1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Natalie Figueroa, ) 9 ) Plaintiff, ) No. CIV 19-022-TUC-CKJ 10 ) vs. ) 11 ) ORDER Gannett Company Incorporated, et al., ) 12 ) Defendants. ) 13 ) 14 On July 27, 2021, the Court heard argument on and ruled on pending motions in 15 limine. However, Defendants’ Motion in Limine No. 2: To Exclude Plaintiff’s Hearsay 16 Testimony Regarding Purported Communication Between Her Doctor’s Office and 17 Defendants’ Representatives (Doc. 95) and Defendants’ Motion in Limine No. 3: To 18 Exclude Testimony from Gannett’s Legal Counsel (Doc. 96) remain pending. Upon further 19 review of these motions, the Court finds it appropriate to resolve these motions without 20 scheduling additional argument. See LRCiv 7.2(f); 27A Fed.Proc., L. Ed. § 62:361 (March 21 2021) ("A district court generally is not required to hold a hearing or oral argument before 22 ruling on a motion."). 23 24 Defendant's Motion in Limine #2: Exclude Plaintiff's Testimony of Purported Communication Between Her Doctor's Office and Defendants’ Representatives 25 Defendants assert Plaintiff’s testimony about communications between her doctor's 26 office and defendants' representatives concerning Plaintiff's work responsibilities is 27 "indisputably" inadmissible hearsay under Fed.R.Evid. 801. 28 1 Hearsay is a “statement that . . . the declarant does not make while testifying at the 2 current trial or hearing [and] offered in evidence to prove the truth of the matter asserted in 3 the statement.” Fed.R.Evid. 801. Generally, hearsay is not admissible unless it falls within 4 an exception. Fed.R.Evid. 802; see also Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1091 5 (9th Cir. 1990) (“[h]earsay is inadmissible in a court of law unless it comes under one of 6 the exceptions”). 7 Plaintiff asserts the testimony is not hearsay because it is offered for Plaintiff's 8 "understanding of her own restrictions" or to "explain her actions and her inquiries to 9 Rincon Medical" rather than for the truth of the matter asserted. Response (Doc. 103, pp. 10 2-3). There are two potential levels of hearsay at issue here. First, the statements 11 purportedly made to the doctor’s office by Defendants’ representatives. Arguably, these 12 statements are not submitted to prove the truth of the matter asserted, but to explain why the 13 doctor’s office removed the medical limitations. However, as it appears no one is available 14 to testify regarding this conversation, a second level of hearsay arises when that statement 15 was relayed to Plaintiff. Where hearsay has multiple levels, each must fall within an 16 exception for the statement to be properly admitted. Fed.R.Evid. 805. Unless an exception 17 applies to each level, the statements are inadmissible. Fed.R.Evid. 802, 805; see also 29 18 Am. Jur. 2d Evidence § 695 (Aug. 2021) (“Hearsay included within hearsay is not excluded 19 under the hearsay rule if each part of the combined statements conforms with an exception 20 to the hearsay rule.”). 21 In this case, it appears Defendant's representatives provided a job description to the 22 doctor's office. Evidence regarding the content of the job description can be presented 23 through either Plaintiff or an employee of Defendants. However, it could also be provided 24 by someone from the medical office if a document was provided to the medical office. The 25 actions taken by the medical office after receipt of the job description are not being offered 26 for the truth of the matter asserted, but to explain why the medical office took the actions 27 it did. There is no hearsay in the presentation of this evidence. 28 1 Additionally, statements made by medical office personnel to Plaintiff are not offered 2 to prove the truth of the matter asserted, but to explain Plaintiff's conduct. Based on the 3 evidence discussed in this case, Plaintiff's conduct changed because of what she learned 4 from the doctor's office. Without such testimony, there is no explanation for Plaintiff’s 5 conduct. The Court finds the statements are not hearsay and not subject to preclusion on 6 that basis. 7 As the testimony would not be hearsay, the Court need not decide if it falls within 8 a hearsay exception. The Court will deny this motion. 9 10 Defendant's Motion in Limine #3: Exclude testimony from Gannett's Legal Counsel (Doc. 96) 11 Defendants' seek to preclude Plaintiff from questioning in-house legal counsel, 12 Vincent Floyd (“Floyd”), about communications with Defendant employee Lisa Cote 13 (“Cote”) regarding Plaintiff's employment and separation from employment as protected 14 under attorney-client privilege. Plaintiff argues, however, that the crime-fraud exception 15 applies to these otherwise protected communications, because Floyd did not offer only legal 16 advice, but also directed the actions to improperly solicit from Rincon Medical the deletion 17 of all clerical work limitations and collaborated the "resignation" pretext. 