Opinion
No. 4:01CV3262
October 17, 2002
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION IN LIMINE
The plaintiff, Pamela Wallace, has filed a single-count amended complaint against the defendant, Valentino's of Lincoln, Inc., alleging a violation of Title VII of the Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C. § 2000e et seq. (1994) (hereinafter "Title VII"). This matter is currently scheduled for trial on November 12, 2002. Now before me is the defendant's motion in limine, filing 41, by which the defendant seeks to prevent the plaintiff from presenting the testimony of Andrew Barrett and Exhibits 202, 203, and 207 to the jury at trial. In her response to the defendant's motion in limine, the plaintiff has not disputed the defendant's argument that Exhibits 202, 203, and 207 must be excluded. I shall therefore grant the defendant's motion in limine in part, and Plaintiff's Exhibits 202, 203, and 207 will not be admitted into evidence at trial or otherwise presented to the jury. It remains to be determined whether Andrew Barrett's testimony ought to be excluded as well.
The plaintiff's brief in opposition to the defendant's motion in limine includes a background summary that misidentifies the relevant exhibits. (See Pl.'s Br. in Opp'n [to] Def.'s Mot. in Limine at 2 (referring to Plaintiff's Exhibits 101, 102, 103, 104, 105, and 106).) Apart from this erroneous reference, the plaintiff has offered no response to the defendant's argument that Exhibits 202, 203, and 207 should be excluded.
On July 22, 2000, Andrew Barrett appeared at the office of the plaintiff's attorney and issued a sworn statement before a certified shorthand reporter. (See Pl.'s Index of Evidence in Supp. of Her Br. in Opp'n to Def.'s Mot. in Limine, "Exhibit 2" at 1.) Barrett was formerly employed by the defendant as a manager. (See id. at 6.) The defendant argues that Barrett's statement cannot be placed before the jury and that Barrett cannot be called by the plaintiff as a witness at trial, because: 1) Barrett's statement is actually a deposition, and the defendant was not represented at the taking of this deposition; 2) Barrett's statement was taken by the plaintiff's attorney in violation of the Nebraska Code of Professional Responsibility; 3) courts in other jurisdictions have excluded statements obtained as a result of improper ex parte contacts with a defendant's employees; 4) the plaintiff and defendant were each "parties" at the time of the taking of Barrett's statement, which triggers the relevant rules of ethics; and 5) Barrett cannot be allowed to impute liability to the defendant. I shall review each of the defendant's arguments in turn.
Pursuant to Local Rule 7.1(b)(2), if a party opposing a motion relies upon evidence that has not previously been filed, this evidence is to be indexed and filed with the Clerk. The plaintiff's index of evidence in opposition to the defendant's motion in limine does not appear to have been filed as required by the Rule. However, the index is accompanied by a certificate of service indicating that the defendant was served with a copy of the index on August 12, 2002, and the index was received in my chambers on August 13, 2002. I shall consider the index to have been filed on August 13, 2002, and the index will be docketed as if it were filed on that date. However, in the future the plaintiff should take care to satisfy the requirements of the applicable rules.
A. Whether Barrett's Statement Is Actually a Deposition
The defendant first argues that Barrett's statement must be excluded because it is actually a deposition, and the Federal Rules of Civil Procedure "impliedly" prohibit the use of a deposition against any party who was not represented at the taking of the deposition or who had no reasonable notice of the deposition. See Hewitt v. Hutter, 432 F. Supp. 795, 799 (W.D.Va. 1977); George R. Whitten, Jr., Inc. v. State University Construction Fund, 359 F. Supp. 1037, 1039 (D.Mass. 1973); Appel v. Sentry Life Insurance Co., 739 P.2d 1380, 1382 (Colo. 1987). It is undisputed that the defendant was not represented at the taking of Barrett's statement and that the defendant received no notice of the taking of the statement. However, I do not agree with the defendant's characterization of the statement as a deposition. Instead, it seems to me that the statement more closely resembles an affidavit.See Mason v. Clark, 920 F.2d 493, 495 (8th Cir. 1990) ("[A]n affidavit is a `sworn statement in writing made . . . under an oath or on affirmation before . . . an authorized officer.'" (quoting Webster's Third New International Dictionary 35 (1965))). I shall consider the statement to be an affidavit, and it will not be excluded as an improper deposition.
