                                  UNITED STATES DISTRICT COURT
                                  FOR THE DISTRICT OF COLUMBIA


 TWILA SMITH,

            Plaintiff,

            v.                                                         Civil Action No. 14-382 (JDB)

 ERGO SOLUTIONS, LLC, et al.

             Defendants.



                                         MEMORANDUM OPINION

        Plaintiff Twila Smith alleges that she endured sexual harassment at her former place of

employment, Ergo Solutions, LLC. A jury trial on her claims will commence on September 18,

2019. Before the Court now are [140] defendants’ second motion in limine, [146] defendants’

third motion in limine, and [145] plaintiff’s motion in limine. 1 For the reasons that follow, each

motion will be granted.

   I.          DEFENDANTS’ MOTIONS IN LIMINE

        Defendants’ second motion in limine seeks to exclude two witnesses, Antunesia Harris and

Heather Qader, who Smith added to her witness list during the parties’ pretrial conference on May

22, 2019. Defs.’ 2d Mot. in Lim. [ECF No. 140] at 1. Defendants object on the grounds that these

witnesses were never previously identified, notwithstanding the fact that Smith was asked in

defendants’ interrogatories to identify persons having knowledge or information about the facts

alleged in the complaint, and that defendants had no opportunity to depose either Harris or Qader.

Id. Smith responds that Harris and Qader will offer relevant testimony about matters about which


        1
            The Court resolved defendants’ first motion in limine in an order on June 5, 2019.

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they have personal knowledge and that defendants never inquired during discovery “about

witnesses regarding compensatory damages.” Opp’n to Defs.’ 2d Mot. in Lim. [ECF No. 156] at

2–5. Smith also offers to “arrange for [the] deposition of at least one” of the proposed witnesses

before trial in September. Id. at 4.

        Parties generally have an obligation—“without awaiting a discovery request”—to “provide

to the other parties . . . the name . . . of each individual likely to have discoverable information . . .

that the disclosing party may use to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A).

In addition, a party “who has made a disclosure under Rule 26(a) . . . [or] has responded to an

interrogatory . . . must supplement or correct its disclosure or response . . . in a timely manner if

the party learns that in some material respect the disclosure or response is incomplete or incorrect.”

Fed. R. Civ. P. 26(e)(1). If a party fails to identify a witness as required in Rule 26(a) or 26(e),

“the party is not allowed to use that . . . witness to supply evidence . . . at a trial, unless the failure

was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

        Smith had an obligation to identify these witnesses prior to the pretrial conference. Under

Rule 26(a), Harris and Qader should have been disclosed as “individual[s] likely to have

discoverable information” that Smith expected to use to support her claims. Smith also should

have disclosed Harris and Qader as potential fact witnesses in response to defendants’ first

interrogatory, which asked Smith to “[i]dentify each person whom you believe has knowledge or

information relevant to the subject matter of this action or the facts alleged in the Complaint.”

Pl.’s Resp. to Def[s].’ 1st Set of Interrogs., Ex. 1 to Defs.’ 2d Mot. in Lim. [ECF No. 140-1], at 4.

And even if Smith was not aware that Harris and Qader had relevant knowledge or information

when she made her initial disclosures or responded to defendants’ interrogatories, she nevertheless

had an obligation to “supplement or correct” this information “in a timely manner” under Rule



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26(e).   Orally adding Harris and Qader to Smith’s witness list during the parties’ pretrial

conference on the eve of trial does not constitute a “timely” correction. In addition, Smith’s failure

to identify these witnesses was neither substantially justified nor harmless. Allowing the witnesses

to testify without first permitting defendants an opportunity to depose them would be prejudicial

to defendants. At the same time, the Court will not reopen discovery—which spanned more than

a year—to permit last-minute depositions of these last-minute witnesses. The Court finds that,

pursuant to Rule 37(c)(1), Smith has failed to properly and timely identify these witnesses and she

therefore may not use either witness to supply evidence at trial. Accordingly, defendants’ second

motion in limine is granted.

