HEARTS WITH HAITI INC et al v. KENDRICK

Filing 414

ORDER denying in part and granting in part 366 Motion in Limine to Supplement Order of ECF No. 244. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
HEARTS WITH HAITI, INC. and
MICHAEL GEILENFELD,
Plaintiffs,
v.
PAUL KENDRICK,
Defendant.

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2:13-cv-00039-JAW

ORDER ON MOTION TO SUPPLEMENT ORDER OF ECF NO. 244
In this highly contentious case, the parties disagree on the effect of prior Court
Orders regarding certain emails the Defendant authored and blind copied to
numerous individuals concerning the events in this case. In this Order, the Court
distinguishes between the admissibility of those emails and instructions to the jury
concerning the blind copying of admitted emails.
I.

BACKGROUND
A.

Blind Copied Emails and Orders

Underlying the Plaintiffs’ motion is one of the many messy and contentious
discovery disputes that have been the hallmark of this case. During discovery, the
Defendant produced to the Plaintiffs numerous emails that he blind copied to
numerous recipients. As of August 8, 2014, for example, 210 emails were involved.
Report of Hr’g and Order Re: Disc. Dispute at 1-2 (ECF No. 228) (Aug. Order). Once
the Defendant produced these emails, the Plaintiffs sought the identities of the
individuals the Defendant had blind copied and on May 5, 2014, the Magistrate Judge

held a telephone conference regarding this and other disputes. Report of Hr’g and
Order Re: Disc. Dispute (ECF No. 194). At that conference, the Magistrate Judge
issued the following Order:
Issue 1 involved the plaintiffs’ request for production of the identities of
each of the recipients of blind copies of the emails produced by the
defendant. Treating the plaintiffs’ current request as a motion to compel
production, I GRANTED the motion with modifications. The plaintiffs
are ordered to produce a list of the specific emails produced by the
defendant in response to their Requests for Production of Documents
Nos. 2, 3, 6, 8, 9, 13, and 15 for which they seek this information, and
the defendant is ORDERED to produce that information promptly upon
receipt of the list. The list may be supplemented with prior leave of
court.
Id. at 2.
On August 7, 2014, the issue came back before the Magistrate Judge. The
Plaintiffs complained that they had not received information from the Defendant
about the identities of the blind-copied recipients of the Defendant’s 210 emails. Aug.
Order at 1-2. The Defendant through his counsel “protested that the list imposed an
undue burden on his client and asked the court to limit the plaintiffs’ list of emails to
10 to 30 items.” Id. at 2. The Magistrate Judge issued the following Order:
After discussion, and treating the matter as a motion by the plaintiffs to
compel production, I GRANTED the motion and ORDERED the
defendant to provide lists of all blind-copied addresses to which each of
the 210 emails identified by plaintiffs’ counsel within 10 days of the date
of this conference, failing which the court will consider issuing an order
adopting, in whole or in part, the stipulation proposed by the plaintiffs
to be presented as established at trial.
Id.
The same dispute returned to the Court on September 5, 2014, when the
Magistrate Judge held another hearing to address discovery disputes. Report of Hr’g
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and Order Re: Disc. Disputes and Pending Mots. (ECF No. 244). The Magistrate
Judge issued the following Order:
After additional discussion, focused on draft “stipulations” submitted by
the parties, I GRANTED IN PART the motion to enforce. Because
what the plaintiffs seek is essentially a sanction for violation of my
August 8, 2014, order (ECF No. 228) concerning blind copied emails sent
by the defendant, which violation I now FIND to have occurred, I
declined to approve or impose a “stipulation” of the parties, a term that
implies voluntariness. Instead, I ORDERED that the defendant is
precluded from contesting at trial the plaintiffs’ contention that every
email on the spreadsheet attached to the Defendant’s Proposed
Stipulation Regarding Bcc Emails, dated September 5, 2014, was blind
copied to more than 500 individual and institutional benefactors of
Hearts With Haiti, Inc., Michael Geilenfeld, and/or St. Joseph’s Family
of Haiti. Any emails not on the spreadsheet may be used in any
appropriate manner by any party.
Id. at 3.
B.

