Tijerina v. Alaska Airlines, Inc.

Opinion

1 2 3 4 5 6 7 10 11 BEATRIZ TIJERINA, individually, Case No.: 22-CV-203 JLS (DTF)

12 Plaintiff, ORDER ON DEFENDANT’S THIRD 13 v. MOTION IN LIMINE AND RENEWED MOTIONS IN LIMINE

an Alaska Corporation; and DOES 1–50, 15 (ECF Nos. 75, 101, 102, 103) Defendant. 16

17 18 Presently before the Court are Defendant Alaska Airlines, Inc.’s (“Defendant” or 19 “Alaska”) third Motion in Limine (“Mot.,” ECF No. 75)—on which the Court previously 20 reserved its ruling—and three Renewed Motions in Limine (“Renewed Mots.,” ECF 21 Nos. 101, 102, 103). On May 1, 2024, the Court held a hearing on these Motions and 22 issued tentative rulings. Having considered the Parties’ moving papers, the arguments 23 made during oral argument, and the applicable law, the Court GRANTS IN PART AND 24 DENIES IN PART Defendant’s Motions. The Court reminds the Parties that, given the 25 nature of motions in limine, the Court’s rulings are necessarily tentative and may be 26 revisited during trial. See United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999) 27 (“The district court may change its ruling at trial because testimony may bring facts to the 28 district court’s attention that it did not anticipate at the time of its initial ruling.”). 2 As the Parties are familiar with this action’s factual and procedural background, the 3 Court recites here only those facts relevant to the instant Motions. 4 On October 23, 2024, the Parties filed their initial Motions in Limine. See ECF 5 Nos. 72, 73, 74, 75, 76, 77, 78, 79. Oral argument regarding these Motions took place on 6 January 10, 2024. See ECF No. 93. 7 In its January 24, 2024 Order (the “Order,” ECF No. 94), the Court reserved ruling 8 on one of Defendant’s original Motions pending the receipt of additional information. See 9 Order at 13–14. The Court otherwise largely denied the initial Motions on the ground that 10 many targeted impermissibly broad swaths of evidence. See generally id. However, the 11 Court gave Defendant leave to file renewed, better-tailored challenges regarding issues 12 raised in three of the Motions. See id. at 22. These specific Motions dealt with previously 13 undisclosed witnesses, so-called “me too” evidence, and records from the Equal 14 Employment Opportunity Commission’s (“EEOC”) investigation into Plaintiff’s 15 harassment allegations. See ECF Nos. 73, 76, 78. 16 The Renewed Motions followed, and the Court held another motion hearing on 17 May 1, 2024. See ECF No. 111. 19 I. Motion in Limine No. 3 to Exclude Evidence or References to the Reasons for 20 Mark Buenaflor’s Separation from Defendant 21 One of Defendant’s initial Motions in Limine focused on Mark Buenaflor, who 22 allegedly harassed Plaintiff while employed by Defendant as a lead customer service 23 associate (“Lead CSA”). See Order at 13–14. Buenaflor was terminated by Alaska in 24 March of 2023. See ECF No. 75-1 at 1.1 25 / / / 26 27 28 1 Pin citations to the Parties’ briefs, but not their exhibits, refer to the CM/ECF page numbers stamped 1 Defendant sought to prevent Plaintiff from introducing the reasons behind 2 Buenaflor’s departure, arguing the information (1) was protected by the privacy rights 3 guaranteed in California’s Constitution; (2) lacked probative value because years separated 4 Buenaflor’s firing from the alleged harassment; and (3) could be used to make “bad 5 character” arguments. See generally ECF No. 75-1. Plaintiff countered that Buenaflor’s 6 privacy interests were minor and outweighed by the utility of the information sought. For 7 instance, per Plaintiff, the reasons behind Buenaflor’s departure speak to whether 8 Defendant took “immediate and appropriate corrective action” after Defendant learned of 9 Buenaflor’s conduct. See generally ECF No. 84. 10 The Court could not rule on Defendant’s initial Motion because the Parties neglected 11 to inform the Court why Buenaflor had in fact left Alaska. See Order at 13–14 (“[W]hile 12 the Court agrees that his departure might have little probative value because it occurred 13 over two years after he allegedly harassed Plaintiff, the Court is currently unable to evaluate 14 the relevance of—and unfair prejudice risked by—this evidence.”). Defense counsel 15 agreed to provide the Court with additional details after conferring with their client. 