         Defendants’ third motion in limine seeks to include Brook Cawley on defendants’ witness

list. Defs.’ 3d Mot. in Lim. [ECF No. 146] at 1. Defendants had included Cawley on their witness

list before the pretrial conference, see [Defs.’] Pre-Trial Statement (“Defs.’ Pretrial Stmt.”) [ECF

No. 130] at 7, but at the pretrial conference they stated that they would not call Cawley because of

the mistaken belief that his testimony would only be relevant to former plaintiff Deirdre Osborne’s

now-settled claims. Defendants’ third motion in limine notes that Cawley was also Smith’s

supervisor, and hence defendants wish to return him to their witness list. Defs.’ 3d Mot. in Lim.

at 1. Plaintiff has not opposed the motion. The Court concludes that Cawley was properly

identified during discovery and that adding him to defendants’ witness list will cause no prejudice

to plaintiff because she has known about this witness and had the opportunity to depose him.

Hence, defendants’ third motion in limine is granted.

   II.      SMITH’S MOTION IN LIMINE

         Smith moves to exclude four exhibits—two emails with two attached videos—and the

testimony of Olu Ezeani and Courtland Wyatt about those exhibits. Pl.’s Mot. in Lim. to Suppress



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Video & Test. Evid. (“Pl.’s Mot.”) [ECF No. 145] at 1–2. One video, titled “And You Think You

Have Balls,” shows a man’s testicles enlarged due to a medical condition, and the other, titled

“Nasty,” shows a monkey urinating into its mouth. Id. at 2. The emails allegedly transmitted the

videos from Smith to Ezeani, and plaintiff contends that, although Wyatt is not a listed recipient

on the contested email exhibits, he also received or viewed the videos. Smith raises several

grounds for excluding this evidence, but the Court’s analysis will focus on whether the evidence

is relevant and whether it is admissible under Federal Rule of Evidence 412. The Court finds that

the evidence is relevant but that the same features that give the evidence minor probative value

also require its exclusion under Rule 412.

               A. Relevance Objections

       “Evidence is relevant if . . . it has any tendency to make a fact” “of consequence in

determining the action” “more or less probable than it would be without the evidence.” Fed. R.

Evid. 401. To be relevant, “evidence need not be dispositive”; rather, “it must merely cross the

low threshold prescribed by Rule 401.” United States v. Slatten, 310 F. Supp. 3d 141, 145 (D.D.C.

2018). Irrelevant evidence is inadmissible, and relevant evidence is admissible unless specific

grounds for exclusion apply. See Fed. R. Evid. 402.

       Smith argues that the exhibits and testimony are irrelevant. See Mem. of P. & A. in Supp.

of Pl.’s Mot. in Lim. to Suppress Video & Test. Evid. (“Pl.’s Mem.”) [ECF No. 145] at 4–5. In

response, defendants assert that the emails and videos are “relevant and probative” as to “whether

the alleged harassment against Ms. Smith was unwelcome.” See Defs.’ Opp’n to Pl.’s Mot. [ECF

No. 151] at 1–2. The same goes, they argue, for the testimony on the subject of those exhibits:

Ezeani and Wyatt each plan to testify that the emails and videos in defendants’ exhibits 1–4

exemplified the “types of sexual references . . . that . . . Smith would send to” them while employed



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at Ergo, Defs.’ Pretrial Stmt. at 4–5, which in turn will show that she willingly engaged in a “sexual

type of horseplay at the office” and “wasn’t harassed at all,” Defs.’ Opp’n at 3.

       The Court agrees that the challenged exhibits and testimony are at least minimally relevant.

The emails and videos are relevant if they “have any tendency to make” Smith’s receptiveness to

Brownlee’s alleged misconduct “more . . . probable than it would be without the evidence . . . .”

