The opinion of the court was delivered by: Ambrose, Chief District Judge.
OPINION and ORDER OF COURT
Defendants Metropolitan Life Insurance Company ("MetLife") and William Gerald Friedt, Jr. ("Friedt") (collectively, "Defendants") have filed two Motions in Limine (Docket Nos. 71, 73) seeking to exclude from evidence at trial a number of Plaintiffs' proposed exhibits relating to testimony and documents concerning former MetLife employee, James Rayl. James Rayl was the Director of MetLife's Tulsa, Oklahoma, Customer Service Center during relevant time periods to this case. Plaintiff opposes Defendants' Motions. After careful review, Defendants' Motions are granted in part and denied in part as follows.
I. Motion in Limine to Exclude from Evidence Unrelated Testimony and Exhibits of James Rayl
Defendants move to exclude Plaintiff's proposed Exhibit Nos. 43 and 44, the deposition testimony of James Rayl taken in previous employment discrimination litigation filed by Mr. Rayl against MetLife as well as the exhibits to that deposition. (Docket No. 71). Defendants argue that Mr. Rayl's testimony and exhibits are irrelevant and will only serve to inflame the jury. Defendants also argue that the exhibits are inadmissible hearsay or contain hearsay within hearsay. Defendants' motion is granted in part and denied in part.
As an initial matter, Plaintiff indicates in his response brief that he does not intend to read to the jury any portions of Mr. Rayl's deposition testimony concerning his employment claims against MetLife. Thus, Defendants' Motion to exclude these portions of Rayl's deposition testimony is denied as moot.
With respect to the deposition testimony, Plaintiff only seeks to read excerpts concerning Rayl's work history at MetLife, his communications concerning the "vanishing" premium problems, and MetLife's response thereto. Pl.'s Resp. (Docket No. 81) at 3-4. I find that this testimony is relevant to Plaintiff's claims in this case. In particular, Rayl's concerns involve sales practices similar to Plaintiff's "vanishing premiums" allegations in this case. Such evidence may be relevant, for example, in establishing a pattern and practice on the part of MetLife, or a corporate culture encouraging similar deceptive sales techniques. This probative value is not substantially outweighed by the danger of unfair prejudice to Defendants. Accordingly, Defendants' motion is denied to the extent it seeks to exclude these portions of Rayl's deposition testimony. See Fed. R. Evid. 401, 402, 403.
Defendants' Motion is also denied to the extent it seeks to exclude the exhibits to Rayl's deposition testimony in their entirety*fn1 on the basis of irrelevance or prejudice. To the extent these deposition exhibits are documents to which Defendants object more specifically in their other motion in limine, those documents and objections thereto are discussed more fully below. Insofar as any remaining exhibits relate to Rayl's concerns regarding sales practices similar to Plaintiff's "vanishing premium" or other allegations in this case, such evidence is probative and is not unduly prejudicial for the reasons set forth above.
I also disagree with Defendants that the exhibits are categorically inadmissible as hearsay.*fn2 As an initial matter, Plaintiff indicates that he will be able to establish at trial that the documents are business records within the meaning of Rule 803(6).*fn3
Plaintiff also argues that Rayl's statements are admissible as admissions of a party-opponent, an argument not addressed by Defendants. Fed. R. Evid. 801. Even if the statements are neither admissions nor business records within the meaning of the Rules of Evidence, however, I find that the exhibits to Rayl's deposition may be admissible under the "residual" hearsay exception set forth in Rule 807.
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
Defendants' Motion is granted, however, with respect to any portions of the Rayl exhibits that constitute hearsay within hearsay. For example, any statements in a document authored by Rayl as to what a customer said or told him are double hearsay and must be excluded, unless an independent hearsay exception applies. Fed. R. Evid. 805. Plaintiff has not identified any such exceptions.
Defendants' Motion also is granted with respect to any "expert"-type opinions contained in Rayl's deposition testimony or exhibits. Rayl is not an expert witness, and, thus, opinion evidence ...