16 The Renewed Motions further discuss Buenaflor’s termination, but only briefly. 17 Defendant claims Buenaflor was let go for violating Rules 3, 15, 22, and 31 of Alaska’s 18 “Our People Policy” (“Alaska’s Policy”). ECF No. 101 at 13. Per Defendant, these rules 19 prohibit, “(1) employees [from] leav[ing] company premises without supervisor authority, 20 (2) misrepresentation of facts regarding time cards, (3) discourteous behavior toward 21 guests, and (4) misrepresentation to obtain benefits or wages.” Id. at 13 n.4. 22 Defendant’s explanation is not only vague but also potentially misleading. For 23 example, Defendant characterizes Rule 22 as prohibiting “discourteous behavior toward 24 guests,” id., while the rule actually targets “[t]hreatening, intimidating, or discourteous 25 behavior to guests or employees,” ECF No. 104-2 Ex. G at Alaska328 (emphasis added).2 26 27 28 2 Plaintiff filed a copy of Alaska’s Policy for the Court’s review after Defendant opted not to do so. See 1 When asked at oral argument about this apparent misrepresentation, Defense counsel 2 assured the Court that Buenaflor had been terminated—at least so far as any Rule 22 3 violation was concerned—only for his behavior toward one or more guests. Defendant did 4 not, however, otherwise elaborate on Buenaflor’s conduct. 5 Questions of Defendant’s forthrightness aside, Defendant’s Renewed Motion 6 remains too fuzzy on the specifics of Buenaflor’s firing. In the instant Motions, the Parties 7 largely raise the same Rule-403 and privacy arguments as they did in their prior briefs. 8 See, e.g., ECF No. 101 at 13; ECF No. 104-1 at 4–5. But without actual details, the Court 9 remains unable to weigh the relevance and potential prejudice associated with this 10 evidence. Defendant had the opportunity to clarify matters, but it failed to do so in any 11 meaningful way. 12 Defendant’s privacy argument fails for similar reasons. Under California law, 13 “[c]ourts must . . . place the burden on the party asserting a privacy interest to establish its 14 extent and the seriousness of the prospective invasion, and against that showing must weigh 15 the countervailing interests the opposing party identifies.” Williams v. Super. Ct., 16 398 P.3d 69, 87 (Cal. 2017). Here, Alaska gestures at a broad privacy right regarding 17 employment information without explaining the potential harm associated with disclosing 18 the specific evidence at issue. Plaintiff, on the other hand, identifies several reasons why 19 Buenaflor’s termination bears on this action. Moreover, the cases Defendant cites involve 20 much broader and more invasive inquiries than the one under discussion here. See, e.g., 21 Britt v. Super. Ct. 574 P.2d 766, 780 (Cal. 1978) (vacating discovery order that had allowed 22 defendant to request “plaintiffs’ private associational affiliations and activities” and their 23 “lifetime medical histories”). 24 The Court will not exclude the circumstances surrounding Buenaflor’s termination 25 based on Defendant’s ill-defined representations and abstract arguments. Accordingly, 26 Defendant’s Motion is DENIED without prejudice to objections at trial. 27 / / / 28 / / / 1 II. Renewed Motion in Limine No. 1 to Exclude Witnesses Not Previously Disclosed 2 and to Limit the Scope of Testimony 3 In its first Renewed Motion, Defendant seeks to (1) preclude Plaintiff from calling 4 witnesses listed in her Pre-Trial Disclosures but not her Initial Disclosures; and (2) limit 5 the testimony of Plaintiff’s non-retained experts—three of her treating healthcare 6 providers—who were (allegedly) inadequately disclosed. See generally ECF No. 101. 7 A. Undisclosed Witnesses 8 Defendant first targets the following would-be witnesses: Maria Venegas, Jennifer 9 Santos Inacio, Denise Ortega (Mendoza), Terry Benavidez, Veronica Mariah Evers, Joe 10 Wonderly, Gerardo Michael Tijerina, and Rebekah Gettinger.3 See ECF No. 101 at 8–9. 