First American Title Insurance et al v. Northwest Title Insurance Agency et al
Filing
436
MEMORANDUM DECISION AND ORDER granting 344 Motion to Strike all designated deposition testimony of Dennis J. Gilmore. Signed by Judge David Nuffer on 12/6/16 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
FIRST AMERICAN TITLE INSURANCE
COMPANY and FIRST AMERICAN TITLE
COMPANY, LLC,
Plaintiffs,
MEMORANDUM DECISION AND
ORDER GRANTING [344] PLAINTIFFS’
MOTION TO STRIKE ALL
DESIGNATED DEPOSITION
TESTIMONY OF DENNIS J. GILMORE
v.
Case No. 2:15-cv-00229
NORTHWEST TITLE INSURANCE
AGENCY, LLC, MICHAEL SMITH, JEFF
WILLIAMS, and KRISTI CARRELL,
District Judge David Nuffer
Defendants.
Plaintiffs filed a motion to strike all designated deposition testimony of Dennis J.
Gilmore,1 the chief executive officer of First American Financial Corporation.2 Defendants
opposed the motion,3 and the plaintiffs replied to that opposition.4
BACKGROUND
Plaintiffs filed a similar motion to prevent the defendants from taking Gilmore’s
deposition.5 Judge Warner denied the motion,6 finding that “Mr. Gilmore appears to have unique
knowledge and/or personal involvement sufficient to permit the deposition under the liberal
Plaintiffs’ Motion to Strike all Designated Deposition Testimony of Dennis J. Gilmore (Motion), docket no. 344,
filed November 7, 2016.
1
2
Id. at 2.
Opposition to Plaintiffs’ Motion to Strike All Designated Deposition Testimony of Dennis J. Gilmore
(Opposition), docket no. 391, filed November 23, 2016.
3
4
Reply Memorandum in Support of Motion to Strike All Designated Deposition Testimony of Dennis J. Gilmore
(Reply), docket no. 430, filed December 2, 2016.
5
Short Form Motion for Protective Order to Preclude Deposition of Dennis J. Gilmore, docket no. 52, filed October
23, 2015.
6
Memorandum Decision, docket no. 180, entered May 11, 2016.
discovery standards.”7 In the Reply, the plaintiffs correctly point out that at this stage the
question is no longer considered under the “liberal discovery standards of Rule 26(c),” but rather
“under the Federal Rules of Evidence,”8 specifically Rules 401 and 403.
Defendants argue that the designated deposition of Dennis J. Gilmore is necessary trial
testimony for several reasons.9 First, defendants argue that the designated deposition is per se
relevant and probative because Gilmore is the CEO, serves on the board of directors of First
American Financial, and is President of First American Title Insurance Company.10 Second, and
related to the first, the defendants argue that as a member of the First American Financial’s board
of directors, Gilmore is the “only witness from First American Financial who has been identified
by either party to testify.”11 Finally, defendants argue that the designated deposition is important
because Gilmore provided information about confidential information.12
DISCUSSION
The plaintiffs argue that the designated deposition should be excluded based on Rules
401 and 403 of the Federal Rules of Evidence.13 Rule 401 states:
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.
And Rule 403 states:
7
Id. at 2.
8
Reply at 4.
9
Opposition at 3–4.
10
Id. at 3.
11
Id.
12
Id. 3–4.
13
Motion at 1. For the reasons stated in Judge Warner’s Memorandum Decision at 1–2, the Apex Doctrine will not
be addressed in this order.
2
The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.
Defendants arguments for including Gilmore’s designated deposition are either not
relevant or are outweighed by Rule 403 considerations. A person’s position does not
automatically make the testimony relevant. Gilmore, as a board member of First American
Financial, does not provide a unique perspective on First American Financial documents. After
reviewing Gilmore’s designated depositions, his testimony regarding those documents is limited
and superficial. The alleged confidential information Gilmore discusses relates to claims and
documents no longer at issue.14 But even so, anything Gilmore says about those documents is
cumulative: The 30(b)(6) witness, Karen Lanning, provides testimony on those documents.
Additionally, defendants argue the Gilmore designated deposition is “highly relevant to
Plaintiffs’ claims [because,] [t]o the extent the President of the company knew nothing about the
purchase of Equity Title by First American title Insurance Company and subsequent merger into
First American Title Company, LLC, the knowledge of such details cannot reasonably be
imputed to the Individual Defendants.”15 There is no legal basis for this argument. The
designation deposition could confuse the issues, mislead the jury, or create undue delay.
14
Order on Stipulated Motion to Dismiss Certain Claims Against Defendants, docket no. 384, entered November 18,
2016 (dismissing counts VII, VIII, IX, and XIII); Docket Text Order granting [407] Motion to Dismiss, docket no.
412, entered November 26, 2016 (dismissing all claims based on the Confidential Information and Inventions
Agreement)
15
Opposition at 5.
3
ORDER
THEREFORE the designated portion of the Dennis J. Gilmore deposition16 is
STRICKEN. Plaintiffs’ Motion to Strike All Designated Deposition Testimony of Dennis J.
Gilmore17 is GRANTED.
Dated December 6, 2016.
BY THE COURT:
____________________________
David Nuffer
United States District Judge
16
Notice of Filing of Deposition Designation Form for Dennis Gilmore, docket no. 389, filed November 21, 2016.
17
Docket no. 344, filed November 7, 2016.
4
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