Hathaway v. Idaho-Pacific Corporation

Filing 48

MEMORANDUM DECISION AND ORDER Plaintiff's Motion in Limine to Exclude Margaret Johnson as a Witness, or in the Alternative, Prohibit Defendant from Re-opening Discovery (Dkt. 37 ) is GRANTED. Plaintiff's Motion in Limine Regarding Hearsay Evidence and Unauthenticated Statements Made by Margaret Johnson and Linda Bair (Dkt. 38 ) is GRANTED. IPC may not present the 2013 audio recordings of interviews with Johnson or Bair at trial. Defendants Motion for Leave to Take De Bene Esse Depos ition of Unavailable Witness Margaret Johnson, or, in the Alternative, Motion to Reopen Discovery for Limited Purpose of Deposing Margaret Johnson (Dkt. 41 ) is DENIED.Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROSS HATHAWAY,

Case No. 4:15-cv-00086-DCN

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
IDAHO PACIFIC CORPORATION,
Defendant.
I. INTRODUCTION
Currently pending before the Court are three motions in limine the parties filed in
anticipation of a trial set for December 11, 2017. Defendant Idaho Pacific Corporation
(“IPC”) seeks to conduct a trial deposition of a key witness who will not appear at trial.
This witness has not previously been deposed and her whereabouts were allegedly
unknown until recently. In the alternative, IPC seeks to reopen discovery to conduct a
discovery deposition of the witness. Plaintiff, Ross Hathaway, opposes IPC’s requests
and seeks to prevent IPC from presenting an interview IPC recorded with the witness in
2013.
II. BACKGROUND
A. Factual Background1

1

This statement of facts was taken from Judge Winmill’s Memorandum Decision and Order
(Dkt. 28) denying IPC’s motion for summary judgment.
MEMORANDUM DECISION AND ORDER – PAGE 1

On February 19, 2013, Hathaway injured his shoulder and thumb while working at
IPC. With his shoulder and thumb wrapped in ice, Hathaway made a report to Dwain
Gotch, Plant Safety Manager, describing the accident, and detailing the injury to his
shoulder and thumb. Gotch prepared a handwritten report that included both the shoulder
and thumb injury, and Hathaway signed that report. This was consistent with Gotch’s
normal practice. But this time, Gotch later prepared a final typewritten report that failed
to mention the shoulder injury, and that report was never submitted to Hathaway for his
signature. The original handwritten report has apparently disappeared.
His shoulder pain increasing, Hathaway sought treatment from Dr. Larry Curtis.
On March 28, 2013, Dr. Curtis wrote to IPC stating that Hathaway’s shoulder injury was
due to his fall at IPC on February 19, 2013. IPC received Dr. Curtis’s letter the same day.
The next day—March 29, 2013—IPC filed its official report with the worker’s
compensation board on Hathaway’s fall, saying nothing about his shoulder injury.
On April 16, 2013, Hathaway discovered that Gotch’s typewritten report failed to
mention his shoulder injury. Hathaway testified that when he confronted Gotch about
this, Gotch said that he had been ordered to omit reference to the shoulder injury from the
report. Hathaway complained that same day to Mike Willmore, in IPC’s Human
Resources Department, but got no response.
One day later—on April 17, 2013—co-worker Margaret Johnson gave a statement
to Supervisor Steve McLean that she overheard Hathaway say that he should “trip and
fall and then they’d have to pay.” See Dkt. 18-6. Notably, in Johnson’s recorded and
transcribed statement, she indicated she could not tell whether or not Hathaway was
MEMORANDUM DECISION AND ORDER – PAGE 2