Fed. R. Evid. 401; see Defs.’ Opp’n at 2–3 (identifying a central issue in the case as “whether the

alleged harassment against Ms. Smith [by Brownlee] was unwelcome”); see also Meritor Sav.

Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986) (“The gravamen of any sexual harassment claim

[under Title VII] is that the alleged sexual advances were ‘unwelcome.’”) (citation omitted). Here,

neither party disputes that each video has a sexual connotation. Accepting that proposition,

evidence that Smith emailed the videos, and that Brownlee was aware of that fact, helps to establish

the context of the work environment and relationship between the parties—including the extent to

which all parties willingly participated in sexually-charged conduct in the workplace. That

context, in turn, bears on whether Brownlee’s alleged misconduct was “unwelcome.” See Mitchell

v. Hutchings, 116 F.R.D. 481, 483–84 (D. Utah 1987) (finding that evidence of conduct

contributing to the “sexual atmosphere” of the work environment, if known by the alleged harasser,

is relevant to whether the alleged misconduct was “welcome”). And while it was Brownlee who

allegedly performed the acts about which Smith complains, Ezeani’s and Wyatt’s testimony is

relevant for the same reasons as the emails and videos are relevant—the testimony adds to

defendants’ contentions about the work-place atmosphere at Ergo and therefore could serve as

some evidence that Brownlee’s conduct was less likely to be unwelcome. Hence, the Court finds

that the exhibits and testimony clear Rule 401’s low threshold and are relevant.




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                 B. Rule 412 Objections

        Rule 412 makes “evidence offered to prove that a victim [of alleged sexual misconduct]

engaged in other sexual behavior,” or “to prove a victim’s sexual predisposition,” inadmissible in

any “civil or criminal proceeding involving sexual misconduct.” Fed. R. Evid. 412(a). The rule

expressly applies to evidence submitted in a “Title VII action where the plaintiff has alleged sexual

harassment.” Fed. R. Evid. 412 advisory committee notes to 1994 amendments. Rule 412’s

prohibition on admission of sexual predisposition evidence extends to “evidence that does not

directly refer to sexual activities or thoughts but that the proponent believes may have a sexual

connotation for the factfinder.” Id. The rule provides for an exception in civil cases: “the court

may admit . . . sexual behavior or sexual predisposition [evidence] if its probative value

substantially outweighs the danger of . . . unfair prejudice to any party.” Fed. R. Evid. 412(b)(2).

The proponent of the evidence bears the burden of showing admissibility of such evidence under

Rule 412(b)(2). Fed. R. Evid. 412 advisory committee notes to 1994 amendments. 2

        The challenged exhibits and testimony fall within Rule 412’s ambit and thus are

presumably inadmissible under Rule 412. The evidence is offered to show that Smith engaged in

“lewd behavior” rife with “sexual references,” Defs.’ Pretrial Stmt. at 4–5, that contributed to a

“sexual type of horseplay at the office,” Defs.’ Opp’n at 3. Defendants argue—and the discussion

of why such evidence is minimally relevant emphasizes—that the value to the defense of these

exhibits and testimony lies in their ability to evoke “a sexual connotation for the factfinder.” Fed.

R. Evid. 412 advisory committee notes to 1994 amendments. Hence, the exhibits and testimony




        2
           As explained above, defendants concede that this evidence is intended to “prove . . . [Smith’s] sexual
predisposition” or “sexual behavior” within the meaning of Federal Rule of Evidence 412(a). Hence, defendants were
required to file a motion in compliance with Rule 412(c)(1). Because this Court rules the evidence is ultimately
inadmissible under Rule 412, defendants’ failure to comply with this procedure is moot.

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are evidence of a victim’s sexual behavior or predisposition and are not admissible under Rule

412(a) unless the exception in Rule 412(b)(2) applies.

