United States District Court, D. Maryland, Northern Division
JOHN H. MACSHERRY, JR., Plaintiff,
SPARROWS POINT, LLC, COMMERCIAL DEVELOPMENT COMPANY, INC. and MICHAEL ROBERTS, Defendants.
MEMORANDUM OPINION AND ORDER REGARDING OBJECTIONS TO
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
defendants Sparrows Point, LLC (“SPLLC”),
Commercial Development Company, Inc. (“CDC”), and
Michael Roberts (“Roberts”), (collectively,
“defendants”), in the above-styled civil action
have filed objections to certain of the plaintiff's
proposed exhibits (ECF No. 115). The plaintiff, John H.
Macsherry, Jr., (“Macsherry”), has filed
responses to the defendants' objections (ECF No.
trial in this civil action is scheduled to commence on July
5, 2018. This Court will address the defendants'
objections to exhibits and plaintiff's responses to
objections and set forth its findings, as discussed
Defendants' Objections to the “Term
Sheets” - (Plaintiffs Exhibits 10, 22, and 30, and
Plaintiff's Exhibits 15, 16, 29, 44, 45) - OVERRULED
intends to offer two redlined term sheets (Exhibits 10 and
30), and an earlier version (Exhibit 22), all of which
plaintiff alleges he received via email from defendants while
the parties were negotiating the terms of plaintiff's
employment. Defendants object to the admission into evidence
of plaintiff's Exhibits 10, 22 and 30 (hereinafter, the
“term sheets”), under the rule of completeness
under Federal Rule of Evidence 106, the best evidence rule
under Federal Rule of Evidence 1002, the rule against hearsay
under Federal Rule of Evidence 802, and as unfairly
prejudicial and misleading under Federal Rule of Evidence
403. Defendants also contend “Exhibits 15, 16, 29, 44,
and 45 are similarly inadmissible in that they are emails
from Plaintiff forwarding one of Exhibits 10, 22, or
30.” ECF No. 115 at 1.
response, plaintiff argues that defendants misread Federal
Rule of Evidence 106 in making their “rule of
completeness argument, ” in arguing that these exhibits
are “incomplete” because the emails to which the
term sheets were attached cannot be found. Further, plaintiff
asserts, assuming plaintiff offers testimony concerning the
content of the emails, defendants' best evidence argument
also fails because it does not apply. ECF No. 133 at 5.
plaintiff asserts that the term sheets are the statements of
a party opponent and, therefore, are not hearsay.
Alternatively, plaintiff argues they are business records and
admissible pursuant to Federal Rule of Evidence 803(6).
Rule of Evidence 106 provides, “[i]f a party introduces
all or part of a writing or recorded statement, an adverse
party may require the introduction, at that time, of any
other part - or any other writing or recorded statement -
that in fairness ought to be considered at the same
time.” Fed.R.Evid. 106. Further, Federal Rule of
Evidence 901 provides, generally, “[t]o 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
it is.” Fed.R.Evid. 901(a).
Court finds that the rule of completeness does not preclude
the admission of these exhibits and that the defendants'
argument is misplaced. The rule of completeness does not
prohibit admission of documents that are incomplete. See
United States v. Phillips, 543 F.3d 1197, 1203 (10th
Cir. 2008) (“Rule 106 does not prohibit admission of an
incomplete document. Instead, it allows the party against
whom the document is introduced to place the remainder in
evidence without additional evidentiary foundation.”
(citing Beech Aircraft Corp. v. Rainey, 488 U.S.
153, 171 (1988))). Rather, this rule applies to any other
part - or any other writing or recorded statement - that in
fairness ought to be considered at the same time as all or
part of a writing or recorded statement introduced by another
party. Fed.R.Evid. 106. At this time, this Court is
tentatively of the opinion that there should be no testimony
as to what the missing emails said, as it would be
speculative and possibly hearsay. If the parties intend to
offer testimony as to what the missing emails said, they
should be prepared to meet and confer prior to trial and make
a proffer for the Court's consideration.
this Court finds that the best evidence rule is not
implicated and that the term sheets may satisfy the
requirements of Federal Rule of Evidence Rule 803(6) as a
record of a regularly conducted activity, assuming the
plaintiff can prove the elements of admissibility under that
rule. It is plaintiff's contention that these term sheets
“form the basis of the contract that is at issue in
this case.” ECF No. 133 at 6. “[C]ommunications
between the parties to a contract that define the terms of a
contract, or prove its content, are not hearsay, as they are
verbal acts or legally operative facts.” Lorraine
v. Markel Am. Ins. Co., 241 F.R.D. 534, 566 (D. Md.
2007). Upon review, this Court finds that these exhibits are
admissible over defendants' objection subject to
connection by witness testimony and satisfaction of the
requirements of the Rules of Evidence. Accordingly, the
defendants' objections to plaintiff's Exhibits 10,
22, and 30, and plaintiff's Exhibits 15, 16, 29, 44, 45
are OVERRULED. The Court will consider a limiting or
cautionary instruction to the jury in connection with these
exhibits, and a party should submit such an instruction to
the Court prior to trial.
Defendants' Objections to the “Employment
Exhibits” (Plaintiff's Exhibits 11, 38, 39, 40, 64,
and 65) - OVERRULED AS FRAMED
plaintiff proposes to introduce several documents including a
news article, employment correspondence and statements, and
letters from officials at the Maryland Department of
Transportation State Highway Administration, which relate to
his alleged employment with the defendant. Defendants object
to the admission of these exhibits into evidence on the
ground that they contain inadmissible hearsay and are
ostensibly to be offered to prove the truth of the allegation
of plaintiff's employment by the defendant CDC. ECF No.
response, plaintiff argues that the purpose for offering
these exhibits into evidence is to prove that plaintiff was
performing his job duties under the terms of his employment
agreement that is the subject of this case. ECF No. 133 at 9.
plaintiff argues that “[a]lternatively, in the event
the Court finds that Exhibits 11, 38, 39, 40, 64 and 65 fall
within the definition of hearsay, they are, nonetheless,
admissible under the business records ...