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Barnes v. District of Columbia

United States District Court, District of Columbia

February 14, 2013

Carl A. BARNES, et al., Plaintiffs,

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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William CharlesCole Claiborne, III, Ralph Douglas Robinson, Law Office of William Claiborne, III, Washington, DC, Barrett S. Litt, Paul J. Estuar, Stacey R. Brown, Litt, Estuar, Harrison & Kitson, LLP, Los Angeles, CA, for Plaintiffs.

Ellen A. Efros, Grace Graham, Andrew J. Saindon, Keith David Parsons, Office of the Attorney General, Washington, DC, for Defendant.





This case concerns the District of Columbia Department of Corrections' (" DOC" ) practice of overdetaining and strip searching its inmates. The plaintiffs, former inmates subject to overdetentions and strip searches, filed a class action against the District of Columbia (" District" ) over six years ago. Compl., Feb. 23, 2006, ECF No. 1. This long-running case is virtually identical to a prior case before this Court, Bynum v. District of Columbia, Civil Action No. 02-956(RCL) (filed in 2002). Given this extensive history, the Court assumes familiarity with its prior opinions, which set forth the background of this class-action litigation in greater detail. See, e.g., Barnes v. District of Columbia, 793 F.Supp.2d 260, 265 (D.D.C.2011) (discussing background of case up to summary judgment stage).

In June 2011, the Court granted plaintiffs' Motion for Summary Judgment as to the District of Columbia's liability for any overdetentions at its jails, throughout the class period, caused by the DOC's application of the so-called " 10 p.m. cut-off" rule, and all overdetentions occurring from September 1, 2005 to December 31, 2006. Id. at 286. The Court granted the District's Motion for Summary Judgment as to overdetentions occurring from February 26, 2008 forward that were not caused by the DOC's enforcement of the 10 p.m. cut-off rule. Id. The Court denied both parties' motions as to the District's liability for overdetentions that occurred from January 1, 2007 to February 25, 2008 (the " Trial Period" ) that were not caused by the DOC's enforcement of the 10 p.m. cut-off rule. Id. at 286 & n. 18. The District's

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liability for that subset of overdetentions remains undetermined pending trial.

On March 1, 2013, a jury trial regarding the District's liability for overdetentions during the " Trial Period" will commence. Before the Court are the parties' pretrial motions in limine to exclude or limit certain evidence from being introduced at the upcoming liability trial. The plaintiffs filed a motion styled as Plaintiffs' Motion in Limine No. 1 to Exclude Introduction of Evidence of the District of Columbia's Overdetention Numbers for the Trial Period, Jan. 11, 2013, ECF No. 410. The District has filed an " Omnibus Motion in Limine, " encompassing five separate motions in limine. Def.'s Mot. in Limine, Jan. 11, 2013, ECF No. 409. Upon consideration of these motions, the oppositions and replies thereto, and the record herein, the Court will deny plaintiffs' motion and grant in part and deny in part the District's motion.


While neither the Federal Rules of Civil Procedure nor the Federal Rules of evidence expressly provide for motions in limine, the Court may allow such motions " pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Motions in limine are " ‘ designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.’ " Graves v. District of Columbia, 850 F.Supp.2d 6, 10 (D.D.C.2011) (quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1070 (3d Cir.1990)). As Judge Kollar-Kotelly thoroughly explained in Graves:

Broadly speaking, the Federal Rules of Evidence permit the admission of " relevant evidence" — that is, evidence that " has any tendency to make a fact [of consequence] more or less probable than it would be without the evidence," Fed.R.Evid. 401— provided it is not otherwise excluded by the Rules, the Constitution of the United States, or an Act of Congress, Fed.R.Evid. 402, and its probative value is not " substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence," Fed.R.Evid. 403.
In light of their limited purpose, motions in limine " should not be used to resolve factual disputes," which remains the " function of a motion for summary judgment, with its accompanying and crucial procedural safeguards." C & E Servs., Inc. v. Ashland Inc., 539 F.Supp.2d 316, 323 (D.D.C.2008)....In other words, " [f]actual questions should not be resolved through motions in limine, " Goldman v. Healthcare Mgmt. Sys., Inc., 559 F.Supp.2d 853, 871 (W.D.Mich.2008) (citation omitted), nor is a motion in limine a " vehicle for a party to ask the Court to weigh the sufficiency of the evidence," Bowers v. Nat'l Collegiate Athletic Ass'n, 563 F.Supp.2d 508, 532 (D.N.J.2008). Rather, parties should target their arguments to demonstrating why certain items or categories of evidence should (or should not) be introduced at trial, and direct the trial judge to specific evidence in the record that would favor or disfavor the introduction of those particular items or categories of evidence. U.S. ex rel. El-Amin v. George Washington Univ., 533 F.Supp.2d 12, 19 (D.D.C.2008). In short, motions in limine are a means for arguing why " evidence should or should not, for evidentiary reasons, be introduced at trial." Williams v. Johnson, 747 F.Supp.2d 10, 18 (D.D.C.2010) (emphasis in original).

