United States District Court, D. Columbia.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For Sabre International Security, Plaintiff: Michael Allan Gordon, LEAD ATTORNEY, MICHAEL A. GORDON PLLC, Washington, DC; Tennant David Magee, LEAD ATTORNEY, MAGGS & MCDERMOTT, LLC, Brielle, NJ; Timothy B. Mills, LEAD ATTORNEY, MAGGS & MCDERMOTT, LLC, Washington, DC.
For Torres Advanced Enterprise Solutions, LLC, Defendant: Aseil Imad Abu Baker, LEAD ATTORNEY, CHARLSON BREDEHOFT COHEN & BROWN, Reston, VA; Elaine Charlson Bredehoft, LEAD ATTORNEY, CHARLSON BREDEHOFT COHEN BROWN & SAKATA, P.C., Reston, VA; Peter C. Cohen, LEAD ATTORNEY, CHARLSON BREDEHOFT COHEN & BROWN, P.C., Reston, VA.
For Jerry Torres, In his individual capacity, Defendant: Richard J. Conway, LEAD ATTORNEY, DICKSTEIN SHAPIRO LLP, Washington, DC.
For Scott Torres, In his individual capacity, Rebekah Dyer, In her individual capacity, Kathy Jones, In her individual capacity, Defendants: Patricia E. Bruce, LEAD ATTORNEY, CAULKINS & BRUCE, PC, Arlington, VA.
For Torres Advanced Enterprise Solutions, LLC, Counter Claimant: Aseil Imad Abu Baker, LEAD ATTORNEY, CHARLSON BREDEHOFT COHEN & BROWN, Reston, VA.
For Sabre International Security, Counter Defendant: Michael Allan Gordon, Timothy B. Mills, LEAD ATTORNEYS, MICHAEL A. GORDON PLLC, Washington, DC; Tennant David Magee, LEAD ATTORNEY, MAGGS & MCDERMOTT, LLC, Brielle, NJ.
Gladys Kessler, United
States District Judge.
Pending before the Court are twelve Motions in Limine filed by Plaintiff Sabre International Security (" Sabre" ) and six Motions in Limine filed by Defendant Torres Advanced Enterprise Solutions (" Torres" ). Upon consideration of the Motions and Responses, and the entire record herein, and for the reasons stated below, the Court rules as follows.
SABRE'S MOTIONS IN LIMINE
I. Sabre's Motion in Limine to Exclude Torres' Spreadsheet of Alleged Costs Incurred [Dkt. No. 390] (" Sabre's Motion in Limine No. 1" )
Sabre's Motion in Limine No. 1 seeks to exclude, as hearsay, four versions of a financial spreadsheet Torres used to track payments it made to Sabre and expenses it allegedly incurred on Sabre's behalf (the " Tracking Sheet" ). Torres contends that the Tracking Sheet is admissible both as a business record under Fed.R.Evid. 803(6) and as a summary of voluminous writings under Fed.R.Evid. 1006.
A. Rule 803(6)
The " business record" rule creates an exception to the hearsay rule for a " record of an act, event, condition, opinion or diagnosis" if:
(A) the record was made at or near the time by - or from information transmitted by - someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
Sabre's primary argument against admission of the Tracking Sheet is its contention that Torres created the Tracking Sheet in anticipation of litigation and not as a " regularly conducted activity." Pl.'s Mot. at 2.
Torres claims, however, that it created the Tracking Sheet before it was on notice of any legal action. Def.'s Opp'n at 1. It has submitted the Declaration of its former Chief Financial Officer (" CFO" ), Kathryn Jones, who explains that she created the Tracking Sheet on or around August 27, 2010, as an " ongoing accounting of extraordinary expenses that were being incurred above normal business operating expenses." See Declaration of Kathryn Jones (" Jones Decl." ) ¶ 4 Ex. 2 [Dkt. No. 427-1]. Jones states that " [i]t was the regular business practice of Torres  to track [the] expenses [included in the Tracking Sheet] in order to support variance analysis for the company's financial statements" and in situations where " performance issues with a subcontractor arose." Id. ¶ 4. Furthermore, she expressly denies that the Tracking Sheet was prepared " in anticipation of litigation or for a litigious purpose." Id. ¶ 15.
Based on this Declaration, and because this case was not filed until April 29, 2011, approximately nine months after Jones claims to have created the Tracking Sheet, Torres shall have the opportunity at trial to demonstrate that the Tracking Sheet was not created in anticipation of litigation and is admissible as a business record. Sabre's Motion to exclude the Tracking Sheets under Rule 803(6) shall therefore be denied.
B. Rule 1006
Torres also argues that the Tracking Sheet is admissible under Rule 1006, which permits the use of a " summary, chart, or calculation" to prove the content of " voluminous writings . . . that cannot be conveniently examined in court." Fed.R.Evid. 1006. " For a summary of documents to be admissible, the documents must be so voluminous as to make comprehension by the jury difficult and inconvenient; the documents themselves must be admissible; the documents must be made reasonably available for inspection and copying; the summary must be accurate and nonprejudicial; and the witness who prepared the summary should introduce it." United States v. Fahnbulleh, 752 F.3d 470, 479, 410 U.S.App.D.C. 18 (D.C. Cir. 2014) (citation omitted).
Torres contends that it " has underlying documentation for amounts reflected in the spreadsheet, including wire transfers, receipts and invoices." Def.'s Opp'n at 2; see also Decl. of Daniel Cotter (" Cotter Decl." ) ¶ 3 [Dkt. No. 427-6]. Consequently, Torres shall have the opportunity at trial to demonstrate that the Tracking Sheet is admissible as a summary of voluminous records pursuant to Fed.R.Evid. 1006.
For both of the foregoing reasons, Sabre's Motion in Limine No. 1 shall be denied. However, the Tracking Sheet shall not be admitted into evidence unless
and until Torres has laid the proper foundation at trial by establishing, through the testimony of former CFO Jones, current CFO Cotter, or any other qualified witness, and any necessary documentary evidence, that all of the requirements of Rule 803(6) and/or Rule 1006 have been met.
II. Sabre's Motion in Limine to Exclude Torres from Introducing Evidence of TWISS II Equipment Purchases or Sabre's Performance Deficiencies [Dkt. No. 392] (" Sabre's ...