joking. Id. Hathaway denies making that statement, and indicates that he was never given
a chance to respond to Johnson’s claim. IPC claims that it met with Hathaway and gave
him a chance to answer the allegations. However, IPC kept no record of such a meeting,
unlike the interview with Johnson, which was both tape-recorded and transcribed. The
next day, IPC fired Hathaway.
B. Procedural Background
Hathaway filed this suit on March 12, 2015. Dkt. 1. On February 17, 2017, Judge
Winmill denied IPC’s motion for summary judgment. Dkt. 28. He then set this case for a
5-day jury trial starting on September 18, 2017. Dkt. 30. The Court vacated this trial date
after Judge Winmill transferred this case to the undersigned. The Court has rescheduled
trial for December 11, 2017. The parties must inform the Court by November 1, 2017,
whether the case will proceed to trial. If so, the parties have until November 15, 2017, to
file any trial briefs or motions in limine.
During discovery, Hathaway asked IPC for Johnson’s contact information and
personnel file so he could depose her. In its initial disclosures, IPC indicated that it did
not have an address for Johnson. Later, in its supplemental disclosures it gave Hathaway
a P.O. Box number for Johnson located in Ririe, Idaho. Finally, apparently after
Hathaway made several attempts to obtain information from IPC, IPC gave Hathaway a
phone number for Johnson. The number was no longer in service.
IPC maintains that it terminated Johnson in April of 2014 as part of a reduction in
force. Dkt. 39, at 4. IPC continued to contact Johnson at the P.O. Box address in Ririe,
Idaho, after it terminated her. Id. Johnson has never given IPC a forwarding address or
MEMORANDUM DECISION AND ORDER – PAGE 3

change of address information. Id. Therefore, IPC maintains that it gave Hathaway the
only contact information it had for Johnson. Id.
Hathaway was never able to contact or depose Johnson during discovery, which
closed on September 30, 2016. Dkt. 39, at 3. However, at the end of June, 2017, IPC
asked to take a trial deposition of Johnson. Id. IPC indicated it had obtained Johnson’s
current contact information by hiring a private investigator.2 Id. Apparently, Johnson had
moved to Nevada several years ago. On June 28, 2017, IPC provided Johnson’s updated
Nevada contact information to Hathaway along with its request to depose Johnson. Id. at
4. Johnson has indicated she is unwilling to appear at trial in this case. Id. at 5.
The three pending motions in limine concern whether IPC should be permitted to
depose Johnson and, if not, what other evidence IPC may present regarding Johnson at
trial. First, Hathaway has filed a motion to exclude Johnson as a witness, or, in the
alternative, prohibit IPC from re-opening discovery to depose Johnson. Dkt. 37. Second,
IPC requests leave to take a de bene esse deposition of Johnson, or, in the alternative, to
reopen discovery for the limited purpose of deposing Johnson. Dkt. 41. Finally,
Hathaway has filed a motion in limine to bar IPC from presenting recordings of
statements made by Johnson and another witness, Linda Bair, including any transcripts of
those recordings. Dkt. 38.
After the Motions were fully briefed, the Court held oral argument on October 12,
2017. At the end of that hearing, the Court took the Motions under advisement. The Court

IPC has not submitted an affidavit or statement from the investigator explaining the steps the
investigator took to locate Johnson. In fact, IPC has not even identified the investigator.
2