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In deference to their familiarity with the details of the case and greater experience in evidentiary matters, trial judges are afforded broad discretion in rendering evidentiary rulings, a discretion which extends to assessing the probative value of the proffered evidence and weighing any factors against admissibility. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008). The trial judge's discretion extends not only to the substantive evidentiary ruling, but also to the threshold question of whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance of trial. [ See, e.g., ] United States v. Valencia, 826 F.2d 169, 172 (2d Cir.1987).... The trial judge has the " discretion to rule in limine or to await developments at trial before ruling." Stephen A. Saltzburg et al., FEDERAL RULES OF EVIDENCE MANUAL § 103.02[13] (9th ed. 2006). " [I]n some instances it is best to defer rulings until trial, [when] decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole." Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D.Ill.2011) (citation omitted).

Id. at 10-11. While the Court has broad discretion to make judgments about whether proffered evidence is sufficiently relative or overly prejudicial, see United States v. Project on Gov't Oversight, 526 F.Supp.2d 62, 66 (D.D.C.2007), the Court should remember that making counsel object to inadmissible evidence at trial may " emphasize[ ] the evidence before the jury." Banks v. District of Columbia, 551 A.2d 1304, 1310 (D.C.1988); see also 75 AM.JUR.2D. TRIALL § 94 at 306-307 (1991) (" the mere asking of an improper question in the hearing of the jury may prove so prejudicial that, notwithstanding an instruction by the court to disregard the offensive matter, the moving party will be denied his right to a fair trial" ).


The plaintiffs ask this Court to " exclude any testimony, introduction of, or reference to, evidence of the District of Columbia's discrepancy reports (regardless of file type or format), graphs summarizing said reports, as well as any testimony, introduction of, or reference to, the District's overdetention numbers from January 1, 2007-February 25, 2008 (the " Trial Period" ), which are based on the District's discrepancy reports." Pls.' Mot. in Limine 1.

The plaintiffs claim that (1) " the District's overdetention numbers and discrepancy reports are not supported by reliable methodology and are misleading" ; (2) " [t]he District needs expert testimony to establish that the methodology supporting its overdetention numbers and discrepancy reports is reliable" and the District has failed to designate an expert; and (3) witnesses " who testify about the District's total overdetention numbers and discrepancy reports are offering lay opinion testimony or expert opinion testimony ... based on unreliable methodology" that could mislead or confuse the trier of fact. Id. 2.

Beginning in January 2007, the District's Department of Corrections began systematically tracking overdetentions through " discrepancy reports" — documents which list individual overdetentions and the purported reasons for those overdetentions. Barnes, 793 F.Supp.2d at 270. A declaration filed by Kathy Souverain, the Records Administrator at the DOC since March 2007, describes the process of

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creating these discrepancy reports. Souverain Decl., June 7, 2011, ECF No. 301-2. According to Ms. Souverain:

I am familiar with the discrepancy reports produced by the DOC from July 2007 forward. These reports indicate the number of over-detentions that occur each month....In order to identify an over-detention, the DOC runs a " Crystal Report," which identified who have been potentially over-detained. The institutional file of each inmate on this list is then reviewed by hand and a notation is entered into Lotus Notes as to whether the inmate was over-detained or not. An overdetention is defined as anyone released after 11:59 PM on the day they were released, or alternately, situations where the end of sentence calculation was computed incorrectly.

