Kingston v. International Business Machines Corporation
Filing
101
ORDER granting in part and denying in part and reserving ruling in part on #77 Motion in Limine; and #78 Motion in Limine signed by Judge Marsha J. Pechman.(IJM)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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SCOTT KINGSTON,
Plaintiff,
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CASE NO. C19-1488 MJP
ORDER ON MOTIONS IN LIMINE
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
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Defendant.
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This matter comes before the Court on the Parties’ Motions in Limine. (Dkt. Nos. 77 &
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78.) Having reviewed the Motions, Oppositions (Dkt. Nos. 82 & 87), and all supporting
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materials and having orally ruled on the Motions during a pretrial conference on March 25, 2021,
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the Court issues this Order memorializing the Court’s oral ruling GRANTING in part,
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DENYING in part, and RESERVING RULING on in part the Motions.
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ORDER ON MOTIONS IN LIMINE - 1
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ANALYSIS
A.
Plaintiff’s Motions in Limine
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1.
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Plaintiff seeks to exclude the testimony and opinion of Peter Nickerson as to the amount
Failure to mitigate affirmative defense
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of mitigation damages because he bases his opinion exclusively on the excluded opinion of
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William Skilling. (Nickerson Report at 2 (Dkt. No. 79-1 at 3); Order Granting Plaintiff’s Motion
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to Exclude Skilling, Dkt. No. 53.) The Court agrees. Defendant argues that Nickerson can rely on
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Skilling’s excluded opinion because facts “need not be admissible” to support an expert’s
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opinion under Rule 703. But the Court does not read the words “need not be admissible” as
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coequal to “excluded.” Once the Court excludes an expert’s testimony, the party may not offer
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that same opinion backdoor through another expert. Rule 703 does not countenance this result.
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The Court therefore GRANTS this motion in limine and excludes Nickerson’s opinions as to the
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amount of mitigation damages.
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The parties otherwise agree that Nickerson may offer other testimony in this matter on
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which he has disclosed opinions. And the Court’s ruling does not prevent Defendant from
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pursuing its failure to mitigate defense, though the Court has seen little evidence to support it.
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2.
After-Acquired Evidence Defense
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Plaintiff asks the Court to bar Defendant’s after-acquired evidence defense.
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“The after-acquired evidence doctrine precludes or limits an employee from receiving
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remedies for wrongful discharge if the employer later discovers evidence of wrongdoing that
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would have led to the employee’s termination had the employer known of the misconduct.”
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Lodis v. Corbis Holdings, Inc., 192 Wn. App. 30, 60 (2015) (quoting Rivera v. NIBCO, Inc., 364
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F.3d 1057, 1070–71 (9th Cir. 2004)). The “doctrine limits the damages an employee may recover
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ORDER ON MOTIONS IN LIMINE - 2
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and does not limit liability as a matter of law.” Martin v. Gonzaga Univ., 191 Wn.2d 712, 730
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(2018). “An employer can avoid back pay and other remedies by coming forward with after-
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acquired evidence of an employee’s misconduct, but only if it can prove by a preponderance of
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the evidence ‘that the wrongdoing was of such severity that the employee in fact would have
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been terminated on those grounds alone if the employer had known of it at the time of the
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discharge.’” Lodis, 192 Wn. App. at 60 (quoting McKennon v. Nashville Banner Pub. Co., 513
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U.S. 352, 362-63 (1995)).
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Plaintiff identified two apparently new theories that Defendant has identified to support
this defense: (1) Plaintiff’s failure to meet quota deployment; and (2) Plaintiff’s act of sending
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himself his own emails after he was terminated. Plaintiff notes that it posed an interrogatory
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asking Defendant to identify all bases for Plaintiff’s termination, and that Defendant never
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identified either issue despite multiple supplemental responses. This may alone be dispositive.
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But the Court wishes to view the issue in light of the potential evidence on this topic. At the
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pretrial conference, Defendant’s counsel admitted that they are still evaluating this defense and
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will focus primarily on the emails that were sent. If Defendant wishes to pursue this defense, it
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must provide all documentary support to the Court by no later than Tuesday, March 30, 2021.
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The Court RESERVES RULING on this motion in limine and until the Court rules on this issue,
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neither party may raise this topic in opening arguments.