B. Whether the Code of Professional Responsibility Prohibits the Plaintiff's Use of Barrett's Statement
The defendant next argues that the plaintiff's counsel's interview of Barrett was unethical because Barrett was formerly a manager employed by the defendant. In support of this argument, the defendant refers me to Nebraska Ethics Advisory Opinion No. 91-3, which states:
Local Rule 83.4(b) provides that "[t]he standard of conduct if the members of the bar of this court shall be those prescribed by the Code of Professional Responsibility adopted by the Supreme Court of Nebraska and any amendments thereto. . . ." NELR 83.4(b). According to Nebraska Supreme Court Disciplinary Rule 5, "advisory opinions" are interpretations of the Code that have been drafted by the Advisory Committee in response to written requests from the members of the Nebraska State Bar Association.
I. It is the opinion of the Advisory Committee that you, as counsel for the plaintiff, may not ethically interview present or former employees of the defendant corporation if:
(a) The employees are officers or management employees, or employees whose statements may bind the corporation in a legal sense.
(Def.'s Br. in Supp. of Mot. in Limine, Attachment, "Nebraska Ethics Advisory Opinion for Lawyers No. 91-3" at "Page 5 of 5.") It seems to me that the Committee's opinion is somewhat ambiguous, especially insofar as it concerns interviews with former management employees. Although Parts I and I(a) might have been intended to prohibit interviews with former management employees, the use of the verb "are" and the reference to employees who may legally bind the corporation raise a question as to whether the prohibition applies only to present management employees.
Fortunately, the Advisory Committee revisited and clarified this issue in a subsequent advisory opinion:
In Opinion 91-3 the Committee addressed the issue of whether a plaintiffs attorney may ethically interview present or former employees of a defendant corporation. The Committee has been requested to clarify its position regarding interviews of former employees of a corporation by adverse counsel.
. . . .
The Committee is in substantial agreement with ABA Formal Opinion 91-359 and is of the opinion that former employees of a corporate party may be interviewed by adverse counsel without the permission of the corporate counsel if the former employees are not individually represented in the same matter. Any such interviews should not inquire as to privileged attorney-client communications.
(Def.'s Br. in Supp. of Mot. in Limine, Attachment, "Nebraska Ethics Advisory Opinion for Lawyers No. 94-5" at "Page 1 of 3"-"Page 3 of 3.") The Committee recognized that "other courts" created an exception to this rule for former employees who "had `managerial responsibilities concerning the matter in litigation,'" (id. at "Page 2 of 3" (quotingPorter v. Arco Metals Co., 642 F. Supp. 1116, 1118 (D.Mont. 1986))), but the Committee chose not to adopt such an exception, (see generally id.).
The defendant claims that in Advisory Opinion No. 2001-1, Advisory Opinion No. 94-5 was "harmonized" with Advisory Opinion No. 91-3. (Def.'s Br. in Supp. of Mot. in Limine at 4.) Specifically, the defendant seizes upon certain language in Advisory Opinion No. 2001-1 and suggests that there is in fact an ethical distinction between interviews with managerial and non-managerial former employees. (See id.) It seems to me, however, that the relevant portion of Opinion No. 2001-1 merely summarizes the two previous opinions, and it does not purport to alter the rule set forth in Advisory Opinion No. 94-5.
The defendant argues that "[t]here has been no showing made by Wallace's attorneys that Valentino's had consented to this interview of its former management employee," and presumably, the plaintiff's interview of Barrett was therefore unethical and must be excluded. (Def.'s Br. in Supp. of Mot. in Limine at 5.) However, Advisory Opinion No. 94-5 counsels that if Barrett is not individually represented in this matter, the plaintiff was not ethically obligated to seek the defendant's permission to conduct the interview. Since the defendant has not argued that Barrett is individually represented by counsel, I find that I must reject its argument that Barrett was interviewed in violation of the applicable rules of professional ethics.
