The opinion of the court was delivered by: John D. Bates United States District Judge
On December 14, 2007, this Court issued an Order staying a portion of these proceeding and moving the trial date to April 23, 2008. See Mazloum v. Dist. of Colum., No. 06-2 Dckt. # 158 (D.D.C. Dec. 14, 2007). The facts of this case are set out in prior opinions of this Court and will not be repeated here. See, e.g., Mazloum v. Dist. of Colum., --- F.Supp.2d ----, 2007 WL 3257010 (D.D.C. Nov. 6, 2007). Currently before the Court are the parties' several motions in limine. In his two motions, plaintiff seeks to: (1) preclude defendants from introducing evidence regarding his finances, particularly a loan application dated April 28, 2005; and (2) re-open discovery to depose Diego Sequeira, general manager of the FUR Nightclub. The FUR defendants, for their part, seek to preclude plaintiff from introducing evidence regarding the club' s video surveillance system, as well as evidence of its policies and practices in dealing with customers. The motions are now fully briefed and ripe for resolution. The Court will address each in turn.
I. Plaintiff's Motion to Preclude the Admission or Use of Financial Evidence
During his deposition, counsel for Officers Ramirez, Phillips, Modlin, and Schneider (collectively "the off-duty officers") questioned plaintiff about certain housing loan documents (hereinafter "the financial records") that defendants had subpoenaed from third-party JLM Direct Funding Ltd. Pl.' s Financial Records Reply at 2.*fn1 Those records indicate that on a loan application, signed and dated on April 28, 2005, plaintiff noted that he was "earning a monthly income of $10,833.00." Defs.' Financial Records Opp' n at 3-4. According to the off-duty officers, however, that statement conflicts with plaintiff' s deposition testimony that he "was unable to work between March 11, 2005 . . . and September, 2005." Id. at 4. Thus, defendants may seek to introduce this evidence to impeach plaintiff' s credibility at trial.
Plaintiff asserts that there are two critical defects that preclude those documents from being introduced into evidence. To begin with, he contends that the financial records amount to extrinsic evidence on a collateral matter that would only confuse the jury and waste the Court' s time. In addition, plaintiff argues that defendants cannot introduce the records because they were not obtained in accordance with Fed. R. Civ. P. 45(b)(1) and he asks the Court to exercise its inherent power to exclude the documents because of that violation. The off-duty officers respond that the records are relevant to a primary issue in the case. They further assert that the Rule 45 violation was a mere inadvertent, and harmless, error on their part.
Rule 45(b)(1) provides that if a subpoena "commands the production of documents . . . a notice must be served on each party" when the subpoena is issued. See Fed. R. Civ. P. 45(b)(1). In this case, the off-duty defendants did not serve any such notice on plaintiff when they issued the subpoena to the third-party that produced plaintiff' s financial records. Nor did defense counsel even provide plaintiff or his attorneys with a copy of the financial documents prior to the commencement of plaintiff' s deposition. Pl.' s Financial Records Reply at 3. In fact, plaintiff had no idea that defendants had obtained the financial records and planned to question him about them until defendants "plunk[ed] a copy of . . . [the] undisclosed loan application down on the table . . . and commenc[ed] to ask questions about it." Id.
The off-duty defendants have plainly violated Rule 45(b)(1) in this case. They argue, however, that the violation was unintentional and occurred through "inadvertence, error, and the press of other business." Defs.' Financial Records Opp' n at 7. Moreover, the off-duty defendants maintain that plaintiff has not demonstrated that the lack of disclosure "prejudiced him" because plaintiff' s counsel could have reviewed the documents after the first day of the deposition to prepare plaintiff for the second day of testimony. Id. at 8. That is not entirely correct. To begin with, even if plaintiff' s counsel reviewed the documents and questioned plaintiff regarding them on the second day of the deposition, the fact remains that the off-duty defendants were able to depose plaintiff on the first day without giving counsel the opportunity to prepare the deponent for that line of questioning. Moreover, as plaintiff correctly notes, there was a risk that discussing the financial documents with plaintiff during the pendency of his deposition might be construed as impermissible "coaching." See, e.g., United States v. Philip Morris, Inc., 212 F.R.D. 418, 420 (D.D.C. 2002). The off-duty defendants' conclusory statement that plaintiff would not "have moved to quash the subpoena" in any event is wholly speculative and contradicted by plaintiff' s representations in his reply brief. See Pl.' s Financial Records Reply at 5. Indeed, the very purpose of Rule 45(b)(1) is to remove any doubt over such questions by requiring disclosure at the outset.
Rule 45(b)(1) is designed, in part, to avoid the very sort of "surprise" that occurred in this case. As plaintiff correctly notes, his counsel "had no reasonable opportunity to prepare him for that line of inquiry." Id. at 6. It is also troubling that defense counsel, when informed by plaintiff' s attorneys that he was required to notice opposing parties of third-party subpoenas, replied: "I don' t believe that is the case." Id. Ex. B. That, however, is indeed the case. Plaintiff assigns a nefarious motive to defendants' discovery violation, citing their allegedly "shift[ing]" excuses, id. at 5, but the Court observes that defendants' assertion that the non-disclosure was a result of "error" is consistent with defense counsel' s mistaken statement during the deposition.
