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Hardy v. Flood

United States District Court, D. Colorado

May 10, 2019

MERVIN J. FLOOD, and SUSAN S. FLOOD, Defendants.


          CHRISTINE M. ARGUELLO United States District Judge.

         This matter is before the Court on Defendants Mervin J. Flood and Susan S. Flood's Motion in Limine (Doc. # 136), and Plaintiffs Steven Hardy and Jody Whitson-Hardy's Motion to Allow Trial Testimony by Telephone of Witness Edwin “Happy” Broussard (Doc. # 137). For the following reasons, the Court grants Defendants' Fourth Motion in Limine, denies Plaintiffs' request for remote testimony by Mr. Broussard, and sua sponte vacates and resets the trial dates.

         I. BACKGROUND

         The Court's previous Orders (Doc. # 131; Doc. # 64), United States Magistrate Judge Michael Watanabe's Recommendation (Doc. # 62), and United States Magistrate Judge N. Reid Neureiter's Recommendation (Doc. # 107) provide detailed recitations of the factual background of this case and are incorporated herein. The Court details the procedural history and factual background of this case only to the extent necessary to address Defendants' Fourth Motion in Limine and Plaintiffs' Motion regarding telephonic trial testimony.

         This action arises from Plaintiffs' purchase of a residential property and its improvements from Defendants in June 2013, pursuant to a Contract to Buy and Sell Real Estate (the “Purchase Agreement”). (Doc. # 66.) Plaintiffs allege that Defendants were obligated to but did not disclose several latent defects of which Defendants were aware before the parties executed the Purchase Agreement. (Id. at 7-8.) Plaintiffs assert that, among these alleged latent defects, was the fact that “the basement was finished without the required building permit[.]” (Doc. # 142 at 12.) They further claim that “Defendants' failure to disclose, and their affirmative misrepresentations in the sale disclosures” have caused Plaintiffs to sustain damages. (Doc. # 66 at 8.) Plaintiffs initiated this action on December 28, 2016, and assert three claims for relief against Defendants: (1) breach of contract; (2) fraud; and (3) negligent misrepresentation. (Doc. # 3 at 4-7; Doc. # 66.)

         On February 26, 2019, the Court denied summary judgment on all of Plaintiffs' claims and Defendants' statute of limitations defense. (Doc. # 131 at 12.) On April 24, 2019, Defendants filed their Motion in Limine and raised four distinct motions in limine before the Court. (Doc. # 136.) In their Fourth Motion in Limine, Defendants request that the Court preclude Plaintiffs from introducing deposition testimony from Mr. Edwin “Happy” Broussard's July 6, 2018 deposition. (Id. at 15.) Defendants' Fourth Motion in Limine is related to Plaintiffs' Motion to permit telephonic trial testimony because they both concern Mr. Broussard and raise time-sensitive issues. (Doc. # 136 at 12; Doc. # 137 at 2.) In fact, Plaintiffs allege that their Motion “is necessitated only because Defendants are attempting to preclude” Mr. Broussard's telephonic and deposition testimony. (Doc. # 136 at 2, ¶ 3.) On May 6, 2019, Plaintiffs filed a Response to Defendants' Motion in Limine (Doc. # 142) and Defendants filed a Response to Plaintiffs' Motion requesting to permit telephonic testimony from Mr. Broussard (Doc. # 143). Because the Motions are interrelated, the Court addresses both Motions in turn.

         Mr. Broussard was the real estate broker for Defendants when they sold the property at issue to Plaintiffs. (Doc. # 142 at 12.) Plaintiffs explain that Mr. Broussard was expected to testify as to whether the Defendants told Mr. Broussard that the finished basement was unpermitted and to inform Plaintiffs of the same. (Id.) Whether Defendants should have but failed to disclose that the finished basement was unpermitted is an issue for trial. (Id.)

         Plaintiffs served a subpoena duces tecum on Mr. Broussard on December 19, 2017. (Doc. # 136 at 16.) Plaintiffs' counsel coordinated production of responsive bates-labeled documents through a third-party vendor, and, on January 22, 2018, produced what Plaintiffs' counsel alleged to be a complete production of responsive documents (832 pages) to Defendants. (Doc. # 142 at 13.) Mr. Broussard was deposed on July 6, 2018. (Doc. # 136 at 16; Doc. # 142 at 13.) Nearly two months after Mr. Broussard's deposition, Plaintiffs' counsel “discovered that the third-party vendor hired to label and prepare Mr. Broussard's documents for production had inadvertently missed” an additional 1, 733 pages of responsive documents (“Additional Documents”). (Doc. # 136 at 16; Doc. # 142 at 13.)

         On August 27, 2018, Plaintiffs' counsel produced the Additional Documents to Defendants. (Doc. # 136 at 16; Doc. # 136-3; Doc. # 142 at 13.) Discovery closed on September 17, 2018. (Doc. # 95.) Neither party sought to re-open Mr. Broussard's deposition. (Doc. # 136 at 18-19; Doc. # 142 at 14.) Until April 1, 2019, both parties anticipated that Mr. Broussard would either provide live testimony or his testimony would be proffered through deposition designations. (Doc. # 127-1; Doc. # 127-3.) It is now clear that Plaintiffs do not intend to call Mr. Broussard as a live, in-person witness. (Doc. # 137.)

         II. ANALYSIS


         1. Legal Standard

         Federal Rule of Civil Procedure 32(a)(1) provides that all or part of a deposition may be ...

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