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Snyder v. Wells Fargo Bank

October 15, 2012

RICHARD SNYDER, PLAINTIFF,
v.
WELLS FARGO BANK, N.A. AS SUCCESSOR TO WACHOVIA BANK, N.A., DEFENDANT.



The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.

OPINION AND ORDER

I. INTRODUCTION*fn1

Richard Snyer, a retired businessman, brings this action against Wells Fargo Bank, N.A. ("Wells Fargo"), as successor to Wachova Bank, N.A. ("Wachovia"), for Wachovia's alleged mismanagement of Snyder's personal and retirementd investment accounts, resulting in losses to Snyder in excess of $2.5 million. There are currently two motions in limine before the Court, both brought by Wells Fargo. First, Wells Fargo seeks to preclude Snyder from: (1) materially changing his deposition testimony using the errata sheet; (2) referencing in the Rebuttal Report of Sean P. Kelly, or in his testimony, documents not reviewed by Kelly in rendering his opinion;*fn2 and (3) introducing into evidence a letter to Snyder dated August 4, 2008 from Edwin Wachenheim, III of Greenhaven Associates, Inc. (the "Wachenheim Letter") referencing Snyder's "philosophy of preserving [his] capital."*fn3 Second, Wells Fargo seeks to preclude, in whole or in part, the Expert Report of John J. Duval, Sr. insofar as it "adds up to an impermissible narrative."*fn4

For the following reasons Wells Fargo's motions are granted in part and denied in part.

II. LEGAL STANDARD

The purpose of a motion in limine is to allow a court to rule on the admissibility of potential evidence in advance of trial.*fn5 A court will exclude evidence on a motion in limine only if the evidence is "clearly inadmissible on all potential grounds."*fn6 A court "considering a motion in limine may reserve judgment until trial, so that the motion is placed in the appropriate factual context."*fn7

III. CHANGES TO DEPOSITION TESTIMONY

A. Applicable Law

Federal Rule of Civil Procedure 30(e) provides that "[o]n request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days . . . to review the transcript . . . and if there are changes in form or substance, to sign a statement listing the changes and the reasons for them." This Court's Local Rules permit deposition transcripts to be changed "when the transcript is an incorrect reporting of what was said or when, although the transcript is correct, the witness's current recollection is different from what it was during the deposition."*fn8 "The original transcript remains part of the record of the litigation."*fn9

B. Discussion

Plaintiff's counsel asserts that he requested the right to review Snyder's deposition transcript at the deposition, and timely reviewed and submitted the errata sheet.*fn10 The contested alteration on Snyder's errata sheet changes the line "They could not buy or sell" to "There was a termination of their discretion to buy and sell and transact transactions in my account at Wachovia upon the transfer of my account."*fn11 The reason is listed as "clarification."*fn12 This is consistent with Rule 30(e)'s allowances for changes in substance*fn13 and this Court's rules permitting changes when "the witness's current recollection is different from what it was during the deposition."*fn14 Defendant is, of course, free to reference the original deposition testimony during trial as it remains part of the record.*fn15

III. ADMISSIBILITY OF WACHENHEIM LETTER

A. Applicable Law

Rule 401 of the Federal Rules of Evidence defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 402 states that "[i]rrelevant evidence is not admissible." Rule 403 states that relevant evidence "may be excluded if its probative value is ...


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