Marland et al v. Asplundh Tree Expert

Filing 155

MEMORANDUM DECISION denying 129 Motion in Limine Signed by Judge Ted Stewart on 1/27/17. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
SCOTT K. MARLAND and JENNIFER D.
MARLAND, as conservators for the minor
child, J.S.M.,

MEMORANDUM DECISION AND
ORDER GRANTING PLAINTIFFS’
MOTION IN LIMINE NO. 7 TO
EXCLUDE UNTIMELY DISCLOSED
PHOTOS OF RANDOM SIBERIAN ELMS
NEAR NORTHERN UTAH POWER
LINES

Plaintiffs,
v.
ASPLUNDH TREE EXPERT CO., a
Pennsylvania corporation,

Case No. 1:14-CV-40 TS
District Judge Ted Stewart

Defendant.

This matter is before the Court on Plaintiffs’ Motion in Limine No. 7 to Exclude
Untimely Disclosed Photos of Random Siberian Elms Near Northern Utah Power Lines. For the
reasons discussed below, the Court will deny the Motion.
On November 15, 2016, Defendant listed photographs of Siberian elm trees near Utah
power lines in its pre-trial disclosures. Defendant showed Plaintiffs the pictures on December 6,
2016. Plaintiffs argue that these photographs are untimely and should be excluded under Federal
Rule of Civil Procedure 37(c). Alternatively, Plaintiffs argue that the photographs should be
excluded under Federal Rules of Evidence 901, 401, 402, or 403. Defendants claim that the
photographs will be used solely to impeach the expected testimony of one of Plaintiffs’ experts.
First, Federal Rule of Civil Procedure 26(a) or (e) does not require disclosure of evidence
offered solely for impeachment and the preclusion sanctions in Rule 37(c) do not apply to such
evidence. Therefore, the pictures will not be excluded under Rule 37(c).

1

Second, Rule 901 requires the proponent of evidence to “produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” For example, Defendant may
present testimony that the pictures are what they claim to be. 1 Further, Rule 901 allows the
Court to consider the “appearance, contents, substance, internal patterns, or other distinctive
characteristics” of a document for assurances of its authenticity. 2
Defendant has not yet produced evidence sufficient to authenticate these photographs,
and the Court does not have enough information to consider whether the photographs depict
what Defendant claims. Therefore, the admissibility of these photographs will depend on
Defendant’s ability to introduce sufficient evidence to satisfy Rule 901 at trial.
Third, Federal Rule of Evidence 401 states that evidence is relevant if: “(a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” The trimming of a Siberian elm tree is a
central issue in this case. Defendant expects Plaintiffs’ expert to testify that Defendant should
have removed the tree because it was a Siberian elm growing into a power line. Photographs
showing other Siberian elm trees growing into power lines tend to impeach this testimony and
are therefore probative of Defendant’s alleged negligence. The Court further finds that the
photographs’ probative value is not outweighed by a danger of unfair prejudice.
It is therefore
ORDERED that Plaintiffs’ Motion in Limine No. 7 to Exclude Untimely Disclosed
Photos of Random Siberian Elms Near Northern Utah Power Lines (Docket No. 129) is
1

Fed. R. Evid. 901 (b)(1).

2

Id. 901(b)(4); see also Law Co. v. Mohawk Constr. & Supply Co., 577 F.3d 1164, 1171
(10th Cir. 2009).

2

DENIED. The photographs may be used solely for impeachment and only if sufficient evidence
is first introduced to authenticate the photographs under Federal Rule of Evidence 901.
DATED this 27th day of January, 2017.
BY THE COURT:

Ted Stewart
United States District Judge

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