C. Whether Barrett's Statement Was Obtained Through Improper Ex Parte Contact
The defendant argues that because Barrett's statement was obtained through improper ex parte contact, it cannot be used at trial pursuant toCagguila v. Wyeth Laboratories, Inc., 127 F.R.D. 653, 654-55 (E.D.Pa. 1989) (excluding ex parte statement obtained from current employee of defendant), United States ex rel. O'Keefe v. McDonnell Douglas Corp., No. 4:93CV02188, 1996 U.S. Dist. LEXIS 20994 (E.D.Mo. Dec. 3, 1996) (excluding ex parte statements obtained from current employees of defendant), and Hammond v. City of Junction City, Kansas, 167 F. Supp.2d 1271, 1293 (D.Kan. 2001) (citing rule that prohibits a party from obtaining statements or affidavits from the opposing party if the party's attorney directed or otherwise caused the party to obtain the statements or affidavits).
Each of the cases cited by the defendant involved contacts between the plaintiff and then-current employees of the defendant; thus, those cases are distinguishable from the present one. I therefore find that I must reject the defendant's argument that Barrett's statement must be excluded pursuant to Cagguila, O'Keefe, or Hammond. In addition, I note that the defendant's only arguments that the plaintiff's ex parte contact with Barrett was "improper" are: 1) the defendant did not consent to the interview; and 2) the defendant did not receive notice that a deposition was being taken of its former management employee. (See Def.'s Br. in Supp. of Mot. in Limine at 5.) Since I have rejected the defendant's argument that the statement was actually a deposition, and since the defendant's consent was not required prior to the taking of Barrett's statement, I find that the defendant has not demonstrated that the statement resulted from an "improper" contact.
D. Whether Wallace and Valentino's Were Adverse Parties When Barrett's Statement Was Taken
Next, the defendant argues that Valentino's was a party at the time of Barrett's statement, and therefore the "ethics rules" apply. (Def.'s Br. in Supp. of Mot. in Limine at 6.) It seems to me that this argument is irrelevant in light of my determination that the taking of Barrett's statement did not violate the ethics rules cited by the defendant. (See supra Part B.)
The defendant also argues that its managers became parties to this litigation once Valentino's itself became a party, and since Barrett was a manager, all communications between the plaintiff's counsel and Barrett would have been prohibited by the ethics rules. The defendant's argument might have merit if Barrett were a "current" management employee. See generally Chancellor v. Boeing Co., 678 F. Supp. 250 (D.Kan. 1988). However, since Barrett was not the defendant's employee when he made his statement, the defendant's argument must be rejected.
E. Whether Barrett's Statement Imputes Liability to the Defendant
Finally, the defendant suggests that the plaintiff is attempting to use Barrett's statement to impute liability to it, citing Armsey v. Medshares Management Services, Inc., 184 F.R.D. 569, 574 (W.D.Va. 1998). This is simply not the case. The plaintiff has not alleged any improper conduct whatsoever on the part of Barrett. On the contrary, the plaintiff claims that Barrett was the only employee who attempted to end the harassment that allegedly occurred at Valentino's. (See Pl.'s Br. in Opp'n [to] Def.'s Mot. in Limine at 6; see generally Pl.'s Br. Opposing Def.'s Mot. for Summ. J. (describing the evidence provided by Barrett).) In other words, Barrett is alleged to be a witness to unlawful harassment, not a harasser himself. Therefore, I reject the defendant's argument that Barrett's testimony must be excluded on the ground that it imputes liability to the defendant.
The defendant also argues that Barrett's statement cannot be considered an admission within the meaning of Federal Rule of Evidence 801(d)(2). This point is not in dispute, and Barrett's statement will not be considered as an admission by the defendant. However, this fact does not mean that the statement must be excluded.
After having considered and rejected all of the defendant's arguments, I find that the statement of Andrew Barrett will not be excluded, and that the plaintiff may call upon Barrett to testify as a witness at trial.
IT IS ORDERED that:
Plaintiff's Exhibits 202, 203, and 207 will not be admitted into evidence at trial; and the defendant's motion in limine, filing 41, is otherwise denied.