CORE/3505308.0002/156261087.2 

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Carrie M. Francis (020453)

Stefan M. Palys (024752) 

Michael Vincent (029864)

STINSON LLP

1850 North Central Avenue, Suite 2100 

Phoenix, Arizona 85004-4584 

Tel: (602) 279-1600 

Fax: (602) 240-6925 

Email: carrie.francis@stinson.com

stefan.palys@stinson.com

michael.vincent@stinson.com 

Attorneys for Defendants 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Jeremy Thacker, No. 2:18-cv-00063-PHX-DGC

DEFENDANTS’ MOTION IN 

LIMINE TO PRECLUDE 

EVIDENCE OF ROBERT DONAT’S 

ALLEGED PRIOR ACTS AND 

CHARACTER 

Plaintiff,

v.

GPS Insight, LLC; Robert J. Donat, 

Individually and as Trustee of The 

Robert Donat Living Trust Dated April 

19, 2017, 

Defendants.

Defendants request an order in limine as follows: 

Precluding Plaintiff from offering argument, testimonial or documentary 

evidence involving Robert Donat’s alleged drug use and past relationships 

and/or interactions with employees (other than with Kristin Lisson). 

Plaintiff shall additionally be precluded from offering Exhibit 36 at trial. 

Plaintiff apparently intends to attack Rob Donat’s character with allegations of 

drug use; and alleged evidence of prior disagreements and relationships with employees 

in the hopes that the jury will conclude that Donat acted improperly before and so must 

have now, too. This evidence is not relevant to any claim or defense (FRE 402), is not 

admissible under FRE 404(b), and would be unduly prejudicial under FRE 403. 

Plaintiff’s most recent disclosure statement identifies two witnesses (first 

disclosed more than a year after the disclosure deadline) whom he claims will testify that 

Donat harassed them. See Plaintiff’s Eighth Supplemental Disclosure Statement at 6-7. 
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Plaintiff’s disclosures also allege that Donat had engaged in relationships with other 

employees, and allege that he either went with, or arranged trips to, gentleman’s clubs 

with other employees. Id. at 17:23-27 and 18:15-20. Plaintiff further alleges in disclosure 

statements that Donat previously used drugs, and tolerated their use at company events. 

Id. at 16:21-17:4. After naming several employees’ names as people Plaintiff suspects of 

using drugs, Plaintiff accuses Donat of having “instituted” a “history of recreational drug 

use.” Id. at 17:15-17. Some of this same information appears in Plaintiff’s portions of the 

pretrial order. See Pretrial Order at § E(k) (prior employee who will claim harassment). 

Further, Plaintiff refused to stipulate that he would not offer the challenged evidence 

during the meet and confer on this motion. 

None of this has anything to do with any claim or defense in the case. Plaintiff’s 

only remaining claims in this action are for tortious interference with contract, 

defamation, false light invasion of privacy, and intrusion upon seclusion. Plaintiff’s 

evidence of Donat’s alleged prior disagreements with employees, relationships with 

employees, or supposed drug use/tolerance of the same is not relevant to any elements of 

those claims or the defenses to them.1 

Instead, Defendants expect that Plaintiff will offer such evidence in an attempt to 

improperly influence the jury in two ways. First, Plaintiff apparently wants the jury to 

dislike Donat, personally, based on his alleged past acts, and inflame the jury to decide 

 

1

 Defendants instead believe Plaintiff offers them as a tit-for-tat because Defendants are 

offering evidence of Plaintiff’s character. The difference is that Plaintiff is suing for 

defamation, so evidence of his character is relevant to his claim/damages. FRE 405(b). 

Defendants are allowed to show Plaintiff had bad character to begin with, so he was not 

damaged as extensively as he claims. Roper v. Mabry, 551 P.2d 1381, 1385 (Wash. Ct. 

App. 1976) (“As a general rule, in a defamation action, the defendant may offer evidence 

that a plaintiff's reputation is already bad, in spite of the alleged defamation, in order to 

mitigate damages.”); Walkon Carpet Corp. v. Klapprodt, 231 N.W.2d 370, 374 (S.D. 

1975) (when damage to reputation is part of a plaintiff’s claim, “evidence of his reputation 

or past misdeeds [is] admissible both in establishing truth and in mitigating damages” 

(citation omitted)); Finklea v. Jacksonville Daily Progress, 742 S.W.2d 512, 517 (Tex. 

App. 1987) (“It has long been the rule in Texas that the plaintiff's tarnished reputation 

may be shown in mitigation of damages.”). 
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the case on that improper basis. FRE 402, 403. Second, Plaintiff seems to want the jury 

to conclude that Donat engaged in improper relationships before, and had problems with 

employees before, so must have been repeating the same issues now concerning his 

relationship with Lisson – though all parties agree it was a consensual relationship – then 

make a further leap that this must be why Plaintiff was terminated. FRE 404(b); see Joint 

Pretrial Order § D(1)(g) (jumping from fact that Lisson was married when she began 

dating Donat to a conclusion that he must not have been acting in her interest for purposes 

of a conditional privilege to defamation). None of these theories are relevant, and the 

“evidence” is not properly considered under either theory. 

Statement of Conferral 

Undersigned counsel certifies that they have in good faith conferred with opposing 

counsel in an effort to resolve the disputed evidentiary issues that are the subject of the 

motion. 

RESPECTFULLY SUBMITTED this 26th day of November, 2019. 

 STINSON LLP 

By: /s/ Stefan Palys 

 Carrie M. Francis

Stefan M. Palys 

Michael Vincent 

1850 North Central Avenue, Suite 2100 

Phoenix, Arizona 85004-4584

 

SCHNEIDER & ONOFRY, PC

By: /s/ Timothy B. O’Connor [with permission] 

 Timothy B. O’Connor

365 East Coronado Road 

Phoenix, Arizona 85004

 

Attorneys for Defendants
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CERTIFICATE OF SERVICE 

I hereby certify that on November 26, 2019, I caused the foregoing document to 

be filed electronically with the Clerk of Court through ECF; and that ECF will send an 

e-notice of the electronic filing to: 

Joshua W. Carden 

JOSHUA CARDEN LAW FIRM, P.C. 

16427 North Scottsdale Road, Suite 410 

Scottsdale, AZ 85254 

joshua@cardenlawfirm.com 

Attorney for Plaintiff 

Timothy B. O’Connor, Esq. 

SCHNEIDER & ONOFRY, P.C. 

365 East Coronado Road 

Phoenix, Arizona 85004 

toconnor@soarizonalaw.com

Attorneys for Defendant Robert Donat 

I hereby certify that on November 26, 2019, a courtesy copy will be e-mailed to: 

Judge David G. Campbell 

United States District Court 

Sandra Day O’Connor U.S. Courthouse, Suite 623 

401 West Washington Street, SPC 58 

Phoenix, Arizona 85003-2161 

/s/ Joanne McClearn