MEMORANDUM DECISION AND ORDER – PAGE 4

also asked IPC to provide the Court with a copy of Johnson’s personnel file for an in
camera review to determine whether IPC provided Hathaway with all of Johnson’s
contact information during discovery. IPC has provided the personnel file and the Court
has undertaken an extensive review of its contents.
III. STANDARD OF REVIEW
“Motions in limine are well-established devices that streamline trials and settle
evidentiary disputes in advance, so that trials are not interrupted mid-course for the
consideration of lengthy and complex evidentiary issues.” United States v. Tokash, 282
F.3d 962, 968 (7th Cir. 2002). “The term ‘in limine’ means ‘at the outset.’ A motion in
limine is a procedural mechanism to limit in advance testimony or evidence in a
particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009) (quoting
Black’s Law Dictionary 803 (8th ed. 2004)). Because “[a]n in limine order precluding the
admission of evidence or testimony is an evidentiary ruling,” United States v. Komisaruk,
885 F.2d 490, 493 (9th Cir. 1989) (citation omitted) “a district court has discretion in
ruling on a motion in limine.” United States v. Ravel, 930 F.2d 721, 726 (9th Cir. 1991).
Further, in limine rulings are preliminary and, therefore, “are not binding on the trial
judge [who] may always change his mind during the course of a trial.” Ohler v. United
States, 529 U.S. 753, 758 n.3 (2000).
IV. ANALYSIS
A. Hathaway’s Motion to Exclude Johnson from Trial
Under Federal Rule of Civil Procedure 26(a), parties have a duty to disclose
initially:
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the name and, if known, the address and telephone number of each individual
likely to have discoverable information—along with the subjects of that
information—that the disclosing party may use to support its claims or
defenses, unless the use would be solely for impeachment[.]
Fed. R. Civ. P. 26(a)(1)(A)(i). Parties are required to make these disclosures “based on
the information then reasonably available to [them].” Fed. R. Civ. P. 26(a)(1)(E). Some
courts have interpreted Rule 26 as requiring “each party to make a good faith effort to
obtain particularized address and telephone information for individuals relevant to the
litigation.” See Fausto v. Credigy Servs. Corp., 251 F.R.D. 427, 429 (N.D. Cal. 2008).
Moreover, as discovery proceeds, the parties have a continuing duty to supplement their
disclosures and responses:
(1) In General. A party who has made a disclosure under Rule 26(a)—or who
has responded to an interrogatory, request for production, or request for
admission—must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect
the disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in writing
....
Fed. R. Civ. P. 26(e). In order to “give[ ] teeth to these requirements,” Rule 37(c)(1)
permits the Court to preclude “the use at trial of any information required to be disclosed
by Rule 26(a) that is not properly disclosed.” Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1105 (9th Cir. 2001). The Court may excuse the failure to disclose
if the party can demonstrate substantial justification or if the nondisclosure is harmless.
Fed. R. Civ. P. 37(c)(1). “As trial approaches, the parties must then choose their trial
witnesses from this list of persons they have disclosed pursuant to Rule 26.” Depew v.
MEMORANDUM DECISION AND ORDER – PAGE 6

ShopKo Stores, Inc., No. CIV. 03-0539-S-BLW, 2006 WL 47357, at *1 (D. Idaho Jan. 6,
2006).
Hathaway admits that IPC identified Johnson as a person with potential
knowledge in its initial disclosures. Nevertheless, Hathaway argues that the Court should
bar IPC from calling Johnson as a witness at trial because IPC initially failed to provide
contact information for Johnson and later only provided insufficient contact information.
More specifically, Hathaway argues IPC violated the Federal Rules regarding discovery
disclosures by (1) failing to take steps to determine Johnson’s current contact information
and (2) failing to turn over Johnson’s personnel file during discovery.
IPC responds that the Court should permit it to use Johnson as a witness at trial
because it gave Hathaway all of the contact information it had for Johnson and it had no
obligation to investigate further into the matter. IPC also asserts that finding and deposing
a potential witness listed in its Rule 26 disclosures is not a prerequisite to calling that
witness at trial.
The Court agrees that IPC was not required to find and depose Johnson as a
condition necessary to using her at trial. Nevertheless, the Court finds IPC violated the
discovery rules. First, IPC failed to timely disclose Johnson’s P.O. Box address and
phone number. This information was readily available to IPC; it appeared on many
documents within Johnson’s personnel file. Accordingly, IPC should have included this
information in its initial disclosures on July 24, 2015. Instead, it initially stated that her
address and phone number were unknown. It did not supplement this initial disclosure
with Johnson’s Ririe, Idaho, P.O. Box until August of 2015 and it did not provide
MEMORANDUM DECISION AND ORDER – PAGE 7

