The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on additional Motions in Limine filed by the parties. This court has carefully reviewed the arguments of the parties and the documents provided. Following this careful and thorough review, this court rules as follows: (1) Defendants' Second Set of Motions in Limine (#64) are GRANTED in part and DENIED in part; (2) Plaintiff's Third Motion in Limine Related to Defendants' Purported Damages (#65) is GRANTED; and (3) Plaintiff's Fourth Motion in Limine Related to Ethanol Production (#67) is GRANTED in part and DENIED in part.
DEFENDANTS' SECOND SET OF MOTIONS IN LIMINE
On April 5, 2010, Defendants filed their Second Set of Motions in Limine (#64). Defendants are seeking an order from this court barring Plaintiff from introducing evidence or making statements in the jury's presence regarding: (1) other names used by Jerry Walker; (2) internal notes, memoranda and e-mails prepared by Plaintiff; (3) whether the nature of the contracts with Fall Grain gave Fall Grain the right to roll the contracts' obligations to other crop years; (4) Bunge records produced pursuant to subpoenas; (5) the testimony of Dawn Betancourt; and (6) the testimony of Jason Zilles.
On April 7, 2010, Plaintiff filed its Memorandum in Response to Defendants' Supplemental Motions in Limine (#72). Plaintiff asked that all of Defendants' requests be denied.
1. Other Names Used by Jerry Walker
Defendants stated that they believe that Plaintiff may refer to Jerry Walker as "Jerry G. Walker a/k/a Jerry Gene Walker" or "Jerry G. Walker also known as Jerry Gene Walker." Defendants argued that there was no dispute regarding the identity of Jerry Walker or regarding his name or his middle initial. Defendants therefore argued that any such reference would have no purpose other than to attempt to cast suspicion on him in the eyes of the jury. In its Response, Plaintiff has stated only that it "should be able to refer to Defendant Jerry Walker by his name."
This court concludes that Plaintiff certainly can refer to Jerry Walker by his name, Jerry Walker. This court agrees with Defendants that there is no reason to include any "a/k/a" or "also known as" references in discussing Jerry Walker. This request by Defendants is GRANTED.
2. Internal Notes, Memoranda and E-Mails Prepared by Plaintiff
Defendants next stated that they believe that Plaintiff may attempt to refer to or introduce into evidence various notes, internal memoranda and e-mails created, sent or received by Plaintiff's witnesses Matt Anderson, Larry Wood, Joe Needham, Hal Reed, Dawn Betancourt and Jason Zilles. Defendants noted that these documents are listed on Plaintiff's exhibit list and argued that they should not be admitted because they were prepared in anticipation of litigation and are not admissible under any exception to the hearsay rule. See Melendez-Diaz v. Mass., ___ U.S. ___, 129 S.Ct. 2527, 2538 (2009). Defendants argued that the documents are wholly self-serving, were created in the context of consultation with Plaintiff's in-house counsel at a time when Plaintiff admitted its was already anticipating litigation, and seek to justify Plaintiff's behavior in relation to its procurement of the personal guarantees from Defendants.
In its Response, Plaintiff argued that the documents should be admitted because: (1) some of the documents are admissible under Rule 801(d)(2) of the Federal Rules of Evidence because they contain admissions by Defendants Jerry Walker and Stephanie Spiros, who are parties to this action, which Defendants admit are accurate; (2) some of the documents are recorded recollections and may be admissible under Rule 803(5) of the Federal Rules of Evidence if a witness at trial "now has insufficient recollection to enable the witness to testify fully and accurately;" (3) some of the documents are admissible under Rule 803(3) of the Federal Rules of Evidence to show the state of mind and understanding of the parties regarding their dealings; and (4) the documents are admissible under Rule 803(6) of the Federal Rules of Evidence as business records prepared and kept in the ordinary course of business.
This court agrees with Plaintiff that, to the extent that documents contain admissions of Defendants Jerry Walker and Stephanie Spiros, which Defendants admitted were accurate, those documents are admissible under Rule 801(d)(2). This court also agrees with Plaintiff that some of the documents may be used at trial to refresh a witness's recollection under Rule 803(5). That determination cannot be made until during the trial. This court does not agree, however, that the documents are admissible under Rule 803(3) and Rule 803(6).
This court concludes that the documents are not admissible under Rule 803(3) as a "statement of the declarant's then existing state of mind, emotion, sensation, or physical condition." Obviously, Plaintiff's employees will be testifying regarding their state of mind during their conversations with Defendants and the understanding of the parties. Plaintiff does not need the documents to bolster this testimony.
This court also concludes that the documents, many of which discuss the ongoing disputes between Plaintiff and Fall Grain, which were ultimately decided in arbitration, are not admissible as business records. Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. Melendez-Diaz, 129 S.Ct. at 2538, citing Fed. R. Evid. 803(6). "But that is not the case if the regularly conducted business activity is the production of evidence for use at trial.' Melendez-Diaz, 129 S.Ct. at 2538. This is because such records are "calculated for use essentially in the court, not in the business." Melendez-Diaz, 129 S.Ct. at 2538, quoting Palmer v. Hoffman, 318 U.S. 109, 114 (1943). Plaintiff argues that many of the documents at issue here were created months in advance of this litigation and Plaintiff's engagement of counsel.*fn1 This court concludes, however, that the only purpose for admitting the documents would be to bolster the testimony of Plaintiff's employees through records prepared to document Plaintiff's side of the dispute.
For all of the reasons stated, this request by Defendants is GRANTED in part and DENIED in part. The documents are admissible to the extent that they contain admissions of Defendants Jerry Walker and Stephanie Spiros, which Defendants have admitted are accurate. The documents may also be used at trial to refresh a witness's recollection if the ...