UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

QUANSA TOMPSON, et al.,

Plaintiffs

v. Civil Action No. 09-1942 (BAH/JMF)

HOUSE, INC., et al.,

Defendants.

MEMORANDUM OPINION

I herein resolve the parties’ motions in limine.

I. Plaintiffs’ Motions in Limine

A. The Relevance of Tip Income

The purpose of the evidentiary hearing to be held before this Court is to determine how

many hours plaintiffs1 worked in order to calculate minimum wages owed. Plaintiffs’ Motions in

Limine [#39] at 1. Plaintiffs have now moved to prohibit evidence of any kind of tip income

received by plaintiffs as irrelevant because any evidence of tips or gratuities received from

patrons at defendants’ club cannot be used as an offset against minimum wages owed to plaintiffs

by defendants. Id.

Defendants agree that tip income does not provide an offset against minimum wages due.

Opposition to Plaintiffs[’] Motions in Limine [#41] at 1. Defendants argue, however, that the tip

1 Plaintiffs are exotic dancers at a club owned and operated by defendants. See Thompson v. Linda and A, Inc.,

(D.D.C. 2011). income is relevant because plaintiffs’ receiving tip income and not reporting it as income on their

tax returns bears on their credibility. Additionally, according to defendants, plaintiffs’ receipt of

large amounts of tip income would establish that defendants not paying them minimum wage

was done in good faith because defendants were aware that plaintiffs were receiving tips that

were apparently greater than the minimum wage.

First, while not paying one’s taxes might qualify as a prior bad act, defendants are bound

by plaintiffs’ answers and their not reporting their tips as income may not be proved by extrinsic

evidence. Fed. R. Evid 608(b). Thus, proof of their tip income from some source other than their

own testimony is inadmissible.

Second, each plaintiff would have an absolute right at the hearing not to answer whether

she received and reported tip income because the answer might tend to incriminate her. See

Hoffman v. U.S.,

(1951) (testimony is self-incriminating if reasonable cause

exists to believe that the testimony would either support a conviction or provide a link in the

chain of evidence leading to conviction). Thus, defendants may ask the question but plaintiffs

may each decline to answer it and defendants can ask me to draw any inference from plaintiffs’

assertion of their Fifth Amendment right that they see fit. See, e.g., United States v. Baxter,

(1st Cir. 2000); David M. Greenwald, Edward F. Malone & Robert R. Stauffer, 1

TESTIMONIAL PRIVILEGES, § 4:40 at 4-113 (2005) (“A negative inference may be drawn when a

civil defendant invokes the privilege, and the plaintiff may argue the significance of the

defendant’s reliance on the privilege to the fact-finder.”). Thus, I will permit the defendants to

ask each plaintiff the compound question: “Did you receive tip income and did you report it to

the Internal Revenue Service?” If the plaintiff invokes the privilege against self-incrimination,

2 there the matter shall end with defendants reserving the right to ask me to draw whatever

inference they see fit from that invocation of the privilege.

Finally, irrespective of plaintiffs’ invocation of the privilege, defendants remain free to

testify why they believed that the plaintiffs received tip income and how that bears on their good

faith as a defense to plaintiffs’ claims under the Federal Labor Standards Act. Whether that

knowledge establishes good faith remains to be seen. See Kinney v. Dist. of Columbia,

(D.C. Cir 1993). Plaintiffs’ motion in limine as to the preclusion of testimony regarding

tip income will therefore be denied.

B. The Admissibility of Exhibit 7

On February 11, 2010, plaintiffs propounded a request to produce documents that

demanded “[a]ll documents that identify, describe, or refer to the manner and amounts which

Plaintiff was compensated by Defendant for each week from October 1, 2006 to the present . . .”

[#39] at 2 (quoting [#39-1] at 2) (emphasis in original).