Johnson’s phone number to Hathaway until June 6, 2016. At that point, the phone line
was out of service. Yes, IPC eventually disclosed this information during discovery, but it
should have disclosed it earlier and its dilatory disclosure may have prevented Hathaway
from locating Johnson during discovery.
Moreover, during its in camera review of Johnson’s personnel file, the Court
located a physical address for Johnson that IPC never disclosed on a “Payroll Verification
Information” form. It is not clear whether this information would have led Hathaway to
find Johnson, but the failure to disclose this address was a violation of the letter of the
law as it was “reasonably available” to IPC. See Fed. R. Civ. P. 26(a)(1)(E). IPC’s failure
to comply with Rule 26 is neither substantially justified nor harmless. See Fed.R.Civ.P.
37(c)(1); see also Boon Rawd Trading Int’l Co. v. Paleewong Trading Co. Inc., No. C
09-05617 WHA, 2011 WL 846639, at *5 (N.D. Cal. Mar. 8, 2011) (barring witness from
testifying at trial where offering party “consistently failed to disclose [the witness’s]
contact information” and it appeared that the party had “at least some recent information
regarding [the witness’s] whereabouts”).
Finally, during its in camera review the Court also found phone numbers for three
references on Johnson’s employment application and two emergency contact numbers on
the “Payroll Verification Information” form. These phone numbers might have helped
Hathaway locate Johnson. However, Hathaway has not provided legal authority to
support its assertion that IPC was required to disclose the private contact information of
third-parties. Therefore, the Court finds the decision not to disclose this information did
not violate the Rules.
MEMORANDUM DECISION AND ORDER – PAGE 8

For the reasons stated above, under Rule 37, the Court will not permit IPC to use
Johnson as a witness at trial, either by calling her as a live witness or presenting her prerecorded trial deposition.
B. IPC’s Motion to Take De Benne Esse Deposition or Reopen Discovery
As the Court has determined that it will not permit Johnson to testify at trial, in
any form, there is no reason to permit IPC to conduct a trial deposition of Johnson. The
Court also finds there is no good cause to reopen discovery to allow IPC to take a
discovery deposition of Johnson. Once the deadline for completing discovery has passed,
the Court will not reopen discovery except upon a showing of “good cause.” a party must
show good cause to justify reopening discovery.” Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 607 (9th Cir. 1992); Huntsman Advanced Materials LLC v. OneBeacon
Am. Ins. Co., No. 1:08-CV-00229-BLW, 2012 WL 5285901, at *1 (D. Idaho Oct. 25,
2012) (citing Fed. R. Civ. P. 16(b)). The “‘good cause’ standard primarily considers the
diligence of the party seeking” to reopen discovery. Johnson, 975 F.2d at 609. “If that
party was not diligent, the inquiry should end.” Id.
The Court finds IPC was not diligent. During discovery, IPC made minimal efforts
to locate or contact Johnson. IPC has given no explanation as to why it did not hire an
investigator during discovery to locate Johnson or why it did not take other steps during
discovery to locate her. And, as explained above, IPC failed to even timely supply
Johnson’s contact information to Hathaway. If IPC had diligently taken steps to locate
Johnson, it might have realized—while discovery was still open—that Johnson was
outside of the subpoena power of the Court and was unwilling to testify at trial. Instead,
MEMORANDUM DECISION AND ORDER – PAGE 9

IPC waited until shortly before trial to locate her. This case is readily distinguishable
from the cases in which this Court has reopened discovery and/or allowed parties to take
trial depositions shortly before trial. See, e.g., Depew v. Shopko Stores, Inc., 1:03-cv-539BLW-LMB (Dec. 27, 2005), Dkt. 59 (allowing defendant to take trial deposition of
witness who had been deposed during discovery and then had moved to Georgia after
discovery had closed, where defendant requested to take the trial deposition just over a
month after the witness had moved).
For all of these reasons, the Court denies IPC’s request to take a trial deposition or
reopen discovery.
C. Motion to Exclude 2013 Interview of Johnson and Bair
Finally, Hathaway asks this court to bar IPC from presenting at trial interviews
with Johnson and Bair that IPC recorded in 2013. Hathaway asserts that the Court should
exclude from evidence the interview with Johnson first under Federal Rule of Evidence
901—because the recording has not been authenticated—and second under Federal Rules
of Evidence 801 and 802—because the recording contains hearsay for which no
exception exists. Hathaway also asserts that the Court should exclude from evidence the
interview with Bair under Rules 402 and 602. The parties all but omit any discussion of
the Bair interview in their briefs; accordingly, the Court grants the motion to exclude the
recorded interview with Bair. The Johnson interview, however, requires closer
examination.

