CSX Transportation, Inc. v. Total Grain Marketing, LLC

Filing 163

ORDER denying 131 Motion in Limine Regarding Plaintiff's Assertions of Attorney-Client Privilege filed by Total Grain Marketing, and 145 Motion in Limine To Bar CSX From Calling Dean Menefee As A Witness At Trial filed by T otal Grain Marketing: For the reasons fully explained in the attached Order, the Court DENIES (at this time, as filed via "motions in limine") Docs. 131 and 145, GRANTS TGM leave to re-present the issues via discovery-related motions filed by March 1, 2014, SETS a March 15, 2014 deadline for CSX to respond thereto, and REFERS the issues in these two motions to the Honorable Stephen C. Williams for disposition. Signed by Judge Michael J. Reagan on 2/19/14. (soh )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CSX TRANSPORTATION, INC.,
Plaintiff,
vs.
TOTAL GRAIN MARKETING, LLC,
Defendant.

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Case No. 11-cv-0171-MJR-SCW

MEMORANDUM AND ORDER
REGARDING “MOTIONS IN LIMINE”AT DOCS. 131 & 145
REAGAN, District Judge:
Upon receipt of this case from the docket of Judge William D. Stiehl, the
undersigned issued an Order (a) noting that the discovery deadline and dispositive
motion filing deadline had long expired, (b) setting a jury trial and final pretrial
conference, and (c) setting a deadline for submission of proposed jury instructions. See
Doc. 161, 2/12/14.

One week later, the Court issued an Order denying CSX’s

September 18, 2013 motion to bifurcate trial. See Doc. 162, 2/19/14. Still pending
before the Court are ten motions in limine. This Order denies (at this time, in the
current form) two of those motions, as more fully explained below.
The purpose of a motion in limine is to allow the trial court to rule on the
relevance and admissibility of evidence before it is offered at trial, thereby avoiding the
injection of irrelevant, prejudicial or immaterial matters. See Luce v. United States, 469
U.S. 38, 41, n.4 (1984)(“although the Federal Rules of Evidence do not explicitly
authorize in limine rulings, the practice has developed pursuant to the district court's

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inherent authority to manage the course of trials”); Fed. R. Evid. 104(a)(“Preliminary
questions concerning the qualification of a person to be a witness ... or the
admissibility of evidence shall be determined by the court....”); 2 Litigating Tort
Cases § 19:9 (rev. 2013).
Motions in limine aid the trial process by ensuring a fair trial for all parties and
“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
interruption of, the trial.” Palmieri v. Defaria, 88 F.3d 136, 141 (2nd Cir. 1996). Motions
in limine also may save the parties time, effort and cost in preparing and presenting
their cases. Pivot Point Intern., Inc. v. Charlene Products, Inc., 932 F. Supp. 220, 222
(N.D. Ill. 1996). The movant has the burden of demonstrating that the evidence is
inadmissible on any relevant ground, “for any purpose.” Plair v. E.J. Brach & Sons,
Inc., 864 F. Supp. 67, 69 (N.D. Ill. 1994). 1
So a motion in limine is a tool properly used to prevent the introduction of
prejudicial or irrelevant evidence at trial. These general principles are mentioned here,
because two of the pending motions in the case sub judice – although labeled as motions
in limine – do not appear to be that, and instead appear to be more properly categorized
as discovery-related motions.

Often, however, the better practice is to wait until trial to rule on
objections to evidence, particularly when admissibility substantially
depends upon facts which may be developed there. See Sperberg v.
Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.), cert. denied, 423
U.S. 987 (1975).
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TGM’s “Motion in Limine Regarding Plaintiff’s Assertions of Attorney-Client
Privilege” (Doc. 131, filed 9/10/13) asks the Court to decide whether CSX’s lawyers can
invoke the attorney-client privilege “to prevent TGM attorneys from learning about
facts and opinions … discussed during conversations CSX’s attorney had with nonparty fact witnesses, who were neither current employees of CSX nor individuals that
previously fell within the ‘control-group’ of CSX” (id., p. 1). TGM asks the Court to rule
that CSX cannot invoke attorney-client privilege in this manner and that conversations
between attorneys for CSX with Cletis Summers and Wayne Mitchell are discoverable
and must be disclosed.

“In the present case, the circumstances do not reflect a

cognizable attorney-client relationship sufficient to allow the assertion of attorney-client
privilege to prevent the disclosure of conversations regarding facts and/or opinions
relevant to this matter between attorneys for CSX (and their agents) and Mr. Summers
or Mr. Mitchell,” argues TGM (id., p. 3).
Unlike other true or standard motions in limine pending here (e.g., to bar CSX
from mentioning insurance, to bar CSX from referencing the burden of proof in a
criminal trial, or to bar CSX from using introducing particular invoices at trial, see Docs.
146-148), TGM’s 9/10/13 motion (Doc. 131) asks the Court to determine that certain
facts and opinions are not cloaked by privilege and thus are discoverable and must be
disclosed. The Court hereby DENIES Doc. 131, because it was improperly filed as a
motion in limine. TGM is GRANTED LEAVE to RE-FILE this motion (not captioned as
a motion in limine) by March 1, 2014. CSX may RESPOND thereto by March 15, 2014.

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The same reasoning applies to TGM’s 11/18/13 motion asking to preclude CSX
from calling Dean Menefee as a witness at trial (Doc. 145). This is neither a motion in
limine seeking a ruling as to whether evidence is prejudicial, relevant, or immaterial,
nor a Daubert motion seeking to exclude an expert’s opinion as junk science. 2

To the

contrary, Doc. 145 is a discovery-related motion which asks that the Court disallow CSX
to call Mr. Menefee, because Menefee was not timely disclosed under Federal Rule of
Civil Procedure 26 and thus should be barred under Rule 37(c)(1).
TGM argues that CSX did not identify Menefee in the initial disclosures or any
supplements thereto, that CSX first mentioned Menefee on July 31, 2013, over one year
after the discovery deadline expired, and that TGM “immediately objected to Mr.
Menefee being a CSX trial witness based on the lack of the prior disclosure” (Doc. 145,
p. 1). 3
The Court DENIES Doc. 145, as improperly filed via “motion in limine.” TGM is
hereby GRANTED LEAVE to RE-FILE this motion (not captioned as a motion in
limine) by March 1, 2014. CSX may RESPOND thereto by March 15, 2014.

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The deadline for filing Daubert motions has passed herein.

Doc. 145 does contain a reference to an alternative ground for barring
Mr. Menefee at trial – Federal Rule of Evidence 403 (a court may exclude
relevant evidence if its probative value is substantially outweighed by a
danger of unfair prejudice or undue delay). Any argument regarding unfair
prejudice is undeveloped and merits denial. See, e.g., Williams v. Dieball,
724 F.3d 957, 962 (7th Cir. 2013)(“His motion in limine did nothing more
than give a barebones recitation of the relevant standard…. It did not
explain how or why the balancing test should result in exclusion.”) As to
undue delay, the motion simply repeats the argument that the disclosure
was untimely under Rule 26(a)(1).
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Having concluded that the issues presented in these two motions are discoveryrelated issues not properly raised via motion in limine, and assuming TGM re-files
Docs. 131 and 145 by the March 1st deadline, the undersigned hereby REFERS these
issues to Magistrate Judge Williams for resolution. The undersigned District Judge will
rule on the remaining eight motions in limine (Docs. 146, 147, 148, 149, 150, 151, 152,
153) at, or just prior to, the final pretrial conference.
IT IS SO ORDERED.
DATED February 19, 2014.
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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