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Arce v. Louisiana State

United States District Court, E.D. Louisiana

December 5, 2017


         SECTION I



         Before the Court is a motion in limine filed by plaintiff.[1] The motion requests exclusion of ten of Louisiana's exhibits-referred to by plaintiff as Exhibits 2, 5, 17, 18, 19, 33, 34, 38, 39, and 40. The motion also requests redactions from numerous other exhibits.[2]

         First, Louisiana does not intend to introduce Exhibits 6, 9, and 18.[3] Thus, plaintiff's objections with respect to those exhibits are moot.

         Further, the parties agree on redactions with respect to Exhibits 20, 22, 26, 27, 28, and 29.[4] The parties also agree on most, but not all, redactions with respect to Exhibits 11 and 23.[5] The parties also agree that Exhibits 3, 15, and 16 are admissible subject to a limiting instruction as to their permissible use by the jury.[6]

         With respect to plaintiff's remaining objections, and for the following reasons, plaintiff's motion is denied in part, deferred in part, and dismissed as moot in part.


         Before turning to the objections, it would be useful to briefly explain the two statutory provisions at issue in this case: Title II of the Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act of 1973.

         Title II “focuses on disability discrimination in the provision of public services.” Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (en banc). To that end, it provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Liability under Title II requires a disabled plaintiff to establish “(1) that he has a qualifying disability; (2) that he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such discrimination is by reason of his disability.” Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011).

         Section 504 “prohibits disability discrimination by recipients of federal funding.” Frame, 657 F.3d at 223. Section 504 provides, in relevant part, that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. §794(a). “The ADA and the Rehabilitation Act generally are interpreted in pari materia.”[7] Frame, 657 F.3d at 223.

         With this legal landscape mapped out, the Court will now consider each of plaintiff's objected-to exhibits in turn.



         Exhibit 2 is an email allegedly sent by Nelson Arce to his probation officer.[8]Plaintiff raises objections to this exhibit on relevance, prejudice, authenticity, and hearsay grounds.[9] According to plaintiff, Louisiana cannot authenticate the email as authored by Nelson, and thus the email is irrelevant and more prejudicial than probative.[10] Further, plaintiff contends that the email constitutes hearsay.[11]

         Under Rule 901, “the proponent [of an item of evidence] must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a). The proponent may authenticate the evidence by “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” Fed.R.Evid. 901(b)(4); see United States v. Smith, 918 F.2d 1501, 1510 (11th Cir. 1990) (“The government may authenticate a document solely through the use of circumstantial evidence, including the document's own distinctive characteristics and the circumstances surrounding its discovery.”). With respect to emails, courts have not required the testimony of an email's purported sender in order to properly authenticate the email. See, e.g., United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000). For example, the email address from which an email is sent, as well as the context and content of the email, are factors that may support authentication. See Id. at 1322-23.

         As such, Louisiana may be able to authenticate the email at trial under Rule 901 through the testimony of Nelson's probation officer. If the email is authenticated, then it will constitute the statement of a party-opponent and thus fall outside the Federal Rule of Evidence's definition of hearsay.[12] See Fed. R. Evid. 801(d)(2)(A) (“A statement that meets the following conditions is not hearsay: . . . The statement is offered against an opposing party and was made by the party in an individual or representative capacity.”); cf. Siddiqui, 235 F.3d at 1323; Tamez v. City of San Marcos, Tex., 118 F.3d 1085, 1098 (5th Cir. 1997) (noting that the interrogatory responses of the deceased plaintiff, whose family members had been substituted in his place in the litigation, were admissible as statements of a party-opponent).

         With respect to plaintiff's relevance objection, the Court points out that “the standard of relevance in an evidentiary context is not a steep or difficult one to satisfy.” Pub. Emps. Retirement Sys. of Miss. v. Amedisys, Inc., 769 F.3d 313, 321 (5th Cir. 2014). “Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401.

         Relevant evidence is admissible unless otherwise provided by the Constitution, a federal statute, another Federal Rule of Evidence, or another rule prescribed by the Supreme Court. Fed.R.Evid. 402. For example, Rule 403 provides that relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. However, the Fifth Circuit has counseled that Rule 403 is meant to be applied “sparingly.” Baker v. Can. Nat./Ill. Cent. R.R., 536 F.3d 357, 369 (5th Cir. 2008).

         If Louisiana properly authenticates the email, then the email will easily pass Rule 401's relevance threshold. Indeed, plaintiff concedes that “whether Nelson Arce understood that he needed permission to leave the state of Louisiana is a disputed material issue in this case.”[13] Further, the Court can discern no basis at this point to justify exclusion of the email under Rule 403-again, assuming that it is properly authenticated. If authenticated, then it will simply constitute a relevant statement of a party-opponent, and while it may be prejudicial to plaintiffs' position, it is not unfairly so. See United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979) (“Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403.”).

