Smith v. Cafe Asia

• Court: District Court, District of Columbia
• Decided: October 27, 2011
• Docket: Civil Action No. 2007-0621
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) ANDREI SMITH, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-0621 (RWR/JMF) ) CAFÉ ASIA, et al., ) ) Defendants. ) ______________________________)

ORDER

On October 27, 2011 -- the eve the pretrial conference --

the defendants filed objections to “all” of plaintiff’s seven

proposed trial exhibits.1 (Objns. to Pl.’s Exhs. at 1.) They

lodge in essence three complaints. The first is that “the

plaintiff’s exhibit list fails to identify any exhibit with

sufficient particularity to enable defendants to discern what is

contemplated by the exhibit.” (Id.) Defendants cite

specifically only Exhibit 6 as the offender in this regard.

At the status hearing held on the record in open court on

August 8, 2011 attended by counsel for the defendants, this Court

set a deadline of August 26, 2011 for filing all motions in

limine and scheduled the pretrial conference for October 28,

2011. At that status conference, the Court reminded counsel that

paragraph 10 of the Scheduling Order entered at the very

beginning of this case required the parties to meet three weeks

1 The same filing, however, says that “Defendants have no objection to Exhibit 7.” (Objns. to Pl.’s Exhs. at 2.) -2-

in advance of the pretrial conference -- namely, by October 7,

2011 -- and prepare a joint pretrial statement. As the

Scheduling Order specifies, the parties were required at the

meeting to discuss and attempt to resolve all objections to

exhibits and all motions in limine. The deadline for the parties

to file the joint pretrial statement was fixed as October 14,

2011. The attachment to the Scheduling Order gave instructions

for completing the joint pretrial statement. Paragraph 6

specified that each exhibit listed will be deemed authentic and

admitted at trial unless an objection is made in the Joint

Pretrial Statement and its basis is articulated.

The time for defendants to have discerned plaintiff’s

exhibits was, at latest, the meeting required to prepare the

joint pretrial statement on or before October 7, 2011. That is

one of the reasons the parties were required to actually meet, so

that they could identify each others’ exhibits and try to work

out in advance any objections to them. Objections to the

exhibits were due by October 14, 2011, not the eve of the

pretrial conference. Indeed, defendants had notice two weeks ago

of plaintiff’s proffered exhibits when each party filed -- albeit

improperly -- a separate pretrial statement listing proposed

exhibits. Those exhibits were described in exactly the same way

as they are described in the parties’ joint pretrial statement

that was filed on October 18, 2011. Defendants were required in

that statement to raise all objections to plaintiff’s proposed -3-

exhibits. They voiced none, and have offered no explanation for

having failed to raise objections timely.

The other objections the defendants raise are that the

plaintiff’s notes and portions of medical records containing

statements by the plaintiff are hearsay, and that the plaintiff’s

proffered video is of such poor quality that it lacks probative

value and should be excluded under Federal Rule of Evidence 403.

It may be that a timely hearsay objection to the medical records

and plaintiff’s notes might have had some merit, although

defendants make no effort to establish that the medical records

entries would not be admissible under Rule 803(4) as statements

for purposes of medical diagnosis or treatment. Nor do the

defendants make any effort to establish how a video of

purportedly limited probative value presents any danger at all of

unfair prejudice, confusion, or waste of time, much less how it

is substantially more prejudicial than probative. And to date,

defendants have never filed any motion in limine to preclude

admission of these exhibits.

Defendants’ objections raised on the eve of the pretrial

conference are untimely, and defendants have offered no cause for

failing to raise them timely. Thus, they are deemed waived, and

in any event, defendants have made virtually no effort in their

one-and-one-half page filing to establish the inadmissibility of

the exhibits on the merits. Accordingly, it is hereby -4-

ORDERED that the defendants’ objections to the plaintiff’s

exhibits be, and hereby are, OVERRULED.

SIGNED this 27th day of October, 2011.

/s/ RICHARD W. ROBERTS United States District Judge