COMMUNITIES FOR EQUITY v. MHSAA, (W.D.Mich. 2001)

RICHARD ALAN ENSLEN, United States District Judge.

In accordance with an Opinion filed this day,

IT IS HEREBY ORDERED that Plaintiffs' Renewed Motion in Limine to Exclude Certain Videotapes from Evidence (Dkt. No. 434) is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that MHSAA's Eligibility Rules videotape (Def. Proposed Ex. 201) will be admitted into evidence at trial upon proper authentication for any relevant purpose.

IT IS FURTHER ORDERED that the "Girls Win" program (Def. Proposed Ex. 267(1)) will not be admitted into evidence at trial.

IT IS FURTHER ORDERED that the "We are the MHSAA" program (Def. Proposed Ex. 267(2)) will be admitted into evidence at trial upon proper authentication for any relevant purpose.

IT IS FURTHER ORDERED that the "You Got Next" videotape (Def. Proposed Ex. 268) will be admitted into evidence at trial upon proper authentication for any relevant purpose.

OPINION

This matter is before the Court on Plaintiffs' Renewed Motion in Limine to Exclude Certain Videotapes from Evidence. Plaintiffs seek exclusion of three videotapes that Defendants seek to offer into evidence: (1) a videotape explaining MHSAA's eligibility rules, (2) a video of television advertisements entitled "Girls Win" and "We are the MHSAA," and (3) a General Motors-produced and sponsored (GM) promotional video of the Women's National Basketball Association (WNBA). The Court will grant in part and deny in part Plaintiffs' Motion.

I. Standard of Review and Applicable Federal Rules of Evidence

The Court exercises discretion over matters involving the admissibility and relevancy of evidence at trial. United States v. Seago, 930 F.2d 482, 494 (6th Cir. 1991).

Federal Rule of Evidence 802 provides for the inadmissibility of evidence which is hearsay, defined in Federal Rule of Evidence 801 as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801, 802. One category of evidence excluded from the hearsay rule is found in Federal Rule of Evidence 803(6), the business records exception. To fall within the exception, the evidence must be from information recorded by a person with knowledge and kept in the course of a regularly conducted business activity. Fed.R.Evid. 803(6). These characteristics must be shown by the testimony of a qualified witness, and the exception does not apply if "the source of information or the method or circumstances of preparation indicate lack of trustworthiness." Id. Where a source of information was prepared for use in anticipated or on-going litigation, the information is not considered kept in the regular course of business and is not subject to the hearsay exception. Palmer v. Hoffman, 318 U.S. 109, 113-14 (1943) (accident reports prepared by railroad were not "business records" because "[t]heir primary utility is in litigating, not in railroading"). Hearsay statements within hearsay must come within a hearsay exception to be admitted for their truth. Fed.R.Evid. 805.

Evidence must also be relevant to be admitted. "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. The standard for relevancy is very liberal, and a court may not exclude evidence on relevancy grounds that has even the slightest probative value, even if insufficient to prove the ultimate issue for which it is offered. Douglass v. Eaton Corp., 956 F.2d 1339, 1344 (6th Cir. 1992) (abrogated on other grounds, Weisgram v. Marley Co., 528 U.S. 440 (2000)). Relevant evidence may be excluded if its probative value is substantially outweighed by danger of its unfair prejudice, confusion of the issues, waste of time, or needless cumulation of evidence. Fed.R.Evid. 403. Unfair prejudice in evidence is not a consideration in a bench trial, however, since the judge will also be the trier of fact. United States v. Hall, 2000 WL 32010, *2 (6th Cir. Jan. 4, 2000) (citing Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994); Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. 1981)).

Evidence can be satisfactorily authenticated by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a). This can be done by a number of methods, including testimony of a witness with knowledge that a matter is what it is claimed to be. Fed.R.Evid. 901(b).

