Hiatt et al v. Rebel Auction Company, Inc. et al
Filing
169
ORDER denying 152 Plaintiff's Motion to Exclude Defendants' Exhibit No. 13 "Surveillance Video of Robin Hiatt", which was filed on August 12, 2015. Accordingly, in addition to being untimely, Plaintiffs' objections to the surveillance footage are substantively unavailing, and Plaintiffs' Motion is DENIED for this reason as well. Signed by Chief Judge Lisa G. Wood on 8/18/2015. (csr)
1n the aniteb btatto 38t.0trut Court
for the boutbern 39tothtt of 4eorgia
jorunowid aibtion
ROBIN HIATT; and CHANDA HIATT,
CIVIL ACTION NO.: 2:13-CV-20
Plaintiffs,
V.
REBEL AUCTION CO., INC.; LARRY
DAVIS,
Defendants.
ORDER
Presently before the Court is Plaintiffs' Motion to Exclude
Defendants' Exhibit No. 13 "Surveillance Videos of Robin Hiatt",
which was filed on August 12, 2015. Dkt. No. 152. Defendants
filed a Response, and Plaintiffs filed a Reply. Dkt. Nos. 158,
167. For the reasons which follow, Plaintiffs' Motion is
DENIED.
I. Timeliness of Plaintiffs' Motion
Plaintiffs filed this cause of action on February 5, 2013,
and alleged that Plaintiff Robin Hiatt was an invitee at an
equipment auction operated by Defendant Rebel Auction Company on
December 8, 2011. Plaintiffs asserted Robin Hiatt bought a mini
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excavator at this auction and was to go to a "specified area" to
load that equipment onto a truck. Dkt. No. 1, ¶ 15. Plaintiffs
also asserted the specified area was extremely dark and had no
artificial lighting, making visibility poor. According to
Plaintiffs, Robin Hiatt was struck on the right side of his body
by a Caterpillar excavator (not the one Robin Hiatt purchased),
which caused him to suffer "significant and debilitating
physical injuries, including . . . an injury to his spinal
cord." Id. at ¶ 22.
The Court entered a Scheduling Order on May 10, 2013, which
advised the parties, in relevant part, that "Motions in limine
shall be submitted in writing at least five (5) days prior to
the pretrial conference[.]" Dkt. No. 23,
p. 2 (emphasis
supplied). This Scheduling Order was amended on August 29,
2013, and the Court once again advised the parties of their
obligation to file their motions in lirnine no later than five
(5) days before the pretrial conference. Dkt. No. 37, p. 2. In
the parties' Consolidated Pretrial Order, which was filed on
April 23, 2015, counsel represented there were no motions
pending before the Court at that time. However, Plaintiffs
reserved the right to file a motion to compel Defendants to
produce all raw, unedited footage of any and all surveillance
videos of Plaintiff Robin Hiatt. Dkt. No. 124,
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p. 3.
On May 26, 2015, the Court noticed the pretrial conference
in this case, which was to be held on June 29, 2015. Counsel
were again reminded of their duty to file any motions in limine
no later than five days before the pretrial conference, with the
added provision that these motions were to be filed "if
practicable; otherwise, such motions may be filed up to the time
of trial (L.R.7.4) ." Dkt. No. 127, p. 2. Defendants filed a
motion in limine on June 23, 2015. Dkt. No. 131. At the
pretrial conference conducted on June 29, 2015, counsel did not
indicate that there were any remaining disputes regarding the
video footage. Dkt. No. 137-1.
The Magistrate Judge conducted a hearing on August 11, 2015
on Defendants' Motion in Limine and the parties' Objections to
jury charges and entered an Order on that Motion and those
Objections on August 13, 2015. Dkt. Nos. 151, 153. At no point
during this hearing did counsel indicate to the Court that the
video footage still remained a point of contention. In fact,
when the Magistrate Judge specifically asked if there were any
other issues the parties wished to raise at that time,
Plaintiffs' counsel only stated there may be objections to
certain deposition testimony and voiced concern about proper
decorum. Aug. 11, 2015, Hr'g at 3:49:01-3:50:08.
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The Court recognizes that parties were to file all motions
in limine no later than five (5) days prior to the pretrial
conference, if practicable. S.D. Ga. L.R. 7.4. However,
Plaintiffs have failed to show that It was not practicable to
file their present Motion in Limine before August 12, 2015, a
mere six (6) days before trial. By counsel's own admissions,
they received portions of the alleged video surveillance of
Plaintiff Robin Hiatt on April 20, 2015, and upon review of that
footage, opined that the footage had been edited. Dkt. No. 152,
p. 1. It appears that Plaintiffs' counsel did not contact
Defendants' counsel until May 21, 2015, a month after receiving
this footage. Dkt. No. 158-1, p. 1. While Defendants' counsel
was not able to get any missing video footage even a month after
that, he stated that, if the investigator was not forthcoming,
he would not object to subpoenaing the company to produce the
raw footage at their office. Dkt. No. 158-2,
p. 1.
The evidence before the Court fails to reveal that the
information forming the basis of Plaintiffs' Notion was not
known to them in April 2015 at the earliest and at the latest
when counsel appeared before the Court on June 29, 2015, at the
pretrial conference and again on August 11, 2015, at the hearing
on Defendants' Motion in Limine. Yet counsel failed to present
any contentions regarding the raw video footage on these
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occasions. Consequently, Plaintiffs' Motion in Limine, dkt. no.
152, is DENIED as untimely filed.