11 Defendant contends these witnesses should be excluded because Plaintiff failed to timely 12 identify them and explain their relevance to this case. 13 1. Legal Framework 14 Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(i), “a party 15 must . . . provide to the other parties . . . the name and, if known, the address and telephone 16 number of each individual likely to have discoverable information—along with the subjects 17 of that information—that the disclosing party may use to support its claims or 18 defenses . . . .” A party generally has a duty to “supplement or correct” their initial 19 disclosures if they “learn[] that in some material respect the disclosure or response is 20 incomplete or incorrect.” Fed. R. Civ. P. 26(e)(1)(A). These rules exist “to encourage 21 parties to try cases on the merits, not by surprise, and not by ambush.” Ollier v. Sweetwater 22 Union High Sch. Dist., 768 F.3d 843, 862 (9th Cir. 2014). 23 24 25 3 Defendant’s Motion also labels Richard Hines and Shawna Melva as previously undisclosed witnesses. However, in Alaska’s confusing but lengthy chart—which, per Defendant, “addresses all objections to the 26 witnesses’ testimony,” ECF No. 101 at 13 n.3 (emphasis added)—Defendant does not raise any nondisclosure objections regarding Hines or Melva. See id. at 23–24, 30. Conversely, the chart does 27 contain such objections for the other witnesses listed above. The Court thus does not interpret the 28 Renewed Motion to challenge either Hines or Melva on Rule 26 grounds. The fact that Hines was listed 1 A party need not supplement its initial disclosures if “the additional or corrective 2 information has . . . otherwise been made known to the other parties during the discovery 3 process or in writing.” Fed. R. Civ. P. 26(e)(1)(A) (emphasis added). A witness can be 4 “otherwise disclosed” if, for example, she is “identified during the taking of a deposition.” 5 Fed. R. Civ. P. 26 advisory committee notes to 1993 amendment. That said, the “mere 6 mention of a name in a deposition” will not suffice. Ollier, 768 F.3d at 863. Instead, a 7 purported disclosure must make known “the witness and his connection to the claims or 8 defenses of the proffering party.” Rigsbee v. City & Cnty. of Honolulu, No. CV 17-00532 9 HG-RT, 2019 WL 984275, at *3 (D. Haw. Feb. 28, 2019) (emphasis added). 10 “If a party fails to provide information or identify a witness as required in Rule 26(a) 11 or (e), the party is not allowed to use that information or witness . . . unless the failure was 12 substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “Despite the apparently 13 self-executing language of Rule 37(c), courts retain discretion to impose specified 14 alternative sanctions ‘[i]n addition to or instead of’ the exclusion of evidence.” Patton v. 15 1st Light Prop. Mgmt., Inc., No. 14-CV-1489-AJB-WVG, 2016 WL 9503737, at *2 16 (S.D. Cal. Nov. 8, 2016) (alteration in original) (quoting Fed. R. Civ. P. 37(c)). “When it 17 comes to excluding witnesses under Rule 37(c)(1),” a district court’s “discretion is 18 ‘particularly wide.’” Ollier, 768 F.3d at 862 (quoting Yeti by Molly, Ltd. v. Deckers 19 Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)). 20 “Among the factors that may properly guide a district court’s discretion in 21 determining whether a violation of a discovery deadline is justified or harmless are: 22 (1) prejudice or surprise to the party against whom the evidence is offered; (2) the ability 23 of that party to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad 24 faith or willfulness involved in not timely disclosing the evidence.” Lanard Toys Ltd. v. 25 Novelty, Inc., 375 F. App’x 705, 713 (9th Cir. 2010). “The party facing sanctions bears 26 the burden of proving that its failure to disclose . . . was substantially justified or is 27 harmless.” R & R Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1246 (9th Cir. 2012). 28 / / / 1 2. The Parties’ Arguments 2 The Renewed Motion includes a perplexing chart combining all of Defendant’s 3 objections (the majority of which had no connection to this Motion) to numerous witnesses 4 (some of which are not the subject of this Motion).4 See ECF No. 101 at 7–25. So far as 5 the Court can tell, the only relevant argument Defendant makes in the chart is the 6 generalized contention that each of the undisclosed witnesses were mentioned too briefly 7 during discovery and only through unreliable hearsay testimony. See, e.g., id. at 23. 