MEMORANDUM DECISION AND ORDER – PAGE 10

1. Rule 901 Authentication
Rule 901 provides that the proponent of a piece of evidence “must produce
evidence sufficient to support a finding that the item is what the proponent claims it is.”
Fed. R. Evid. 901(a). In other words, IPC “must show that the tape [is] an accurate
depiction of the” interview with Johnson. Mueller v. Auker, No. CIV 04-399-S-BLW,
2010 WL 2265867, at *11 (D. Idaho June 4, 2010). However, IPC “need only make a
prima facie showing of authenticity ‘so that a reasonable juror could find in favor of
authenticity or identification.’” Id. (quoting U.S. v. Blackwood, 878 F.2d 1200, 1202 (9th
Cir. 1989). If IPC “meets this burden, the probative force of the evidence is an issue for
the jury. At this point, any doubts as to the authenticity of the evidence go to its weight
and not to its admissibility.” Id. Under Rule 901(b)(5) a voice recording can be
authenticated if someone familiar with the person’s voice speaking on the recording
identifies that individual’s voice, “based on hearing the voice at any time under
circumstances that connect it with the alleged speaker.” This Rule establishes a “low
threshold” for authenticity; essentially anyone “minimally familiar” with the recorded
voice can authenticate the recording. 2010 WL 2265867, at *11.
IPC asserts that it will call a number of witnesses at trial who can identify
Johnson’s voice on tape, and any of the other participants on the tape-recorded
conversation. Such testimony would be sufficient to authenticate the recording.
Therefore, the Court finds Rule 901 does not prevent the admissibility of the recording.
///
///
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2. Hearsay
Hearsay is “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Orr v.
Bank of Am., NT & SA, 285 F.3d 764, 778 (9th Cir. 2002) (citing Fed .R. Evid. 801(c)).
“In the absence of a procedural rule or statute, hearsay is inadmissible unless it is defined
as non-hearsay under Federal Rule of Evidence 801(d) or falls within a hearsay exception
under Rules 803, 804 or 807.” Id.
During the recorded interview, Johnson told her supervisor Steve McLean that she
overheard Hathaway say that he should “trip and fall and then they’d have to pay.” Dkt.
18-6, at 29. Hathaway asserts that this interview should be excluded because it is hearsay.
IPC argues that Johnson’s statement on the interview is not hearsay because, although it
is an out of court statement, it does not offer it for the truth of the matter asserted.
Specifically, IPC maintains that it is not offering the statement to show Hathaway
actually said he should “trip and fall and then they’d have to pay;” rather, IPC is offering
the statement to show that Johnson recounted this event to her supervisor and, therefore,
IPC had legitimate, non-discriminatory grounds for terminating Hathaway.
Although this presents a close call, in the end Hathaway presents the more
compelling argument. IPC’s assertion that Johnson’s statement shows it had a legitimate
reason for terminating Hathaway is only valid if Johnson’s statement is taken as true.
Thus, IPC is, in actuality, offering Johnson’s out of court statement to show that
Hathaway actually said that he should trip and fall.

MEMORANDUM DECISION AND ORDER – PAGE 12

The Court also finds Johnson’s statement is not one of the statements specifically
excluded from the definition of hearsay. Federal Rule of Evidence 801(d) excludes from
the definition of hearsay statements of a party opponent and prior inconsistent statements
of a witness. Johnson is not a party opponent and has not made inconsistent statements.
Thus, Rule 801(d) does not exclude Johnson’s out of court statements from the definition
of hearsay. Rule 801(d) may exclude Hathaway’s out of court statement that Johnson
overheard from the definition of hearsay. However, that fact does not cure the
admissibility problem as “each [out of court] statement must qualify under some
exemption or exception to the hearsay rule” to be admissible. United States v. Arteaga,
117 F.3d 388, 396 (9th Cir. 1997).
Moreover, the Court finds none of the exceptions to hearsay apply. IPC argues that
the recording falls under the exceptions for recorded recollections, present sense
impressions, and business records.
The recorded recollection exception applies to records “on a matter the witness
once knew about but now cannot recall well enough to testify [to] fully and accurately.”
Fed. R. Evid. 803(5). The Court agrees with Hathaway that, for this exception to apply,
Johnson would have to testify at trial and testify that she can no longer recall the events
that are the subject of the recorded interview. Not only will Johnson not be permitted to
testify at trial, but there is no indication that she no longer recalls the details of the
recorded interview.
The recorded interview also does not qualify as a “present sense impression”
under Rule 803(1) because it was not made “nearly contemporaneous with the incident
MEMORANDUM DECISION AND ORDER – PAGE 13

