Jordan v. Ensco Offshore Company, No. 2:2015cv01226 - Document 113 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting 80 Motion to Strike certain exhibits listed on Defendant ENSCO Offshore Companys second supplemental witness and exhibit list. Signed by Judge Susie Morgan. (bwn)
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Jordan v. Ensco Offshore Company Doc. 113 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A KEVIN JORD AN Pla in tiff CIVIL ACTION VERSU S N O. 15 -12 2 6 EN SCO OFFSH ORE COMPAN Y D e fe n d an t SECTION : “E” ( 1) ORD ER AN D REAS ON S Before the Court is a m otion to strike certain exhibits listed on Defendant ENSCO Offshore Com pany’s second supplem ental witness and exhibit list. 1 Defendant has filed a lim ited response to the m otion. 2 For the reasons that follow, the m otion is GRAN TED , provided that (1) Defendant m ay be allowed to use exhibits that were disclosed for im peachm ent purposes, and (2) Defendant is allowed to use docum ents or writings that are not listed in the proposed pre-trial order to refresh a witness’s recollection, if appropriate under the circum stances, as set forth below. Plaintiff Kevin J ordan m aintains that there are “56 exhibits” on Defendant’s second supplem ental witness and exhibit list, a “vast m ajority” of which were not listed as exhibits by the Defendant in the proposed pre-trial order. 3 Plaintiff argues that the exhibits listed in Defen dant’s second supplem ental witness and exhibit list which are not listed in the proposed pre-trial order should be stricken. 4 In response, Defendant notes that it “does not plan at this tim e to adm it into evidence any docum ents not listed on the Pre-Trial Order,” with the exception of certain docum ents agreed to between counsel. 5 However, Defendant also states: “If [Plaintiff’s] testim ony requires exam ination of 1 R. Doc. 80 . R. Doc. 86. 3 The proposed pretrial order is Record Docum ent 64. 4 R. Doc. 80 at 1– 2. 5 R. Doc. 86 at 1. 2 1 Dockets.Justia.com docum ents not listed on the Pre-Trial Order [1] to refresh his recollection, [2] to attem pt to im peach him , or [3] to confirm facts not otherwise in evidence to that point, Ensco would reserve the right to seek a ruling by the Court at that point in the trial.”6 The Court’s pre-trial n otice form explicitly states that the proposed pre-trial order m ust include: “For each party, a list and description of exhibits inten ded to be introduced at the trial.”7 Failure to com ply with this directive results in the party’s inability to introduce the non-listed exhibit(s) at trial. Nevertheless, Defendant raises the possibility that it m ay have the ability to use the exhibits not listed in the proposed pre-trial order for certain purposes at trial. The Court now addresses each purpose for which the Defendant indicated it m ay wish to use non -listed exhibits. 8 I. I MPEACHMENT To the extent a party intends to introduce an exhibit for im peachm ent purposes, but the exhibit was not disclosed to opposing counsel, the party seeking to introduce the exhibit is required, as stated in the pre-trial notice form , to file a m otion for leave to file under seal the proposed im peachm ent exhibits and a m em orandum explain ing why they need not be disclosed under Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993). The Court’s Scheduling Order also reflects that “[a]ny exhibits to be used solely for im peachm ent m ust be presented to the Court for in cam era review.”9 The deadline for filing such m otions and supporting m em oranda and subm itting exhibits for in cam era review was April 25, 20 16. 10 Because no undisclosed exhibits were subm itted to the Court 6 R. Doc. 86 at 1. R. Doc. 18 -1 at 5. 8 Though the m otion was filed by Plaintiff to strike exhibits not listed in the proposed pre-trial order by the Defendant, this rulin g applies equally to both parties to the extent a certain exhibit is not listed. 9 R. Doc. 48 at 2 (Schedulin g Chart, as of 3/ 1/ 16). 10 R. Doc. 18 -1 at 5 (“The deadline for filing these m otions is the sam e as the pre-trial order.”). See also R. Doc. 48 at 2 (Schedulin g Chart, as of 3/ 1/ 16). 