8 For her part, Plaintiff provides a more detailed chart that attempts to respond to each 9 of Defendant’s objections, whether related to the substance of the Renewed Motion or not. 10 See ECF No. 104-1 at 3–41. Plaintiff also notes when each of the initially-undisclosed 11 witnesses came up during discovery, see ECF No. 104-2 at 2–10, and she argues that 12 Defendant has failed to prove that any specific witness was not “otherwise disclosed,” see 13 generally ECF No. 104. 14 3. Discussion 15 As an initial matter, both Parties misunderstand the applicable legal standard. 16 Plaintiff misreads the Court’s prior Order as putting the burden on Defendant to prove each 17 witness was not adequately disclosed. Meanwhile, Defendant incorrectly inserts 18 considerations of hearsay and reliability into the equation. Instead, as explained above, the 19 question is whether, over the course of discovery, each “witness and his connection to 20 [Plaintiff’s] claims or defenses” was adequately disclosed. Rigsbee, 2019 WL 984275, 21 at *3. With this question in mind, the Court GRANTS IN PART AND DENIES IN 22 PART the Renewed Motion as to the previously undisclosed witnesses. 23

24 4 Per Defendant, the chart was meant “to allow the Court to analyze all witnesses holistically.” ECF 25 No. 101 at 13 n.3. But a single motion in limine is no means for initiating a global review of a party’s grievances. Rather, motions in limine should generally “be narrowly tailored to address issues which will 26 likely arise at trial and which require a pre-trial ruling due to their complexity and/or the possibility of prejudice if raised in a contemporaneous objection.” Russell v. City of Tupelo, No. 1:20-CV-3-SA-DAS, 27 2021 WL 4983043, at *1 (N.D. Miss. Oct. 26, 2021) (quoting King v. Cole’s Poultry, LLC, No. 1:14-CV- 28 00088-MPM-DAS, 2017 WL 532284, at *1 (N.D. Miss. Feb. 9, 2017)). To the extent it was meant to 1 First, the Court DENIES the Renewed Motion as to Maria Venegas, Jennifer Santos 2 Inacio, Denise Ortega (Mendoza), Terry Benavidez, and Veronica Mariah Evers. The 3 EEOC interviewed these witnesses (all of whom were Plaintiff’s colleagues) while 4 investigating Plaintiff’s harassment allegations. Defendant received notes from these 5 interviews, which showed that each witness had discussed topics relevant to this case, 6 including, inter alia, past sexual harassment, complaints of harassment and Alaska’s 7 response thereto, and the authority of Lead CSAs. The contents of the interview notes were 8 further called to Defendant’s attention during the depositions of Plaintiff, Buenaflor, and 9 Steven Zwerin (Alaska’s Rule 30(b)(6) corporate designee). 10 However, the Court GRANTS the Renewed Motion as to Joe Wonderly, Gerardo 11 Michael Tijerina, and Rebekah Gettinger. The brief mentions of these witnesses during 12 discovery did not make clear whether and how Plaintiff would use them to make her case. 13 At oral argument, Plaintiff’s counsel sought to explain the nondisclosure by arguing that, 14 as Wonderly and Gettinger were involved with the EEOC’s investigation, their connection 15 to this action was obvious. But numerous individuals are tied to the EEOC’s investigation 16 by documents in the record, and Defendant “should not have to guess which” potentially- 17 relevant-but-not-yet-disclosed “witnesses may be called to testify.” Ollier, 768 F.3d 18 at 863. Similarly, while Gerardo Tijerina’s connection to Plaintiff is clear (they are 19 married), nothing in the record suggests Defendant had notice that he would be called to 20 testify, let alone on what topic he might speak. See Russell v. GC Servs. Ltd. P’ship, 21 476 F. Supp. 3d 1097, 1101 (E.D. Wash. 2020) (excluding plaintiff’s wife “because 22 [p]laintiff did not identify his wife as an individual with knowledge about his alleged 23 emotional distress damages during his deposition”). As Plaintiff provides no other 24 justification nor explains why any resulting prejudice might be curable, Plaintiff has not 25 met her burden to excuse the nondisclosure of these three witnesses. 