MEMORANDUM AND ORDER

PAUL MAGNUSON, Senior District Judge

This matter is before the Court on Defendant's Motions in Limine. Trial in this case is scheduled to begin on Monday, February 14, 2005. For the following reasons, the Motions are granted in part and denied in part.

Plaintiff Semyon Klyuch brings claims of race, religion and national origin discrimination. The Court previously denied the Motion for Summary Judgment filed by Defendant Freightmasters, Inc. ("Freightmasters"), and determined that Klyuch had presented sufficient probative evidence to create a genuine issue of fact for trial. Thus, the issue for trial is whether the evidence demonstrates that Freightmasters discriminated against Klyuch based on his race, religion, and national origin. Klyuch may use any kind of evidence, direct or indirect, to prove that Freightmasters intentionally discriminated against him.

DISCUSSION

A. Alleged Post-Termination Stray Remark

Freighmasters seeks to exclude an alleged remark made by Freightmasters' employee Timothy Beltz. Klyuch asserts that Beltz allegedly referred to Klyuch as a "fat, Jew friend," to fellow Freightmasters employee, Timothy Kroska. Both Beltz and Kroska deny that Beltz made the statement. This alleged statement was also made after Klyuch was terminated. Freightmasters seeks to exclude this statement as irrelevant. Klyuch disagrees.

The Court agrees with Klyuch. The Court has determined that this allegedly discriminatory comment is a stray remark, and insufficient to mandate a direct evidence analysis. However, even as a stray remark made after the decision to terminate Klyuch, this alleged comment is relevant to show bias or animus by Beltz towards Klyuch. Indeed, this is the ultimate issue that remains for trial. Thus, Freightmasters' Motion on this point is denied.

B. Claim for Punitive Damages

Freightmasters seeks to strike Klyuch's claim for punitive damages. Under Title VII and 42 U.S.C. § 1981, the standard for punitive damages is the same: malice or reckless indifference to a federally protected right. See e.g., Kim v. Nash Finch Co., 123 F.3d 1046, 1063 (8th Cir. 1997). Under the Minnesota Human Rights Act ("MHRA"), punitive damages requires "clear and convincing evidence that the acts of the defendants show deliberate disregard for the rights or safety of others." Minn. Stat. § 549.20.

Freightmasters claims that the alleged discriminatory remarks are insufficient to support a claim for punitive damages. Indeed, these alleged discriminatory remarks, without more, may be insufficient. However, Klyuch intends to present other evidence to support his discrimination claims, including Freightmasters' failure to transfer him to a day shift position and the circumstances surrounding his termination. The Court finds Freightmasters' Motion premature at this juncture. However, depending on the evidence presented at trial, Freightmasters may renew its Motion on this point.

C. Klyuch's Back Pay and Front Pay Claims

Klyuch seeks damages that include both back pay and front pay. Freightmasters contends that Klyuch has failed to permit discovery on his post-termination employment and wages. Specifically, Freightmasters contends that because Klyuch refuses to sign an authorization to release his employment information from his current employer, dismissal of these claims is appropriate. Klyuch acknowledges that he has failed to sign this release, but represents that he has nonetheless provided all relevant wage and benefit information regarding his current employer. He further argues that signing an authorization to release his current employment information violates Minn. Stat. § 363A.15.

Freightmasters cites no authority for the proposition that a formal authorization for a release of information from an employer is the only means possible to evaluate front and back pay damages. However, Klyuch's reliance on Minn. Stat. § 363A.15 is also misplaced. Indeed, this lawsuit is a matter of public record precluding the existence of the privilege that Klyuch claims exists. Regardless, Klyuch represents that he has supplemented all discovery requests and provided Freightmasters with all relevant wage and benefit information pertaining to his current employer. Absent some evidence that this information is inaccurate or otherwise incomplete, the Court declines to dismiss Klyuch's claims for back and front pay. However, the Court requires that Klyuch supplement his tax record disclosures to include the 2004 tax year.

D. Testimony of Witnesses Identified by Plaintiff

On January 23, 2004, Klyuch issued his initial Rule 26 disclosures, and on December 17, 2004, Klyuch supplemented these disclosures by identifying specific witnesses. Freightmasters objects to the testimony of five witnesses that were identified for the first time in the supplemental disclosures: John Munson, Tom Ralke, Arcadio Torres, Alexander Klyuch, and Jake Dvoksin. Freightmasters contends that it is unduly prejudiced by the late disclosure of these witnesses, and that their purported testimony is irrelevant.