II. Analysis

A. Eligibility Rules videotape (Def. Proposed Ex. 201)

The Court finds initially from the pleadings that this videotape was prepared in the regular course of the MHSAA's business and not for purposes of anticipated or the instant litigation. Defendants assert that this videotape was produced in 1997, as an update to a tape originally produced in 1992, and that the tape has been distributed to schools, students, and parent groups. The dates of the video's production lend support to Defendants' assertion that the video was not produced for the instant litigation. Moreover, viewing the video convinces the Court that its purpose was most likely to explain the MHSAA's structure and mission to these constituent groups, which would be in the MHSAA's regular course of business. Therefore, the Court finds that this videotape qualifies under the business records hearsay exception, unless information that the videotape was in fact generated for anticipated litigation, or other information generally challenging the trustworthiness of the information on the tape, is elicited during the authentication of the tape at trial.

The statements within the tape if offered for the truth of the matters asserted may continue to be subject to hearsay objections as they arise during trial. A valid hearsay exception must exist for any such statements before they will be admitted for their truth into evidence. Fed.R.Evid. 805. Any statement on the video to be admitted for its truth must also be properly authenticated.

Further, it is conceivable that information contained within the Eligibility Rules video is relevant to an issue of consequence to this litigation. Unfair prejudice is not an issue here, since the evidence will be presented in a bench trial. However, this tape must be properly authenticated at trial before the Court will admit it into evidence for a relevant purpose.

B. "Girls Win" and "We are the MHSAA" videotapes (Def. Proposed Exs. 267)

"Girls Win" does not qualify under the business records exception to the hearsay rule. Defendants admit that it was produced for purposes of presenting their position to the public in response to Plaintiffs' public statements. This goes beyond mere public relations done in the regular course of business, but specifically relates to litigation and constitutes production for litigation purposes, which is clearly not a business record for purposes of the Rule. The video is thus excluded under Rule 802 because Defendants will be offering it for truth of the matters asserted therein, and no other hearsay exception applies to it.

"We are the MHSAA" presents a different case. Defendants assert that a videotape was produced in 1997 as an informational videotape, and that a thirty-second portion of this tape was produced from the longer tape in connection with a contract with Fox Sports consummated before the instant litigation. The thirty-second portion is the part Defendants seek to admit. The Court finds that these are sufficient assertions to find that this tape was produced for public relations purposes, unrelated to litigation purposes. However, if it is elicited during authentication that the videotape was in fact generated for anticipated litigation or is otherwise untrustworthy, the Court will not admit this evidence under the business records exception and will exclude the tape unless another hearsay exception applies.

Reiterating issues addressed above, it is conceivable that information contained within the "We are the MHSAA" video is somehow relevant to issues that continue to be in dispute, so it is sufficiently relevant to admit at this point. Moreover, the danger of prejudice is not present here. This tape too must be properly authenticated at trial before the Court will admit it into evidence.

Similarly to the above, the statements within the tape if offered for the truth of the matters asserted may continue to be subject to hearsay objections as they arise during trial. A valid hearsay exception must exist for any such statements before they will be admitted for their truth into evidence. Fed.R.Evid. 805. Any statement on the video to be admitted for its truth must also be properly authenticated.

C. "You Got Next," GM videotape on WNBA (Def. Proposed Ex. 268)

Both parties refer to the video in their pleadings as "We Got Next," but upon the Court's examination of the video, the actual title appears to be "You Got Next."

The video produced by GM falls under the business records exception. GM likely made it for public relations purposes, especially since it mentions GM's sponsorship of WNBA. It is of no consequence that GM would not make this tape for its primary business purpose, which presumably is automobile production and sales. Public relations unrelated to any litigation is a business purpose because it supports the underlying business purpose of automobile production and sales.

The tape contains program credits that mention the MHSAA and footage that Defendants assert was provided by the MHSAA. The credits and footage could help prove that the MHSAA provided footage to GM for this video, which may be of consequence to an issue in this litigation. The Court will thus admit the videotape for this or any other relevant purpose after it is properly authenticated.

