PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE EVIDENCE...

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA

LUTHER SCOTT, JR., and LOUISIANA

STATE CONFERENCE OF THE

NAACP,

Plaintiffs,

v.

TOM SCHEDLER in his official capacity

as the Louisiana Secretary of State, RUTH

JOHNSON, in her official capacity as

Secretary of the Louisiana Department of

Children & Family Services, and BRUCE

D. GREENSTEIN, in his official capacity

as Secretary of the Louisiana Department of

Health & Hospitals,

Defendants.

Civil Action No. 2:11-cv-00926-JTM-JCW

Section “H”

PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE EVIDENCE

CONCERNING HOW PLAINTIFFS BECAME INVOLVED IN THIS LITIGATION

NOW INTO COURT come Plaintiffs, LUTHER SCOTT, JR., and LOUISIANA STATE

CONFERENCE OF THE NAACP, and file the attached motion in limine seeking to exclude

from trial any and all any and all evidence relating to how Plaintiffs Luther Scott, Jr. and the

Louisiana State Conference of the NAACP (“Louisiana NAACP”) became involved in this

litigation. For the reasons set forth in detail in the accompanying Memorandum, the Plaintiffs

respectfully request that the Court grant this Motion.

Case 2:11-cv-00926-JTM-JCW Document 383 Filed 10/08/12 of 3

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Respectfully submitted,

/s/ Dale E.Ho____________________

Dale E. Ho ([email protected])*

Natasha M. Korgaonkar

([email protected])*

Debo P. Adegbile

Elise C. Boddie

Ryan P. Haygood ([email protected])*

NAACP Legal Defense & Educational Fund, Inc.

(New York)

99 Hudson Street, Suite 1600

New York, NY 10013

212-965-2200

*MOTION FOR ADMISSION PRO HAC VICE

GRANTED

Ronald Lawrence Wilson

([email protected])

Ronald L. Wilson, Attorney at Law

701 Poydras Street, Suite 4100

New Orleans, LA 70139

504-525-4361

Michael B. de Leeuw


Israel David ([email protected])*

Fried, Frank, Harris, Shriver & Jacobson LLP

One New York Plaza

New York, NY 10004


GRANTED

Sarah Brannon ([email protected])*

Niyati Shah ([email protected])*

Michelle Rupp ([email protected])*

Project Vote

1350 Eye Street NW , Suite 1250

Washington, DC 20005

202-546-4173


GRANTED

Attorneys for Plaintiffs


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CERTIFICATE OF SERVICE

I hereby certify that on the 8 of October, 2012, I electronically filed the foregoing

Memorandum in Support of Motion to Strike Declarations and Documents Filed by Defendants

Johnson and Greenstein and for Sanctions with the Clerk of the Court using the CM/ECF system,

which will send a notice of electronic filing to persons electronically noticed. I further certify

that I mailed the foregoing document and the notice of electronic filing by first class mail to any

non-CM/ECF participant.

/s/ Dale E. Ho____________

8719512 8763350


1





NAACP,

Plaintiffs,

v.








Health & Hospitals,

Defendants.


Section “H”

PLAINTIFFS’ MEMORANDUM IN

SUPPORT OF MOTION IN LIMINE TO EXCLUDE EVIDENCE

CONCERNING HOW PLAINTIFFS BECAME INVOLVED IN THIS LITIGATION

Plaintiffs file this motion in limine to exclude from trial any and all evidence relating to

how Plaintiffs Luther Scott, Jr. and the Louisiana State Conference of the NAACP (“Louisiana

NAACP”) became involved in this litigation. The manner in which Plaintiffs became involved

in this action is not relevant to any fact “of consequence in determining [this] action,” see Fed. R.

Evid. 401, and is therefore inadmissible. Fed. R. Evid. 402. Furthermore, to the extent that such

evidence is at all relevant, its minimal probative value is substantially outweighed by its

likelihood of confusing issues and wasting time at trial. Fed. R. Evid. 403. Finally, much of the

evidence that Defendants seek to introduce on this issue is protected by attorney-client privilege,

and is therefore inadmissible regardless of relevance. Fed. R. Evid. 401; 501.

Case 2:11-cv-00926-JTM-JCW Document 383-1 Filed 10/08/12 Page 1 of 5

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ARGUMENT

Defendants have, at various points during this litigation, attempted to adduce evidence

regarding how Plaintiffs, particularly Mr. Scott, became involved in this litigation. See, e.g.,

Scott Dep. Tr., (May 10, 2012), at 57:16-61:8. That information does not offer any probative

value to the claims in this litigation, and does not offer any probative value regarding the

existence or extent of NVRA violations committed by Defendants. Evidence regarding how

Plaintiffs became involved in this litigation is also immaterial as to the issue of their standing.

Indeed, the manner in which Plaintiffs became involved in this lawsuit has no relation to any

“fact . . . of consequence” whatsoever in this lawsuit. Fed. R. Evid. 401.

The only conceivable purpose for which this evidence could be used may be to suggest

that Plaintiffs had an improper or dishonorable motive in bringing this lawsuit. Any such

baseless accusations do not affect Plaintiffs’ right to relief. Accordingly, the introduction of such

evidence would serve only to confuse the issues, waste time, and potentially prejudice Plaintiffs.

