United States District Court, N.D. California
FINAL ORDER REGARDING MOTIONS IN LIMINE RE: DKT. NOS. 133, 137
WILLIAM H. ORRICK, District Judge.
The parties filed a number of motions in limine. Dkt. Nos. 133, 137. I heard argument at the initial pretrial conference on September 22, 2014 and at the final pretrial conference on October 3, 2014. I incorporate my prior rulings ( see Dkt. No. 161, "Order Regarding Certain Motions in Limine, ") in this Final Order and also GRANT defendants' motions in limine nos. 6, 17, 18 and 22. Each of these motions relates to third party evidence regarding the County's conduct that is not specific to Romero. Because there is no liability under Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978), as my Order Striking Plaintiff's Claim for Monell Liability in the Third Cause of Action, Granting Defendants' Motions to Quash Subpoena and Preclude Witnesses, and Denying as Moot Defendants' Motion for Clarification discusses, the third party evidence is excluded under Federal Rules of Evidence 402 and 403. It is not relevant to how Romero was treated by the County and its admission would potentially be prejudicial, confusing, and a waste of time. Nothing in this Order precludes Dolnikova, Hughes or Schnier from testifying concerning defendants' conduct toward Romero.
I. PLAINTIFF'S MOTIONS IN LIMINE
1. Pursuant to Federal Rule of Civil Procedure 37(c)(1), exclude peer review documents produced by defendants on August 7, 2014.
Romero argues that the documents in question, which defendants produced after the close of discovery, should be excluded under Rule 37(c)(1) because they are new versions of documents previously produced by defendants. The old versions were more heavily redacted; the new versions reveal information which Romero did not know the documents contained. Romero argues he deposed witnesses using the old versions and would be prejudiced if defendants are allowed to utilize the newly revealed information at trial. P's Mot. 2 (Dkt. No. 133). Additionally, Romero argues that Bates Nos. 04230-04232 should be excluded under Rule 37(c)(1) because they were not produced at all until after the close of discovery.
Defendants respond that the only previously redacted information revealed in the new versions is the identity of persons involved in the peer reviews of Romero's patient care. D's Opp. 2-3 (Dkt. No. 138). The new versions are identical to the old versions in all other respects. Defendants contend Romero deposed the individuals who were involved in his peer reviews and has not identified any line of questioning he would have pursued had defendants produced the new versions earlier. Id. Defendants also note that Romero did not object to the redactions, and that he received the new versions on August 7, 2014, nearly two months before trial. Id.
Defendants further argue that they produced the new versions because: (1) this Court's summary judgment order, issued on July 10, 2014, made clear that the peer review documents would be central to Romero's remaining claims; and (2) this Court's order denying administrative motions to seal, issued on June 17, 2014, rejected the parties' attempt to file peer review documents under seal, except as to "personal identifying information of third parties with a need for privacy, such as hospital patients." D's Opp. 3-4. Defendants contend that production of the new versions was required in light of these rulings. Id.
Rule 37(c)(1) provides that a party who "fails to provide information... as required by Rule 26(a) or (e)... is not allowed to use that information... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1). Rule 26(a) requires each party, "without awaiting a discovery request, " to identify "each individual likely to have discoverable information" and "all documents, electronically stored information, and tangible things" that the "disclosing party may use to support its claims or defenses." Fed.R.Civ.P. 26(a)(1)(A). Rule 26(e) creates an obligation to supplement all Rule 26(a) disclosures. Fed.R.Civ.P. 26(e)(1). Supplemental disclosures must be made "in a timely manner" when a "party learns that in some material respect the disclosure... is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Id.
Under Rule 37(c)(1), the party whose evidence may be excluded has the burden of proving that its failure to disclose was substantially justified or is harmless. R & R Sails, Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240, 1246 (9th Cir. 2012). "The determination of whether a failure to disclose is justified or harmless is entrusted to the broad discretion of the district court." San Francisco Bay Area Rapid Transit Dist. v. Spencer, No. 04-cv-04632-SI, 2007 WL 421336, at *4 (N.D. Cal. Feb. 5, 2007). Nondisclosure is harmless if it does not prejudice the other party. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). In assessing harmlessness, courts consider a number of factors, including "(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence." Unionamerica Ins. Co., Ltd. v. Fort Miller Grp., Inc., No. 05-cv-01912-BZ, 2009 WL 275104, at *1 (N.D. Cal. Feb. 4, 2009).