II. Plaintiffs' Specific Objections to the Video Surveillance
Evidence
In the alternative, even if Plaintiffs' Motion were
considered timely, their Motion is nevertheless due to be
denied. Based on Defendants' counsel's representations, EMI
Security produced to Defendants' counsel all footage depicting
Plaintiff Robin Hiatt, and Defendants' counsel in turn provided
that footage to Plaintiffs' counsel. The investigators at EMI
were made available to Plaintiffs for deposition, and Plaintiffs
did not avail themselves of that opportunity. Dkt. No. 158, p.
10; Dkt. No. 167, p. 4. Plaintiffs' counsel were aware of this
opportunity on June 23, 2015, which was, of course, before the
pretrial conference and certainly before counsel appeared before
the Magistrate Judge.' Dkt. No. 158-2, p. 1.
Additionally, it appears this footage will be properly
presented as impeachment evidence. 2 This evidence did not come
1
The Court notes Plaintiffs' assertion that they were unaware of the
option to depose EMI Security personnel until July 21, 2015. Dkt. No.
167, p. 2. Plaintiffs' counsel could have sought to depose a
representative of EMI as soon as Plaintiffs received the surveillance
video. Furthermore, there can be no doubt that Plaintiffs' counsel
were aware of any alleged insufficiency of the video surveillance
footage prior to the August 11, 2015, hearing.
2
The Court presumes Defendants' counsel will be able to lay the
proper foundation for the introduction of this evidence at trial,
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into being until February and March 2015, which was after the
close of discovery on March 10, 2014. Dkt. No. 43. However,
this evidence need not have been produced during the discovery
period, as it is not substantive evidence. Alphonso v. Esfeller
Oil Field Const., Inc., 380 F. App'x 808, 810 (11th Cir. 2010)
(noting that Rule 26 does not require pre-trial disclosure of
evidence that may be offered at trial solely for impeachment and
may be used to assess a plaintiff's credibility as to testimony
regarding disability); see also Dehart v. Wal-Mart Stores, East
L.P., No. 4:05CV00061, 2006 WL 83405, at *2 (W.D. Va. Jan. 6,
2006) (distinguishing between surveillance video evidence which
will be used to impeach and that which is substantive in nature,
i.e., evidence offered to establish the underlying facts in a
case). As the surveillance occurred well after the incident
giving rise to Plaintiffs' Complaint, the footage may be used as
an impeachment tool, if need be. 3
The Court also notes Plaintiffs' contentions regarding the
"completeness doctrine." Dkt. No. 152, pp. 3-5. Plaintiffs
maintain the failure to produce the complete, unedited portion
particularly considering the lack of argument by Plaintiffs' counsel
regarding the admissibility of this evidence on a foundational basis.
In fact, Plaintiffs' counsel does not assert this footage cannot be
used as impeachment evidence, only that its production does not
satisfy certain Rules of Evidence.
Based on their Reply, Plaintiffs have abandoned their contention
that the video footage depicts minor children and non-party adults.
Dkt. No. 167.
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of the video recordings "suggests that they would be beneficial
to the Plaintiff Robin Hiatt or provide direct evidence of the
serious nature of his injuries." Id. at pp. 4-5. In response,
Defendants state that they have produced raw, unedited video of
all surveillance depicting Mr. Hiatt. Defendants explain,"[t]he
fact that there are missing numbers in the filing sequence does
not indicate a missing video of Mr. Hiatt. Instead EMI
explained that during surveillance the camera is sometimes
activated without capturing any video of the person being
observed. These clips are not saved to the surveillance file
because they contain no video of the subject." Dkt. No. 158, p.
2. "Rule 106 [of the Federal Rules of Civil Procedure] provides
that when a writing or recorded statement is introduced by a
party, an adverse party may require the introduction . . . of
any other part . . . which in fairness ought to be considered
contemporaneously with it. . . . Under the Rule 106 fairness
standard, the exculpatory portion of the" evidence should be
"admitted if it [is] relevant to an issue in the case and
necessary to clarify or explain the portion received." United
States v. Range, 94 F.3d 614, 620-21 (11th Cir. 1996)
Here, the remaining thirteen (13) video clips at issue were
not deemed relevant to the case contracted for by the
surveillance company because these clips were not of Plaintiff
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Robin Hiatt and, therefore, were not retained by the
surveillance company. Dkt. No. 158-9, p. 1. While it would
have been ideal for the Court to be able to review these clips
to determine whether they are relevant, it appears that the
clips do not even depict Mr. Hiatt. Thus, the clips would not
clarify or explain the surveillance video that Defendants seek
to use. Furthermore, Plaintiffs have not made any argument that
the surveillance footage that Defendants seek to use is taken
out of context, distorted, or confusing, or that it inaccurately
depicts the movements and actions of Mr. Hiatt. Consequently,
Plaintiffs have failed to establish that the deleted clips are
necessary to clarify what is on the surveillance footage or
otherwise explain that footage to the jury.
Moreover, any information in the deleted clips was
available through other means. Plaintiffs had the opportunity
to depose a representative of EMI regarding the other clips to
discover, among other things, what the clips depicted and why
they were not retained. Likewise, Mr. Hiatt should be able to
testify about his movements and activities depicted on the
surveillance footage and the activities he undertook in the time
periods surrounding this footage. Thus, to the extent
Plaintiffs seek to clarify or explain the surveillance footage,
they do not need the deleted clips to do so.
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Accordingly, in addition to being untimely, Plaintiffs'
objections to the surveillance footage are substantively
unavailing, and Plaintiffs' Motion is DENIED for this reason as
well.
SO ORDERED, this
day of Ast5.
LSA GPDBEY WOOD, CHIEF JUDGE
UITE STATES DISTRICT COURT
SOJTH,RN DISTRICT OF GEORGIA
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