Therefore, even if relevant, such evidence should nevertheless be excluded under Federal Rule of

Evidence 403.1

Further, even if some of the evidence regarding how Plaintiffs became involved in this

suit were found relevant and non-prejudicial, most of the details regarding how Plaintiffs became

1 Defendants also appear to suggest that Plaintiffs’ counsel engaged in some sort of improper solicitation of

clients. Such accusations are not only immaterial—and therefore serve no purpose other than to attempt to prejudice

Plaintiffs—they are made without basis, and are incorrect as both a factual and legal matter. The law of solicitation

is generally inapplicable to non-profit public interest groups. See NAACP v. Button, 371 U.S. 415, 422, 428-29

(1963) (recognizing the “Legal Defense Fund” as having “a corporate reputation for expertness in presenting and

arguing the difficult questions of law that frequently arise in civil rights litigation,” and holding that “the activities of

the NAACP, its affiliates and legal staff . . . are modes of expression and association protected by the First and

Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as

improper solicitation of legal business . . . .”); Bernard v. Gulf Oil Co., 619 F.2d 459, 467 n.8 (5th Cir. 1980)

(holding that “[t]here is no question but that important speech and associational rights are involved in this effort by

the NAACP Legal Defense and Education Fund, Inc. to communicate with potential [B]lack class members on

whose behalf they seek to litigate issues of racial discrimination.” (quoting Rogers v. U.S. Steel Corp., 508 F.2d 152,

163 (3d Cir. 1975))); Allison v. La. State Bar Ass’n, 362 So. 2d 489, 491-92 (La. 1978) (citing Button, 371 U.S.

415).


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involved in this lawsuit are based in protected communications between Plaintiffs and their

counsel. Such communications for the purpose of “the rendition of professional legal services,”

are squarely covered by the attorney-client privilege and are, therefore, inadmissible. See 3

Weinstein’s Federal Evidence § 503-10; Fed. R. Evid. 501.

CONCLUSION

For the aforementioned reasons, Plaintiffs respectfully request that this Court exclude

from introduction at trial any and all evidence regarding how Plaintiffs became involved in this

lawsuit.


/s/ Dale E.Ho____________________




Debo P. Adegbile

Elise C. Boddie



(New York)


New York, NY 10013

212-965-2200


GRANTED


([email protected])




504-525-4361

Michael B. de Leeuw




One New York Plaza


4

New York, NY 10004


GRANTED




Project Vote



202-546-4173


GRANTED



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I hereby certify that on the 8 of October, 2012, I electronically filed the foregoing

Memorandum in Support of Motion to Strike Declarations and Documents Filed by Defendants

Johnson and Greenstein and for Sanctions with the Clerk of the Court using the CM/ECF system,

which will send a notice of electronic filing to persons electronically noticed. I further certify

that I mailed the foregoing document and the notice of electronic filing by first class mail to any

non-CM/ECF participant.

/s/ Dale E. Ho____________

8719512 8751211




LUTHER SCOTT, JR. and the LOUISIANA

STATE CONFERENCE OF THE NAACP,

Plaintiffs,

v.

TOM SCHEDLER in his official capacity as the

Louisiana Secretary of State; RUTH

JOHNSON, in her official capacity as Secretary

of the Louisiana Department of Children &

Family Services; and BRUCE D.

GREENSTEIN in his official capacity as


Health & Hospitals,

Defendants.

Civ. No. 2:11-cv-00926-JTM-JCW

Section “H”

NOTICE OF SUBMISSION

PLEASE TAKE NOTICE that Plaintiffs Luther Scott, Jr. and the Louisiana State

Conference of the NAACP will bring the attached Motion In Limine to Exclude Evidence

Concerning How Plaintiffs Became Involved in this Litigation for submission before the

Honorable Judge Jane Triche Milazzo on the 15th day of October, 2012 at 8:15 a.m.


Dated: October 8, 2012


/s/ Dale E. Ho____________________




Debo P. Adegbile

Elise C. Boddie



(New York)


New York, NY 10013

212-965-2200


GRANTED


([email protected])




504-525-4361

Michael B. de Leeuw




One New York Plaza

New York, NY 10004


GRANTED




Project Vote



202-546-4173


GRANTED




I hereby certify that on October 8, 2012, I electronically filed the foregoing with

the Clerk of Court by using the CM/ECF system, which will send a notice of electronic

filing to counsel of record who are registered participants of the Court’s CM/ECF system.

I further certify that I mailed the foregoing document by first-class mail to counsel of

record who are not CM/ECF participants as indicated in the notice of electronic filing.

/s/ Dale E.Ho____________________




Debo P. Adegbile

Elise C. Boddie

Ryan P. Haygood


NAACP Legal Defense & Educational

Fund, Inc. (New York)


New York, NY 10013

212-965-2200

*MOTION FOR ADMISSION PRO HAC

VICE GRANTED

Counsel for Plaintiffs






NAACP,

Plaintiffs,

v.








Health & Hospitals,

Defendants.


Section “H”

ORDER

On Motion In Limine to exclude from trial any and all evidence relating to how Plaintiffs

Luther Scott, Jr. and the Louisiana State Conference of the NAACP (“Louisiana NAACP”)

became involved in this litigation, IT IS HEREBY ORDERED that such evidence is

inadmissible at trial.

This ___ day of October, 2012.

____________________________________

HONORABLE JANE TRICHE MILAZZO


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