26 B. Non-retained Expert Witnesses 27 Defendant also seeks to partially exclude three of plaintiff’s former healthcare 28 providers: Dede Echitey, a family nurse practitioner; Mark Melden, an osteopathic doctor; 1 and Dianna Hansen, a family and marriage therapist. ECF No. 101 at 9. Defendant relies 2 on Federal Rule of Civil Procedure 26(a)(2)(C), which allows a party to disclose 3 non-retained experts without providing a full expert report if the party divulges “(i) the 4 subject matter on which the witness is expected to present evidence” and “(ii) a summary 5 of the facts and opinions to which each of the witnesses is expected to testify.” Defendant 6 argues Plaintiff did not comply with either prong of Rule 26(a)(2)(C). See id. at 9–11. 7 Countering, Plaintiff correctly notes that Defendant failed to raise this issue in the 8 initial motions in limine. See ECF No. 104 at 12. That aside, Plaintiff contends she 9 complied with Rule 26(a)(2)(C) by providing (1) a detailed summary of the subject matter 10 of each witness’s testimony, and (2) the medical and treatment records from which the 11 witnesses’ opinions arose. See id. at 12–14. 12 Though Defendant’s position is not without some merit, the Court DENIES the 13 Renewed Motion as to Echitey, Melden, and Hansen. Upon reviewing the Parties 14 submissions, the Court concludes Plaintiff provided an adequate summary of the subject 15 matter on which these witnesses are expected to testify. Plaintiff did not, however, comply 16 with Rule 26(a)(2)(C)(ii)’s summary-of-the-facts-and-opinions requirement; generally, the 17 inclusion of medical records and treatment notes does not suffice.5 Nevertheless, the 18 incomplete disclosure was harmless and does not merit exclusion. Defendant received 19 much, if not all, of the information necessary to ascertain the likely content of the 20 witnesses’ testimony.6 And Plaintiff can cure any deficiencies by providing complete 21 22 5 See DeGuzman v. United States, No. 2:12-CV-0338 KJM AC, 2013 WL 3149323, at *4 (E.D. Cal. June 19, 2013) (“[D]isclosure of medical records, standing alone, is not sufficient to satisfy the 23 requirements of Rule 26(a)(2)(C)). . . . “[M]edical records . . . do not necessarily provide an accurate or 24 complete summary of expected testimony . . . .”); Kristensen ex rel. Kristensen v. Spotnitz, No. 3:09-CV- 00084, 2011 WL 5320686, at *2 (W.D. Va. June 3, 2011) (explaining that as “summary” is “ordinarily 25 understood to be an ‘abstract, abridgment, or compendium,’” a plaintiff “cannot comply with [Rule 26(a)(2)(C)] by disclosing the complete records of the treating physicians at issue” (citation omitted)). 26 6 For similar reasons, another of Defendant’s arguments fails to persuade. Defendant contends Plaintiff 27 has improperly attempted to expand the scope of the experts’ testimony to include economic damages. In 28 response, Plaintiff indicates that the non-retained experts’ testimony on economic damages will be limited 1 summaries to Defendant now, particularly as this case is not set for trial until December. 2 III. Renewed Motion in Limine No. 4 to Exclude “Me Too” Witnesses 3 In the second Renewed Motion, Defendant seeks to “exclude evidence or argument 4 of any alleged inappropriate conduct by Mark Buenaflor or any Alaska employees towards 5 any individual aside from Plaintiff.” ECF No. 102 at 6. Based on the chart attached to this 6 Motion, Defendant anticipates such me-too evidence will be introduced through the 7 testimony of Buenaflor, Venegas, Inacio, Donna McCoy, Ortega, Benavidez, Evers, CSA 8 Jeff Umali, and Lead CSA Alvin Atienza. See id. at 12–22. The Court granted Defendant’s 9 original Motion on this topic to the extent it sought to preclude propensity arguments, but 10 otherwise denied the Motion as improperly broad. See Order at 16. 11 The Court first addresses Defendant’s challenge regarding Umali and Atienza. 12 Defendant not only targets me-too evidence—e.g., testimony regarding Umali’s 13 interactions with employees other than Plaintiff—but also seeks to exclude Plaintiff’s 14 allegations against both witnesses. See ECF No. 102 at 21. Defendant argues said 15 allegations (1) are too distinct from those levied against Buenaflor to “be collectively used 16 to establish a hostile work environment”;7 and (2) are not relevant because the alleged 17 conduct is not motivated by Plaintiff’s sex. Id. at 10–11. The Court will not consider those 18 arguments here, as they fall outside the scope of Defendant’s me-too Motion; Umali’s and 19 Atienza’s conduct was aimed at Plaintiff, not third parties. In any event, Defendant’s 20

