Mehta et al v. Foskey et al
Filing
133
ORDER granting in part and denying in part 124 Motion in Limine to exclude from trial five categories of evidence. Signed by Magistrate Judge James E. Graham on 4/30/2013. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEOR1
WAYCROSS DIVISION
FILED
DISTRICT COURT
1013 APR 30 P 2: 53
CLELCU&
ATITH H. MEHTA, and CK GAS,
LLC, d/bla 3-D Chevron Station,
SO. DSJ. OF GA.
Plaintiffs,
CIVIL ACTION NO.: CV5I0-001
V.
RICHARD R. FOSKEY; JOHN M
BLOODWORTH; KEVIN BRITT;
MATT GOURLEY; and
MARK OSBURN,
Defendants
ORDER
Plaintiffs filed a Motion in Limine to exclude from trial five categories of evidence.
(Doc. No. 124). Defendants filed a Response. (Doc. No. 128).
I.
Material Seized
Plaintiffs move to prevent the jury from viewing any of the seized material at-
issue in this case. Plaintiffs argue that jurors will be confused and enraged if they are
permitted to examine the items. Plaintiffs submit that the content of the media is
irrelevant to any factual issue in the case. Plaintiffs allege that obscenity is not the
focus of this trial. Further, Plaintiffs state that even if the items are relevant, viewing its
content would result in unfair prejudice.
Defendants contest Plaintiffs' Motion on several grounds. First, Defendants
contend that as to Plaintiff 3-D, this trial is based on First and Fourth Amendment
grounds. Defendants submit that Plaintiff 3-D brought suit on First Amendment
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grounds, therefore the jury should be permitted to examine the materials.' Further,
Defendants contend that the jury should at least be permitted to view the covers of the
media, as they are relevant to the issue of damages and to the plausibility of Plaintiffs'
claim that the items were in their possession for the purpose of sale to customers.
The standard for relevance is very low, in that "evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence" is admissible
FED. R.
Evio.
401. However, Rule 403 provides that relevant evidence may
nonetheless be inadmissible if "its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence."
FED.
R.
EvID.
403. Admission of the content of the materials would unfairly
prejudice Plaintiffs and serve little probative value on the issues contested in this case.
It is the circumstances surrounding the seizure of the magazines and DVDs, not their
content, which are disputed. The analysis of whether arguably obscene material was
afforded the proper protection pre-seizure in accordance with the First Amendment is
not dependent on whether the content of the seized material actually qualifies as
obscene. Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 62-63 (1989) ("[T]his
Court has repeatedly held that rigorous procedural safeguards must be employed
before expressive materials can be seized as 'obscene."). Viewing the content of the
items seized would unnecessarily distract and prejudice the jurors.
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Defendants allude to a prior suggestion by the Honorable Judge Lisa Godbey Wood during a telephone
conference regarding the handling of the materials at trial. Defendants seem to contend that Judge
Wood's suggestion, aimed at achieving compromise between the parties, was a "ruling" on the issue. No
previous order or ruling has been entered determining the treatment of the media.
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At trial, the Defendants will be allowed to display the seized items to the jury.
The jury will be allowed to view the covers of the material, but not the content. This
procedure will avoid unnecessary prejudice while allowing the jury to comprehend the
nature of the material taken, adequately assess its value in terms of appropriate
damages, and weigh Plaintiffs' contention that the material was intended for sale. In
accordance with the foregoing, this portion of Plaintiffs' Motion is DENIED.
II.
Testimony by Taylor Boatright
Plaintiffs seek to preclude Taylor Boatright from testifying at trial. Plaintiffs
allege that Defendants did not speak with Ms. Boatright prior to the contested search at
issue in this case. Plaintiffs argue that if Defendants were not privy to the information
provided by Ms. Boatright prior to the search, her testimony is irrelevant to whether the
search was permissible. Plaintiffs, however, request the ability to reserve Ms. Boatright
as a rebuttal witness.