Souverain Decl. ¶ 2-3. The DOC creates the discrepancy reports by running a Lotus Notes query in the institutional file system, JACCS, to identify potential overdetentions, and this preliminary data is individually reviewed by individual DOC employees who enter a notation into Lotus Notes. The discrepancy reports represent the net product of this process, and have been created contemporaneously on a monthly basis from January 2007 to May 2011. See, e.g., Souverain Decl.; ECF No. 302 (copies of all discrepancy reports).

The Court is on well tread ground here. The plaintiffs have repeatedly asked the Court to exclude the District's discrepancy reports, and the Court has refused to do so each time. The plaintiffs first challenged the admissibility of the discrepancy reports on June 21, 2011, ECF No. 301; the Court rejected plaintiffs' arguments when resolving summary judgment, and determined " that the discrepancy reports are admissible hearsay pursuant to Federal Rule of Evidence 803(6), which creates an exception to the hearsay rule for business records" and held that the discrepancy reports " are admissible for all purposes [.]" Barnes, 793 F.Supp.2d at 293. At that time, the plaintiffs objected to the reports because " by themselves [they] do not establish that these were the only over detentions [ sic ] during the period," ECF No. 306. The plaintiffs make a similar argument in their Motion in Limine, repeating it at the most recent pretrial hearing. When the Court first considered this argument, it decided that " [t]o the extent that the plaintiffs' and the District's overdetention numbers come into conflict, the jury can sort out whose numbers are credible." Barnes, 793 F.Supp.2d at 293. The fact that the District's discrepancy reports do not include all the overdetentions the plaintiffs think the reports should goes to the weight of the evidence, not necessarily its admissibility. Cf. Graves v. District of Columbia, 850 F.Supp.2d 6, 11 (D.D.C.2011) (motions in limine should not be used to resolve factual disputes or ask the court to weigh the sufficiency of evidence).

Thereafter, the plaintiffs asked the Court (for the first time) to reconsider its summary judgment opinion, in part based on their argument that the discrepancy reports are inadmissible. Pls.' First Mot. Reconsideration 8-11, Nov. 1, 2011, ECF No. 320. The Court denied reconsideration, again rejecting plaintiffs' position on the admissibility of the discrepancy reports. Order Denying Mot. Reconsideration 3, Dec. 7, 2011, ECF No. 327.

After discovery, the plaintiffs again attacked the credibility and reliability of the discrepancy reports through a motion to compel, claiming that the District has not provided the entire release discrepancy database [1] and other documents and data the

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District used to generate the final discrepancy reports. Pls.' Mot. Compel 5-9, June 25, 2012, ECF No. 362. The Court ordered the District to release the database query it used to help generate the reports, but otherwise found that plaintiffs did not meet their burden of showing that the District's production was incomplete. Barnes v. District of Columbia, 289 F.R.D. 1, 21-25, 2012 WL 4466669, *21-*25 (D.D.C.2012). " The Court urge[d] the plaintiffs to work diligently and quickly, after receiving the correct query, to determine if any files are missing, so discovery for the liability phase may finally come to an end." Id. at 25, at *25. The plaintiffs did not use this newly produced query to form the basis of a new motion to compel, argue that data was missing, or update expert reports after reviewing the newly produced query. The plaintiffs stated at a pretrial hearing that they did not intend to file any new motions or update their expert reports based on their examination of this query.

On September 7, 2012, the plaintiffs again asked the Court to reconsider its decision to admit the discrepancy reports; they further requested that the Court, upon throwing out the discrepancy reports, enter summary judgment for the plaintiffs. ECF No. 387. The Court again rejected this request, finding that the plaintiffs' arguments did not present any new issues, and the plaintiffs were really asking the Court to weigh evidence and resolve factual issues. See Mem. Op. & Order Denying Reconsideration 3-6, Oct. 31, 2012, ECF No. 399.