First, these witnesses are no surprise to Freightmasters. Torres, Klyuch and Dvoksin were all referred to in some capacity during summary judgment briefing. Further, Freightmasters has had all witness contact information for nearly two months, and has failed to take any initiative to inquire of these witnesses. These witnesses have information that relate to Klyuch's job performance and the work environment at Freightmasters, which is relevant and may be probative of discrimination. The Court disagrees with Freightmasters that exclusion of these witnesses is appropriate. Freightmasters' Motion is denied on this point.

E. Attacks Against Tim Beltz

Freightmasters seeks to exclude evidence that is purportedly irrelevant and attacks Freightmasters' employee, Tim Beltz. At summary judgment, the Court assumed that Beltz was the decisionmaker, as Klyuch asserted. However, the Court notes that this assumption was strictly for purposes of that Motion, and that whether or not Beltz was indeed a decisionmaker is an issue that remains for trial. Thus, the evidence that Freightmasters seeks to exclude in this Motion is relevant to this issue and will not be excluded.

Freightmasters further seeks to exclude evidence regarding the allegedly derogatory comments made by Beltz. Although the Court has held that these comments are insufficient as a matter of law to mandate a direct evidence analysis, these allegedly derogatory comments may nonetheless be probative of discrimination. Whether such statements were made and whether such statements indicate a discriminatory animus is an issue that is disputed and therefore remains for the trier of fact. Freightmasters' Motion on this point is also denied.

F. Exhibits from Plaintiff's Exhibit List

Freightmasters seeks to exclude Freightmasters' personnel files of Ken Wood and Steve Hatcher. Freightmasters apparently disclosed these files during discovery and Klyuch now includes these documents in his exhibit list. Klyuch contends that this evidence is relevant to his claim for discrimination, because these documents demonstrate that Freightmasters treated Klyuch different than his non-Jewish and non-Russian colleagues, in regards to the terms and conditions of his employment. Klyuch does not intend to produce either Wood or Hatcher as witnesses, and because Freightmasters produced these files to Klyuch, Klyuch claims that there is no prejudice. The Court agrees with Klyuch, because this evidence may also be probative of discrimination. Thus, Freightmasters' Motion on this point is denied.

G. Findings from Plaintiff's Unemployment Insurance Claim

Klyuch obtained unemployment insurance benefits after his termination. Throughout these unemployment proceedings, Freightmasters allegedly characterized Klyuch's termination as a voluntary termination. Freightmasters seeks to introduce evidence of this characterization in an effort to rebut Klyuch's allegation that Freightmasters has offered inconsistent explanations for termination. However, Freightmasters seeks an Order that this reference will not "open the door for Klyuch to introduce evidence about the unemployment findings."

Minn. Stat. § 268.105, subd. 5(c) states:

Testimony obtained [in an unemployment benefit evidentiary hearing] may not be used or considered for any purpose, including impeachment, in any civil, administrative, or contractual proceeding, except by a local, state, or federal human rights agency with enforcement powers, unless the proceeding is initiated by the department.

According to Klyuch, the evidence that Freightmasters seeks to present is prohibited by this statute. However, this Court has noted that "a state legislature cannot purport to make binding pronouncements of law concerning what evidence may be privileged or otherwise admissible in a federal action involving claims based on federal law." Robertson v. Federal Express Corp., File No. 02-4161 (D. Minn. Aug. 20, 2004) (Magnuson, J.) (citingBaldwin v. Rice, 144 F.R.D. 102, 106 (E.D. Cal. 1992)). As the Federal Rules of Evidence require, privilege must be "governed by the principles of common law as they may be interpreted by the courts of the United States." Fed.R.Evid. 501. Thus, state privilege law is only binding in actions where state law controls the merits of the claims at issue.

In this case, Klyuch's claims are premised on federal discrimination laws, and the existence of pendent state law claims does not change this analysis. Thus, the Court is not required to comply with the "unemployment information privilege." See e.g., Freed v. Grand Court Lifestyles, 100 F. Supp. 610 (S.D. Ohio 1998). However, the Court notes that Freightmasters proposes to tailor the evidence solely to its advantage.

The Court denies Freightmasters' Motion on this point and will not issue an Order as it requests. It is unfairly prejudicial to allow Freightmasters to introduce this evidence for substantive purposes while precluding Klyuch from using the same evidence. Furthermore, the standard for unemployment benefits is distinct from the standard for employment discrimination, and permitting the introduction of such evidence would only confuse the jury. Therefore, to avoid undue prejudice to either party, the Court excludes evidence from the unemployment insurance benefits hearing.

H. Alleged Termination Policy

Freightmasters seeks to exclude any evidence about particular hiring and termination procedures at Freightmasters. Freightmasters disputes that its hiring and termination policy is a condition of employment and rather that it is merely "aspirational" in nature. Thus, according to Freightmasters, evidence regarding the policy is irrelevant and prejudicial. Klyuch contends that he is entitled to present evidence that Freightmasters chose to disregard its hiring and termination procedures as evidence of discrimination.