Defendants have carried their burden of showing that their failure to timely produce the new versions is harmless. The newly revealed information is limited to the identities of the persons involved in the peer reviews of Romero's patient care. Defendants assert, and Romero does not dispute, that Romero knew who was involved in his peer reviews and deposed them during discovery. As defendants point out, it is not clear how Romero would have modified his depositions of these individuals, or any other aspect of his trial preparation, had defendants disclosed the new versions earlier. Further, Romero has been in possession of the new versions since early August 2014, meaning that he had considerable time to cure any surprise the new versions may have caused him. Finally, it appears that defendants' previous decision to redact the identities of individuals involved in Romero's peer reviews was based on a mistaken belief that the "peer review privilege" applies in this case. See D's Opp. 3-4. It does not. See Dkt. No. 105 at 2; see also, Love v. Permanente Med. Grp., No. 12-cv-05679-DMR, 2013 WL 4428806 at *2-3 (N.D. Cal. Aug. 15, 2013). After this Court so informed defendants, they produced the new versions of the peer review documents. See D's Opp. 3-4. Defendants' explanation for their failure to timely disclose provides further support for a finding of harmlessness. Romero's motion to exclude the new versions of the previously produced documents is DENIED.
Defendants do not address Romero's request to exclude Bates Nos. 04230-04232 on the ground that they were not produced at all after the close of discovery. Defendants have not shown that their failure to timely disclose these documents was substantially justified or harmless, and Romero's motion to exclude them is GRANTED.
2. Pursuant to Federal Rules of Evidence 602, 701, and 403, exclude evidence of the opinions and conclusions contained in the reports made in response to Romero's complaints with the Santa Clara County EOD.
Romero made two relevant complaints with the County EOD. P's Mot. 2-3. Both were investigated and resulted in reports drafted by the investigating officers, Vernon Crawley and Mark Paschal. Id. Romero contends that the opinions and conclusions contained in the EOD reports should be excluded under Rules 602 and 701, because the officers based their opinions and conclusions on witnesses and documents, not personal knowledge of the events underlying the complaints. Id. Romero also argues that evidence of the opinions and conclusions contained in the reports should be excluded under Rule 403, because they would be more prejudicial than probative given that the officers are County employees with an "obvious bias in favor of their employer." Id.
Defendants clarify that they do not seek to introduce the officers' notes or reports summarizing their investigations. D's Opp. 5-7. Defendants seek to introduce only the notices the officers sent to County employees scheduling interviews to discuss Romero's complaints. See P's Mot., Ex. 2 at 835, Ex. 3 at 1071, 1073, 1075. Defendants state that the notices are probative of when the County employees were notified of the investigations, and therefore whether they retaliated against Romero through the peer review process. D's Opp. 5-7. Defendants also seek to introduce the notices the officers sent to Romero advising him when and how the investigations had been resolved. See P's Mot., Ex. 2 at 832-83, Ex. 3 at 1069. Defendants contend the information contained in the notices is based on the officers' personal knowledge and is permissible lay opinion. D's Opp. 5-7. Defendants emphasize that Romero will have the opportunity to cross-examine both officers at trial. Id. Defendants also note that the notices are not hearsay because they will be offered only to show that the County EOD investigated Romero's complaints and advised him of its findings. Id.
The motion is DENIED as limited by defendants' concessions. Bates Nos. 832-833, 835, 1069, 1071, 1073 and 1075 are admissible. The EOD reports are not admissible unless Dr. Romero's testimony about the merits of his protected activity opens the door so that, in fairness, defendants should be allowed to introduce the reports in response.
II. DEFENDANTS' MOTIONS IN LIMINE
1. Pursuant to Federal Rule of Evidence 615, exclude witnesses from the courtroom until after testifying.
Federal Rule of Evidence 615 provides in part: "At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony." Fed.R.Evid. 615. "The purpose of the rule is to prevent witnesses from tailoring their testimony to that of earlier witnesses and to aid in detecting testimony that is less than candid." United States v. Ell, 718 F.2d 291, 293 (9th Cir. 1983). Under Rule 615, the exclusion of ...