18 As determined by the magistrate judge , see January 24, 2020 Order (Doc. 37), the 19 privilege applies in this case. This Court agrees with that conclusion. However, a party 20 may seek to oppose the application of the privilege by showing that “the client was engaged 21 in or planning a criminal or fraudulent scheme when it sought the advice of counsel to 22 further the scheme” and “demonstrat[ing] that the attorney-client communications for which 23 production is sought are ‘sufficiently related to’ and were made in furtherance of the 24 intended, or present, continuing illegality." In re Napster, Inc. Copyright Litigation, 479 25 F.3d 1078, 1090 (9th Cir. 2007), citation omitted, abrogated on other grounds. 26 However, there must be more than a “mere allegation of wrongdoing” for application 27 of the crime-fraud exception to the attorney-client privilege. § 8:6. Elements of 28 1 || exception/burden of persuasion — Prima facie standard, 1 Attorney-Client Privilege in the 2 || U.S. § 8:6 (Dec. 2020); see also In re Grand Jury Subpoena, 273 F. Supp. 3d 296, 302-04 3 || (D. Mass. 2017) (the standard “may be met by something less than a more likely than not 4 || probability, [but] still requires more than mere speculation or a distant likelihood that the 5 || client used the attorney's services to foster a crime or fraud”). To successfully overcome 6 || the attorney-client privilege, an opponent must establish a prima facie case of abuse of the 7 || attorney-client relationship. /d. The Supreme Court has stated this requires an opponent 8 || present “something to give colour to the charge.” Clark v. United States, 289 U.S. 1, 15 9 || (1933). Other courts have determined the prima facie standard 1s similar to a probable cause 10 || standard. See e.g. United States v. Jacobs, 117 F.3d 82 (2d Cir. 1997), abrogated on other 11 || grounds. 12 In this case, Plaintiff has not presented anything other than inconsistencies and 13 || speculation.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Natalie Figueroa, ) 9 ) Plaintiff, ) No. CIV 19-022-TUC-CKJ 10 ) vs. ) 11 ) ORDER Gannett Company Incorporated, et al., ) 12 ) Defendants. ) 13 ) 14 On July 27, 2021, the Court heard argument on and ruled on pending motions in 15 limine. However, Defendants’ Motion in Limine No. 2: To Exclude Plaintiff’s Hearsay 16 Testimony Regarding Purported Communication Between Her Doctor’s Office and 17 Defendants’ Representatives (Doc. 95) and Defendants’ Motion in Limine No. 3: To 18 Exclude Testimony from Gannett’s Legal Counsel (Doc. 96) remain pending. Upon further 19 review of these motions, the Court finds it appropriate to resolve these motions without 20 scheduling additional argument. See LRCiv 7.2(f); 27A Fed.Proc., L. Ed. § 62:361 (March 21 2021) ("A district court generally is not required to hold a hearing or oral argument before 22 ruling on a motion."). 23 24 Defendant's Motion in Limine #2: Exclude Plaintiff's Testimony of Purported Communication Between Her Doctor's Office and Defendants’ Representatives 25 Defendants assert Plaintiff’s testimony about communications between her doctor's 26 office and defendants' representatives concerning Plaintiff's work responsibilities is 27 "indisputably" inadmissible hearsay under Fed.R.Evid. 801. 28 1 Hearsay is a “statement that . . . the declarant does not make while testifying at the 2 current trial or hearing [and] offered in evidence to prove the truth of the matter asserted in 3 the statement.” Fed.R.Evid. 801. Generally, hearsay is not admissible unless it falls within 4 an exception. Fed.R.Evid. 802; see also Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1091 5 (9th Cir. 1990) (“[h]earsay is inadmissible in a court of law unless it comes under one of 6 the exceptions”). 7 Plaintiff asserts the testimony is not hearsay because it is offered for Plaintiff's 8 "understanding of her own restrictions" or to "explain her actions and her inquiries to 9 Rincon Medical" rather than for the truth of the matter asserted. Response (Doc. 103, pp. 10 2-3). There are two potential levels of hearsay at issue here. First, the statements 11 purportedly made to the doctor’s office by Defendants’ representatives. Arguably, these 12 statements are not submitted to prove the truth of the matter asserted, but to explain why the 13 doctor’s office removed the medical limitations. However, as it appears no one is available 14 to testify regarding this conversation, a second level of hearsay arises when that statement 15 was relayed to Plaintiff. Where hearsay has multiple levels, each must fall within an 16 exception for the statement to be properly admitted. Fed.R.Evid. 805. Unless an exception 17 applies to each level, the statements are inadmissible. Fed.R.Evid. 802, 805; see also 29 18 Am. Jur. 2d Evidence § 695 (Aug. 2021) (“Hearsay included within hearsay is not excluded 19 under the hearsay rule if each part of the combined statements conforms with an exception 20 to the hearsay rule.”). 