The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiff Fidelity National Title
Insurance Company of New York's ("Fidelity") motions in limine
to bar Defendants from calling Edwin C. Thomas, III as a trial
witness, to bar evidence regarding the settlement between Fidelity and
INTIC Defendants, and to bar reference to Fidelity's due diligence. This
matter is also before the court on Defendants' motions in limine
to bar untimely Deloitte & Touche exhibits, to bar the testimony of
William Pollard, and to amend trial time allocation to reflect defaulted
and settling parties. I. Edwin C. Thomas. III
Fidelity seeks to bar Defendants from calling Edwin C. Thomas, 11T
("Thomas") as a trial witness. Thomas is one of the attorneys that will
be representing Fidelity at trial. However, Defendants have provided
sufficient reasons to call Thomas and we are not convinced that
Defendants have alternative sources of evidence to replace Thomas'
testimony. We have considered the circumstances in this case and see no
reason why Thomas should not be able to testify and act as counsel for
Fidelity. We also note that this objection should have been brought
sooner and this objection is untimely. Therefore, we deny the motion to
bar Defendants from calling Thomas as a trial witness. Should a
particular issue arise concerning Thomas' testimony at trial Fidelity is
free to raise an objection at that juncture.
II. Settlement between Fidelity and INTIC Defendants
Fidelity also seeks to bar evidence regarding the settlement between
Fidelity and INTTC Defendants. Settlements should be encouraged because
they reduce the burden on judicial resources and lessen legal fees.
Defendants have not provided sufficient reason to justify the
introduction of the settlement and therefore, we grant the motion to bar
evidence regarding the settlement between Fidelity and INTIC Defendants. Defendants are free to move for the introduction of the
settlement at trial outside the presence of the jury if they feel that
the introduction of the evidence is of particular importance at a
specific juncture and they can specify the purpose that the evidence will
Fidelity seeks to bar any evidence regarding its due diligence. We
cannot agree that Fidelity's due diligence is of no relevance or that
reference to the issue would be overly prejudicial to Fidelity.
Therefore, the motion is denied. Fidelity is tree to object to any
evidence introduced by Defendants if it is irrelevant or immaterial
IV. Deloitte & Touche Exhibits
Defendants seek to bar the introduction of exhibits prepared by
Deloitte and Touche. Fidelity intends to introduce nine binders
containing various exhibits grouped together. Each group of exhibits is
preceded by a summary of the exhibits in the group, Although the federal
rules of evidence provide for the usage of summaries, a court should be
wary Jest a party use a summary as an opportunity to argue its view of
the evidence or to misstate the evidence causing the jury to misconstrue the evidence. We do not find that the usage of
summaries are warranted in this instance. We also note that the summaries
were submitted shortly before trial and are untimely. Defendants cannot
be expected in all fairness to be able to review the thousands of
documents referenced in the summaries and verify the accuracy of the
summaries. Therefore, the motion to bar the summaries is granted.
V. Testimony of William Pollard
Defendants seek to bar the testimony of William Pollard ("Pollard").
There is sufficient evidence that Pollard and his subordinates were
conducting an investigation into matters concerning pending litigation
while there were potential criminal proceedings on the forefront and
Pollard admits to destroying some documents that were his work product.
Some of the work product concerns notes from interviews of individuals
that were subsequently indicted and took the Fifth Amendment. Pollard
claims that he merely destroyed documents that he deemed irrelevant, and
during oral argument Fidelity argued that Pollard merely destroyed
documents that did not support his work. However, neither explanation is
sufficient to justify the intentional destruction of work documents in
this context. Fidelity points out that it has produced a large amount of
documents from Pollard's work. However, that is of little consolation to
Defendants if any portion of the materials that were destroyed were damaging to Fidelity's case. Even one
document can sometimes be of such importance that it may decide the
outcome of a case. Defendants argue that they are also prejudiced because
they are deprived of potential evidence with which to cross examine
Pollard and to impeach him. We agree and in all fairness we cannot allow
Pollard to testify. Therefore, we grant the motion to bar Pollard from
testifying at trial. In open court, Defendants clarified their motion and
indicated that they were seeking only to bar Pollard from testifying and
if the court did not grant their motion then, in the alternative, they
were seeking a jury instruction advising the jury to draw an adverse
inference from Pollard's destruction of documents. Since the court
granted Defendants' motion to bar Pollard from testifying, Defendants'
alternative motion is denied as moot.
VI. Allocation of Trial Time
Defendants have jointly moved to re-allocate trial time in light of the
fact that some of the defendants have defaulted and some have settled the
claims against them. We shall mirror the formula previously established
by Judge Conlon for the allocation of trial time and the allotment will
be as follows: 40% for Fidelity, 35% for the Defendant Stewart parties,
and 25% for Defendant Jack Hargrove ("Hargrove"). As stated before, since
some of the defendants have dropped out of the case and there are fewer claims to address at trial we reduced
the trial time to 10 days. We shall conduct trial for 5 and 1/2 hours per
day for 10 days. The total hours for the trial will thus be 55 hours.
Fidelity will get 22 hours, the Stewart parties will get 19 hours, and
Hargrove will get 14 hours. We are aware of the fact that the Seventh
Circuit discourages the overuse of such stringent limitations on a
duration of a trial. However, in this instance the parties' conduct ...