Ramsbottom et al v. Ashton et al
Filing
472
MEMORANDUM and ORDER: The plaintiffs' Motion in Limine No. 9 (Doc. No. 334 ) is GRANTED IN PART AND DENIED IN PART, as follows. Signed by District Judge Aleta A. Trauger on 01/28/2025. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ad)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
RACHEL RAMSBOTTOM et al.,
Plaintiffs,
v.
LORIN ASHTON et al.,
Defendants.
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Case No. 3:21-cv-00272
Judge Aleta A. Trauger
MEMORANDUM and ORDER
Before the court is the plaintiffs’ Motion in Limine No. 9 to Preclude Reference to or
Evidence of Plaintiffs’ Non-Testifying Expert Alexandra Wright (Doc. No. 334), which the
defendant opposes (Doc. No. 385) and in further support of which the plaintiffs have filed a Reply
(Doc. No. 449). For the reasons set forth herein, the motion will be granted in part and denied in
part.
I.
BACKGROUND
Plaintiffs Rachel Ramsbottom, Alexis Bowling, and Jenna Houston bring claims against
defendant Lorin Ashton under the Trafficking Victims Protection Reauthorization Act, 18 U.S.C.
§ 1595(a) (“TVPRA”), which authorizes a civil action for sex trafficking in violation of 18 U.S.C.
§ 1591, claims based on Ashton’s alleged receipt and possession of child pornography, in violation
of 18 U.S.C. §§ 2252 and 2252A, and a claim on behalf of Ramsbottom alone for negligence per
se under Tennessee state law. (Doc. No. 23, Am. Compl.)
Prior to their depositions, each plaintiff met with their attorneys to prepare. “At certain
times those preparations included the presence of Alexandra Wright,” who was retained by
plaintiffs’ counsel for that purpose. (Doc. No. 334 at 5.) According to the plaintiffs, Wright is a
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“consultant with an advocacy communication services company, Act of Communication, 1 a
company that offers, among other things, litigation consulting and witness preparation assistance.”
(Id.) The plaintiffs state that counsel informed them during these meetings that “the meetings were
privileged and protected by the attorney client privilege and/or work product doctrine.” (Id. at 2.)
When they were deposed, the plaintiffs testified that they met with Wright prior to their
depositions, and they were asked generally about the nature of these meetings. Defense counsel
referred to Wright as an acting coach during the depositions. During Bowling’s deposition, defense
counsel attempted to ask about the substance of Bowling’s communications with Wright, and
Bowling was instructed by her own counsel not to answer those questions on the basis that her
conversations with Wright, who was “retained to consult” with plaintiffs and their counsel, were
privileged. (Doc. No. 334-2, Bowling Dep. 12.) Plaintiffs state that they expect defense counsel to
reference the retention of Wright, to attempt to elicit testimony from the plaintiffs relating to their
pre-deposition consultations with Wright, and to continue to characterize Wright as an acting
coach.
The plaintiffs have now filed their Motion in Limine No. 9 to exclude from trial “[a]ny
reference or attempt at eliciting testimony related to Plaintiffs’ consultation with their attorneys
and non-testifying expert” on the basis that such communications are privileged and generally
undiscoverable under Federal Rule of Civil Procedure 26(b)(4)(D) and, alternatively, because such
testimony would constitute improper impeachment evidence and would be unfairly prejudicial
and/or misleading. (Doc. No. 334 at 6–7.)
The defendant argues in his Opposition to Plaintiffs’ Motion in Limine No. 9 that he should
be entitled to “question Plaintiffs about their deposition preparation with Ms. Wright and their trial
1
See https://actofcommunication.com/.
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testimony preparation with Ms. Wright (or another acting coach) if applicable,” because (1)
Wright’s online presence establishes that she is a trained actor who markets herself as an acting
coach; (2) the plaintiffs have failed to satisfy their burden of demonstrating that Wright qualifies
as a non-testifying expert under Rule 26(d)(4)(D) or that her communications with the plaintiffs
fall within the scope of any recognized privilege; (3) even if they had satisfied that burden, the
defendant should be permitted to question the plaintiffs about their preparation with Wright, in her
capacity as an acting coach, under the “exceptional circumstances” exception set forth in Rule
26(b)(4)(D)(ii); and (4) the fact that the plaintiffs met with an acting coach “strikes directly at their
credibility” and should be evaluated by the jury. (Doc. No. 385 at 2, 9.)
