counsel met 25 with the opposing party for hours, asked opposing party to review documents and 26 answer questions related to the litigation outside the presence of the opposing 27 party’s counsel
How later courts described this case
- counsel met 25 with the opposing party for hours, asked opposing party to review documents and 26 answer questions related to the litigation outside the presence of the opposing 27 party’s counsel
- ordering new trial in employment discrimination case
- addressing prima facie case for discrimination on the basis of sex
Written by the judges who cited it.
The opinion
GRABER, Circuit Judge,
concurring in part and dissenting in part:
I concur except with respect to the majority’s holding that Palmer is entitled to a new trial concerning the deli server position. As to that holding, I respectfully dissent.
The district court barred from use at trial Kapetanakis’ affidavit, which was prepared in connection with the summary judgment proceedings, and the portion of his deposition transcript referring to the affidavit. As we now know from the Nevada Supreme Court’s decision concerning our certified question, that ruling was erroneous because the ethical violation on which it was premised turned out not to be a violation. The district court plainly held, however, that Kapetanakis could testify in person at trial. As the court put it: “Precluding Kapetanakis from testifying at trial, though, would simply punish the Plaintiff for her attorney’s misconduct,” which the court was unwilling to do. Thus, the majority is simply wrong when it asserts “that the only useful testimony[Kapetanak-is] could provide was barred at trial” (slip op. at 10008) and when it refers to the absence of his live testimony as an “evi-dentiary exclusion” (id.). Assuming, as we must, that his live testimony would have been the same in substance as his affidavit and deposition (which also were under oath), none of his “useful” testimony “was barred at trial.”
Notwithstanding the ruling that allowed Kapetanakis to testify in person at the trial, Palmer did not call him as a witness. *990 The failure to obtain Kapetanakis’ testimony about the deli server position was a result, not of the sanctions order, but of Palmer’s own decision (or neglect) in not calling him as a witness.
Accordingly, Palmer cannot show any prejudice from the district court’s eviden-tiary ruling unless she can demonstrate that the ruling barred her from presenting evidence that otherwise would have been admissible. For example, Palmer failed to demonstrate that Kapetanakis was unavailable at trial, making his deposition or affidavit potentially admissible. See Fed. R.Evid. 804(b)(1) (allowing admission of deposition testimony in some circumstances); Fed.R.Evid. 807 (allowing admission of hearsay statements in some circumstances). Likewise, Palmer failed to show that Kapetanakis would have testified at trial inconsistently with the affidavit (and corresponding portion of the deposition) so that the affidavit and deposition excerpt could have been used either to impeach him or as substantive evidence. See Fed. R.Evid. 613 (providing for use of prior statements for impeachment purposes); Fed.R.Evid. 801(d)(1)(A) (providing that a statement made in a deposition is not hearsay if the declarant’s trial testimony is inconsistent with the statement and the declarant is subject to cross-examination). In the absence of either showing, Palmer cannot demonstrate any harm or prejudice from the court’s ruling.
For the foregoing reasons, I dissent from the majority’s holding that Palmer is entitled to a new trial on her claim based on the deli server position. I would affirm the jury’s verdict on that claim.