Brown v. West Corporation

Filing 264

MEMORANDUM AND ORDER granting in part and denying in part 250 Motion in Limine as outlined in this order. Ordered by Senior Judge Lyle E. Strom. (JSF)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
REX BROWN,

)
)
Plaintiff,
)
)
v.
)
)
WEST CORPORATION, a Delaware )
corporation,
)
)
Defendant.
)
______________________________)

8:11CV284

MEMORANDUM AND ORDER

This matter is before the Court on the motion of the
plaintiff Rex Brown (“Brown”) to exclude certain evidence from
trial to be offered by West Corporation (“West”) (Filing No.
250).
I. Evidence of Performance at Subsequent Employers Other than
Length of Time Worked and Pay Rate
Plaintiff’s objections to Mullen’s testimony based on
Federal Rules of Evidence 404(a) and 406 misunderstand the
exclusionary scope of those rules.

Rule 404(a) states that

“[e]vidence of a person's character or character trait is not
admissible to prove that on a particular occasion the person
acted in accordance with the character or trait.”

Significantly,

the rule only excludes evidence of a person’s character if it is
used “to prove” conduct in conformity with the character trait in
question.

The exclusion of character evidence in Rule 406 is

similarly structured.

Neither rule prohibits evidence that

reflects on a person’s character or habits if that evidence is
offered to prove a non-prohibited fact -- such as here, where the
defendant seeks admission of the evidence to support their claim
that plaintiff failed to mitigate his damages.
The Court finds that wholesale exclusion of Mullen’s
testimony is inappropriate.

Appropriate limitations are

reflected in the Court’s rulings on the deposition testimony.
II. Testimony/Evidence that is Inconsistent with 30(b)(6)
Testimony
Plaintiff anticipates that defendant will attempt to
introduce testimony that goes beyond information defendant
claimed to have when questioned in its 30(b)(6) deposition.
Plaintiff argues that defendant should be bound by the scope of
the answers given by its corporate representatives because
allowing an enlargement of those answers now would be
prejudicial.

Indeed, a number of courts that addressed the issue

have held that a corporation is bound to the scope of 30(b)(6)
answers including claims of ignorance, though some courts
consider whether the information was not known or inaccessible at
the time.

See, e.g., QBE Ins. Corp. v. Jorda Enterprises, Inc.,

27 F.R.D. 676, 690-91 (S.D. Fla. 2012); Rainey v. American Forest
and Paper Ass’n Inc., 26 F.Supp. 2d 82, 94 (D.C. 1998); United
States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996).

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However, plaintiff has failed to consider the full
breadth of the discovery process in this case.

Following the

deposition, plaintiff filed a motion to compel regarding what he
perceived as insufficient responses.

The Court granted some of

those requests, and the defendant responded.

Strangely, after

asking the Court to compel this evidence, plaintiff now seeks to
exclude it.

On the other hand, the Court also denied many of

plaintiff’s requests because it appeared that West had made a
good faith effort to prepare its witness to respond to
plaintiff’s broad and often vague 30(b)(6) categories.

In

addition, the Court authorized a subsequent 30(b)(6) deposition
for plaintiff to cover the same ground with more specific
categories.

Plaintiff’s counsel consistently asked specific

factual questions in the deposition and refused the
representative’s offers to use documents to refresh his memory.
While 30(b)(6) deponents have an obligation to adequately
prepare, depositions under 30(b)(6) are not meant to be traps in
which the lack of an encyclopedic memory commits an organization
to a disadvantageous position.
Though West remains bound to the answers its
representatives gave at the 30(b)(6) deposition, under the
circumstances, it is not appropriate to exclude all evidence
produced subsequent to the 30(b)(6) deposition.
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Some topics were

clear at the time of the original deposition and were not subject
to further compelled discovery by the Court.

West’s notice on

these topics justify holding defendant to its representative’s
answers at the deposition and to those answers alone.

This does

not prohibit defendant from admitting evidence in support of its
testimony, but it cannot be allowed to expand the scope of its
answers.
III. Evidence of Litigation or Discrimination Charges Unrelated
to This Matter
Defendant does not oppose a limitation on this
material.
IV. Evidence Not Disclosed in Discovery or Seasonably
Supplemented in Discovery
A. Comparators
Plaintiff has failed to provide evidence that defendant
failed to timely disclose comparators or that defendant refused
to make certain comparators available for deposition.

