The opinion of the court was delivered by: Judge Conner
In this diversity action brought by plaintiff Teresa Anne Scott ("Scott") against Pamela Wellington Lackey ("Wellington"), Scott asserts claims of defamation, libel, invasion of privacy and conspiracy. (See Doc. 160, at 41-46). Trial in this matter is set to commence on July 9, 2012. (See Doc. 371). Presently before the court are two motions in limine to exclude evidence from trial (Docs. 372, 373). For the reasons that follow, the court will deny both motions.
The Federal Rules of Evidence govern the admissibility of evidence at trial. All relevant evidence is admissible unless otherwise stated by the Constitution, statute or other Federal Rules. FED. R. EVID. 402; see also Daubert v. Merrell Dow Pharms., 509 U.S. 579, 587 (1993) (noting that the "[b]asic standard of relevance under Federal Rules of Evidence is liberal one."). Under Rule 401, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. Evidence that is not relevant is not admissible. FED. R. EVID. 402.
The court may exclude relevant evidence pursuant to Rule 403, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EVID. 403; see also Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 382 (2008); Coleman v. Home Depot Inc., 306 F.3d 1333, 1343-44 (3d Cir. 2002). The Third Circuit has cautioned that the exclusion of potentially relevant evidence pursuant to Rule 403 is an "extreme measure" at the pre-trial stage. Hines v. Consol. Rail Corp., 926 F.2d 262, 274 (3d Cir. 1991). Evidence should rarely be excluded in limine pursuant to Rule 403 because "[a] court cannot fairly ascertain the potential relevance of evidence for Rule 403 purposes until it has a full record relevant to the putatively objectionable evidence." In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1999).
Additionally, pursuant to Rule 404 of the Federal Rules of Evidence, character evidence is generally not admissible to prove conduct. In particular, "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." FED. R. EVID. 404(b).
Other crimes, wrongs or acts are admissible, however, to prove motive, opportunity, intent, preparation, and plan. Id. Moreover, character evidence is admissible where it is an essential element of a charge, claim or defense. FED. R. EVID. 405(b).
In such cases, proof of character may be made through specific instances of that person's conduct. Id.
In a closely related vein, but contrary to the general rule on character evidence, evidence of habit or routine practice is admissible to prove that the conduct of a person on a particular occasion is in conformity with the habit or routine practice. FED. R. EVID. 406; see also FED. R. EVID. 406 advisory committee notes (1972) ("Character and habit are close akin."). Habit is described as one's regular response to a repeated, specific situation. See Becker v. ARCO Chemical Co., 207 F.3d 176, 204 (3d Cir. 2000) (quoting FED. R. EVID. 406 advisory committee notes (1972)); see also id. ('The doing of the habitual acts may become semi-automatic.').
Finally, authentication is a condition precedent to the admissibility of relevant documentary or physical evidence. The requirement of authentication "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." FED. R. EVID. 901(a). Evidence may be authenticated through "[t]estimony of a witness with knowledge," or "[t]estimony that a matter is what it is claimed to be." Id. 901(b)(1).
A. Scott's Motion in Limine
Plaintiff Scott moves to preclude testimony and evidence concerning a November 2000 audio tape sent to Evan Adams, a previous defendant in this matter. Scott contends that the tape has been altered and cannot be authenticated.
She further asserts that she will waive any defamation or invasion of privacy claim based upon the statement that mentions the tape.*fn1 Scott therefore contends that the tape is irrelevant under Federal Rule of Evidence 401. To the extent the tape is relevant, Scott contends that it is improper character evidence under Rule 404, and its probative value is substantially outweighed by the danger of unfair prejudice, confusion and waste of time pursuant to Rule 403. Wellington opposes the motion contending that the tape is relevant and probative, that Scott has put her character at ...