Palmer v. Allen et al

Filing 158

ORDER DENYING PLAINTIFFS MOTION TO ALLOW ADMISSION OF DEMONSTRATIVE EVIDENCE 154 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EMMANUEL PALMER,
Case No. 14-cv-12247

Plaintiff,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
RYAN ALLEN, et al.,

UNITED STATES MAGISTRATE JUDGE
DAVID R. GRAND

Defendants.
/

ORDER DENYING PLAINTIFF’S MOTION TO ALLOW ADMISSION OF
DEMONSTRATIVE EVIDENCE [154]
On January 31, 2017, Plaintiff filed a Motion to Allow Demonstrative
Evidence, seeking to admit a version of the jail video with enhanced resolution and
two overlay “counters,” tallying what Plaintiff’s counsel perceives to be instances
of tasing and physical contact with Plaintiff. Dkt. No. 154. The Court held a
hearing on this motion, and the parties’ failure to submit a timely joint draft of the
final pretrial order, on January 31, 2017. During the hearing, the Court noted that
Plaintiff’s motion did not contain on-point case law supporting his motion. The
Court further stated—on the record in front of both Plaintiff’s and Defendants’
counsel—that Plaintiff’s motion was denied without prejudice.

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On February 2, 2017, Plaintiff filed a supplemental brief, without leave of
the Court, 1 alleging that the Court had not denied his motion because a docket
entry stated the motion was taken under advisement, pending issuance of the order.
Dkt. No. 156. In this brief, Plaintiff argues that he has found an on-point case that
supports his motion: Westfahl v. District of Columbia, 75 F. Supp. 3d 365, 371 n.1
(D.D.C. 2014). Id. at 2 (Pg. ID 4420).
Westfahl is easily distinguishable for the following reasons. First, the district
court in Westfahl considered the video as a demonstrative exhibit as part of a
summary judgment motion, not as an exhibit being shown as part of a jury trial. 75
F. Supp. 3d at 380. Jury trials are different from summary judgment motions.
Unlike jury trials, summary judgment motions require courts to interpret facts and

1

The Local Rules provide that, “[u]nless the court permits otherwise, each
motion and response to a motion must be accompanied by a single brief.” E.D.
Mich. LR 7.1(d)(1)(A) (emphasis added). The Court did not permit Plaintiff to file
a supplemental brief, nor did Plaintiff seek permission prior to doing so. This is not
the first time that Plaintiff has filed a “supplemental brief” without seeking or
receiving permission from the Court. See Dkt. No. 140.
The brief further violates the Local Rules by utilizing a type size not permitted
in the footnotes. See E.D. Mich. LR 5.1(a)(3) (“Except for standard preprinted
forms that are in general use, type size of all text and footnotes must be no smaller
than 10‐1/2 characters per inch (non‐proportional) or 14 point (proportional).”).
See also Dkt. No. 147, p. 14 n.1 (Pg. ID 4197) (“The Court must again note that
Plaintiff has failed to comply with the Local Rule regarding proper type size.”).
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evidence in the light most favorable to the party opposing the summary judgment
motion. Id. at 372. Secondly, the altered video in Westfahl involved a slowed
frame-rate and “descriptions of events and names of individuals depicted.” Id. at
371 n.1. It does not appear to have included overlay “counters” based on a nonexpert’s interpretation on the events. Finally, Westfahl was decided in a district
court in the District of Columbia, and has no binding authority on this Court.
Accordingly, consistent with this Court’s statements on the record at the
January 31, 2017 hearing, Plaintiff may use a version of the video with enhanced
resolution, but may not utilize editorialized commentary within the video,
including counters and arrows. Thus, the Court now DENIES Plaintiff’s motion
[154] with prejudice, with respect to video utilizing a counter and arrows to
illustrate alleged tasing and physical contact between Defendant Trevino and
Plaintiff.
IT IS SO ORDERED.
Dated:

February 3, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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