7 2 for in cam era review by the April 25th deadline, such undisclosed exhibits cannot be used for any purpose at trial. To the extent a party intends to introduce for im peachm ent purposes an exhibit that was disclosed to opposing counsel but not listed as an exhibit in the proposed pretrial order, the exhibit m ay be introduced at trial if it satisfies the requirem ents of Zapata. If any party has such exhibits, the party is ordered to file with the Court the exhibits, along with a m em orandum addressing Zapata, no later than W e d n e s d ay, May 18 , 2 0 16 , a t 5 :0 0 p .m . II. R EFRESHING R ECOLLECTION Defendant states that it m ay wish to use certain exhibits which are not listed in the proposed pre-trial order to refresh a witness’s recollection at trial. Federal Rule of Eviden ce 612 governs the use of a writing to refresh a witness’s m em ory. 11 Nothing in Rule 612 requires that a writing or docum ent used to refresh a witness’s recollection m ust be disclosed prior to trial or listed as an exhibit in the parties’ proposed pre-trial order. In fact, certain courts have recognized that writings used to refresh a witness’s recollection are not exhibits and need not be disclosed in advance of trial. 12 Other courts have recognized, however, that although Rule 612 does not require disclosure of writings that are intended to be used to refresh a witness’s recollection in advance of trial, sound policy suggests that Rule 612 was not intended as an avenue for parties to conceal such writings 11 F ED . R. E VID. 612. See, e.g., Davis v. Lakeside Motor Co., Inc., No. 3:0 -CV-40 5J D, 20 14 WL 1316945, at *11 (N.D. Ind. Mar. 31, 20 14) (noting that “[a]ny exhibit not identified [in Pre-Trial Order] will be excluded from trial for all purposes other than im peachm ent or refreshin g recollection”); Jones v . Sheahan, No. 99-C-3669, 0 1-C1844, 20 0 3 WL 2250 8171, at *11 (N.D. Ill. Nov. 4, 20 0 3) (“[T]he Court m ade it clear that while the letters could not be used as m arked exhibits (since they were not listed on the pretrial order), they could be used to refresh recollection or to im peach the witn ess if there first was established a basis to do so.”); D.L.B. v . Cabinet for Health and Fam ily Servs., 418 S.W.3d 426, 431– 32 (Ky. Ct. App. 20 14) (“Yet, nothin g in KRE 612 states that the writin g used to refresh the witn ess’s m em ory m ust be turned over in advance of trial as an exhibit . . . . Indeed, case law has established that the writing used to refresh is not to be considered as an exhibit.”). 12 3 or docum ents until they are n eeded to refresh a witness’s recollection at trial. 13 Neither the Fifth Circuit nor any district courts therein have addressed whether writings or docum ents that a party intends to use to refresh a witness’s recollection m ust be listed in the pre-trial order as exhibits. To avoid surprise at trial, the Court will require advance disclosure of any such writings or docum ents. If either party intends to use any writings or docum ents not listed in the proposed pre-trial order to refresh a witness’s recollection, the writings m ust be subm itted to both the Court and opposing counsel no later than W e d n e s d ay, May 18 , 2 0 16 , at 5 :0 0 p .m . Even if the Court allows such writings to be used, they will not be adm itted into evidence. III. CONFIRMING F ACTS N OT I N E VIDENCE Defendant states that it m ay wish to use exhibits which are not listed in the proposed pre-trial to “confirm facts not otherwise in evidence to that point.”14 Defendant cites to no authority for this concept because there is none. Defendant will not be perm itted to use and introduce exhibits not listed in the proposed pre-trial order solely to confirm facts not otherwise in eviden ce to that point. IT IS SO ORD ERED . N e w Orle an s , Lo u is ian a, th is 13 th d ay o f May, 2 0 16 . ______ _____________ __________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 13 See, e.g., G.J.B. & Assocs., Inc. v. Singleton, 913 F.3d 8 24, 831 (10 th Cir. 1990 ) (“Adm ittedly, Fed.R.Evid. 612 requires only that such writings be produced at the hearin g. But nothin g in the rule suggests that an attorney m ay conceal the writings until ready to sprin g them on the court and opposing counsel in the m idst of a witness’ direct exam ination.”). 14 R. Doc. 86 at 1. 4
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