       In weighing the exhibits’ probative value against the possibility of prejudice under Rule

412(b)(2), this Court finds the exhibits and testimony inadmissible. The exhibits, even though

relevant, are barely probative on the issue whether Smith and Brownlee’s relationship was

consensual and Brownlee’s alleged conduct was welcomed. The challenged emails and videos

were not directed to Brownlee, the alleged harasser. See Howard v. Historic Tours of Am., 177

F.R.D. 48, 51–52 (D.D.C. 1997) (stressing the logical barrier to finding a plaintiff’s sexual conduct

probative of his or her receptiveness of the alleged harasser’s actions when the plaintiff’s conduct

involved people and circumstances wholly distinct from those involved in the harassment). The

link, then, between sending crude emails (to Ezeani and perhaps Wyatt) and welcoming physical

sexual advances (from Brownlee) is tenuous. To be sufficiently probative to clear the hurdle set

by Rule 412, a stronger nexus is necessary. Cf. Stampf v. Long Island R. Co., 761 F.3d 192, 196,

203 (2d Cir. 2014) (finding evidence of an alleged victim’s sexually provocative touching of fellow

employees probative because of similarities between the victim’s behavior and the complained-of

behavior); Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 856 (1st Cir. 1998) (affirming

district court’s admission of specific “evidence concerning plaintiff’s allegedly flirtatious behavior

toward [the defendant] . . . to determine if [defendant’s] advances were in fact ‘unwanted’”).

       On the other hand, the evidence is likely to be prejudicial. Again, it is intended to show

that Smith engaged in “lewd behavior” rife with “sexual references,” Defs.’ Pretrial Stmt. at 4–5,

and by extension that she willingly participated in “sexual . . . horseplay” and a physical

relationship with Brownlee, Defs.’ Opp’n at 3. The evidence’s value lies in its tendency to

undermine Smith’s reputation by portraying her as vulgar and perhaps promiscuous. This invites



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precisely the type of “stereotypical thinking” that Rule 412 aims to “safeguard[] the [alleged]

victim against.” Fed. R. Evid. 412 advisory committee notes to 1994 amendments.

           The emails and related testimony add very little to the issues that the jury must decide;

essentially, this evidence asks the jury to conclude that sending crude videos by email to one or

more people at her place of employment—but, notably, not to her alleged harasser—made it more

likely that Smith welcomed sexual advances from Brownlee. Such a meager showing of probative

value, paired with the clear prejudicial effect of presenting evidence of Smith’s sexual

predisposition, leads the Court to conclude that defendants have not carried their burden under

Rule 412(b)(2). See, e.g., Rodriguez-Hernandez, 132 F.3d at 856 (finding that the district court’s

exclusion of evidence of the plaintiff’s sexual predisposition in a sexual harassment case “struck

an acceptable balance between the danger of undue prejudice and the need to present the jury with

relevant evidence, particularly in light of Rule 412’s special standard of admissibility”). 3

Accordingly, plaintiff’s motion is granted.

    III.       CONCLUSION

           For the foregoing reasons, defendants second and third motions in limine and plaintiff’s

motion in limine are all granted. A separate order will issue on this date.

                                                                                          /s/
                                                                                   JOHN D. BATES
                                                                               United States District Judge
           Dated: July 12, 2019



           3
             While not a subject of the motions in limine presently before the Court, one of plaintiff’s exhibits, “Picture
of George Brownlee’s penis 10/08/2008,” Pl.’s Ex. List [ECF No. 158] at 2, has been discussed during proceedings
in this case and characterized as similar in nature to defendants’ exhibits 1–4 and the related testimony. However,
defendants’ evidence is subject to Rule 412 considerations because defendants seek to use it against an alleged victim
of sexual misconduct. See Fed. R. Evid. 412 advisory committee notes to 1994 amendments (explaining the rule’s
purpose of providing safeguards for victims of sexual misconduct). No rule of evidence provides comparable
protections for alleged perpetrators of sexual misconduct. To the extent that this outcome treats the parties unequally,
it reflects the clear and intentional policy choice manifested in Rule 412.

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