21 In this case, it appears Defendant's representatives provided a job description to the 22 doctor's office. Evidence regarding the content of the job description can be presented 23 through either Plaintiff or an employee of Defendants. However, it could also be provided 24 by someone from the medical office if a document was provided to the medical office. The 25 actions taken by the medical office after receipt of the job description are not being offered 26 for the truth of the matter asserted, but to explain why the medical office took the actions 27 it did. There is no hearsay in the presentation of this evidence. 28 1 Additionally, statements made by medical office personnel to Plaintiff are not offered 2 to prove the truth of the matter asserted, but to explain Plaintiff's conduct. Based on the 3 evidence discussed in this case, Plaintiff's conduct changed because of what she learned 4 from the doctor's office. Without such testimony, there is no explanation for Plaintiff’s 5 conduct. The Court finds the statements are not hearsay and not subject to preclusion on 6 that basis. 7 As the testimony would not be hearsay, the Court need not decide if it falls within 8 a hearsay exception. The Court will deny this motion. 9 10 Defendant's Motion in Limine #3: Exclude testimony from Gannett's Legal Counsel (Doc. 96) 11 Defendants' seek to preclude Plaintiff from questioning in-house legal counsel, 12 Vincent Floyd (“Floyd”), about communications with Defendant employee Lisa Cote 13 (“Cote”) regarding Plaintiff's employment and separation from employment as protected 14 under attorney-client privilege. Plaintiff argues, however, that the crime-fraud exception 15 applies to these otherwise protected communications, because Floyd did not offer only legal 16 advice, but also directed the actions to improperly solicit from Rincon Medical the deletion 17 of all clerical work limitations and collaborated the "resignation" pretext. 18 As determined by the magistrate judge , see January 24, 2020 Order (Doc. 37), the 19 privilege applies in this case. This Court agrees with that conclusion. However, a party 20 may seek to oppose the application of the privilege by showing that “the client was engaged 21 in or planning a criminal or fraudulent scheme when it sought the advice of counsel to 22 further the scheme” and “demonstrat[ing] that the attorney-client communications for which 23 production is sought are ‘sufficiently related to’ and were made in furtherance of the 24 intended, or present, continuing illegality." In re Napster, Inc. Copyright Litigation, 479 25 F.3d 1078, 1090 (9th Cir. 2007), citation omitted, abrogated on other grounds. 26 However, there must be more than a “mere allegation of wrongdoing” for application 27 of the crime-fraud exception to the attorney-client privilege. § 8:6. Elements of 28 1 || exception/burden of persuasion — Prima facie standard, 1 Attorney-Client Privilege in the 2 || U.S. § 8:6 (Dec. 2020); see also In re Grand Jury Subpoena, 273 F. Supp. 3d 296, 302-04 3 || (D. Mass. 2017) (the standard “may be met by something less than a more likely than not 4 || probability, [but] still requires more than mere speculation or a distant likelihood that the 5 || client used the attorney's services to foster a crime or fraud”). To successfully overcome 6 || the attorney-client privilege, an opponent must establish a prima facie case of abuse of the 7 || attorney-client relationship. /d. The Supreme Court has stated this requires an opponent 8 || present “something to give colour to the charge.” Clark v. United States, 289 U.S. 1, 15 9 || (1933). Other courts have determined the prima facie standard 1s similar to a probable cause 10 || standard. See e.g. United States v. Jacobs, 117 F.3d 82 (2d Cir. 1997), abrogated on other 11 || grounds. 12 In this case, Plaintiff has not presented anything other than inconsistencies and 13 || speculation. As stated by the magistrate judge, if the mere “allegation of pretext in 14 || employment cases was sufficient to overcome a defendant’s claim of attorney-client 15 || privilege, the privilege would rarely apply in such cases.” January 24, 2020 Order (Doc. 16 || 37, p. 4). There is nothing in the record to support a finding of fraud or wrongful conduct 17 || rather than Cote seeking legal advice from Floyd. The Court finds a prima facie case of 18 || abuse of the attorney-client privilege has not been shown. The Court will grant this motion. 19 Accordingly, IT IS ORDERED: 20 1. Defendants’ Motion in Limine No. 2: To Exclude Plaintiff's Hearsay 21 || Testimony Regarding Purported Communication Between Her Doctor’s Office and 22 || Defendants’ Representatives (Doc. 95) is DENIED. 23 2. Defendants’ Motion in Limine No. 3: To Exclude Testimony from Gannett’s 24 || Legal Counsel (Doc. 96) is GRANTED. 25 DATED this 10th day of August, 2021. Li vey JC 7 ete 28 United States District Judge -4-