The Court agrees with Klyuch. Although the hiring and termination procedures may not be formal conditions of employment, Freightmasters' failure to follow its termination procedures in this instance may support Klyuch's claim for discrimination. Whether or not Freightmasters consistently followed these policies is an issue for the fact finder and is highly relevant to Klyuch's claims. Freightmasters' reliance on various cases is unpersuasive to the Court. In fact, Freightmasters' arguments demonstrate that issues of fact relating to the procedures remain for trial, rather than support is Motion to Exclude. Thus, Freightmasters' Motion is also denied on this point.

I. Evidence of Past Discrimination Suffered by Plaintiff

Klyuch moved to the United States in the early 1980s from the Soviet Union, to escape both the racial and religious discrimination. Klyuch seeks to introduce evidence of this past discrimination, to demonstrate how this past discrimination has influenced Klyuch's propensity for severe emotional distress damages. Freightmasters seeks to exclude evidence of past discrimination, because it is irrelevant to the discrete allegations in this case. The Court agrees with Freightmasters. Evidence of past discrimination, nearly twenty-five years ago, is irrelevant to the allegations in the instant case. Thus, Freightmasters' Motion is granted on this point.

J. Exhibit List

Freightmasters seeks to amend its exhibit list to include three recently discovered electronic documents. According to Freightmasters, these documents are "germane to the outstanding issues" set to be tried. As soon as Freightmasters discovered this evidence, it provided them to opposing counsel. There is no evidence of bad faith on behalf of Freightmasters, and indeed the documents are relevant to the issues that are contested by the parties.

Klyuch contends that this late disclosure is unduly prejudicial and should be prohibited. The Court disagrees. Although the Court acknowledges the untimeliness of this disclosure, the probative value of this evidence outweighs any prejudice to Klyuch. Indeed, the issues for trial focus on the circumstances surrounding Klyuch's termination, and these documents are at the heart of this issue. Further, Klyuch will have an opportunity at trial to examine witnesses as to both the authenticity and content of these documents. Thus, Freightmasters' Motion on this point is granted.

K. Forensic Inspection

Klyuch contends that a forensic examination of Freightmasters' computer system is necessary to ensure that Freightmasters has disclosed all relevant documents that relate to this newly disclosed evidence. The Court also disagrees with Klyuch on this point. There is no evidence of bad faith on behalf of Freightmasters, and ordering a forensic inspection at this late juncture is unnecessary. Rather, the Court orders Freightmasters to produce any other documents that pertain or relate to these recently produced documents.

CONCLUSION

The issue for trial is whether Freightmasters discriminated against Klyuch, and the burden is on Klyuch to prove, by a preponderance of the evidence, that such discrimination occurred. Klyuch is entitled to use any evidence, direct or circumstantial, to prove his case. Accordingly, based on all the files, records and proceedings herein, IT IS HEREBY ORDERED that:

1. Defendant's Motion in Limine Regarding Alleged Post Termination Stray Remark (Clerk Doc. No. 48) is DENIED;

2. Defendant's Motion in Limine to Strike Claim for Punitive Damages (Clerk Doc. No. 50) is DENIED;

3. Defendant's Motion in Limine to Strike Plaintiff's Back Pay and Front Pay Claims (Clerk Doc. No. 52) is DENIED;

a. Plaintiff must supplement his disclosures to include his 2004 tax information;

4. Defendant's Motion in Limine to Strike Witnesses from and/or Limit Testimony of Witnesses Identified by Plaintiff (Clerk Doc. No. 54) is DENIED;

5. Defendant's Motion in Limine Regarding Irrelevant and Unsupported Attacks Against Tim Beltz (Clerk Doc. No. 56) is DENIED;

6. Defendant's Motion in Limine to Strike Exhibits from Plaintiff's Exhibit List (Clerk Doc. No. 58) is DENIED;

7. Defendant's Motion in Limine to Exclude Findings from Plaintiff's Unemployment Insurance Claim (Clerk Doc. No. 73) is DENIED in part and GRANTED in part;

8. Defendant's Motion in Limine to Preclude Alleged Termination Policy (Clerk Doc. No. 75) is DENIED;

9. Defendant's Motion in Limine to Preclude Evidence of Past Discrimination Suffered by Plaintiff (Clerk Doc. No. 79) is GRANTED;

10. Defendant's Motion in Limine to Amend the Exhibit List (Clerk Doc. No. 88) is GRANTED; and

11. Plaintiff's Motion Requesting a Forensics Inspection of Freightmasters' Computer System (Clerk Doc. No. 94) is DENIED;

a. Freightmasters must produce any other documents that directly pertain or relate to the three recently discovered electronic documents.