REINIG et al v. RBS CITIZENS, N.A.
Memorandum Order Re: Rulings on Exhibits pursuant to the Parties' Amended Joint Exhibit List, doc. no. #223 and Joint Notice of Revisions to the Exhibit List, doc. no. #227 . The Parties shall meet with the law clerk in the Jury Room following the Preliminary Pretrial Conference on September 13, 2017 at 9:30 a.m., to remove or redact any exhibits consistent with this Memorandum Order. Signed by Judge Arthur J. Schwab on 9/8/2017. (eet)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALEX REINIG, KEN GRITZ, BOB SODA,
MARY LOU GRAMESKY, PETER WILDER
SMITH, WILLIAM KINSELLA, DANIEL
KOLENDA, VALERIA DAL PINO,
AHMAD NAJI, ROBERT PEDERSON,
TERESA FRAGALE, and DAVID
RBS CITIZENS, N.A.,
MEMORANDUM ORDER RE: RULINGS ON EXHIBITS
Trial of a single issue in this matter, whether or not Defendant had a policy or practice
that caused mortgage loan officers (MLOs) to not report all of the hours they worked, will
commence on September 25, 2017. Doc. No. 65. The Parties have filed an Amended Joint
Exhibit List, doc. no. 223, indicating their objections to each other’s exhibits, and a Joint Notice
of Revisions to the Exhibit List based on the Court’s Rulings on the Parties’ Motions in Limine,
doc. no. 227. The Court makes the following rulings on the Parties’ objections:
I. Defendant’s Objections to Plaintiffs’ Exhibits
1. Compensation Plan Documents
Defendant objects to P-1, P-2, and P-25, which are all MLO compensation plan
documents, as irrelevant and cumulative to and duplicative of JT-4, the 2013 MLO
Compensation Plan. P-1, P-2, and P-25 are not identical to JT-4 and are relevant to the issue to
be tried. Accordingly, Defendant’s objections to P-1, P-2, and P-25 are OVERRULED.
2. Mortgage Loan Officer Job Description and Policy Documents
Defendant objects to P-3, the MLO job description, as confusing or misleading, hearsay,
and not properly authenticated; and P-7, MLO time management guidelines, as duplicative of a
portion of JT-3. Defendant’s objections to P-3 are OVERRULED because it is a Citizens
business record that has relevant information about the MLOs required work duties and
expectations. Defendant’s objections to P-7 are SUSTAINED because it is duplicative.
Plaintiffs’ exhibit P-4 is 210 pages of collected email correspondence between various
actors. The Parties seem to agree that P-4 contains 97 separate “parts” and Defendant objected
to each part individually. The Court finds that the vast majority of the email correspondence is
relevant and admissible and will OVERRULE Defendant’s objections, except that the Court will
SUSTAIN the objections to: P-4 (6) as that page is entirely redacted; P-4 (7) as irrelevant; P-4
(16) as duplicative; P-4 (28) as duplicative; P-4 (31) and (32) as duplicative; P-4 (45) as
duplicative; P-4 (85) as incomplete and lacking foundation as it is unclear from the document
whether it was actual email correspondence; and P-4 (91) as incomplete and potentially
misleading to the jury.
4. Reports and Data
Defendant objects to P-5, a document entitled “Retail LO Sales 2017 Budget Overtime
Reviews,” which is ostensibly an analysis of MLO overtime use and the related expense for a
period of time. Defendant objects that the document is irrelevant, more prejudicial than
probative, would confuse the issues or mislead the jury, is hearsay, and lacks proper foundation.
The Court finds that the document is a relevant business record and OVERRULES Defendant’s
Defendant objects to P-6, an electronic file ostensibly showing hours worked by all class
members, as inauthentic and lacking the proper foundation. Plaintiffs respond that the
foundation will be shown through the designee witness and that the file was created by
Defendant and produced in discovery. Plaintiffs also indicate that P-26 is a summary of P-6
pursuant to Fed. R. Evid. 1006. As indicated in the Court’s rulings on the Parties’ Motions in
Limine, doc. no. 224, Plaintiffs will be permitted to present this summary evidence. P-6,
therefore, is cumulative to the summary exhibit and therefore unnecessary for trial. Defendant’s
objection to P-6 is SUSTAINED and Defendant’s objection to P-26 is OVERRULED.
