United States Conference of Mayors et al v. Great-West Life & Annuity Insurance Co.

MEMORANDUM

D.D.C.January 8, 2018

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA United States Conference of Mayors and United States Mayor Enterprises, Inc., Plaintiffs, v. Great-West Life & Annuity Insurance Co., Defendant. Case No. 1:16-cv-00660-TFH DEFENDANT’S MEMORANDUM OF LAW SUPPORTING OBJECTION TO INTRODUCTION OF BOARD OF DIRECTORS MINUTES (PX-115) Defendant Great-West Life & Annuity Insurance Company continues to object on hearsay grounds to Plaintiff’s attempt to introduce portions of PX-115, attached as Exhibit A, Minutes of the Board of Directors of U.S. Mayor Enterprises, Inc. meeting on December 15, 2014. Great-West anticipates that Plaintiffs intend to introduce a statement in Board minutes attributed to Ms. Kathryn Kretschmer-Weyland that “Nationwide offered $5M for 10 years at the very end of negotiations between the Conference and Great-West, but would not lower its pricing for its products to city employees.” Although the minutes themselves might qualify for admission as a business record under Federal Rule of Evidence 803(6), plaintiffs cannot overcome the multiple levels of hearsay contained therein. In particular, as the parties have previously discussed in connection with pretrial motions, the statement apparently was made to Ms. Weyland by a representative of Nationwide. “[D]ouble hearsay exists when a business record is prepared by one employee from information supplied by another employee.” United States v. Baker, 693 F.2d 183, 188 (D.C. Case 1:16-cv-00660-TFH Document 182 Filed 01/08/18 Page 1 of 4 2 Cir. 1982). However, “if the source of the information is an outsider, . . . [t]he outsider’s statement must fall within another hearsay exception to be admissible.” Id. Consequently, the Nationwide representative’s out-of-court “offer” 1 simply repeated by Ms. Kretschmer-Weyland in Board minutes does not fall within the business records exception to the rule against hearsay. See, e.g., United States v. Gurr, 471 F.3d 144 (D.C. Cir. 2006) (finding abuse of discretion in district court’s admitting report of the National Credit Union Association containing compound hearsay statements, in which an employee of a credit union recounted inflammatory statements made to her by a credit union board member); Cearfoss Construction Corp. v. Sabre Construction Corp., No. CIV. A. 89-1223, 1989 WL 516375 (D.D.C. Aug. 14, 1989) (excluding an attorney’s notes of an arbitration meeting as double hearsay and portions of his sworn affidavit containing quotes from the meeting as hearsay). See also Boca Investerings Partnership v. United States, 128 F. Supp. 2d 16 (D.D.C. 2000) (excluding a credit proposal and an internal memorandum on the basis that they contained multiple hearsay describing proposed transactions). 1 As Great-West previously explained, there was no “offer,” because it was hypothetical, and regardless, was rejected by Ms. Kretschmer-Weyland. See Deposition of Kathryn Kretschmer-Weyland at 88:10–17. Case 1:16-cv-00660-TFH Document 182 Filed 01/08/18 Page 2 of 4 3 Dated: January 8, 2018 Respectfully submitted, S/ Michael L. O’Donnell Michael L. O’Donnell (Pro Hac Vice) Edward C. Stewart (Pro Hac Vice) Wheeler Trigg O’Donnell LLP 370 Seventeenth Street, Suite 4500 Denver, CO 80202-5647 Telephone: 303.244.1800 Facsimile: 303.244.1879 Email: odonnell@wtotrial.com stewart@wtotrial.com and Mary Patrice Brown O’Melveny & Myers 1625 I Street, NW Washington, D.C. 20006 Telephone: 202.383.5308 Facsimile: 202.383.5414 Email: mpbrown@omm.com Attorneys for Defendant Great-West Life & Annuity Insurance Co. Case 1:16-cv-00660-TFH Document 182 Filed 01/08/18 Page 3 of 4 4 CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on January 8, 2018, I filed the foregoing DEFENDANT’S MEMORANDUM OF LAW SUPPORTING OBJECTION TO INTRODUCTION OF BOARD OF DIRECTORS MINUTES (PX-115) with the Clerk of Court and served the following by hand: • Shannon Barrett • Mary Patrice Brown • Michael S. Nadel • Michael L. O’Donnell • Erika N. Pont • Edward C. Stewart • Margaret Hanley Warner • Jennifer Butler Routh s/ Michael L. O’Donnell Case 1:16-cv-00660-TFH Document 182 Filed 01/08/18 Page 4 of 4