Defendants argue that Chief Judge Wood's Order on Defendants' Motion for
Summary Judgment was clear on this issue. (Doc. No. 112). The undersigned agrees
that Chief Judge Wood has previously determined that the record is somewhat unclear
as to whether Defendants interviewed Ms. Boatright before or after the search warrant
was obtained. (Id at pp. 10 - 11). Plaintiffs attempt to argue that because the
witnesses' memories are not perfectly clear, the possibility that Defendants interviewed
Ms. Boatright prior to obtaining the search warrant is completely foreclosed. The
record does not support such a conclusion.
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Plaintiffs' objections go to the weight to be given Ms. Boatright's testimony, not
its admissibility. "Vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence." McDowell v. Brown, 392 F.3d 1289, 1299
(11th Cir. 2004) (internal punctuation and citations omitted). Plaintiffs' own request to
reserve Ms. Boatright as a rebuttal witness "if otherwise needed" demonstrates that
excluding her testimony entirely at this stage of the litigation would be premature.
(Doc. No. 124, p. 4). Based on the foregoing, this portion of Plaintiffs' Motion is
DENIED at this time.
Ill.
Evidence of alleged crimes occurring on the premises or by Mehta
Plaintiffs move to exclude all mention of other crimes alleged to have occurred
on the premises or by Mehta other than the January 2, 2008 incident. Plaintiffs
specifically find a theft by taking incident in Bibb County mentioned by Mehta in his
deposition objectionable. Plaintiffs aver that charge was later dropped. Plaintiffs
generally cite Rule 403 for support 2
Defendants contend that the mentioned Bibb County incident could be relevant
to Mehta's claim for emotional distress damages. Also, Defendants submit that an
order excluding all other alleged incidents on the premises would be overly broad
because it is unclear what "other crimes" Plaintiffs wish to exclude.
The Court agrees with Defendants. An order excluding all such evidence would
be overly broad. Furthermore, Defendants may introduce evidence that Mehta has
2
"The court may exclude relevant evidence if its probative value is substantially outweighed by a danger
of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence." FED. R. EviD. 403,
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previously been arrested as that is relevant to Mehta's emotional distress claim. Of
course, Mehta may introduce evidence that the charge was dismissed. This portion of
Plaintiffs' Motion is DENIED.
IV.
Identification of individuals as former Defendants
Plaintiffs seek to prevent certain witnesses from being identified as former
defendants in the instant case during trial. Plaintiffs contend it would risk confusion and
mislead the jury to explain that these individuals were formerly defendants, dismissed
from the suit prior to trial.
Defendants generally do not oppose this Motion; therefore, this portion of
Plaintiffs' Motion is GRANTED. However, as mentioned in Defendants' Response,
should Plaintiffs implicate any former defendant as responsible for wrongdoing, this
Order shall not prevent Defendants' objection at trial.
V
Documents
Plaintiffs submit objection to certain documents from the current exhibit list.
(Doc. No. 104, pp. 18-23). Plaintiffs' objections to Items 29(a) - 31(v) (the seized
material) have been considered in Section I, above.
Plaintiffs also move to exclude Item 12, a letter from Richard Strickland to
Plaintiffs' counsel, as irrelevant. Plaintiffs argue that admitting the letter as evidence
would convert counsel to witnesses. Defendants contend that the letter is relevant as
to the issue of damages, but would instead agree to a stipulation that: "on July 22,
2010, Plainitffs' pornographic magazines and pornographic DVDs were returned to
Plainitffs and that Plaintiff(s) had not previously requested those materials." (Doc. No.
128, p. 7).
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Defendants have offered a relevant purpose for the admission of Item 12. The
Court views Defendants' proposed stipulation as an acceptable compromise on the use
of the document at trial. However, if Plaintiffs do not agree to Defendants' offered
stipulation, the document will be admissible, assuming it is otherwise properly
presented at trial under the applicable rules. Therefore, this portion of Plaintiffs'
Motion is DENIED.
Any objections to this Order must be filed by noon on May 8, 2013.
SO ORDERED, this -?d day of April, 2013.
MES E. GRAHAM
NITED STATES MAGISTRATE JUDGE
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