Defendant objects to P-8, a 22-page list of the names of class members with employee
identification numbers, as irrelevant. Plaintiff argues that the Class List is necessary to show
the size of the class because “[Defendant] will argue [that Plaintiffs’] evidence is too
anecdotal.” Proffering a list of names does little to refute that argument. The court finds that P8 is irrelevant and will SUSTAIN Defendant’s objection, but Plaintiffs will not be precluded
from referencing the size of the class.
P-9 and P-10 are Commission Reports for certain Named Plaintiffs and Opt-In Plaintiffs.
Defendant objects to these exhibits as irrelevant, more prejudicial than probative, and
inauthentic. Plaintiffs contend that these business records of Citizens are relevant to show hours
worked by the MLOs and their production. The Court SUSTAINS the objections to P-9 and P10 as these documents are irrelevant to the issue for trial.
P-11 and P-12 are work “attendance records” for certain Named Plaintiffs and Opt-In
Plaintiffs, showing the hours input into Citizens’ timekeeping system. Defendant objects that
these documents are cumulative, and inauthentic. The Court OVERRULES Defendant’s
objections to P-11 and P-12.
Defendant objects to P-14, a summary exhibit of hours worked by certain MLOs pursuant
to Fed. R. Evid. 1006. This objection is OVERRULED.
P-17 and P-18 are paystubs for certain Named Plaintiffs and Opt-In Plaintiffs. Defendant
objects that these documents are cumulative, the Court agrees. To the extent that the paystubs
include relevant information concerning the number of hours reported or worked by any MLOs,
that information is included in other exhibits proffered by the Plaintiffs. Defendant’s objections
to P-17 and P-18 are SUSTAINED.
P-21 is a voluminous electronic file containing metadata records regarding email
correspondence of certain Named Plaintiffs and Opt-In Plaintiffs. Defendant objects to the
introduction of the metadata as being more prejudicial than probative, confusing, misleading,
and incomplete as to context. Defendant also objects that the report is hearsay and cannot be
authenticated. Defendant argues that even if this metadata shows that there is an email at a
certain date and time, that does not mean that the email is related to the MLOs work duties.
Plaintiffs argue that the metadata will show hours worked, that the metadata report is a business
record, and that the report will be authenticated through testimony or document responses.
The metadata record appears to show the MLO’s name, the subject line of an email, the
date and time it was sent, and identification of the sender and receiver. Although the record was
made from information transmitted in the course of a regularly conducted activity of Citizens,
the Court finds that the metadata record has little probative value relevant to the issue at trial.
This voluminous record, and the introduction of it at trial, will be confusing to the jury,
misleading, and waste substantial trial time. Defendant’s objection to P-21 is SUSTAINED.
5. Pleadings and Discovery Responses
Defendant objects to the introduction of P-13, Plaintiffs’ 30(b)(6) deposition notice and
exhibits as more prejudicial than probative, hearsay, and not properly authenticated. Plaintiffs
respond that 30(b)(6) testimony constitutes admissions of a party and that deposition testimony
of a party may be utilized for any purpose. P-13 is not the deposition testimony of the 30(b)(6)
designee. The notice was authored by Plaintiffs’ counsel, is not relevant to the issue at trial,
contain mention of matters relevant to claims and issues not now being tried or which have
already been dismissed from this case, and would confuse and mislead the jury. Defendant’s
objection to P-13 is SUSTAINED.
P-15 and P-16 are interrogatory responses by certain Named Plaintiffs and Opt-In
Plaintiffs, which Defendant objects to as hearsay and cumulative. Plaintiffs respond that the
interrogatory responses are proffered for unavailable witnesses and because of the constraints of
the trial time allocated to each party. Plaintiffs have made no showing that these Named
Plaintiffs and Opt-In Plaintiffs will be absent from the trial and that Plaintiffs have not been able,
by process or other reasonable means, to procure their attendance pursuant to Fed. R. Evid. 804,
which provides the exceptions to the hearsay rule when the declarant is unavailable as a witness.
Accordingly, Defendant’s objections to P-15 and P-16 are SUSTAINED.
P-19 and P-20 are Defendant’s Answers to Interrogatories and Responses to Plaintiffs’
Requests for Documents. Defendant objects that these exhibits are more prejudicial than
probative, hearsay, and not properly authenticated. Defendant’s discovery responses are
admissions by an opponent party and therefore Defendant’s objections to P-19 and P-20 are
P-22 is reserved by Plaintiffs as “all discovery and depositions designated by Plaintiffs”
and P-23 is reserved by Plaintiffs as “all discovery and depositions designated by Defendants.”
