Greenwald Caterers Inc. v. Lancaster Host, LLC
Greenwald Caterers Inc. v. Lancaster Host, LLC
2024 WL 3634733 (E.D. Pa. 2024)
March 14, 2024
Murphy, John F., United States District Judge
Summary
The court considered a motion in limine regarding ESI and made rulings on various exhibits and objections related to ESI. Some exhibits were admitted, while others were excluded due to relevance, hearsay, or failure to comply with discovery rules. The court also addressed the testimony of a witness regarding ESI.
Additional Decisions
GREENWALD CATERERS INC., NEW YORK UNITED JEWISH ASSOCIATION, INC.
v.
LANCASTER HOST, LLC
v.
LANCASTER HOST, LLC
CIVIL ACTION NO. 22-811
United States District Court, E.D. Pennsylvania
Filed March 14, 2024
Murphy, John F., United States District Judge
ORDER
*1 AND NOW, this 14th day of March 2024, upon considering defendant's second motion in limine (DI 177), plaintiffs' opposition (DI 181), defendant's reply (DI 182), as well as the integrated pretrial memorandum (DI 178), and in light of our recent Order setting the procedures for a bench trial (DI 159), it is ORDERED that defendant's motion in limine (DI 177) is GRANTED in part as explained below:
1. The background on this case may be reviewed elsewhere. E.g., Greenwald Caterers Inc. v. Lancaster Host, LLC, 599 F. Supp. 3d 235 (E.D. Pa. 2022); Greenwald Caterers Inc. v. Lancaster Host, LLC, 2023 WL 3097211 (E.D. Pa. Apr. 26, 2023), Greenwald Caterers Inc. v. Lancaster Host, LLC, 2023 WL 7021239 (E.D. Pa. Oct. 25, 2023). The Hotel now moves to exclude certain testimony and documentary evidence for trial. See DI 177. We also note that this decision is made in the context of very specific procedures for a bench trial where the cases-in-chief have largely been submitted in writing. DI 159. For example, we ordered that “[a]ll exhibits must be supported by witness testimony that lays a proper foundation,” but that authenticity may be dispensed with absent specific problems. Id. at 4.
2. First, the parties overall did an admirable job assembling their cases in preparation for the trial. This late in the game, the objective is to get to the final answer, not to nit-pick. And because this is a bench trial, some objections may be better dealt with merely by an appropriate assignment of weight in the ultimate decision. That said, because of the way the pretrial order functions, there are certain objections that need to be sustained to avoid prejudice and to avoid putting us in a spin-cycle of endlessly repeating this process. In a regular jury trial, a lot happens on the fly, and there should be opportunities to cure objections — the Federal Rules largely function in that way. Here, the parties gained a great deal of certainty and repose in being able to prepare their cases in writing — in exchange, however, we will not be repeating the whole thing live. Absent specific permission (some of which is discussed below), all cross will be limited the scope of the direct, and all re-direct will be limited to the scope of cross. The proponent of a witness may not exceed the scope of cross in order to address objections on re-direct.
3. Exhibits 16 and 40. The photographs in exhibits 16 and 40 have a weak foundation. Plaintiffs ask to cure the objections on re-direct. That would be unfair to defendant, who is entitled to repose in plaintiffs' case-in-chief. That said, for this particular foundation issue (photographs of the hotel), it is straightforward to weigh the evidence appropriately in combination with the testimony. Plaintiffs will not be entitled to exceed the scope of cross to improve foundation. But if defendant chooses to cross on foundation, that of course opens the door. Exhibits 16 and 40 will be admitted.
4. Exhibits 17 and 44. Plaintiffs admit that exhibits 17 and 44 were produced 8 months after the close of discovery. Plaintiffs ask for an exception because the documents were provided by third parties. But these were not just any third parties — they were individuals well known to the plaintiffs and very much on the plaintiffs' side in this case. Exhibits 17 and 44 are therefore excluded under Rule 37.
*2 5. Exhibits 30-34. Exhibits 30-34 purport to be guest lists for Passover events over the years. Defendant objects on the grounds of relevance/foundation. Plaintiffs argue that the lists tend to show loss of attendance after the 2019 event. Defendant's concerns go to the weight of the evidence. (In bold italics in the reply brief, defendant argues that there is no way to know why the guests stopped attending. At least for a bench trial, that is a weight issue.) But defendant also objects to these exhibits on hearsay grounds — another problem for plaintiffs. Plaintiffs concede that the documents are out of court statements offered for their truth, but argue that the guest lists are business records. Plaintiffs can point to no testimony corroborating that contention. Plaintiffs were not entirely prepared to address this point on the pretrial conference. Therefore, exhibits 30-34 are provisionally excluded, but plaintiffs have leave to seek reconsideration if there's something in the record we missed.