There are many problems with the plaintiffs' so-called motion in limine. First, virtually all of the plaintiffs' arguments against the discrepancy reports go to the weight of the evidence, not its admissibility. Cf. D.L. v. District of Columbia, 820 F.Supp.2d 27, 30 (D.D.C.2011). As contemporaneous business records, representing the DOC's attempt to systematically track overdetentions, the discrepancy reports do not have to meet the same standards for " accepted methodology" that apply to expert reports. Essentially, the plaintiffs ask the Court, yet again, to decide that their expert reports represent the correct total number of overdetentions, and that the District's numbers are inaccurate. The plaintiffs have " cloaked a motion for summary judgment in the form of a motion in limine, but the deadline to file dispositive motions has long since passed." Williams, 747 F.Supp.2d at 20; see also Dunn ex rel. Albery v. State Farm Mut. Auto. Ins. Co., 264 F.R.D. 266, 274 (E.D.Mich.2009) (" [M]otions in limine are meant to deal with discrete evidentiary issues related to trial, and are not another excuse to file dispositive motions disguised as motions in limine. " ) (internal quotation marks and citation omitted). The last time the plaintiffs asked the Court to exclude the District's discrepancy reports, they said that excluding such evidence would require the Court to enter summary judgment for the plaintiffs. Pls.' Second Mot. Reconsideration, Sept. 7, 2012, ECF No. 387. This indicates that this " new" motion to exclude the discrepancy reports is really a dispositive motion in disguise. The plaintiffs " misconstrue[ ] the purpose of a motion in limine, which should not be used to resolve factual disputes among the parties." Williams, 747 F.Supp.2d at 20.

Another problem this Court has is that this motion in limine is essentially a motion for reconsideration of motion for reconsideration.

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On September 7, 2012, the plaintiffs filed a lengthy Motion for Reconsideration of Court's Decision to Admit District's PDF Discrepancy Reports and to Deny Summary Judgment to Plaintiffs' for the Trial Period. ECF No. 387. In denying reconsideration, the Court stated:

Plaintiffs' Motion for Reconsideration relies on many of the same claims the plaintiffs made about the District's production in their Motion to Compel the Release Discrepancy Database. Compare [Pls.' Second Mot. Reconsideration] at 24-41, with Pls.' Mot. to Compel Release Discrepancy Database 5-9, June 25, 2012, ECF No. 362. This Court, denying in part plaintiffs' motion to compel, found the plaintiffs did not meet their burden of showing the District withheld discrepancy reports or otherwise discoverable data relating to the disputed period. Barnes v. Dist. of Columbia, 289 F.R.D. 1, 20-26, 2012 WL 4466669, *20-*26 (D.D.C.2012)....
In finding that the District's Discrepancy Reports raised a genuine issue of material fact [at summary judgment], the Court did not declare that the District's reports accurately reflect the number of overdetentions. It found— with all reasonable inferences drawn in favor of the District— that a reasonable jury could find these reports credible. Barnes, 793 F.Supp.2d at 280. Unlike the Analysis of Releases, the Discrepancy Reports were more than a " conclusory allegation that the plaintiffs' numbers ... are wrong, and nothing more." Id. at 279....
The plaintiffs stress that the District's Discrepancy Reports are incomplete, based on faulty methods, and underestimate overdetentions. [Pls.' Second] Mot Reconsideration 24-41. The plaintiffs are free to make these arguments to a fact-finder and convince a ... jury [2] that their numbers are correct. By denying plaintiffs' Motion for Reconsideration, the Court does not choose between either parties' overdetention estimates. It merely holds that the plaintiffs have not convinced the Court that the District's numbers are so flawed, so baseless that they amount to a mere conclusory allegation that plaintiffs' numbers are wrong. If the Court grants reconsideration and enters summary judgment for plaintiffs, in effect it would weigh evidence and resolve factual issues.

Mem. Op. & Order Denying Reconsideration 5-6, Oct. 31, 2012, ECF No. 399. In that opinion, the Court emphasized that this issue had been repeatedly argued:

The plaintiffs have raised doubts as to the accuracy and completeness of the District's Discrepancy Reports. See, e.g., ECF Docket Entries 362, 373, 387, 395, 398. The District has raised objections to the plaintiffs' expert reports and their estimates of overdetentions. See, e.g., ECF Docket Entries 365, 369, 376-2, 381, 383, 393. The District has also defended the completeness of its production and the integrity of its Discrepancy Reports. See, e.g., ECF Docket Entries 369, 376-2, 393, 394. In order to resolve these disputes, the Court would need to weigh competing evidence and resolve issues of fact.

Id. at 6-7. Other than arguing that the District needs expert testimony to introduce the reports, the plaintiffs' arguments are basically the same as those previously, and repeatedly, rejected by this Court. Not only are plaintiffs using a motion in

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limine as a backdoor motion for summary judgment, but are also using it as a backdoor motion to reconsider. The Court is full well aware that the plaintiffs object to its decision to admit the discrepancy reports, as the plaintiffs should be full well aware that this Court believes it is proper for the jury to decide whose overdetention numbers are accurate and credible.