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ORDER ON MOTIONS IN LIMINE - 3
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3.
“But-For” Causation
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Plaintiff asks the Court to exclude any argument, evidence, or testimony that Plaintiff
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must show “but for” causation. On this point Defendant agrees. The Court therefore GRANTS
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the motion in limine on this issue.
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Defendant still wishes to ask Plaintiff his opinion as to why he was terminated. As the
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Court noted during the pretrial conference, this opinion testimony appears to have scant
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relevance to the jury’s determination to liability. Plaintiff retained counsel to represent his
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interests and it is for his counsel to marshal the evidence to support the multiple claims relating
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to his termination. Plaintiff’s opinions about the reasons for his termination have dubious
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relevance. But rather than exclude the testimony through a motion in limine, the Court will rule
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on the issue if and when it is raised at trial.
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4.
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The Parties agree that non-party witnesses should be excluded from the virtual courtroom
Exclude Witnesses During Trial
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except when testifying. The Court GRANTS this motion in limine. As the Court noted in the
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pretrial conference, witnesses who have testified may stay after their testimony to observe trial,
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but they cannot then appear as rebuttal witnesses.
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5.
Business Necessity, Waiver, Unclean hands, Ratification, or Estoppel
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The Parties appear to agree that Defendant will not pursue the affirmative defenses of
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business necessity, waiver, unclean hands, ratification or estoppel. (Dkt. No. 78 at 14.) While
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Plaintiff’s motion in limine on this issue appears unopposed, Plaintiff has not identified any
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specific evidence or testimony to which this motion applies. The Court cannot rule on this issue
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without more specifics. The Court will likely address this issue through the jury instructions and,
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ORDER ON MOTIONS IN LIMINE - 4
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if it appears at trial, through objections made in real time. The Court therefore RESERVES
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RULING on this specific motion in limine.
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B.
Defendant’s Motion in Limine
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1.
Beard Settlement and Summary Judgment Order in Beard Case
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Defendant asks the Court to exclude evidence and testimony about the lawsuit filed by
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Jerome Beard against IBM in which he pursued claims relating to race discrimination and unpaid
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commissions. As part of the lawsuit, Beard successfully fended off a summary judgment motion,
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and ultimately settled his claims. Defendant asks the Court to exclude the summary judgment
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order and the settlement agreement under Rule 401, 402, and 403. Plaintiff has identified the
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relevance of Beard’s dismissal from IBM, the claims he alleged and litigated, and the resolution
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of his claims. But the Court finds that entry of the settlement agreement or summary judgment
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into evidence would be unfairly prejudicial.
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The Court therefore GRANTS in part and DENIES in part the motion in limine. The
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Parties will be permitted to call Beard as a witness and ask him about his work at IBM, his
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experience as to the capped commission, the reasons why he believed the commission capping
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was unfair or improper, the fact that he sued IBM for race discrimination and for wrongful
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withholding of the commission, and the fact that his lawsuit settled to his and IBM’s satisfaction.
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Neither the settlement agreement nor summary judgment shall be admitted. And neither party
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may question Beard about the amount of the settlement (or whether Beard was pleased with it) or
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about the summary judgment.
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2.
Evidence Related to the Treatment of Beard and Kami Nazem
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Defendant asks the Court to exclude evidence and testimony about whether IBM
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discriminated against Beard or Kami Nazem. Defendant argues that this would be a distraction
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ORDER ON MOTIONS IN LIMINE - 5
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because Kingston does not have to prove that IBM actually discriminated against Beard or
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Nazem. It also argues that Nazem is irrelevant because Kingston does not allege he was fired for
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opposing any alleged discrimination against Nazem. Plaintiff has made a colorable argument as
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to the relevance of the alleged discrimination against Nazem. Kingston and two other managers
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were allegedly fired for complaining about racial discrimination and were fired for allegedly
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failing to cap commission. One manager complained about the treatment of Nazem, which
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makes the treatment of Nazem potentially relevant to the issue of pretext.
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The Court DENIES the motion in limine. The Court has warned the parties that the
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alleged discrimination against Beard and Nazem should not become a distraction to the narrow
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issues before the jury as to Kingston. But the Court will address any concerns about scope and
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relevance as the trial proceeds.
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3.