The Plaintiffs’ Motion

On June 12, 2015, the Plaintiffs moved to supplement the September 5, 2014
Order to include emails after September 5, 2014. Pls.’ Mot. to Supplement Order of
ECF No. 244 (ECF No. 366). The Plaintiffs say that at the Final Pretrial Conference,
the Court “directed Plaintiffs to address the issue of supplementation of the order
with additional emails sent after the terms of the order were drawn up—i.e., after
Geilenfeld’s arrest in early September of 2014 and after his ultimate acquittal and
exoneration of April 29, 2015.” Id. at 1. They complain that Mr. Kendrick “continued
to use his ‘Ignatius Group’ email address which hides or ‘blind copies’ all the
individuals receiving those emails, and which was the subject of the above-referenced
court order.”

Id.

They represent that Mr. Kendrick has “not produced as

supplemental discovery the identity of the hundreds of individuals copied on his
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nearly daily ‘Ignatius Group’ defamatory communications following the arrest of
Geilenfeld in Haiti in September of 2014, and therefore waived objection to the
necessary inclusion of these newer emails in the scope of this court order.” Id. at 12.
For relief, they ask that the Court allow the reading to the jury an instruction
during their case-in-chief confirming that every email in the spreadsheet “was blind
copied to more than 500 individual and institutional benefactors of Hearts With
Haiti, Inc., Michael Geilenfeld, and/or St. Josephs Family of Haiti.” Id. at 2.
C.

The Defendant’s Response

On June 24, 2015, the Defendant responded. Def.’s Objection and Opp’n Mem.
to Pls.’ Mot. to Supplement Order of ECF No. 244 (ECF No. 388). First, the Defendant
objects to the inclusion of emails dated before September 5, 2014 not included on the
spreadsheet referenced in the Court’s September 5, 2014 Order. Id. at 1. Second, the
Defendant noted that he “does not agree that by being on the list, the email is
admissible as an exhibit at trial. Each document must stand or fall on its own at trial
as to whether it is admissible and for the jury to see.” Id. In particular, the Defendant
“does not agree that the new spreadsheet is something that may be admitted as an
exhibit or given to the jury.” Id. Only once the emails are admitted would it, in the
Defendant’s view, be proper to instruct the jury as to the blind copying of the emails.
Id. at 1-2.

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II.

DISCUSSION
First, to the extent the Plaintiffs are relying on something said during the

Final Pretrial Conference in this case, the Court has not considered it. The Court
issued a Final Pretrial Conference Order in this case and the Order does not mention
this dispute. Final Pretrial Order at 1-8 (ECF No. 342). If something was said at the
Final Pretrial Conference about this issue, the Plaintiffs have not presented the
Court with a transcript of that conference and the Court will not rely on its memory
of what did or did not occur at the conference in issuing this Order.
Second, the parties’ arguments pass like ships in the night. The Plaintiffs wish
to make certain that the jury is informed that when Mr. Kendrick wrote the Ignatius
Group emails, he blind copied more than 500 individual and institutional benefactors.
The Defendant wants to be certain that the Plaintiffs must establish the admissibility
of each email in order for it to be received into evidence. The answer seems quite
obvious. The fact that an email is listed on the Plaintiffs’ spreadsheet of Ignatius
Group emails, attached to their motion as Exhibit 1, does not assure admissibility.
The normal rules of evidence for the admission of each of these emails must apply
and the Plaintiffs will have the burden to establish the admissibility of any document
they move into evidence. However, once an email is admitted into evidence, if it is an
email listed in the spreadsheet referred to in the September 5, 2014 Order or if it is
an email that contains the characteristics of blind copied emails, the Court will
instruct the jury in the fashion recommended by the Plaintiffs and consistent with
the Magistrate Judge’s September 5, 2014 Order.

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III.

CONCLUSION
The Court DENIES in part and GRANTS in part Plaintiffs’ Motion to

Supplement Order of ECF No. 244 (ECF No. 366). To the extent the Plaintiffs are
moving for admission into evidence the emails attached to their motion, the Court
DENIES their motion. To the extent the Plaintiffs are seeking an instruction for
emails attached to their motion, which are admitted into evidence at trial, that the
Defendant blind copied those emails to at least 500 individual and institutional
benefactors of Hearts With Haiti, Inc., Michael Geilenfeld, and/or St. Josephs Family
of Haiti, the Court GRANTS the motion, assuming that the Plaintiffs have
established that the admitted emails bear the same characteristics as the emails
listed in the spreadsheet referred to in the September 5, 2014 Order.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 29th day of June, 2015

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