This Court’s order of June 3, 2010, required defendants to respond to plaintiffs’ written

discovery by June 17, 2010, and warned that the failure to comply with that deadline would result

in the imposition of sanctions. Revised Scheduling Order [#17] at 1. The same order required

that all discovery be completed by October 5, 2010.

On June 15, 2010, defendants produced certain documents, including sign-in logs, but did

not include any slips or receipts purporting to show pay by defendants to plaintiffs. [#39] at 2.

On August 8, 2011, over one year later, defendants produced documents that they claimed were

receipts for pay to plaintiffs.

On November 2, 2011, defendants produced a second group of

these documents.

Plaintiffs complain, however, that these purported “pay slips” are hard to

3 read, undated, and have never been authenticated. Id. at 4. Obviously, neither plaintiffs nor

defendants were confronted with these documents during their depositions. Nevertheless,

defendants now intend to offer these documents into evidence as Exhibit 7.

Defendants’ late production of these documents offended this Court’s orders that

defendants respond to plaintiffs’ written discovery by June 17, 2010, and that all discovery be

completed by October 5, 2010. It is the law of this Circuit that a party who seeks to comply

belatedly with a court order that requires a party to perform an act by a certain time must move

the court for leave to comply out of time by a motion filed pursuant to Rule 6(b) of the Federal

Rules of Civil Procedure. The motion must establish excusable neglect for the failure to comply

with the Court’s deadline. Smith v. District of Columbia,

(D.C. Cir. 2005).

To permit the defendants to offer the asserted pay slips into evidence now would be an abuse of

discretion since they never moved for leave to extend the time within which to comply with the

orders that required written responses to plaintiffs’ written discovery by June 17, 2010 and that

required discovery to be completed by October 5, 2010.

Plaintiffs’ motion in limine as to the

preclusion of Exhibit 7 will therefore be granted.

II. Defendants’ Motion in Limine

At her deposition, one of the plaintiffs, Quansa Thompson, testified that she took

whatever documents she had and used them to prepare a spreadsheet that defendants characterize

as “memorializing the days allegedly worked, the gross income received, payments made and

hand written entries who’s [sic] information content can not be categorized.” Defendants’

Motion in Limine [#40] at 7-8. Plaintiffs will now offer the spreadsheet into evidence but

defendants, relying on Rules 1002-1004 of the Federal Rules of Evidence, protest that the

4 spreadsheet is not admissible because Ms. Thompson did not keep the documents from which

she prepared the spreadsheet.

Defendants’ reliance on those rules is obviously misplaced. The requirement of an

original, the so-called “best evidence” rule, applies when a party is attempting “[t]o prove the

content of a writing.” Fed. R. Evid. 1002. Plaintiff Thompson seeks to prove the content of the

spreadsheet, not the content of the documents upon which it was based. Hence, Rule 1002 is

inapplicable. Furthermore, the printout of the spreadsheet is made an original that satisfies Rule

1002 by Rule 1001, which provides that “[i]f data are stored in a computer . . . any printout . . .

shown to reflect the data accurately, is an ‘original’.” Fed. R. Evid. 1001(3). Thus, the printout is

unquestionably admissible.2

Defendants can, of course, try to convince me that the spreadsheet is inaccurate and urge

that Ms. Thompson’s not keeping the data from which she derived the values in the spreadsheet

bears on its accuracy and the weight I should give it. While that may be so, her not keeping the

data does not render the speadsheet any less an original that is admissible into evidence under

Rule 1002. Defendant’s motion in limine will therefore be denied.

An Order accompanies this Memorandum Opinion. Digitally signed by John M. Facciola DN: c=US, st=DC, ou=District of Columbia, [email protected] v, o=U.S. District Court, District of Columbia, cn=John M. Facciola __________________________________________ Date: 2011.12.28 08:58:31 -05'00'

JOHN M. FACCIOLA UNITED STATES MAGISTRATE JUDGE

2 As plaintiffs concede the point, I will disregard any handwritten notations on the spreadsheet that Ms. Thompson does not testify are hers. See [#43] at 4.

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