If Defendants wish to offer the statements on the tape not for their truth, but for some other relevant purpose, like to show the kind of tape in which Defendants had some level of involvement, there is no hearsay problem with the statements. If Defendants wish to offer the statements for their truth, the statements may have a hearsay problem, but may fall under the business records exception. Most of the speakers on the videotape are not associated with GM, but are associated with the WNBA.

Presumably, participating in a public service video like this one, even though it is aimed at a special interest group (girls who play basketball), is a public relations business purpose for the WNBA. Defendants would probably have a relevance problem, however, if they wish to offer the statements for their truth. After viewing the tape, the Court cannot conceive what relevance the statements would have to this litigation, and from their pleadings, it does not appear that Defendants wish to offer the statements for their truth. The Court will thus admit statements on the video for their truth only if Defendants at trial demonstrate their relevance, resolve any hearsay problems under Federal Rule of Evidence 805, and properly authenticate every statement they wish to offer for its truth.

III. Conclusion

Therefore, the Court will grant in part and deny in part Plaintiffs' Motion in Limine. An order consistent with this opinion will be entered.

ORDER

In accordance with an Opinion filed this day,

IT IS HEREBY ORDERED that Plaintiffs' Renewed Motion in Limine to Exclude Untimely Disclosed Defense Exhibits (Dkt. No. 445) is DENIED.

IT IS FURTHER ORDERED that Defendants' Motion in Limine to Strike Proposed Exhibits Identified on

Plaintiffs' Attachment "A" (Dkt. No. 439) is DENIED.

OPINION

This matter is before the Court on Plaintiffs' Renewed Motion in Limine to Exclude Untimely Disclosed Defense Exhibits and Defendants' Motion in Limine to Strike Proposed Exhibits Identified on Plaintiffs' Attachment "A." Plaintiffs seek exclusion of 69 of Defendants' proposed trial exhibits. Defendants seek exclusion of all proposed exhibits identified on Plaintiffs' Attachment "A" to the pretrial order. The Court will deny Plaintiffs' Motion and will deny Defendants' Motion.

I. Standard of Review and Applicable Federal Rules

Federal Rule of Civil Procedure 26(a)(3) governs required pretrial disclosures, obligating parties to provide each other and the Court with, among other items, identification of exhibits the parties intend to offer at trial. Fed.R.Civ.P. 26(a)(3)(C). ". . . Unless otherwise directed by the court, these disclosures must be made at least 30 days before trial." Id.

Federal Rule of Civil Procedure 37 provides for a party's failure to make a disclosure by the required date. Fed.R.Civ.P. 37. "A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial . . . any witness or information not disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions." Fed.R.Civ.P. 37(c)(1). The Sixth Circuit reviews a decision to invoke discovery sanctions under Federal Rule of Civil Procedure 37 for abuse of discretion. Beil v. Lakewood Eng'g Mfg. Co., 15 F.3d 546, 551 (6th Cir. 1994).

A party may thus be assessed a sanction, including preclusion of introduction of evidence, if the failure to earlier disclose was without "substantial justification" or creates "harm" to the other party. The Sixth Circuit uses four factors to review a Rule 37 sanction: first, whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault; second, whether the adversary was prejudiced by the party's failure to cooperate in discovery; third, whether the party was warned that failure to cooperate could lead to the sanction; and fourth, in regard to a dismissal, whether less drastic sanctions were first imposed or considered." Freeland v. Amigo, 103 F.3d 1271,1277 (6th Cir. 1997).

Where an expert witness and opinions were disclosed after the due date for expert witness disclosures, the Sixth Circuit also upheld their preclusion because it found that the party's lack of timely investigation of its claim put it at fault. Rowe v. Case Equip. Corp., 103 F.3d 659, at *1-*3 (6th Cir. Jan. 2, 1997). Generally, the Sixth Circuit has also upheld exclusion in cases where parties were found to have missed the disclosure deadline merely because they failed to ask for a needed extension or failed to exercise due diligence in identifying parties on time. Vaughn v. City of Lebanon, 2001 WL 966279, at *7-*10 (6th Cir. Aug. 16, 2001); Bowe v. Consolidated Rail Corp., 230 F.3d 1357, at *3 (6th Cir. Sept. 19, 2000); Vance v. United States, 182 F.3d 920, at *3-*6 (6th Cir. June 25, 1999).