The record

supports defendant’s contention that Dennis Maple, in particular,
was disclosed in a deposition as someone who had been put on a
performance improvement plan and that defendant disclosed him as
a witness as soon as his existence and relevance became clear.
The importance of this evidence to the case and plaintiff’s
subsequent discovery opportunities regarding the details of
Maples’ employment also weigh in favor of admission.
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B. Orientation and Training Materials
Plaintiff has failed to show that defendant failed to
timely disclose Exhibit 807.

It appears that the exhibit was

produced to plaintiff on January 16, 2014 -- before the end of
discovery.
The orientation materials were disclosed after the
discovery deadline.

Defendant made an employee available for a

deposition regarding the contents of the materials and why they
were only recently discovered.
that employee.

Plaintiff took the deposition of

There is little or no prejudice in allowing the

introduction of these materials.

Defendant has long contended

that plaintiff received these materials, late production of the
materials themselves presents no undue surprise or strategic
disadvantage.

The fact that this evidence only supports West’s

assertion that Brown received the materials through an inference
about their procedures goes to the weight of the evidence, not
its admissibility.

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V. Settlement Offers or Discussions; VI. Evidence of Receipt of
Unemployment Compensation; VII. Opinion Testimony of Employees
Who Believe They Were not Discriminated Against; VIII. Evidence
Not Previously Disclosed In Discovery And Produced To Date; IX.
Inquiries As To When Plaintiff Contacted Or Retained An Attorney
Or Sought Legal Advice From Any Attorneys; X. Evidence of
So-Called “Good Character” Of Defendant Company Or Defense
Witnesses
Defendant does not oppose a limitation on this
material.
XI. Deposition Errata Sheets where Substantive Changes to
Testimony are Made
The Courts have inconsistently interpreted the meaning
of Rule 30(e)’s allowance for a deposed witness to make “changes
in form or substance” to their deposition testimony.

See ADT

Sec. Servs., Inc. v. Swenson, CIV 07-2983 JRT/AJB, 2010 WL
276234, *6-*8 (D. Minn. Jan. 15, 2010) aff'd in part, rev'd in
part on other grounds, ADT Sec. Servs., Inc. v. Swenson, CIV.
07-2983, 2010 WL 2954545 (D. Minn. July 26, 2010) (compiling
cases).

This Court is persuaded by the reasoning of the District

Court of Minnesota:

Since the language of the Rule does not

provide for judicial checks on the changes deponents wish to
make, and since, as a practical matter, the original answer will
remain a part of the deposition which can be presented at trial,
the Court should not exclude the changes submitted by the
deponents.

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XII. Select Exhibits offered by Defendant should be Excluded
A. Exhibits 814, 867, 906, 934, 1132, and 1185
These emails contain out of court statements by
individuals who are not expected to testify at trial.

However,

to the extent that they are being used as evidence of John
Thielen’s motivations for counseling Brown on his performance,
they are not being used to prove the truth of the matter asserted
and are relevant to rebut plaintiff’s claims of discriminatory
motives.
The Court rejects the assertion that emails among West
employees fall under a per se exception to the hearsay rule as
business records.

Rather, each email must be analyzed to

determine whether it meets the elements of the business record
exception and whether any additional statements within the emails
require a separate exception.

See, United States v. Cone, 714

F.3d 197, 219-20 (4th Cir. 2013) (rejecting emails as per se
business records); In re Oil Spill by the Oil Rig DEEPWATER
HORIZON in the Gulf of Mexico, on April 20, 2010, MDL 2179, 2012
WL 85447 (E.D. La. Jan. 11, 2012) (rigorously applying elements
of the business records exception to emails).

Therefore, the

Court will reserve ruling on whether the emails can be admitted
for any other purpose than as evidence of Thielen’s motivations.

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The Court will also reserve ruling on plaintiff’s 403
objections until trial.
B. Exhibits 1186, 1187, and 1188
Plaintiff’s bare assertion that evidence of West
putting employees on PIN plans after Brown’s departure is
“irrelevant and unduly prejudicial” is unconvincing.

