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Hill v. City of Phoenix

United States District Court, D. Arizona

June 27, 2016

Stacia C Hill, Plaintiff,
v.
City of Phoenix, et al., Defendants.

          ORDER

          David G. Campbell United States District Judge.

         The parties have filed several motions in limine. The Court will address each of the motions separately, and then address a few trial-related matters.

         1. Plaintiff’s first motion in limine (Doc. 105) seeks to exclude any evidence of her post-separation employment with USAA. The Court concludes that such evidence may be relevant to the damages Plaintiff claims for lost wages after her separation. For this reason, the Court will deny Plaintiff’s motion. Because of its potentially prejudicial effect, however, Defendant should raise this issue with the Court before presenting evidence or argument to the jury regarding the post-separation employment. This will enable the Court to determine precisely what evidence should be admitted in light of evidence at issue in the trial.

         2 Plaintiff’s second motion in limine (Doc. 107) asks the Court to preclude the City from presenting evidence of Plaintiff’s discipline related to actions in 2007-2009 where she contested the City’s crediting of her leave time for purposes of retirement. This evidence may be relevant (a) if Plaintiff claims to have had an unblemished career at the City, (b) if Plaintiff calls Detective Furniss to testify, and (c) in explaining some of Plaintiff’s communications in May and June of 2012. Because the Court cannot conclude at this time that the evidence will be inadmissible, it will deny Defendant’s motion. The City should raise this issue with the Court, outside the hearing of the jury, before mentioning this evidence during trial. The Court will be better equipped during trial to determine whether and to what extent the evidence should be admitted.

         3. Plaintiff’s third motion in limine (Doc. 108) seeks to exclude evidence of Plaintiff’s previous accommodation requests and claims against the City. The City argues that this evidence may be relevant to understanding Plaintiff’s accommodation claims in this case (which were oral, as posed to her previous written requests), the City’s previous accommodations of Plaintiff’s conditions and how those affected the City’s actions in this case, Plaintiff’s previous experience with the desk sergeant position, and the communications the City received from Drs. Carson and Anthony. The Court concludes that these are possible relevant uses of the evidence, and therefore will deny the motion. The Court will rule on objections during trial.

         4. Plaintiff’s fourth motion in limine (Doc. 110) asks the Court to exclude a chart created by Lt. Lopez to reflect Plaintiff’s attendance record and text communications with Lopez. Doc. 68-1 at 6-8. Plaintiff contends that the chart is inadmissible hearsay, irrelevant, unduly prejudicial, and not the best evidence of the text messages it purports to quote. Because the Court cannot determine whether the chart is admissible without hearing the testimony of Lt. Lopez, the Court will deny the motion in limine, but the Court provides the following guidance for the parties’ consideration.

         The City contends that the chart is admissible under Rule 803(6) as a record of a regularly conducted activity. During the final pretrial conference, the Court questioned whether the chart was created in the course of a regularly conducted activity, and whether the record was a regular practice of that activity, as required by Rule 803(6)(B) and (C). The Court has reviewed the cases cited by the City and does not find them helpful. Doc. 128 at 2. They do not address Rule 803(6), but instead address whether certain documents are agency records for purposes of the Privacy Act of 1974 and the Freedom of Information Act.

         A respected treatise provides this explanation of the 803(6)(B) and (C) requirements:

Memoranda that are casual, isolated, or unique do not qualify as records of a regularly conducted activity. However, records that are commonly, if not routinely or formally, made in the course of a “regularly conducted activity of a business, occupation, or calling” are generally admissible if they meet the other requirements of admissibility, unless the sources of information or other circumstances indicate lack of trustworthiness.

         5-803 Weinstein's Federal Evidence § 803.08 (2015). The question at trial will be whether the testimony of Lt. Lopez satisfies this requirement and the other requirements of Rule 803(6).

         The City also contends that the chart is admissible as recorded recollection. This will be true if the City satisfies the elements of Rule 803(5) through testimony by Lt. Lopez. With respect to Rule 803(5)(C), Weinstein’s provides this guidance: “Accuracy may be shown by testimony from the witness regarding the circumstances in which the witness made or adopted the record and the witness’s statement that the witness knew it to be true. Alternatively, it is sufficient if the witness testifies that the witness knows that this record is correct because it was the witness’s habit or practice to record such matters accurately.” Id. § 803.07. If admitted under Rule 803(5), the chart may be read to the jury, but may not be received as an exhibit unless offered by Plaintiff.

         The City also asserts that the chart should be admitted under Rule 807. That will depend, of course, on whether the City can satisfy the requirements of the rule at trial.

         Even if the chart is admissible under Rule 803 or 807, there will be an issue of hearsay within hearsay. Statements made by Plaintiff and reflected in the chart are non-hearsay under Rule 801(d)(2). But statements made out of court by Lt. Lopez and reflected in the chart are not admissible under that rule because he is not a party-opponent of the City. The City will need to address his statements and any other hearsay within the chart identified by Plaintiff.

         The best evidence rule is captured in Rules 1001-1008. Rule 1001(a) makes clear that the rule applies to text messages (letters set down in any form). Rule 1001(d) makes clear that the “original” of a text message includes a printout or “other output readable by sight.” Clearly, Lt. Lopez’s chart, which purports to include quotations from text messages he and Plaintiff sent, does not constitute an “original” of the text messages. Rule 1002 provides that an original of a writing is required to prove its contents unless the rules of evidence or a statute provides otherwise. Although Rule 1003 permits the admission of duplicates, Rule 1001(d) defines a duplicate as “a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.” Because Lt. Lopez’s written recording of text messages does not constitute a duplicate under this definition, it is not ...


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