In Osborne v. Klepper, 978 F.2d 1259 (6th Cir. Nov. 2, 1992), the district court was able to determine that the plaintiff consistently refused to comply with pretrial, discovery, and interrogatory requests throughout litigation, and thus the district court there excluded the testimony of plaintiff's expert during the damages phase of the trial. 978 F.2d at *1. The Sixth Circuit held this was not an abuse of discretion. Id. at *2. Generally, "Rule 37 is written in mandatory terms and is designed to provide a strong inducement for disclosure of Rule 26(a) material." Ames v. Van Dyne, 100 F.3d 956, at *4 (6th Cir. Nov. 3, 1996). But Advisory Committee Notes to Rule 37 note that the "substantial justification" and "without harm" provisions of Rule 37 were designed "to avoid unduly harsh penalties." Advisory Committee Notes to 1993 Amendments to Rule 37, 146 F.R.D. 682, 691, quoted in Wright Miller, Federal Practice and Procedure, § 2289.1 at 705 nn. 9-10. At least one other circuit, as well, has had occasion to note the implication of a district court's wide discretion in handing out an exclusion sanction:

It is quite true that as amended, the civil procedure rules make clear that exclusion of evidence is a standard sanction for a violation of the duty of disclosure under Rule 26(a). But this is far from saying that the district court is obligated to exclude evidence based on such a failure when it occurs long before trial and is likely subject to correction without much harm to the opposing party . . . .

Samos Imex Corp. v. Nextel Communications, Inc., 194 F.3d 301, 305 (1st Cir. 1999).

II. Facts

This litigation began in June 1998. The Court has reviewed the docket sheet in this case and the pleadings in this motion and attempted to piece together the history of exhibit disclosure in this case. As best the Court can tell, the following is a summary of events.

Defendants allege that before discovery closed and thereafter, large numbers of documents were provided to Plaintiffs, including those identified by Plaintiffs during their document review at the MHSAA headquarters. Defendants allege that Plaintiffs began disclosing their trial exhibits to Defendants in Summer 2000, after discovery closed. In September 2000, Plaintiffs filed a motion to compel document production, including trial exhibits. This motion was granted by Magistrate Judge Joseph Scoville in October 2000 and ordered Defendants to identify "then known" trial exhibits and produce copies of exhibits not previously produced in discovery 30 days after Plaintiffs identified their exhibits supporting allegations in the complaint, which works out to a date in early December 2000 (Dkt. No. 269).

Plaintiffs assert that the MHSAA produced 10 exhibits by December 2000 deadline and that the Individual Defendants identified, but did not produce, 65 additional exhibits. Counsel for the MHSAA noted in its disclosure to Plaintiffs, "I am sure that there will be additional exhibits that will come to light as this is an evolving process and with the volume of materials involved I am sure that there are some exhibits that I have omitted." Plaintiffs' Motion (Dkt. No. 445), Ex. 8. Individual Defendants asserted in the court document identifying the exhibits that the exhibits were already disclosed to Plaintiffs, with the exception of those attached to the document, so the Court assumes the Individual Defendants meant that they believed Plaintiffs already had the documents in their possession from earlier discovery and document review done by Plaintiffs at the MHSAA. Plaintiffs assert that Individual Defendants were three days late in their disclosure, but the Court will not quibble over such small discrepancies, especially given that Defendants could have received Plaintiffs' own disclosures a few days after they were dated, etc., and Plaintiffs' disclosure date was the determinant of the due date for Defendants. Given the flurry of paperwork in this case going between all of the parties and the Court, a few days of latitude seems appropriate.

