Free Motion in Limine - District Court of Arizona - Arizona

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Mary H. Beard Admitted Pro Hac Vice FEDERAL EXPRESS CORPORATION 3620 Hacks Cross Road, Building B-3rd Floor Memphis, TN 38125 Telephone: (901) 434-8061 Facsimile: (901) 434-9279 Email: [email protected] FENNEMORE CRAIG, P.C. Lori A. Higuera (No. 017273) Alec R. Hillbo (No. 020185) 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Email: [email protected] Attorneys for Defendant Federal Express Corporation UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA SEAN L. HARGROW, Plaintiff, v. FEDERAL EXPRESS CORPORATION, a Delaware corporation; JOHN and JANE DOES IX; BLACK CORPORATION I-X; WHITE LIMITED LIABILITY COMPANIES I-X, Defendants. DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING TIM KELLY PERSONNEL RECORDS No. 03-0642 PHX DGC

22 23 24 25 26 27 28 of this evidence during trial. Defendant Federal Express Corporation d/b/a/ FedEx Express ("FedEx"), by and through counsel, hereby submits its Motion in Limine to exclude evidence regarding Tim Kelly personnel records. FedEx respectfully requests that the Court issue an order in limine precluding any mention by Plaintiff, Plaintiff's counsel, and Plaintiff's witnesses

Case 2:03-cv-00642-DGC

Document 121

Filed 11/02/2006

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Based on Plaintiff's Exhibit List, Defendant anticipates that Plaintiff will attempt to offer as evidence confidential, personnel information regarding Mr. Tim Kelly, a former Managing Director at FedEx. During discovery, Defendant was ordered to produce Mr.

Kelly's personnel file, which included a separation agreement between him and FedEx. His personnel records, including the severance agreement, have been designated as Confidential under the Stipulated Protective Order Regarding Confidential Material. The information in Mr. Kelly's personnel record is certainly irrelevant under Fed. R. Evid. 401 as there is no evidence that he was disciplined for any action he took against Plaintiff. Defendant requests that the Court specifically excluded severance agreement under Fed. R. Evid. 408, which provides that evidence of offers "to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount." There is no evidence that Mr. Kelly was presented with this agreement with respect to issues surrounding Plaintiff's discharge. In fact, the agreement was signed on April 20, 2004, almost over a year after Plaintiff's discharge. Even if the Court finds that the personnel records are relevant, Defendant contends that any the testimony and evidence in those records, should be excluded because the risk of misleading the jury, confusing the issues, and unduly prejudice to Defendant is much greater than any possible probative value of the testimony. It would only change the focus from Plaintiff's retaliation claim to Mr. Kelly's personnel file, Fed. R. Evid. 403. As such, Defendant requests that any testimony or evidence regarding Mr. Kelly's personnel record be not admitted or referenced at trial.

Case 2:03-cv-00642-DGC

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DATED this 2nd day of November, 2006. Respectfully submitted,

By: /s/ Mary H. Beard Mary H. Beard FEDERAL EXPRESS CORPORATION and Lori A. Higuera Alec R. Hillbo FENNEMORE CRAIG, P.C. Attorneys for Defendant Federal Express Corporation

CERTIFICATE OF SERVICE I hereby certify that on February 16, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mishka L. Marshall Marshall Law Group, P.C. 777 East Thomas Road, Suite 210 Phoenix, AZ 85014

/s/ Mary H. Beard Mary H. Beard
621233

Case 2:03-cv-00642-DGC

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