United States District Court, E.D. Louisiana
NELSON ARCE ET AL.
LOUISIANA STATE ET AL.
ORDER AND REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE.
the Court is a motion in limine filed by
plaintiff. 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
Louisiana does not intend to introduce Exhibits 6, 9, and
Thus, plaintiff's objections with respect to those
exhibits are moot.
the parties agree on redactions with respect to Exhibits 20,
22, 26, 27, 28, and 29. The parties also agree on most, but not
all, redactions with respect to Exhibits 11 and
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.
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.
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
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).
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.” Frame, 657 F.3d at 223.
this legal landscape mapped out, the Court will now consider
each of plaintiff's objected-to exhibits in turn.
2 is an email allegedly sent by Nelson Arce to his probation
officer.Plaintiff raises objections to this exhibit
on relevance, prejudice, authenticity, and hearsay
grounds. According to plaintiff, Louisiana cannot
authenticate the email as authored by Nelson, and thus the
email is irrelevant and more prejudicial than
probative. Further, plaintiff contends that the
email constitutes hearsay.
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.
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. 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
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.
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).
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.” 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.”).
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
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. Plaintiff objects to Exhibit 5 on
relevance, prejudice, character evidence, authenticity, and
to plaintiff, Louisiana cannot authenticate the fax as sent
by the case manager. 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
further contends that the fax constitutes hearsay and also
features hearsay within hearsay. 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.
indicates that it plans to introduce Exhibit 5 “to
demonstrate the information [that Nelson's probation
officer] had and her response to it.” 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.
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].” 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.
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).
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.”).
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,  and would simply be offered to paint
Nelson as a bad person who didn't follow the
rules.” The Court previously questioned the
relevance of the reasons why Nelson was discharged from drug
treatment facilities and deferred the issue until
trial. The Court will do the same with respect
to Exhibit 5.
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.
11 and Exhibit 23 both consist of paperwork related to
Nelson's probation. 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.” 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.” According to
plaintiff, neither exhibit provides a foundation to support
this purported opinion.
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
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. ...