Plaintiffs alleged that immediately before a February 2001 pretrial conference, Individual Defendants identified, but did not produce, more exhibits. The Court gleans from Defendants' pleadings that its response to this allegation would be that Plaintiffs already had all of Defendants' documents in their possession. Defendants also allege that Plaintiffs did not finish disclosing their exhibits until February 2001 and that Defendants had to add new exhibits to their disclosures that were originally identified by Plaintiffs but then removed by Plaintiffs in later disclosures.

Plaintiffs allege that at the February 2001 pretrial conference with Magistrate Judge Ellen S. Carmody, she ordered Defendants to turn over their exhibit binders to Plaintiffs that day and to "promptly" turn over remaining exhibits. Plaintiffs allege partial compliance by Defendants in turning over the rest of the exhibits in the following weeks.

Then at the May 2001 pretrial conference with Magistrate Judge Carmody, Defendants allege that both parties exchanged additional exhibits that each party felt was missing. Magistrate Judge Carmody also issued an order that Defendants were to turn over all of their demonstrative and summary exhibits by May 29 or face a Saturday, June 2 show cause hearing (Dkt. No. 369). Defendants allege that they turned over their demonstrative exhibits by this deadline, but make no mention of when their summary exhibits were turned over.

Even though Plaintiffs allege now that Defendants produced most of their exhibits by June 2001 and that a few are as yet undisclosed, the show cause hearing date came and went without any such hearing. Moreover, Magistrate Judge Carmody noted at a June 21, 2001 hearing on an unrelated matter in this case that she was pleased that a show cause hearing was not necessary. (Transcript at Dkt. No. 392, p. 3). Plaintiffs made no mention to Magistrate Judge Carmody at that time of alleged Defendants' failure to comply with her order regarding the exhibit disclosures.

Magistrate Judge Carmody was specifically referring to the Joint Proposed Final Pretrial Order that she ordered the parties file, but the statement implies that she was under the impression that her entire order (Dkt. No. 369) was obeyed.

On the other hand, Defendants allege that Plaintiffs did not disclose until May 29, 2001 the specific page numbers on which Plaintiffs would be relying in one of their previously disclosed exhibits, Proposed Exhibit 10, that only identified all of the MHSAA Bulletins from years 1972-73 to the present. This disclosure of specific page numbers was on Attachment "A," as labeled by the Plaintiffs. Those bulletins, of course, contain many, many pages, so proper disclosure would require a designation of specific page numbers planning to be offered into evidence.

Plaintiffs allege that they made the specific page number disclosure in February or early March 2001, and that they did not do so until then because they were waiting for the MHSAA Bulletins to be disclosed to them, which they allege was done in November 2000. Plaintiffs support their version of the facts by referring to the notation on Attachment "A" that "Plaintiffs will redact all references to OCR [Office of Civil Rights-U.S. Department of Education] complaints, surveys, questionnaires, and/or attorney general opinions if the Court grants their motions in limine." According to the docket sheet in this case, on February 14, 2001, Plaintiffs filed a motion (Dkt. No. 307) joining the United States' motions (Dkt. Nos. 305 and 313) to exclude the above-quoted materials from evidence and redact information relating to the same in this case. The Court's decisions on those motions were filed on March 26 and April 6, 2001, respectively (Dkt. Nos. 343 and 353).

This indicates, Plaintiffs argue, that their disclosure had to come sometime in March 2001 at the latest — after the motion was filed but before the decision came down. Plaintiffs further allege that the reason they were able to name other specific page numbers in the MHSAA Bulletins earlier was because they were able to obtain some Bulletins from sources other than Defendants, not because Defendants had given them the Bulletins at that point.