In their Reply, the plaintiffs argue for the first time that “[l]itigation consultants retained to
aid in witness preparation may qualify as non-attorneys who are protected by the work product
doctrine.” (Doc. No. 449 at 2 (quoting In re Cendant Corp. Sec. Litig., 343 F.3d 658, 665 (3d Cir.
2003)).)
II.
DISCUSSION
The work product doctrine is governed by Rule 26(b)(3), which “shelters the mental
processes of the attorney, providing a privileged area within which he can analyze and prepare his
client’s case.” United States v. Nobles, 422 U.S. 225, 238 & n.11 (1975). Rule 26(b)(3)(A)
provides that “a party may not discover documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its representative (including the other
party’s . . . consultant . . . ),” unless such materials are “otherwise discoverable under Rule
26(b)(1)” and “the party shows that it has substantial need for the materials to prepare its case and
cannot, without undue hardship, obtain their substantial equivalent by other means.” Although
Rule 26(b)(3) refers only to “tangible” things, it is well recognized that the “work production
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protection extends to both tangible and intangible work product.” In re Cendant Corp. Sec. Litig.,
343 F.3d at 662 (citing Hickman v. Taylor, 329 U.S. 495, 510–11 (1947)).
Rule 26(b)(4)(D)—the rule on which the plaintiffs’ motion relies—pertains to nontestifying experts. It provides that “a party may not, by interrogatories or deposition, discover facts
known or opinions held by an expert who has been retained or specially employed by another party
in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness
at trial” except “on showing exceptional circumstances under which it is impracticable for the
party to obtain facts or opinions on the same subject by other means.” Fed. R. Civ. P.
26(b)(4)(D)(ii). 2
These rules generally pertain to discovery, which has been concluded in this case. Perhaps
more relevant to the plaintiffs’ motion are the Federal Rules of Evidence that govern trial
testimony. Rule 611, which pertains to the scope of cross-examination, states:
Cross-examination should be limited to the subject matter of the direct examination
and matters affecting the credibility of the witness. The court may allow inquiry
into additional matters as if on direct examination.
Fed. R. Evid. 611(b) (emphasis added). “It is well-established that the government has wide
latitude in attacking the credibility of a witness by exposing reasons why he or she ought not to be
believed . . . .” United States v. Lang, 717 F. App’x 523, 539 n.4 (6th Cir. 2017) (citing United
States v. Dexta, 136 F. App’x 895, 906 (6th Cir. 2005), and Fed. R. Evid. 611(b)).
While “[t]here is sparse case law on whether a court should permit cross-examination
regarding how a witness prepared for his or her testimony,” one of the few courts to consider the
question has held, based on the breadth of Rule 611(b), that “inquiry regarding a witness’
2
Another exception applies for medical examiners’ reports, which does not apply here. See
Fed. R. Civ. P. 26(b)(4)(D)(i) and 35(b).
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preparation at the hands of a jury consultant is permissible cross-examination and relevant, absent
privilege or FRE 403 concerns of undue prejudice.” Hynix Semiconductor Inc. v. Rambus Inc., No.
CV-00-20905 RMW, 2008 WL 397350, at *1 (N.D. Cal. Feb. 10, 2008). In Hynix, the court
recognized as an initial matter that “[k]nowledge that a jury consultant . . . served as an acting
coach, picked the witness’ clothing, rehearsed the witness’s testimony, taught the witness to sit up
straight, or otherwise aided a witness in appearing more credible could affect the weight the jury
gives to the witness’ testimony.” Id. The question there, as here, was whether such crossexamination was limited based on Rule 403 or some applicable privilege.