         As the Court's disposition of plaintiff's objections to Exhibit 2 will turn on whether Louisiana properly authenticates the email, the Court will defer a formal ruling on the objections until trial. At that point, the Court will be in a better position to assess the merits of the plaintiff's objections.


         Exhibit 5 is a fax sent to Nelson's probation officer, purportedly from a case manager at Awakenings Substance Abuse Recovery Program for the Deaf and Hard of Hearing Persons.[14] Plaintiff objects to Exhibit 5 on relevance, prejudice, character evidence, authenticity, and hearsay grounds.[15]

         According to plaintiff, Louisiana cannot authenticate the fax as sent by the case manager.[16] As with Exhibit 2, however, Louisiana may be able to authenticate the fax under Rule 901 through the testimony of Nelson's probation officer. Cf. United States v. Khorozian, 333 F.3d 498, 506 (3rd Cir. 2003) (“Kono could-and did- authenticate the fax under Federal Rule of Evidence 901(a) by testifying that she received the fax on the date indicated on the header. Authentication does not conclusively establish the genuineness of an item; it is a foundation that a jury may reject.”).

         Plaintiff further contends that the fax constitutes hearsay and also features hearsay within hearsay.[17] The Federal Rules of Evidence define “hearsay” as “a statement that the declarant does not make while testifying at the current trial or hearing; and a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c)(1)-(2). However, where a party offers an out-of-court statement not for the truth of the matter asserted-for example, where it is “offered to show the effect on the listener”-then it is not hearsay under the Federal Rules of Evidence. White v. Fox, 470 Fed.App'x 214, 222 (5th Cir. 2012).

         Louisiana indicates that it plans to introduce Exhibit 5 “to demonstrate the information [that Nelson's probation officer] had and her response to it.”[18] In other words, Louisiana does not plan to offer the fax for the truth of the matter asserted, but rather for its effect on the probation officer. Assuming that the effect is relevant to the case, then Louisiana may seek to admit the fax into evidence for this purpose.

         With respect to the hearsay-within-hearsay issue, plaintiff points to only one sentence in the fax that she claims constitutes hearsay within the fax: “On Oct 27, 2015, a floor staff reported that Mr. Arce insulted her by using a word that discriminates her race [sic].”[19] Plaintiff argues that the “floor staff” mentioned in the fax “is someone other than [the fax's author] who then made statements to [the fax's author] about what happened on October 27, 2015, which [the fax's author] then relayed in” the fax.

         Rule 805 provides that “[h]earsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.” “[T]he mere fact that one level of a multiple-level statement qualifies as ‘non-hearsay' does not excuse the other levels from rule 805's mandate that each level satisfy an exception to the hearsay rule for the statement to be admissible.” United States v. Dotson, 821 F.2d 1034, 1035 (5th Cir. 1987).

         Louisiana does not discuss the hearsay-within-hearsay issue identified by plaintiff. At trial, Louisiana will have to demonstrate that this layer of hearsay in the fax is independently admissible, either because it is non-hearsay or because it is exempt from the hearsay bar. Cf. Brauninger v. Motes, 260 Fed.App'x 634, 637 (5th Cir. 2007) (“Although the reports contained statements made by FALMS employees to Williamson or Ellison during the course of their interviews, the district court correctly found that those statements are not hearsay. Because they were offered to prove what was said to Williamson and Ellison, and thus what Williamson and Ellison relied on in making the decision to fire Brauninger, the statements were not offered to prove the truth of the matters asserted.”).

         Plaintiff also argues that “the reasons surrounding Nelson Arce's discharge from Awakenings are not relevant to any material issue in this case, would be more prejudicial than probative, [20] and would simply be offered to paint Nelson as a bad person who didn't follow the rules.”[21] The Court previously questioned the relevance of the reasons why Nelson was discharged from drug treatment facilities and deferred the issue until trial.[22] The Court will do the same with respect to Exhibit 5.

         The Court will defer a formal ruling on plaintiff's objections to Exhibit 5 until trial. At that time, the Court will be in a position to determine whether Louisiana properly authenticates the fax, whether Louisiana demonstrates that the fax does not run afoul of the hearsay rules, whether the fax is relevant, and whether the fax's probative value is substantially outweighed by the danger of unfair prejudice.


         Exhibit 11 and Exhibit 23 both consist of paperwork related to Nelson's probation.[23] Plaintiff objects to the following sentence in Exhibit 11 on the ground that it violates Rules 602 and 701: “The offender indicated he understood the conditions as outlined.”[24] Plaintiffs also object to the following substantially identical sentence in Exhibit 23 on the same basis: “The offender indicated understood [sic] the conditions as outlined.”[25] According to plaintiff, neither exhibit provides a foundation to support this purported opinion.[26]

         Under Rule 602, “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Fed.R.Evid. 602. Moreover, “[e]vidence to prove personal knowledge may consist of the witness's own testimony.” Id.

         Under Rule 701, a non-expert witness who intends to provide “testimony in the form of an opinion” must limit her opinions to ones that are “(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701. ...

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