353 memoinsupportmotioninlimine kmart

Case: 1:11-cv-00103-GHD-DAS Doc #: 353 Filed: 01/20/14 1 of 5 PageID #: 6947

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION KMART CORPORATION, Plaintiff CIV. ACT. NO. 1:11-CV-103-GHD-DAS versus THE KROGER CO., et al.

Defendants _____________________________________________________________________________________________

MEMORANDUM IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE EVIDENCE Plaintiff, Kmart Corporation, files this Motion in Limine to exclude an unsigned letter dated September 25, 2010 as being not properly authenticated and as constituting inadmissible hearsay.

I.

Background During the corporate deposition of Kmart, Kansas City Southern Railway’s counsel

questioned Kmart’s corporate representative with an unsigned letter dated September 25, 2010 on Sears Holdings’ letterhead.1 The letter purports to be addressed to a store associate whose name was redacted from the letter. The letter purports to inform the unknown store associate that a decision has not yet been made on whether Kmart will re-open its store to the public. The letter also purports to terminate the employment of the unknown store associate whose name was redacted from the letter. While Kmart’s counsel called for the production of the original letter, none of the defendants have been able to produce anything other than the unsigned, redacted version revealed for the first time during Kmart’s corporate deposition. Kmart anticipates that

1

See Exhibit 1 attached to Motion.

Case: 1:11-cv-00103-GHD-DAS Doc #: 353 Filed: 01/20/14 2 of 5 PageID #: 6948

the defendants will attempt to introduce this letter at trial to challenge the reasonableness of Kmart’s period of restoration.

II.

Law and Argument Rule 901 of the Federal Rules of Evidence governs the authentication or identifying of

evidence. Rule 901(a) provides that “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims to be.” Rule 901(b) provides, among other things, that testimony of a witness with knowledge that an item is what it is claim to be is sufficient to authenticate a document.

Kansas City Southern Railway’s counsel stated on the record at Kmart’s corporate deposition that he obtained the subject letter from Fulton Improvement’s counsel the day before the deposition.2 After Kmart’s counsel asked the defendants to produce an unredacted or signed version of that letter, Fulton’s counsel stated “We’ll be happy to provide that, if we have it.”3 To this date, however, none of the defendants have been able to produce an un-redacted or signed version of that letter. Kmart’s then questioned Fulton Improvement’s corporate representative about the letter at its corporate deposition. Fulton Improvement’s corporate representative, Donna Earnhart, testified that she could not authenticate the letter: Q.

Let me show you what I’ll mark as Exhibit 24.

Q.

Ms. Earnhart, are you familiar with this letter?

A.

Yes, I have seen it.

Q.

When did you first see it?

2

See Excerpts of the Deposition Transcript of Kmart, Exhibit 2 to Motion at 45:2-14.

3

Id. at 46:19-23.

2

Case: 1:11-cv-00103-GHD-DAS Doc #: 353 Filed: 01/20/14 3 of 5 PageID #: 6949

A.

It—probably not too long after the date of this letter. Well, it appears at the top that it was faxed on October 14th. So somewhere around that time.

Q.

You [know] how most of the time there’s a fax tag line on a document?

A.

Yes.

Q.

That shows the fax number where it was faxed to:

A.

Yes.

Q.

You don’t see a fax number on here, huh? I’m sorry. Do you?

A.

No, I do not.

Q.

Do you know whether that fax number was removed?

A.

I do not.

Q.

There’s a fax—you see a handwritten note on the bottom that says fax 1404-817-6625?

A.

Yes.

Q.

404 is Atlanta, right/

A.

It is?

Q.

Is that Fulton Improvements or DLC Management Corporation’s fax number?

A.

DLC.

Q.

Do you know who faxed this to DLC?

A.

I don’t recall how we came about getting this.

Q.

And that was my next question. Do you know how—because this is a letter from Sears Holding and the two has been scratched out. Do you know how Fulton Improvements or DLC Management Corporation obtained this letter?

A.

My understanding is that it came from an employee of Kmart. But that’s all— 3

Case: 1:11-cv-00103-GHD-DAS Doc #: 353 Filed: 01/20/14 4 of 5 PageID #: 6950

Q.

Do you know which employee?

A.

No, I do not.

Q.

Do you know who blacked out the apparent name of an employee?

A.

No. From what I recall it came to us redacted like that.

Q.

Do you know whether, in fact, this letter was sent by Kmart or Sears Holding to an employee?

A.

There’s no way I can prove that. No, I don’t know, in fact, if it did.4

As plainly demonstrated above, the purported letter should be excluded on authenticity grounds. Fulton Improvement’s corporate representative could not explain how it obtained this letter and agreed that “There’s no way” that it could show whether the letter was actually sent.

Additionally, the letter should be excluded on the grounds that it contains inadmissible hearsay not subject to any exclusions or exceptions.

III.

Conclusion Based on the foregoing reasons, Kmart asks this Court to exclude the alleged September

25, 2010 on the grounds of authenticity and as hearsay.

/s/ Ryan O. Luminais ____________________________________ JAMES M. GARNER (La. Bar. No. 19589) JOHN T. BALHOFF, II (La. Bar. No. 24288) RYAN O. LUMINAIS (Miss. Bar. No. 101871) SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 ATTORNEYS FOR KMART CORPORATION

4

See Excerpts of the Corporate Deposition of Fulton Improvements, Exhibit 3 to Motion at 167:9-169:8.

4

Case: 1:11-cv-00103-GHD-DAS Doc #: 353 Filed: 01/20/14 5 of 5 PageID #: 6951

CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been served on all known counsel of record with the Clerk of Court using the CM/ECF system which will automatically send-email notification to all known counsel of record, this 20th day of January, 2014.

/s/ Ryan O. Luminais _________________________________________ RYAN O. LUMINAIS

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