The court rejected the defendant’s argument that the probative value of any such evidence
was substantially outweighed by the danger of unfair prejudice and, therefore, should be excluded
under Rule 403. The court, however, found more persuasive the defendant’s argument that “crossexamination regarding how a witness prepared to testify treads on the attorney-client privilege and
work-product protection,” citing In re Cendant Corp. Hynix, 2008 WL 397350, at *2. On this
point, the court adopted the Third Circuit’s conclusion in In re Cendant, which held generally that
a deponent could not be compelled to disclose the substance of communications between the
deponent, his counsel, and a non-testifying consultant who was “an expert in trial strategy and
deposition preparation,” because these communications “merit work product protection.” In re
Cendant Corp., 343 F.3d at 660, 667–68. However, while leaving the exact scope of permissible
questioning to the district court’s discretion, the court indicated that the deponent could be asked
“whether he has met with [the consulting expert], the date and duration of any meetings, who was
present and the purpose for same,” and “whether his anticipated testimony was practiced or
rehearsed.” Id. at 660, 668. In reaching this holding, the Third Circuit accepted the proposition that
“[l]itigation consultants retained to aid in witness preparation may qualify as non-attorneys who
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are protected by the work product doctrine” and explained that the protection applied in the case
before it, where the “communications took place during a consultation that focused on those issues
that counsel and [the consultant] perceived to be central to the case,” “were intended to be
confidential,” and were “made in anticipation of litigation.” Id. at 665, 667 (citations omitted). “As
such, the communications are at the core of the work product doctrine and are only discoverable
upon a showing of rare and exceptional circumstances”—a showing not made in that case. Id. at
667.
The district court in Hynix adopted the reasoning of In re Cendant “as the foundation for
framing what will be permitted at trial.” Hynix, 2008 WL 397350, at *2. In deciding how to
“circumscribe” the scope of permissible questioning, the court concluded that a witness could be
asked “whether he or she met with a jury consultant, the purpose of any such meeting, who was
present, the duration of the meeting and whether the witness practiced or rehearsed his or her
testimony.” Id. at *4. The court declined to “permit questioning beyond those limited points
because inquiring into work-product protected materials creates unfair prejudice and doing so will
lead to both confusion and delay,” either of which reason would “justify precluding some of the
proposed questioning under Rule 403.” Id.
This court is persuaded both by In re Cendant and the application of that holding in Hynix.
The fact that the plaintiffs met with Wright is clearly a matter affecting their credibility and is a
proper subject of cross examination under Federal Rule of Evidence 611(b). The scope of that
inquiry, however, is circumscribed by the work-product doctrine. Accordingly, the defendant will
be permitted to ask the same type of questions allowed in Hynix but may not inquire about the
substance of the plaintiffs’ communications with Wright. The defendant has not made a showing
of the requisite “rare and exceptional circumstances” that would entitle him to inquire further. In
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re Cendant Corp., 343 F.3d at 663. Moreover, the defendant has not presented any basis for
presuming that Wright coached the plaintiffs to testify untruthfully and, therefore, may not suggest
to the jury that, if the plaintiffs’ stories were “truthful and compelling,” they would have no need
for “coaching.” (See Doc. No. 385 at 9.) There is nothing inherently inappropriate about a party’s
seeking assistance from a litigation consultant.
III.
CONCLUSION AND ORDER
The plaintiffs’ Motion in Limine No. 9 (Doc. No. 334) is GRANTED IN PART AND
DENIED IN PART, as follows: The defendant may ask the plaintiffs during cross-examination
whether they met with Wright or any other deposition- or trial-preparation consultant, the purpose
of such meeting, who was present, the number and duration of the meetings, and whether the
plaintiffs practiced or rehearsed their testimony. The defendant may not inquire about the
substance of Wright’s (or other consultants’) communications with the plaintiffs or imply that she
(or they) coached the plaintiffs to testify untruthfully.
In addition, the defendant may not refer to Wright as an “acting coach” at trial. While it is
clear from the online biography the defendant has introduced that Wright’s background is in acting
(see Doc. No. 385-1), the link to her company’s website provided by the plaintiffs
(https://actofcommunication.com/) establishes that her company characterizes itself as a litigation
consulting firm. Permitting the defendant to refer to her simply, and derogatorily, as an “acting
coach” would be unduly prejudicial and potentially misleading. Further, because the plaintiffs
themselves are not knowledgeable, or qualified to testify, about Wright’s qualifications, the parties
are encouraged to reach a stipulation regarding how her qualifications will be explained to the jury.
It is so ORDERED.
ALETA A. TRAUGER
United States District Judge
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