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Defendant asks the Court to exclude any evidence concerning the EEOC’s determination
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EEOC Determination
finding reasonable cause that IBM engaged in age discrimination.
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The Ninth Circuit has held that allegations by non-parties against the defendant on topics
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related to the discrimination at issue are admissible to prove intent and motive of an employer to
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discriminate under Rule 404(b) of the Federal Rules of Evidence. See, e.g., Heyne v. Caruso, 69
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F.3d 1475, 1479 (9th Cir. 1995) (holding that “an employer’s conduct tending to demonstrate
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hostility towards a certain group is both relevant and admissible where the employer’s general
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hostility towards that group is the true reason behind firing an employee who is a member of that
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group”); E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 898 (9th Cir. 1994) (holding that “[b]ecause
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hostility against women underlies decisions to discharge or to refuse to hire women because of
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ORDER ON MOTIONS IN LIMINE - 6
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their gender, evidence of sexual harassment often will be relevant to claims of gender-based
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employment discrimination”).
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Based on the fact that the EEOC determination appears relevant to the issue of intent and
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motive, the Court DENIES the motion in limine. The Court will not exclude the document in
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full. But as the Court indicated during the pretrial conference, Defendant may identify specific
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portions of the EEOC determination it wishes excluded. It must do so before trial, identifying,
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line-by-line, each portion it wishes excluded. The Court will then determine whether to exclude
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any of it under Rule 403.
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4.
Michael Lee’s condition
Defendant asks the Court to exclude any reference to Michael Lee’s cancer or cancer
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treatment. Plaintiff provided some clarification of why this is potentially relevant to the pretext
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of Lee’s termination and its relevance to Kingston’s claims. But Plaintiff conceded that he
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merely wants to be able to elicit testimony that Lee’s medical condition impaired his physical
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condition. The Court therefore GRANTS the motion in part and bars any evidence about Lee’s
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chemotherapy and cancer, but permits evidence and testimony about whether Lee had a medical
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condition affecting his physical and mental condition. Neither party may elicit testimony about
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his cancer or chemotherapy, as doing so is unnecessary and likely unduly prejudicial.
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5.
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Defendant asks the Court to exclude any evidence concerning changes IBM made to its
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Changes in Policy
commission policy.
In general, changes to a challenged company policy that allegedly caused the plaintiff’s
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injury is inadmissible to prove culpability under Rule 407. See Hansen v. Werner Enters. Inc.,
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No. EDCV 14-2090-JGB-SPX, 2016 WL 7479349, at *4 (C.D. Cal. May 18, 2016). But
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ORDER ON MOTIONS IN LIMINE - 7
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subsequent remedial measures include “only the actual remedial measures themselves and not
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the initial steps toward ascertaining whether any remedial measures are called for.” In re
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Aircrash in Bali, Indonesia, 871 F.2d 812, 817 n.2 (9th Cir. 1989); see also Gray v. Golden Gate
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Nat. Recreational Area, 866 F. Supp. 2d 1129, 1141 (N.D. Cal. 2011) (citing In re Aircrash and
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concluding an internal report “was not a ‘subsequent remedial measure’ because it constituted a
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self-analysis of deficiencies rather than remedial measures taken”).
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Defendant agrees that its internal audit relating to the commissions is not subject to
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exclusion under Rule 407. But Defendant argues that any change to the policy is subject to
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exclusion under Rue 407. Plaintiff argues that not only does the internal audit note the need for
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changes, IBM’s Rule 30(b)(6) witness testified the process has not actually changed, making
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Rule 407 inapplicable. The Court agrees with IBM that changes to the policy should be excluded
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under Rule 407. But as the Court pointed out, IBM appears to have created its own Catch-22 by
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stipulating to the admissibility of the report identifying problems in the policy and then seeking
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to exclude any evidence that it took steps to fix the problems. Be that as it may, the Court
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GRANTS the motion in part, excluding any evidence of changes to the commission policy, but
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allowing evidence about the internal audit or other evidence relating to problems in the
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commission policies. And should IBM put on a witness to discuss the changes in the policies,
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Plaintiff may ask freely about the changes to the policy.
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The clerk is ordered to provide copies of this order to all counsel.
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Dated March 26, 2021.
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Marsha J. Pechman
United States District Judge
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ORDER ON MOTIONS IN LIMINE - 8
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