The opinion of the court was delivered by: Judge Munley
Before the court are various motions in limine in the instant case. The matters have been briefed and are thus ripe for decision.
This cases arises out of the passage by Defendant City of Hazleton, Pennsylvania ("The City") of a series of ordinances designed to limit the impact of illegal immigrants on the city. Plaintiffs filed suit on August 15, 2006, seeking an injunction that would prevent enforcement of the ordinances (Doc. 1) on constitutional grounds. On October 31, 2006, we granted plaintiffs' request for a Temporary Restraining Order prohibiting enforcement of the ordinances until we reached a conclusion on the injunctive motion (Doc. 35). Trial in this matter is scheduled to commence on March 12, 2007.
We will examine each of the parties' motions in turn.
A. Motion to Exclude Evidence Regarding any Unidentified Members of Association Plaintiffs
The defendant seeks to prevent the introduction of testimony regarding the effects of the immigration ordinances on unidentified members of the associations who are plaintiffs in the case (Doc. 92). Defendant alleges that the designees of these organizations during depositions refused to provide the names of past and present members of the various associations who had been effected by the ordinances. These refusals, defendant contends, have prejudiced the defendant's case by making it impossible for defendant to investigate the impact of the ordinances, the issue at the heart of the case. Preclusion of testimony about these unidentified individuals, defendant insists, should result from this refusal to provide names. Plaintiffs contend that defendant sought privileged information from the organizations' membership lists, and that they were not required to provide such information. In addition, plaintiffs claim, they provided defendant with the names of organization members impacted by the ordinances, and made them available for deposition. Plaintiffs declaim any intention to call unidentified witnesses, and argue that any attempt to exclude testimony of such witnesses until they are called would be premature.
We agree with the plaintiffs because we find that the exclusion of testimony from unidentified members of the organizations in question would be premature. In order to preclude testimony from parties not identified during depositions as a discovery sanction, a court must consider several factors: "Along with the importance of the excluded testimony," a court examines "the prejudice or surprise in fact to the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or other cases in the court; and (4) bad faith or willfulness in failing to comply with the district court's order." Quinn v. Consolidated Freightways Corp., 283 F.3d 572, 577 (3d Cir. 2002). We do not at this point know whether such any witnesses may be called, nor do we know the circumstances of why those witnesses have not yet been identified. Defendant has not pointed to any specific potential witness whose testimony should be excluded. Instead, defendant appears to complain that the City was unable to use plaintiff organizations' membership lists in discovery, though the defendant does not provide argument to dispute plaintiffs' claims that such material is privileged. We do not possess information necessary to weigh these factors in relation to witnesses not named and are unable to make a determination about whether the circumstances of plaintiffs' refusal to identify that particular witness justify preclusion. We will accordingly deny the defendant's motion as premature.
B. Motion to Preclude Testimony and Evidence About the Immigration Status of John Doe 1
Defendant seeks to exclude any testimony or evidence about the immigration status of Plaintiff John Doe 1 (Doc. 94). Defendant claims that John Doe 1 has placed his immigration status at issue in the litigation and cannot testify about that status without first allowing defendant the opportunity to assess the value of his claims. John Doe 1, citing his anonymous status, had refused to respond to two interrogatories seeking documentation on his citizenship or nationality status. His response, however, had promised to produce "responsive, non-privileged documents" on the matter. Plaintiff Doe did not produce this material, nor did he provide a privilege log to document the information he refused to turn over. Defendant contends that failure to turn over this information, which defendant insists would have been covered by a confidentially agreement, justifies sanctions from the court. Defendant also points to Plaintiff Doe's statement at his deposition that he believed he had become a permanent resident and argues that this statement means Doe no longer has standing in this court. Plaintiffs argue that this Court's order of December 15, 2006, which allowed the Doe plaintiffs in the case to refrain from disclosing information and documents disclosing their identities justified Plaintiff Doe's refusal to turn over the requested documentation and makes a sanction unjustified. They agree, however, not to introduce documents pertaining to Doe's immigration status at trial. Plaintiffs also argue that Doe's testimony about his immigration status--much less his own knowledge of that status--is far from clear. Since defendants have a right to recall Doe for another deposition, no prejudice exists from the current state of affairs.
We exclude evidence rarely, since "exclusion of critical evidence is an 'extreme' sanction, [citation omitted], not normally imposed absent a showing of willful deception or 'flagrant disregard' of a court order by the proponent of the evidence." Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 905 (3d Cir. 1977). On this matter, we note that the court has previously issued an order allowing the John and Jane Doe plaintiffs to maintain their confidentiality while pursuing their suit for injunctive relief. Defendant's motion seems partly aimed at convincing us to reconsider our decision concerning the need for the anonymous plaintiffs to turn over specific information about their immigration status; we concluded that documentation about the anonymous plaintiffs' immigration status was not necessary to resolve the issues presented by the case. Defendants now seek exclusion of a plaintiff partly because he has not provided such information. A motion in limine is not a proper forum for reconsideration of that decision.
We find, however, that Plaintiff Doe has not clearly alleged, either in the complaint or in his deposition, that he is not a legal resident of the United States. In the second amended complaint, Doe states that he is "a tenant and resident of Hazleton." (Second Amended Complaint at ¶ 18). He also alleges that he has lived in the United States for more than twenty years and that he was born in Mexico. (Id.). He makes no assertion as to whether he is a legal resident or not. In his deposition, Plaintiff Doe 1 also failed to state that he was in the United States without legal sanction. In fact, Doe explained that his father had filed an application that would have granted him legal residency and that the application had been "approved." (See Deposition of John Doe 1, attached as Exhibit B to Brief in Support of Defendant's Second Motion in Limine (Doc. 94) at 25). At the same time, however, Doe asserted that "the United States Government can tell me that I should leave this country," and that he could not provide information on his legal status "because I don't know very much. I only know what my lawyer has told me." (Id. at 26, 25).
If Doe does not claim he is in the country illegally, he would not be covered by our protective order and would be required to turn over documents verifying his status. We find the matter of Doe's assertions about his citizenship to be confused and unclear, however, and therefore find that dismissing him from the case or ordering production of all documents pertaining to his immigration status would at this point be premature. Instead, we order John Doe 1 to produce any evidence in his possession that establishes he is a legal resident of the United States. Failing to do so could lead to sanctions for ...