The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
On November 24, 2008, Plaintiffs filed a motion for a new trial arguing error was committed when part of Exhibit A, which was admitted into evidence, was not provided to the jury during its deliberations; and, when the Court failed to instruct the jury exactly as Plaintiffs requested. Defendant opposes the motion.
The argument concerning Exhibit A is unpersuasive. Counsel were expected to ensure that all admitted exhibits were given to the jury by inspecting the exhibits before the courtroom deputy clerk gave them to the jury. However, Plaintiffs' motion reveals counsel failed to ensure all portions of Exhibit A were given to the jury. The record reveals that during jury deliberations the jury sent a note concerning Exhibit A, the content of which was disclosed to counsel for each party so they could suggest an appropriate response. The portion of the transcript involving the note follows.
THE COURT: I just received a note from the jury. The record shall reflect I'm conducting a telephonic conference call. It's 10:35 a.m., and today's date is November 13th. The time on the note that I just received from the jury is 10:25, and it's as follows: "Is the handwritten document that was presented (on the overhead projector) by the plaintiffs' attorney available as evidence? We can't locate it in the binder." And then it's signed by the foreperson. Who is speaking?
MR. GORSKI: Gorski, Your Honor. That's part of Exhibit A, the defendant's exhibit binder.
MR. CREGGER: Judge, the only thing I can think of is that it's the claim -- the initial complaint made to internal affairs, which was handwritten. If that's the case, it is in Exhibit A. I'm just curious, I -- you know, when they say the handwritten document, I don't recall any others, but there may have been.
MR. GORSKI: That was the only one.
THE COURT: Mr. Gorski, you need to say your last name first so the record is clear.
MR. GORSKI: Gorski. Sorry, Your Honor.
The handwritten document they're talking about that was on the overhead projector was the internal affairs complaint. It was filled out by me and sent in to internal affairs. It must be the one they're talking about. And it's part of Exhibit A. There is actually two copies of it in there, one with a sticky note and one without.
MR. CREGGER: Cregger. I agree it's in Exhibit A, if that's the document they're asking about.
THE COURT: Do you have a proposed response?
MR. CREGGER: I think the proposed response should be this, so we clarify what it is they're asking about, "If you're referring to the complaint made to internal affairs on ...