The plaintiffs raise one new objection to the discrepancy reports— namely that the " District needs expert testimony to establish that the methodology supporting its overdetention numbers and discrepancy reports is reliable" and any opinion testimony used to support the reports and overdetention numbers would be opinion testimony " based on an unreliable methodology." Pls.' Mot. in Limine 2.

The discrepancy reports are not expert reports. They are business records— created not in anticipation of litigation, but in the normal course of business— that do not require a Rule 26(a)(2) designated expert to authenticate them. Like the District's earlier " Analysis of Releases," the discrepancy reports " [do not] purport to be, and [are] not expert witness testimony; [they are] clearly [ ] report[s] created by DOC staff" summarizing the monthly count of overdetentions. Barnes, 793 F.Supp.2d at 292. Testimony from a DOC official familiar with how these reports were generated, what criteria and methodology were used, et cetera, is direct testimony concerning the DOC's business records. It is not expert testimony.

The Court also agrees with the District's alternative argument that the Court could, if necessary, admit " ‘ lay opinion testimony’ to explain and interpret the District's discrepancy reports," Def.'s Opp'n 6. The opinions or inferences offered by Jeannette Myrick— who has extensive personal experience with reviewing inmate jackets and identifying potential overdetentions— would be " (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Hall v. CIA, 538 F.Supp.2d 64, 69 (D.D.C.2008) (quoting Fed.R.Evid. 701). There is no need for the Court serve as a " gatekeeper" — ensuring that expert testimony is " valued," with conclusions based on " good grounds," Groobert v. President and Directors of Georgetown College, 219 F.Supp.2d 1, 6 (D.D.C.2002)— " for instances involving lay opinion testimony." United States v. Eiland, 2006 WL 2844921, *2 (D.D.C. Oct. 2, 2006).

Lay opinion testimony is admissible if " the specialized knowledge at issue was gained though experience rather than though scientific or technical training," so long as the witness testified " based solely on personal experience with the case at issue." Armenian Assembly of Am. v. Cafesjian, 746 F.Supp.2d 55, 65 (D.D.C.2010). People at different jobs can obtain different kinds of " specialized knowledge" based on their training and experiences at that job. See, e.g., United States v. Lawson, 653 F.2d 299, 303 (7th Cir.1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982) (concluding that lay opinion testimony by FBI agents as to defendant's sanity was properly admitted despite fact that the agents had little opportunity to view the defendant); United States v. Mastberg, 503 F.2d 465 (9th Cir.1974) (permitting under Rule 701 the testimony of a customs inspector that the defendant appeared nervous); State v. Johnson, 221 Mont. 503, 719 P.2d 1248, 1256-57 (1986) (holding that, in a prosecution for driving under the influence of alcohol, a police officer was properly allowed to testify as a lay witness on the basis of his own

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experience as to what generally happens to a car when its power steering fails, where he had worked on vehicles of all kinds for over ten years and had experienced power steering failure several times); State v. Hall, 353 N.W.2d 37, 43 (S.D.1984) (permitting police officers to give lay opinion concerning defendant's intoxicated state, under state rule analogous to Federal Rule of Evidence 701). Any " specialized knowledge" the District's witness would need to comment on how the DOC compiled the discrepancy reports and reviewed inmate jackets would be based on the witness' experience with said reports. Therefore, even if lay opinion testimony is needed to testify about the discrepancy reports, the testimony of Jeannette Myrick— who has direct experience reviewing inmate jackets and potential overdetentions— would qualify as such.[3]

The discrepancy reports, and testimony about them, are admissible at the liability trial. However, the Court should refine its earlier statement that the discrepancy reports are " admissible for all purposes." Barnes, 793 F.Supp.2d at 293. That is not entirely accurate. The District mentioned, at the latest pretrial conference, that it may use the discrepancy reports and related testimony to contest the overdetention numbers provided by the plaintiffs' experts. Certainly it may do so indirectly — by presenting its overdetention numbers and explaining how the DOC prepared them, the District may provide a compelling alternative to plaintiffs' numbers, and convince a jury to credit its figures over those provided by the plaintiffs. Ms. Myrick— or any other District witness— cannot speak beyond her personal experience and expertise in ...

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