Defendant has objected to both of these categories of documents (even, apparently, its own
deposition designations filed at doc. no. 186). These designations are included in the Parties’
Joint Stipulations, doc. no. 191, and therefore Defendant’s objections to the designations are
II. Plaintiffs’ Objections to Defendant’s Exhibits
Plaintiffs object to D-2, Alex Reinig’s offer letter, as to relevance and as more prejudicial
than probative, hearsay, and inauthentic. The offer letter contains work expectations including
work hours and policies and is relevant to the issue to be tried and Plaintiffs’ objection to D-2 is
Plaintiffs object to D-3, D-5, and D-6, which are summary exhibits showing admissions
made by Certain Opt-In Plaintiffs (D-3), total overtime hours worked and paid during the
relevant time period (D-5), and a chart showing a summary of the weeks worked by each MLO
under 40 hours, at 40 hours, and over 40 hours. Plaintiffs object to these summary exhibits as
more prejudicial than probative, inauthentic, hearsay, and incomplete. Additionally, Plaintiffs
argue that D-5 should be redacted to exclude compensation amounts paid to MLOs for overtime
hours pursuant to the Court’s rulings on the Plaintiff’s motion in limine concerning MLOs total
compensation amounts. Plaintiffs’ objections to these summary exhibits are OVERRULED.
These are proper summary exhibits for trial. The Court does not agree that D-5 needs to be
redacted to remove reference to the amount paid to MLOs for overtime hours, as removing such
information may confuse the jury about whether or not MLOs were paid for those hours.
Plaintiffs object to D-4, which are responses by Opt-In Plaintiff Mark Richards to a
survey, as more prejudicial than probative, hearsay, inauthentic, incomplete, and privileged.
Defendant responds that the document consists purely of factual information relevant to this
litigation and bears no designation of privilege, and that privilege was waived as these responses
were previously used in this litigation and Plaintiffs failed to claim that the document was
privileged until August 24, 2017. The Court OVERRULES Plaintiff’s objections to D-4.
By agreement of the Parties, and pursuant to the Court’s rulings on Plaintiffs’ Motions in
Limine, D-7 and D-8 will be excluded. See Doc. Nos. 224 and 227.
Plaintiffs object to D-9, Dr. Bronar’s Expert Report submitted in rebuttal to Plaintiffs’
Damages Expert Report by Dr. Speakman. Plaintiffs argue that Dr. Bronars is limited to offering
rebuttal testimony concerning damages, which is not at issue in the upcoming trial. Defendant
argues that the report is relevant to show a lack of a common policy or practice that caused
MLOs to not record all hours worked. Dr. Speakman will be testifying as a summary witness at
trial regarding the hours reported by MLOs. A portion of Dr. Bronars report is relevant to the
hours reported by MLOs, and the Court has previously ruled that Dr. Bronars may testify about
the MLOs time reporting. Doc. No. 224.
Inclusion of the full report may be very misleading to the jury, particularly those portions
that challenge Dr. Speakman’s damages calculations - - which are not at issue. Plaintiffs’
objection to D-9 is SUSTAINED IN PART. Defendant may submit a revised report from Dr.
Bronars by the time of the Preliminary Pretrial Conference, September 13, 2017 at 9:30 a.m.,
limited to the subjects addressed in Doc. No. 224 - - estimates of MLOs off-the-clock work and
statistical variances among MLOs at different locations.
III. Additional Evidence
Plaintiffs submit that they intended to include the Ginter v. RBS Citizens settlement
agreement in the Amended Joint Exhibit List, which Defendant had previously included in the
first Joint Exhibit List, but removed from the amendment. Defendant now objects to the
inclusion of the settlement agreement. Both Parties assert that they will work to stipulate to
relevant portions of the Ginter filings for use at trial. The Parties are encouraged to work
towards the stipulations and the Court will revisit this issue at the preliminary pretrial
The Parties shall meet with the law clerk in the Jury Room following the Preliminary
Pretrial Conference on September 13, 2017 at 9:30 a.m., to remove or redact any exhibits
consistent with this Memorandum Order.
SO ORDERED, this 8th day of September, 2017
s/Arthur J. Schwab_____
Arthur J. Schwab
United States District Judge
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