Free Motion in Limine - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Telephone: 602/258-7701 Telecopier: 602/257-9582 Michael D. Moberly ­ 009219 Andrea G. Lisenbee - 019882 Attorneys for Defendant/Counterclaimant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA AMMAR HALLOUM, Plaintiff, vs. INTEL CORPORATION, Defendant. INTEL CORPORATION, Counterclaimant, vs. AMMAR HALLOUM and SAWSAN HAMAD, Counterdefendants. MOTION Defendant/Counterclaimant Intel Corporation ("Intel" or the "Company") hereby moves, in limine pursuant to Rules 401, 402 and 403 of the Federal Rules of Civil Procedure, to preclude the plaintiff from offering portions of the transcript testimony of Carla Minnard. This motion is supported by the following Memorandum of Points and Authorities.
DEFENDANT/COUNTERCLAIMANT'S MOTION IN LIMINE REGARDING TRANSCRIPT TESTIMONY OF CARLA MINNARD

No. CIV-02-02245-PHX-EHC

Case 2:02-cv-02245-EHC

708654.1 5/30/2006

Document 159

Filed 05/30/2006

Page 1 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

MEMORANDUM OF POINTS AND AUTHORITIES The plaintiff proposes to offer a portion of the transcript of the testimony of Carla Minnard at trial in the present matter. The testimony at issue was given in a prior administrative trial in the Sarbanes-Oxley case the plaintiff brought against the Company. As the plaintiff has previously informed the Court, Ms. Minnard testified on behalf of the Company in that proceeding. More specifically, Ms. Minnard is a licensed attorney and consultant specializing in employment practices. She was retained by Intel to conduct an

investigation and formulate an opinion with respect to the specific question of "whether or not Mr. Halloum had been retaliated against for having gone to or having threatened to go to the SEC with regard to certain of Intel's [financial and accounting] practices." Transcript of Minnard testimony in Cause No. 2003-SOX-0007 (relevant excerpts of which are attached hereto as Exhibit A), at 1239. After conducting an extensive investigation, Ms. Minnard concluded that in her professional opinion, the plaintiff had not been subjected to such retaliation. Ms. Minnard's investigation and opinion focused on the four specific events the plaintiff himself characterized as retaliatory during Ms. Minnard's initial interview of him. See Exhibit A, at 1243, 1296-97. Based on the plaintiff's representations to the Court and his prior filings, the Company is informed and believes that the portion of the transcript he intends to offer in this case involves Ms. Minnard's testimony during cross-examination in which she acknowledged the hypothetical possibility that a revised corrective action plan the plaintiff received upon returning to work after the conclusion of her investigation (and concerning which she therefore did not formulate an opinion) conceivably could have been imposed in retaliation for his complaints to the SEC, notwithstanding her

Case 2:02-cv-02245-EHC

Document 159

-2-

Filed 05/30/2006

Page 2 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

conclusion that the four events she did investigate were not retaliatory. In that regard, Ms. Minnard testified: . . . [I]f Mr. Halloum said, "They put me on a CAP after April 16th [the date on which Mr. Halloum claims the Company was first made aware of his SEC allegations], which means my CAP had made it more onerous, and that is retaliatory," it's absolutely within [the range of] possibility, sure. Exhibit A, at 1308. However, Ms. Minnard's testimony makes it clear that she did not investigate or formulate an opinion with respect to this issue. In fact, Ms. Minnard was not even aware of the fact that the plaintiff's corrective action plan was revised upon his return to work after the conclusion of her investigation. In that regard, Ms. Minnard's investigation concluded on August 2, 2002, and she specifically testified that she had "[n]o idea" what transpired in "the latter part of August, like August 19th of that same month, when [the plaintiff] went back to Intel." Exhibit A, at 1259, 1265, 1308. In addition, the focus of Ms. Minnard's investigation and the opinions she formulated were "specifically limited" to "whether or not there was [anything] that might have suggested . . . retaliation for [the plaintiff] having complained to the SEC," and that she did not investigate or formulate an opinion with respect to the Title VII allegations that are the subject of the present case. Exhibit A, at 1270-71, 1287

(emphasis added). For that reason, neither party has ever identified Ms. Minnard as a potential expert witness in this case, let alone provided the other party with the pretrial disclosures that must be made under the applicable procedural rules before such a witness can be permitted to testify at trial.1

The Company's attorney specifically discussed this aspect of the case with the plaintiff's prior attorney, Rosemary Cook, before she withdrew as the plaintiff's counsel. In that regard, Ms. Cook had contacted the Company's attorney to discuss the

1

Case 2:02-cv-02245-EHC

Document 159

-3-

Filed 05/30/2006

Page 3 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

In short, the testimony at issue here involves Ms. Minnard's acknowledgment during cross examination in the Sarbanes-Oxley case that an event she did not investigate because it arose after her investigation concluded conceivably could have been motivated by a desire to retaliate against the plaintiff for complaining to the SEC. While that acknowledgment was a legitimate subject of cross examination in that case in light of Ms. Minnard's prior testimony that the events she did investigate were not motivated by such an intent, it has no relevance in this case because Ms. Minnard has not formulated and will not be offering any opinion on the motivations that are at issue here. Under these circumstances, the introduction of this irrelevant evidence can only be confusing to the jury, and that confusion cannot be cured by offering other parts of Ms. Minnard's transcript testimony because none of her testimony in the SarbanesOxley case addresses the motivations at issue here. Furthermore, the confusion created by the introduction of such evidence could well be prejudicial to the Company. For the foregoing reasons, Intel respectfully requests that the plaintiff be precluded from offering portions of the transcript testimony of Ms. Minnard.

possibility of scheduling a trial deposition of Ms. Minnard. When the Company's attorney described the limited scope of Ms. Minnard's prior testimony to Ms. Cook (who was not involved in the Sarbanes-Oxley trial), and noted that neither party had designated Ms. Minnard as a potential expert witness in this case, Ms. Cook apparently decided not to pursue the matter.

Case 2:02-cv-02245-EHC

Document 159

-4-

Filed 05/30/2006

Page 4 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

RESPECTFULLY SUBMITTED this 30th day of May, 2006. RYLEY, CARLOCK & APPLEWHITE, P.A.

/s/ Michael D. Moberly Michael D. Moberly Andrea G. Lisenbee Ryley Carlock & Applewhite One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Attorneys for Defendant/Counterclaimant

Case 2:02-cv-02245-EHC

Document 159

-5-

Filed 05/30/2006

Page 5 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

CERTIFICATE OF SERVICE I hereby certify that on May 30, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing. I hereby certify that on May 30, 2006, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System: Ammar Halloum P.O. Box 26662 Tempe, AZ 85285 Plaintiff/Counterdefendant Sawsan Hamad 260 W. Buena Vista Dr. Tempe, Arizona 85284 Counterdefendant

s/ Michael D. Moberly Michael D. Moberly

Case 2:02-cv-02245-EHC

Document 159

-6-

Filed 05/30/2006

Page 6 of 6