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Hathaway v. Idaho-Pacific Corp.

United States District Court, D. Idaho

October 23, 2017



          David C. Nye U.S. District Court Judge


         Currently 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.


         A. Factual Background [1]

         On 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.

         His 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.

         On 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.

         One day 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.

         B. Procedural Background

         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.

         During 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 service.

         IPC 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.

         Hathaway 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.[2] 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.

         The 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.

         After 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 contents.


         “Motions 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, ...

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