Figueroa v. Gannett Company Incorporated

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA Natalie Figueroa, ) 9 ) Plaintiff, ) No. CIV 19-022-TUC-CKJ 10 ) vs. ) 11 ) ORDER Gannett Company Incorporated, et al., ) 12 ) Defendants. ) 13 ) 14 On July 27, 2021, the Court heard argument on and ruled on pending motions in limine. However, Defendants’ Motion in Limine No. 2: To Exclude Plaintiff’s Hearsay Testimony Regarding Purported Communication Between Her Doctor’s Office and Defendants’ Representatives (Doc. 95) and Defendants’ Motion in Limine No. 3: To Exclude Testimony from Gannett’s Legal Counsel (Doc. 96) remain pending. Upon further review of these motions, the Court finds it appropriate to resolve these motions without scheduling additional argument. See LRCiv 7.2(f); 27A Fed.Proc., L. Ed. § 62:361 (March 2021) ("A district court generally is not required to hold a hearing or oral argument before ruling on a motion.").

24 Defendant's Motion in Limine #2: Exclude Plaintiff's Testimony of Purported Communication Between Her Doctor's Office and Defendants’ Representatives Defendants assert Plaintiff’s testimony about communications between her doctor's office and defendants' representatives concerning Plaintiff's work responsibilities is "indisputably" inadmissible hearsay under Fed.R.Evid. 801.

1 Hearsay is a “statement that . . . the declarant does not make while testifying at the current trial or hearing [and] offered in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801. Generally, hearsay is not admissible unless it falls within an exception. Fed.R.Evid. 802; see also Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1091 (9th Cir. 1990) (“[h]earsay is inadmissible in a court of law unless it comes under one of the exceptions”).

7 Plaintiff asserts the testimony is not hearsay because it is offered for Plaintiff's "understanding of her own restrictions" or to "explain her actions and her inquiries to Rincon Medical" rather than for the truth of the matter asserted. Response (Doc. 103, pp.

10 2-3). There are two potential levels of hearsay at issue here. First, the statements purportedly made to the doctor’s office by Defendants’ representatives. Arguably, these statements are not submitted to prove the truth of the matter asserted, but to explain why the doctor’s office removed the medical limitations. However, as it appears no one is available to testify regarding this conversation, a second level of hearsay arises when that statement was relayed to Plaintiff. Where hearsay has multiple levels, each must fall within an exception for the statement to be properly admitted. Fed.R.Evid. 805. Unless an exception applies to each level, the statements are inadmissible. Fed.R.Evid. 802, 805; see also 29 Am. Jur. 2d Evidence § 695 (Aug. 2021) (“Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule.”).

21 In this case, it appears Defendant's representatives provided a job description to the doctor's office. Evidence regarding the content of the job description can be presented through either Plaintiff or an employee of Defendants. However, it could also be provided by someone from the medical office if a document was provided to the medical office. The actions taken by the medical office after receipt of the job description are not being offered for the truth of the matter asserted, but to explain why the medical office took the actions it did. There is no hearsay in the presentation of this evidence.

1 Additionally, statements made by medical office personnel to Plaintiff are not offered to prove the truth of the matter asserted, but to explain Plaintiff's conduct. Based on the evidence discussed in this case, Plaintiff's conduct changed because of what she learned from the doctor's office. Without such testimony, there is no explanation for Plaintiff’s conduct. The Court finds the statements are not hearsay and not subject to preclusion on that basis.

7 As the testimony would not be hearsay, the Court need not decide if it falls within a hearsay exception. The Court will deny this motion.

10 Defendant's Motion in Limine #3: Exclude testimony from Gannett's Legal Counsel (Doc.

96) Defendants' seek to preclude Plaintiff from questioning in-house legal counsel, Vincent Floyd (“Floyd”), about communications with Defendant employee Lisa Cote (“Cote”) regarding Plaintiff's employment and separation from employment as protected under attorney-client privilege. Plaintiff argues, however, that the crime-fraud exception applies to these otherwise protected communications, because Floyd did not offer only legal advice, but also directed the actions to improperly solicit from Rincon Medical the deletion of all clerical work limitations and collaborated the "resignation" pretext.

As determined by the magistrate judge , see January 24, 2020 Order (Doc. 37), the privilege applies in this case. This Court agrees with that conclusion. However, a party may seek to oppose the application of the privilege by showing that “the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme” and “demonstrat[ing] that the attorney-client communications for which production is sought are ‘sufficiently related to’ and were made in furtherance of the intended, or present, continuing illegality." In re Napster, Inc. Copyright Litigation, 479 25 F.3d 1078, 1090 (9th Cir. 2007), citation omitted, abrogated on other grounds.

However, there must be more than a “mere allegation of wrongdoing” for application of the crime-fraud exception to the attorney-client privilege. § 8:6. Elements of || exception/burden of persuasion — Prima facie standard, 1 Attorney-Client Privilege in the || U.S. § 8:6 (Dec. 2020); see also In re Grand Jury Subpoena, 273 F. Supp. 3d 296, 302-04 || (D. Mass. 2017) (the standard “may be met by something less than a more likely than not || probability, [but] still requires more than mere speculation or a distant likelihood that the || client used the attorney's services to foster a crime or fraud”). To successfully overcome || the attorney-client privilege, an opponent must establish a prima facie case of abuse of the || attorney-client relationship. /d. The Supreme Court has stated this requires an opponent || present “something to give colour to the charge.” Clark v. United States, 289 U.S. 1, 15 || (1933). Other courts have determined the prima facie standard 1s similar to a probable cause || standard. See e.g. United States v. Jacobs, 117 F.3d 82 (2d Cir. 1997), abrogated on other || grounds.

12 In this case, Plaintiff has not presented anything other than inconsistencies and || speculation. As stated by the magistrate judge, if the mere “allegation of pretext in || employment cases was sufficient to overcome a defendant’s claim of attorney-client || privilege, the privilege would rarely apply in such cases.” January 24, 2020 Order (Doc.

16 || 37, p. 4). There is nothing in the record to support a finding of fraud or wrongful conduct || rather than Cote seeking legal advice from Floyd. The Court finds a prima facie case of || abuse of the attorney-client privilege has not been shown. The Court will grant this motion.

19 Accordingly, IT IS ORDERED: 20 1. Defendants’ Motion in Limine No. 2: To Exclude Plaintiff's Hearsay || Testimony Regarding Purported Communication Between Her Doctor’s Office and || Defendants’ Representatives (Doc. 95) is DENIED.

23 2. Defendants’ Motion in Limine No. 3: To Exclude Testimony from Gannett’s || Legal Counsel (Doc. 96) is GRANTED.

25 DATED this 10th day of August, 2021.

Li vey JC 7 ete 28 United States District Judge -4-