6. Exhibit 6. Defendant objects to Bates 127-200 of Exhibit 6 as purporting to be inappropriate parol evidence in this contract case. Plaintiffs, bafflingly, argue that the contract “is both incomplete and unclear.” We will take this particular issue under advisement and provide a ruling at a later time.
7. Exhibit 23. Exhibit 23 is a chart summarizing voluminous documents about housekeeping activities. At least for purposes of this motion, there appears to be no dispute about whether the chart fairly represents the underlying documents. The chart is admitted under Rule 1006.
8. Exhibit 29. Defendant initially objected to exhibit 29 on hearsay grounds, but withdrew the objection. Exhibit 29 will be admitted.
9. Exhibit 41. Defendant objects to e-mails in exhibit 41 from Moshe Isenberg on hearsay grounds. Plaintiffs did not respond. We agree with defendant; the Isenberg e-mails in exhibit 41 will be excluded.
10. Exhibit 43. Defendant objects on hearsay grounds to certain text messages including pictures that the sponsoring witness did not take and recognized only insofar as they reminded him of one of his rooms. The text of the text messages is clearly hearsay and plaintiffs could not show otherwise. As with exhibits 16 and 40, the photographs may have some value depending on the specific photographs and related testimony. Thus, exhibit 43 will be admitted for the photographs but not the text messages.
11. Mr. Kostival. Nothing has changed from our previous order on the Daubert motion — Mr. Kostival may testify in response to defendant's case-in-chief in the manner we described. It appears as though Mr. Kostival's testimony may shift slightly, but it will be simpler at this point to allow his testimony (and cross) and address any problematic aspects as a matter of weight. We deny the motion in limine with respect to Mr. Kostival. In the pretrial memorandum (DI 178 at 11), plaintiffs allude to the admission of Mr. Kostival's report. The report is hearsay and is not admitted — that is the point of testimony.
12. The integrated pretrial memorandum posed several disputes and questions, which we address next.
13. Remote witnesses. All witnesses shall appear live in the courtroom with the exception of the Osinas, for whom a compelling justification was presented.
14. Sequestration. Both parties invoked the rule. Witnesses will be sequestered with the exception of party representatives agreed upon by the parties and outside experts (Mr. Kostival).
15. Trial subpoenas. The parties' requests for trial subpoenas for witnesses are all authorized, including plaintiffs' request to subpoena a rebuttal witness in response to Mr. Rinkoff or a liquor store witness.
16. Amendments to witness statements and exhibit lists. Our pretrial order stands — witnesses statements and exhibits lists may not be amended without leave.
17. Adverse witnesses. To avoid the need to call a witness twice, when one party calls a witness in its case, the crossing party may exceed the scope of the direct when the witness is an adverse witness needed for the crossing party's case-in-chief. Plaintiffs specifically asked for this latitude with Mr. Vakil, Mr. Stevens, and Mr. Vaccarella, and that is approved.
*3 18. Responding to deposition designations. It became apparent that plaintiffs received certain deposition designations from defendant after the deadline for plaintiffs to file their written rebuttal case. As such, on direct examination of a witness, plaintiffs will be allowed to address issues raised in such belated designations of that witness's testimony. This latitude will be construed narrowly and plaintiffs should be prepared to point out to the court what aspects of the designations are being addressed.
19. Inferences. Plaintiffs seek three different adverse inferences because of alleged spoliation. DI 178 at 10-11. Plaintiffs raise this issue for the very first time in the pretrial memorandum, and they do so with three questions and no citations to the record or legal argument. Obviously we cannot rule on these questions in a total information vacuum. Even though raised so late, plaintiffs urge us to consider these issues. Plaintiffs may file an appropriate motion no later than March 19, 2024, which defendant may oppose no later than March 26, 2024. We urge caution in plaintiffs' approach — spoliation inferences are not granted lightly and it is unreasonable to consume valuable pretrial time on frivolous motions.
20. Exhibit 8. Plaintiffs seek the admission of exhibit 8 based on “the unavailable witness rule.” We were not aware of an objection to exhibit 8's admission, and while defendant did not agree with plaintiffs' theory, did not mount a serious opposition either. Exhibit 8 is admitted.
21. Mr. Vaccarella. Plaintiffs object to the testimony of Mr. Vaccarella because he was not identified until the last day of discovery. While last-minute, that is still within the discovery deadline, and until this pretrial memorandum — almost a year later — we heard no objection or request for a deposition. Mr. Vaccarella may testify.
22. Objections to witness statements and/or deposition designations. We reserve rulings on any other objections to witness statements and/or deposition designations. As discussed during the hearing, in all likelihood we will take them under advisement and use them to inform the appropriate weight to assign to the testimony.