaldina from introducing the

December 14, 2015 email at trial is GRANTED.
3.

Plaintiff’s motion to preclude all other settlement communications is

DENIED with leave to renew with the District Judge at trial.
DONE AND ORDERED in Chambers at Miami, Florida, this 3rd day of
August, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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