Free Motion in Limine - District Court of Connecticut - Connecticut

Case 3:03-cv-00924-AVC Document 31 Filed O1/26/2005 Page 1 of 4
n UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT (Hartford)
DIRECTV, INC. ) Case No.: 3:03CV0924 AVC
Plaintiff] g U
vs. g PLAINTIFF’S MOTION IN LIMINE AND
) MOTION TO PRECLUDE EVIDENCE
Bernard Thomas n )
Defendant 3
_ )
The Plaintiff moves this Court for an order precluding the Defendant from giving any
testimony in this action relative to the claims of the Plaintiff except that he may continue
to remain silent by invoking his right to remain silent pursuant to the Fifth Amendment of
the United States Constitution.
At the Defendant’s court-ordered deposition the Parties, through counsel, explicitly
stipulated on the record that the Defendant’s response to all pertinent questions would be
to invoke his right to remain silent under the Fifth Amendment to the United States
Constitution. The Defendant has made no motion or even any subsequent disclosures
regarding this stipulation but Defendant’s Cotmsel has now intimated that Defendant may
give substantive testimony at trial, testimony he did not give at his court-ordered
deposition. n
As grounds for this motion Plaintiff asserts that:
1. The requested order is appropriate on a Motion In Limine in that: I
Oral argument requested. U

Case 3:03-cv-00924-AVC Document 31 Filed O1/26/2005 Page 2 of 4
a. The stipulation made at the deposition is akin to a judicial admission
which cannot now be unilaterally withdrawn or altered by the Defendant;
‘ and
b. During the discovery period at his cou1t—ordered deposition, the
Defendant refused to give substantive testimony; instead the stipulation
. regarding the Fifth Amendment was entered. The discovery period is now
over. It would be totally inequitable and not in the spirit of Federal Rule
of Civil Procedure 26 to allow the Defendant to simply start giving
substantive testimony, testimony which he refused to give during his
court—ordered deposition.
2. Such an order is also justified pursuant Rule 37 (b) (2) (B). On October
29, 2004, this court granted the Plaintiffs Motion to Compel the
Defendant be deposed in this action. On or about November l0, 2004,
Plaintiff’ S Counsel re-noticed the Defendant of a rescheduled deposition.
Thereafter, on December 1, 2004 the Defendant, with counsel present,
appeared at his deposition but the Defendant refused to give any
substantive testimony. Instead the parties, through their council,
stipulated on the record that the Defendant would invoke his right to
remain silent pursuant to the Fifth Amendment of the United States
Constitution to “all pertinent questions
The Defendant’s refusal to testify at his deposition violated the Order to Compel his I
deposition. Yet, that violation could possibly be considered waived because the Pmies

Case 3:03-cv-00924-AVC Document 31 Filed O1/26/2005 Page 3 of 4
agreed to the Fifth Amendment stipulation in lieu of the substantive testimony. However,
if the Defendant now attempts to unilaterally withdraw the stipulation and change his
testimonial stance by sub stantively testifying in this trial, than the Defendant has clearly
violated a court order that he be deposed in this action.
In such a situation Rule 37 (b) (2) (B) enables this Court to order that the Defendant
be precluded from giving any testimony as to any of the Plaintiff s claims in this action
other than continuing to invoke his right to remain silent.
In further support of this motion, see the affidavit of Plaintiffs Counsel along with a _
copy ofthe deposition, which is made an exhibit to said affidavit and memorandum in
support of this motion.
Respectfully Submitted for the Plaintiff,
— DIRECTV, INC.
By Its fttomey,
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Ddte i s g rim Metauginin (crissss) .=’
yMailing Address for
Reguested Service of All Pagers
Green, Miles, Lipton & Fitz-Gibbon
77 Pleasant Street .
P.O. Box 210
Northampton, MA 01061-0210
(413) 586-0865
Local Address Pursuant to D. Conn. L.
Civ. R. 2(c):
Palumbo, Palumbo & Carrington, P.C.
193 Grand Street
- P.O. Box 2518
Waterbury, CT 0673 2-251 8

Case 3:03-cv-00924-AVC Document 31 Filed O1/26/2005 Page 4 of 4
CERTIFICATE OF SERVICE
I, John M. McLaughlin, attorney for the Plaintiff] hereby certify that on the 25th I
day of January 2005, a copy of the foregoing motion, affidavit and memorandum were
sent via first-class postage prepaid mail to:
Joseph S. Elder
Law Office of Joseph S. Elder J
661 Wethersfield Avenue ’
Hartford, CT 06114 y _ /
ff
`/ohn M. Mcfaaughlin