21 Alaska; and (2) “any monetary payments from Plaintiff for treatment.” ECF No. 104 at 14–15. As such 22 testimony, by Plaintiff’s own admission, must be “limited to that which is disclosed in [the witnesses’] records,” id. at 14, the Court does not find exclusion under Rule 26(a)(2)(C) necessary or appropriate. 23

24 7 Defendant makes the related suggestion that Plaintiff cannot introduce events involving Atienza and Umali without “showing that [they] were working in concert” with Buenaflor “to harass Plaintiff.” ECF 25 No. 102 at 10. To the extent Defendant suggests harassers must, as a matter of law, subjectively decide to combine efforts to make someone’s work environment hostile, their argument is without merit and 26 unsupported by the sole case Defendant cites. See Haberman v. Cengage Learning, Inc., 103 Cal. Rptr. 3d 19, 31 (Ct. App. 2009) (affirming summary judgment for defendants where employee 27 sued two colleagues and their shared employer, the alleged conduct of each colleague “f[e]ll far short” of 28 “show[ing] a hostile working environment,” and the claim against the employer “was entirely based on 1 arguments speak more to the merits of Plaintiff’s claims than the admissibility of the 2 evidence. See Azco Biotech, Inc. v. Qiagen, N.V., No. 12CV2599 BEN (DHB), 3 2015 WL 12516204, at *1 (S.D. Cal. Nov. 12, 2015) (“[W]here a motion in limine calls for 4 a decision on the merits, courts should decline to consider it.”). Defendant’s Motion is 5 therefore DENIED as to Plaintiff’s allegations against Umali and Atienza. 6 The remainder of Defendant’s Renewed me-too Motion is premised on an incorrect 7 understanding of California law. Relying heavily on Lyle v. Warner Bros. Television 8 Prods., 132 P.3d 211 (Cal. 2006),8 Defendant argues me-too evidence is irrelevant because 9 the harassment of others cannot affect a plaintiff’s perception of her environment if she did 10 not witness it. See ECF No. 102 at 8. But as the Court has already explained, depending 11 on how me-too evidence is used, no strict rule requires a plaintiff to have personally 12 witnessed third-party harassment. See Order at 15. For example, per Beyda v. City of Los 13 Angeles, me-too evidence can be used to establish the hostile nature of a work environment 14 where a plaintiff did not witness the harassment but had knowledge of it. 15 76 Cal. Rptr. 2d 547, 551 (Ct. App. 1998). Notably, Lyle explicitly left that holding from 16 Beyda untouched. 132 P.3d at 224 n.7. Moreover, me-too evidence may sometimes be 17 used to show a discriminatory intent (i.e., that the harassing conduct took place because of 18 a plaintiff’s sex), regardless of whether the plaintiff witnessed or was aware of said 19 harassment. See Pantoja v. Anton, 129 Cal. Rptr. 3d 384, 406–07 (Ct. App. 2011). 20 Additionally, despite Defendant’s efforts to identify specific witnesses who might 21 provide me-too evidence, the Renewed Motion remains unworkably broad. As the Court 22 previously explained to Defendant, “the admissibility of me-too evidence requires a ‘fact- 23 intensive, case-by-case analysis.’” Order at 16 (quoting Kelly v. Boeing Co., No. 17-1679 24 DSF (MRWX), 2018 WL 11471263, at *3 (C.D. Cal. July 6, 2018)). But Defendant 25 neither acknowledges the potential uses for me-too evidence—of which Plaintiff lists 26 27 28 8 Though Defendant does not cite Lyle in the opening pages of its Renewed Motion, the case is cited 1 many, see generally ECF No. 105—nor explains why any given me-too incident cannot be 2 used for those purposes. While some me-too incidents may in fact be inadmissible, 3 Defendant’s vague Renewed Motion does not enable the Court to sift through the evidence 4 to identify such incidents. 5 Consequently, setting aside the already-decided character evidence issue, 6 Defendant’s Renewed Motion to exclude all me-too evidence is DENIED. Challenges to 7 me-too evidence will have to be made at trial with the benefit of context. 8 IV. Defendant’s Renewed Motion in Limine No. 6 to Exclude Reference to EEOC 9 Interview Notes 10 In its final Renewed Motion in Limine, Defendant primarily seeks to exclude any 11 evidence regarding—or reference to—EEOC interviews or interview notes (the “EEOC 12 Notes” or “Notes”). See ECF No. 103 at 5. Additionally, Defendant appears to ask the 13 Court to preclude references to all other EEOC records, as well as any discussion of the 14 EEOC investigation. See id. 15 Defendant’s Renewed Motion is premised on hearsay and Rule 403 objections. 