Inadvertent or otherwise, however, a violation has in fact occurred and the question is what action, if any, the Court should take in response. Plaintiff, naturally, urges that the Court should exclude the acquired documents from evidence solely on this basis by exercising its inherent powers. Courts have so-called "inherent power" to "protect their integrity and prevent abuses of the judicial process." Shepherd v. Am. Broadcasting Co., Inc., 62 F.3d 1469, 1474 (D.C. Cir. 1995) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991)). The discretion to "preclud[e] the admission of evidence" is one of those powers. Id. at 1475. The Court will return to this question of remedy after it examines the possible evidentiary uses that the off-duty officers may seek to make of the loan application.
Turning first to plaintiff' s other objection to the financial records evidence, the Court notes that it is well-settled that collateral matters cannot be proved by extrinsic evidence. See, e.g., United States v. Hayes, 369 F.3d 564, 567 (D.C. Cir. 2004). As plaintiff puts it, a matter is collateral if it "is not relevant in the litigation to establish a fact of consequence, i.e., not relevant for a purpose other than mere contradiction of the in-court testimony of the witness." Pl.' s Financial Records Reply at 5 (citing McCormack on Evidence § 45 (6th ed.)). Here, plaintiff argues that the financial records evidence is entirely collateral because the "documents shed no light at all upon what took place the evening of March 11, 2005." Pl.' s Financial Records Mot. at 6. Moreover, because plaintiff "will not be seeking to recover . . . any lost wages incurred while he was out of work recuperating from the injuries he suffered in the FUR attack," he contends that this evidence "has no bearing on his damages claims" either. Id. Defendants respond that the financial records are not collateral because the information "goes directly to [plaintiff' s] credibility as it relates to the underlying incident, and the alleged severity of his injuries." Defs.' Financial Records Opp' n at 4. If plaintiff was not in fact so badly injured that he was out of work for six months, the argument goes, that fact is relevant to the assessments of injury and damages in this case. And, alternatively, if plaintiff was indeed so injured but nevertheless falsely represented his income on the loan application, that would impeach his credibility, according to defendants.
The off-duty officers' position has some surface appeal. At the outset, it is worth noting that the financial records, to the extent that they establish a fact of consequence, are mainly relevant to the issue of damages.*fn2 Here, the evidence says very little about the underlying liability of the off-duty officers because the documents in question do not relate to the incident itself. Defendants assert that the records are "clearly relevant to the scope of plaintiff' s injuries" and also "challenge plaintiff' s credibility" as to the veracity of his asserted injuries. Id. at 5. The Court agrees in part. The loan application does not directly relate to plaintiff' s damages: nowhere in the document does it specify the extent of his injuries, the costs incurred, or the like. As explained above, the financial records have nothing whatsoever to do with the incident on March 11-12, 2005. Thus, the only manner in which the document can relate to the scope of plaintiff' s injuries is through impeachment of his trial testimony.
But the loan application is only cognizable impeachment evidence if plaintiff is first asked whether he was out of work as a result of his injuries and he answers in the affirmative. If plaintiff responds (consistent with his deposition testimony) that he missed six months of work because he was suffering from the repercussions of the assault, defendants may legitimately present evidence of the loan application that appears (at least on the surface) to contradict that assertion. Because that line of questioning is relevant to a primary issue in the case -- damages --defendants may present extrinsic impeachment evidence at trial. On the other hand, if plaintiff responds that he was not out of work for a substantial period of time following the March 2005 incident, then defendants cannot introduce the financial records into evidence because they would be stripped of their impeachment value and, standing alone, they are only minimally probative on the damages issue.
Plaintiff nevertheless argues that there is a significant risk that the jury would use evidence of the loan application to regard plaintiff as "some sort of ' cheat,' " Pl.' s Financial Records Reply at 8, an impermissible inference in his view. Consequently, he insists that the loan application is unfairly prejudicial and should be barred by Fed. R. Evid. 403. The Court disagrees. Any risk of unfair prejudice resulting from this evidence is minimal. To begin with, the probative force of the loan application as impeachment evidence is admittedly low. As plaintiff himself argues, the assertions on the face of the loan do not necessarily contradict anything in plaintiff' s deposition testimony. To the extent that the loan application has any prejudicial impact, counsel will be given a full opportunity to rehabilitate plaintiff on re-direct examination. Specifically, plaintiff has already asserted that he "set forth an average base monthly income of $10,833" on his loan application. Id. at 7 (emphasis in original). Thus, he stresses that "[a]n estimation of his monthly income is not inconsistent with his having been out of work for some period" of time as of the date the documents were signed. Id. at 7-8. Plaintiff will have ample opportunity to present that explanation to the jury. The Court does not foresee that this progression of events would unduly delay the proceedings or result in confusing the issues for the jurors.
The off-duty officers also propose to use the financial records as evidence of plaintiff' s "overall propensity for truth and veracity." Def.' s Financial Records Opp' n at 3. Plaintiff responds that the financial records may not be used to attack his "character for truthfulness" under Fed. R. Evid. 608(b). Here, plaintiff is correct. In relevant part, Rule 608(b) provides that "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence." Fed. R. Evid. 608(b). The assertions contained on plaintiff' s loan applications quite plainly do not amount to a conviction for ...