United States District Court, D. Colorado
ORDER GRANTING DEFENDANTS' FOURTH MOTION IN
LIMINE, DENYING PLAINTIFFS' MOTION TO ALLOW TRIAL
TESTIMONY BY TELEPHONE OF WITNESS EDWIN “HAPPY”
BROUSSARD, AND SUA SPONTE VACATING AND RESETTING TRIAL
CHRISTINE M. ARGUELLO United States District Judge.
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.
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
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. #
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.
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.)
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.)
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.)
DEFENDANTS' FOURTH MOTION IN LIMINE
Rule of Civil Procedure 32(a)(1) provides that all or part of
a deposition may be ...