The Court

sees no obvious reason that comparable treatment after Brown’s
departure would be prejudicial.
C. Exhibits 1191-1193, 1195-1199, 1200-1201, 1204, and 1205
The relevance of these documents appears to be
contingent on the facts and arguments brought forth at trial.
Therefore, the Court will reserve judgment until the evidence is
introduced during the course of the trial.
D. Exhibit 1226
Plaintiff seeks exclusion of this chart adopted as
accurate by Brown in his deposition because it would be
prejudicial, would confuse the jury because it conflicts with
Brown’s expert’s report on damages, and because it is irrelevant.
The Court has little doubt that admitting evidence that
contradicts Brown’s current damages calculation, especially
evidence from Brown’s own lips, will cause confusion for the
jury.

However, the point of Rule of Evidence 403 is not to

exclude evidence because it contradicts a party’s position.
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Rather the rule is meant to balance the relevance of any given
evidence against “unfair prejudice”, that is unfair or
unwarranted inferences that it might create in the minds of
jurors.

It is hard to imagine how the plaintiff’s own admission

made in the context of a deposition in this case would cause
unfair prejudice.

It is also clear that a chart produced by

plaintiff to describe the sales he expected to make and the
associated commissions is relevant to plaintiff’s claim of
damages for lost compensation as well as plaintiff’s ability or
inability to qualify and value potential sales, one of the
reasons West has put forward to rebut Brown’s claim of a
discriminatory motive.
E. Exhibit 1229
Though the Court has already addressed evidence
regarding Dennis Maples, defendant has failed to make a showing
that the other comparators listed in its supplemental answers to
plaintiff’s first set of interrogatories were identified before
the discovery deadline or that their late disclosure is
substantially justified.

Since Exhibit 1229, in its current

form, lists other comparators, it must be excluded.
Accordingly,

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IT IS ORDERED:
1) Regarding West’s 30(b)(6) deposition testimony:
a) Defendant shall not be permitted
to present reasons for placing
Brown on a Performance Improvement
Notice beyond those stated in the
PIN, poor presentation skills, and
a lack of urgency.
b) The reasons for choosing to
discontinue pursuit of Brown’s
opportunity with ONCOR.
2) Neither party nor their representatives, employees,
or witnesses shall mention or reference litigation or
discrimination charges unrelated to this matter, including any
charges Brown may have filed against Aegis.
3) Plaintiff’s objections regarding the admission of
comparator evidence for comparator Dennis Maple, is overruled.
4) Plaintiff’s objection regarding the exclusion of
Exhibit 807 on the basis that it is untimely is overruled.
5) Plaintiff’s objection regarding defendant’s lateproduced orientation materials is overruled.
6) Plaintiff’s objection to the introduction of
deposition errata sheets is overruled.
7) Plaintiff’s objections regarding:
a) Evidence of Litigation or
Discrimination Charges Unrelated to
This Matter;

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b) Settlement Offers or
Discussions;
c) Evidence of Receipt of
Unemployment Compensation;
d) Opinion Testimony of Employees
Who Believe They Were not
Discriminated Against;
e) Evidence Not Previously
Disclosed In Discovery And Produced
To Date;
f) Inquiries As To When Plaintiff
Contacted Or Retained An Attorney
Or Sought Legal Advice From Any
Attorneys; and
g) Evidence of So-Called “Good
Character” Of Defendant Company Or
Defense Witnesses;
are unopposed and are therefore sustained.
8) Plaintiff’s hearsay objections regarding Exhibits
814, 867, 906, 934, 1132, and 1185 are overruled as to admission
for the purpose of showing John Thielen’s motivations.

The Court

reserves ruling on their introduction for other purposes or under
the business records exception to the hearsay rule.
9) Plaintiff’s relevance objections to Exhibits 1186,
1187, and 1188 are overruled.
10) The Court will reserve rulings on Exhibits 11911193, 1195-1199, 1200-1201, 1204, and 1205 until trial.
11) Plaintiff’s relevance objection to Exhibit 1226 is
overruled.
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12) Plaintiff’s objection to Exhibit 1229 is sustained
except as to comparator Dennis Maples.
DATED this 6th day of May, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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