United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. Nye U.S. District Court Judge
pending before the Court are three motions in limine the
parties filed in anticipation of a trial set for December 11,
2017. Defendant Idaho Pacific Corporation (“IPC”)
seeks to conduct a trial deposition of a key witness who will
not appear at trial. This witness has not previously been
deposed and her whereabouts were allegedly unknown until
recently. In the alternative, IPC seeks to reopen discovery
to conduct a discovery deposition of the witness. Plaintiff,
Ross Hathaway, opposes IPC's requests and seeks to
prevent IPC from presenting an interview IPC recorded with
the witness in 2013.
Factual Background 
February 19, 2013, Hathaway injured his shoulder and thumb
while working at IPC. With his shoulder and thumb wrapped in
ice, Hathaway made a report to Dwain Gotch, Plant Safety
Manager, describing the accident, and detailing the injury to
his shoulder and thumb. Gotch prepared a handwritten report
that included both the shoulder and thumb injury, and
Hathaway signed that report. This was consistent with
Gotch's normal practice. But this time, Gotch later
prepared a final typewritten report that failed to mention
the shoulder injury, and that report was never submitted to
Hathaway for his signature. The original handwritten report
has apparently disappeared.
shoulder pain increasing, Hathaway sought treatment from Dr.
Larry Curtis. On March 28, 2013, Dr. Curtis wrote to IPC
stating that Hathaway's shoulder injury was due to his
fall at IPC on February 19, 2013. IPC received Dr.
Curtis's letter the same day. The next day-March 29,
2013-IPC filed its official report with the worker's
compensation board on Hathaway's fall, saying nothing
about his shoulder injury.
April 16, 2013, Hathaway discovered that Gotch's
typewritten report failed to mention his shoulder injury.
Hathaway testified that when he confronted Gotch about this,
Gotch said that he had been ordered to omit reference to the
shoulder injury from the report. Hathaway complained that
same day to Mike Willmore, in IPC's Human Resources
Department, but got no response.
later-on April 17, 2013-co-worker Margaret Johnson gave a
statement to Supervisor Steve McLean that she overheard
Hathaway say that he should “trip and fall and then
they'd have to pay.” See Dkt. 18-6.
Notably, in Johnson's recorded and transcribed statement,
she indicated she could not tell whether or not Hathaway was
joking. Id. Hathaway denies making that statement,
and indicates that he was never given a chance to respond to
Johnson's claim. IPC claims that it met with Hathaway and
gave him a chance to answer the allegations. However, IPC
kept no record of such a meeting, unlike the interview with
Johnson, which was both tape-recorded and transcribed. The
next day, IPC fired Hathaway.
filed this suit on March 12, 2015. Dkt. 1. On February 17,
2017, Judge Winmill denied IPC's motion for summary
judgment. Dkt. 28. He then set this case for a 5-day jury
trial starting on September 18, 2017. Dkt. 30. The Court
vacated this trial date after Judge Winmill transferred this
case to the undersigned. The Court has rescheduled trial for
December 11, 2017. The parties must inform the Court by
November 1, 2017, whether the case will proceed to trial. If
so, the parties have until November 15, 2017, to file any
trial briefs or motions in limine.
discovery, Hathaway asked IPC for Johnson's contact
information and personnel file so he could depose her. In its
initial disclosures, IPC indicated that it did not have an
address for Johnson. Later, in its supplemental disclosures
it gave Hathaway a P.O. Box number for Johnson located in
Ririe, Idaho. Finally, apparently after Hathaway made several
attempts to obtain information from IPC, IPC gave Hathaway a
phone number for Johnson. The number was no longer in
maintains that it terminated Johnson in April of 2014 as part
of a reduction in force. Dkt. 39, at 4. IPC continued to
contact Johnson at the P.O. Box address in Ririe, Idaho,
after it terminated her. Id. Johnson has never given
IPC a forwarding address or change of address information.
Id. Therefore, IPC maintains that it gave Hathaway
the only contact information it had for Johnson. Id.
was never able to contact or depose Johnson during discovery,
which closed on September 30, 2016. Dkt. 39, at 3. However,
at the end of June, 2017, IPC asked to take a trial
deposition of Johnson. Id. IPC indicated it had
obtained Johnson's current contact information by hiring
a private investigator. Id. Apparently, Johnson had
moved to Nevada several years ago. On June 28, 2017, IPC
provided Johnson's updated Nevada contact information to
Hathaway along with its request to depose Johnson.
Id. at 4. Johnson has indicated she is unwilling to
appear at trial in this case. Id. at 5.
three pending motions in limine concern whether IPC should be
permitted to depose Johnson and, if not, what other evidence
IPC may present regarding Johnson at trial. First, Hathaway
has filed a motion to exclude Johnson as a witness, or, in
the alternative, prohibit IPC from re-opening discovery to
depose Johnson. Dkt. 37. Second, IPC requests leave to take a
de bene esse deposition of Johnson, or, in the
alternative, to reopen discovery for the limited purpose of
deposing Johnson. Dkt. 41. Finally, Hathaway has filed a
motion in limine to bar IPC from presenting recordings of
statements made by Johnson and another witness, Linda Bair,
including any transcripts of those recordings. Dkt. 38.
the Motions were fully briefed, the Court held oral argument
on October 12, 2017. At the end of that hearing, the Court
took the Motions under advisement. The Court also asked IPC
to provide the Court with a copy of Johnson's personnel
file for an in camera review to determine whether
IPC provided Hathaway with all of Johnson's contact
information during discovery. IPC has provided the personnel
file and the Court has undertaken an extensive review of its
STANDARD OF REVIEW
in limine are well-established devices that streamline trials
and settle evidentiary disputes in advance, so that trials
are not interrupted mid-course for the consideration of
lengthy and complex evidentiary issues.” United
States v. Tokash, 282 F.3d 962, 968 (7th Cir. 2002).
“The term ‘in limine' means ‘at the
outset.' A motion in limine is a procedural mechanism to
limit in advance testimony or evidence in a particular
area.” United States v. Heller, 551 F.3d 1108,
1111 (9th Cir. 2009) (quoting Black's Law Dictionary 803
(8th ed. 2004)). Because “[a]n in limine order
precluding the admission of evidence or testimony is an
evidentiary ruling, ” United States v.
Komisaruk, 885 F.2d 490, 493 (9th Cir. 1989) (citation
omitted) “a district court has discretion in ruling on
a motion in limine.” United States v. Ravel,
930 F.2d 721, ...