described and made with little chance for reflection.” Bemis v. Edwards, 45 F.3d 1369,
1372 (9th Cir. 1995) (emphasis added). A present sense impression is “[a] statement
describing or explaining an event or condition, made while or immediately after the
declarant perceived it.” Fed. R. Evid. 803(1). “The idea of immediacy lies at the heart of
the exception;” thus, the time requirement underlying the exception “is strict because it is
the factor that assures trustworthiness.” 4 Christopher B. Mueller and Laird C.
Kirkpatrick, Federal Evidence § 8:67, 559, 562 (3d ed. 2007). The recording was made a
full day after Johnson allegedly overheard Hathaway’s trip and fall statement. It is true
“that courts have not adopted any bright-line rule as to when a lapse of time becomes too
lengthy to preclude Rule 803(1)’s application,” but the Court is unaware of any legal
authority holding that an hour—let alone a day—may appropriately be considered
“immediately thereafter.” United States v. Green, 556 F.3d 151, 156 (3d Cir. 2009)
(collecting cases and finding statement made 50 minutes after event was not made
“immediately thereafter” and, thus, was not a present sense impression); Hilyer v. Howat
Concrete Co., Inc., 578 F.2d 422, 426 n. 7 (D.C.Cir.1978) (excluding statement made
between 15 and 45 minutes following event).
Finally, in order for a recording to be admissible as a business record under Rule
803(6), it must be “(1) made by a regularly conducted business activity, (2) kept in the
‘regular course’ of that business, (3) ‘the regular practice of that business to make the
memorandum,’ (4) and made by a person with knowledge or from information
transmitted by a person with knowledge.” Paddock v. Dave Christensen, Inc., 745 F.2d
1254, 1258 (9th Cir. 1984). IPC argues the Johnson recording is a business record
MEMORANDUM DECISION AND ORDER – PAGE 14

because “the recording was made by personnel within the human resources department,
and made with knowledge and by persons with knowledge of the procedures regarding
investigations and recordings of the same, upon terminations of employees from
employment.” Dkt. 40, at 7. However, IPC has not asserted that it regularly makes these
types of recordings or that the recording was made in the “regular course” of its business.
The Court, therefore, finds this exception does not apply either.
As the recording falls under the definition of hearsay and does not fall under any
of the exceptions to the hearsay rule, the Court bars IPC from presenting the recording at
trial.
The Court also notes that to permit IPC to present the Johnson recording would
allow IPC to circumvent the Court’s decision to bar IPC from calling Johnson as a
witness at trial. Allowing the recording would prejudice Hathaway because it would
permit IPC to present Johnson’s testimony without giving Hathaway the benefit of crossexamination. Hathaway has never had the opportunity to cross-examine Johnson because
of IPC’s dilatory conduct.
ORDER
IT IS ORDERED:
1. Plaintiff’s Motion in Limine to Exclude Margaret Johnson as a Witness, or in
the Alternative, Prohibit Defendant from Re-opening Discovery (Dkt. 37) is
GRANTED.
2. Plaintiff’s Motion in Limine Regarding Hearsay Evidence and Unauthenticated
Statements Made by Margaret Johnson and Linda Bair (Dkt. 38) is
MEMORANDUM DECISION AND ORDER – PAGE 15

GRANTED. IPC may not present the 2013 audio recordings of interviews with
Johnson or Bair at trial.
3. Defendants Motion for Leave to Take De Bene Esse Deposition of Unavailable
Witness Margaret Johnson, or, in the Alternative, Motion to Reopen Discovery
for Limited Purpose of Deposing Margaret Johnson (Dkt. 41) is DENIED.

DATED: October 23, 2017
_________________________
David C. Nye
U.S. District Court Judge

MEMORANDUM DECISION AND ORDER – PAGE 16