III. Legal Analysis of Plaintiffs' Motion

With regard to Plaintiffs' Motion, the Court is unable to make a finding at this point that Defendants' disclosures were clearly late or late to the point that sanction is required or even justified. In the end, the late disclosure alleged by Plaintiffs seems to fall into one of two categories: first, Defendants may have failed to provide Plaintiffs with copies of exhibits that Defendants believed Plaintiffs already had in their possession. The Court cannot know if they were or not. Second, Defendants disclosed exhibits to respond to Plaintiffs' additionally disclosed exhibits, which is understandable and which Defendants put Plaintiffs on notice that they might do. Therefore, even if these disclosures could be considered "late," Defendants were substantially justified in their lateness. Finally, Plaintiffs had their chance to enforce deadlines in May 2001 with Magistrate Judge Carmody and did not do so then, so it is too late now to make allegations about disclosures that were due in May 2001. The Court will not order sanctions, especially as drastic as exclusion, when Magistrate Judge Carmody would have been better able to determine the factual situation.

Even so, the Court finds that it has seen no specific harm caused to Plaintiffs. Having the exhibits since May or early June is plenty of time to have reviewed them and prepared to meet them. Plaintiffs have not alleged any specific harm with respect to any of the 69 exhibits. If Plaintiffs wish to argue that any exhibits have not been disclosed to them as of the date of their Renewed Motion, the Court will hear argument by both parties on this issue at trial, since this is factually disputed in the pleadings.

IV. Legal Analysis of Defendants' Motion

Given Plaintiffs' explanation, the Court finds it is highly likely that Plaintiffs are correct regarding the date they disclosed specific page numbers to their proposed Exhibit 10 to Defendants. Therefore, their disclosure, if it could be considered late, was substantially justified. To the extent that Defendants continued to disclose other exhibits into 2001, whether it was because Plaintiffs did not in fact have the Bulletins yet or whether it was because Defendants continued to disclose other proposed exhibits, Plaintiffs were justified in naming specific page numbers late to respond to these 2001 disclosures.

Even if Plaintiffs' page number disclosure was as late as May or early June 2001, the Court finds that Defendants have identified no specific harm or surprise by any of the pages. These were documents, while voluminous, that were in the possession of Defendants even prior to when Plaintiffs had them. Surely, Defendants went through these documents in preparation to make their own case and were at least somewhat refreshed as to their contents by this exercise. Having the specific page numbers since the end of May is enough time in which to prepare to meet the specifically named pages, and even more so if Defendants have had them since late February or March 2001.

V. Conclusion

Both parties were apparently still receiving exhibit disclosure information as of May or early June 2001 and have to conduct last-minute preparation. As Defendants put it in their brief in opposition to Plaintiff's Motion, "The parties then simultaneously identified and disclosed trial exhibits through the spring of 2001. No one party gained an advantage over another, despite Plaintiffs' pleas to the contrary." (Dkt. No. 408, p. 5, incorporated by reference in Dkt. No. 439). The Court cannot agree more with this analysis and feels that neither party seems to have gained an unfair advantage. There is simply a voluminous amount of information in this litigation, and the Court looks forward to hearing all of it when it makes its determination on the important issues at stake in this litigation. Therefore, the Court finds no reason at this time that any of the complained-about exhibits should be excluded for untimely disclosure.

During trial, when an exhibit is introduced and/or discussed by a testifying witness, if either party can (1) prove the date of disclosure, (2) prove under what order the disclosure was to have been made earlier, (3) prove that the party did not fail to take advantage of an earlier remedy from one of the Magistrate Judges involved, and (4) indicate specific prejudice the party suffered because of the date it received disclosure that could not be remedied by any means at all available to the party, the

Court will entertain exclusion motions at that time. These four pieces of information will allow the Court to properly determine, as is required by the law, whether an exhibit was truly late; if late, whether lateness was substantially justified; and if late, whether harm resulted to the other party. The parties' pleadings and the arguments contained therein, however, give the Court no reason to believe any of these exhibits at issue in the motions require exclusion at this time.

Therefore, the Court will deny Plaintiffs' Renewed Motion in Limine and will deny Defendants' Motion in Limine. An order consistent with this opinion will be entered.