16 First, Defendant explains that even if the Notes “could be properly authenticated, the 17 statements contained within [would remain] inadmissible as they constitute unreliable 18 hearsay without an exception.” Id. at 6. Further, Defendant argues that introducing the 19 EEOC Notes will lead to unnecessary minitrials and be unduly cumulative, as Plaintiff 20 “plans to present the same witnesses and the same testimony” described in the Notes. Id. 21 at 7. Finally, Defendant claims any discussion of the EEOC’s investigation will likely 22 confuse the jury, who will misunderstand the EEOC’s role and give the EEOC’s work 23 product undue deference. See id. 24 In response, Plaintiff contends (1) the Notes fall under the business records 25 exception and the public records exception to the hearsay rule, ECF No. 106 at 11–12; 26 (2) many statements contained within the EEOC Notes are offered not for the truth of the 27 matter asserted, but to show, for example, Alaska’s knowledge, see id. at 12–13; and 28 (3) other statements can be used to rehabilitate or impeach witnesses, constitute a recorded 1 recollection, or fall under the party-opponent exception, see id. at 13–15. 2 Regarding the EEOC interview notes, the Court will GRANT IN PART AND 3 DENY IN PART the Renewed Motion. Setting hearsay issues aside, it is unclear what 4 value the Notes have given the availability of the interviewees to testify at trial. The 5 introduction of these Notes would thus be needlessly cumulative and likely to cause delay 6 and confusion. See Sherman v. Chrysler Corp., 47 F. App’x 716, 722–27 (6th Cir. 2002) 7 (upholding exclusion of EEOC records where the district court concluded the information 8 contained therein “would be introduced through testimony at trial”). However, subject to 9 the Federal Rules of Evidence, said Notes may be used for impeachment, rehabilitation, 10 and refreshing a witness’s recollection. 11 This leaves other EEOC records and the existence of the agency’s investigation. 12 Some courts have precluded discussion of an EEOC investigation where such evidence 13 does not bear on the plaintiff’s surviving claims (e.g., after a claim for retaliation has been 14 dismissed). See, e.g., Targonski v. City of Oak Ridge, 921 F. Supp. 2d 820, 824–25 15 (E.D. Tenn. 2013). However, the Court is not prepared to find all evidence regarding the 16 EEOC’s investigation inadmissible, particularly as the Parties have given the question 17 relatively little attention. The Court also deems reasonable Defendant’s suggestion, made 18 at oral argument, that prejudice associated with introducing the investigation could likely 19 be cured with a limiting instruction. So, to the extent Defendant seeks to exclude all EEOC- 20 related material, the Renewed Motion is DENIED. Defendant may, of course, object to 21 the introduction of various aspects of the EEOC’s investigation at trial, and the Court 22 invites the Parties to submit a proposed limiting instruction regarding this issue. 24 In light of the foregoing, the Court: 25 1) DENIES Defendant’s Motion in Limine No. 3 (ECF No. 75); 26 2) GRANTS IN PART AND DENIES IN PART Defendant’s Renewed 27 Motion in Limine No. 1 (ECF No. 101); 28 / / / 1 3) ORDERS Plaintiff to cure the disclosure deficiencies outlined above 2 || pertaining to her non-retained experts (Dede Echitey, Mark Melden, and Dianna Hansen) 3 || within seven (7) days of the date of this Order; 4 4) DENIES Defendant’s Renewed Motion in Limine No. 4 (ECF No. 102); and 5 5) GRANTS IN PART AND DENIES IN PART Defendant’s Renewed 6 || Motion in Limine No. 6 (ECF No. 103). 7 The Court again reminds the Parties that these rulings are without prejudice, and that 8 ||the Parties may make valid contemporaneous objections at trial concerning the matters 9 || discussed in this Order. Relatedly, the Court may change any of these rulings based on the 10 || testimony developed at trial. 12 Dated: May 9, 2024 tt 13 ja Janis L. Sammartino United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28