UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

____________________________________ 

 ) 

KAREN COOK ) 

 ) 

 Plaintiff-Respondent, ) 

 ) Civil Action No. 1:06-cv-58 

 v. ) 

 ) 

CTC COMMUNICATIONS CORP. , ) 

 ) 

 Defendant-Petitioner. ) 

____________________________________) 

DEFENDANT’S MOTION IN LIMINE 

TO EXCLUDE PLAINTIFF FROM INTRODUCING TESTIMONY FROM JAWANNA

BENJAMIN THAT IS UNRELIABLE, CHARACTER AND/OR HEARSAY.

In her Objection to Defendant’s Motion for Summary Judgment, Plaintiff cites Jawanna 

Benjamin’s deposition testimony about what other employees believed or thought. Benjamin 

lacks foundation to make these assessments, the assessments often go to the employee’s 

character, and to the extent Benjamin overheard or spoke to the individual, the evidence is 

hearsay and must be excluded. 

Therefore, Defendant asks this Court to prohibit the introduction of the following 

testimony that Plaintiff relied on in her Objection to Defendant’s Summary Judgment Motion: 

1. “Bradstreet did not want to change the classifications until she figured out how 

much money was involved.” (Plaintiff’s Objection at 4, citing Benjamin Dep. at 

99-100). 

2. “Bradstreet was known to ‘let things slide’ and ‘hope they would get done 

eventually.’” (Plaintiff’s Objection at 9, citing Benjamin Dep. at 71-72). 

Case 1:06-cv-00058-JD Document 89 Filed 10/12/07 Page 1 of 6
3. “Bradstreet disapproved of Cook calling the Department of Labor.” (Plaintiff’s 

Objection at 10, citing Benjamin Dep. at 98). 

4. “Bradstreet became very angry ... with Cook for calling the Department of Labor 

on this issue.” (Plaintiff’s Objection at 10, citing Benjamin Dep. at 98). 

To the extent that Plaintiff relies, in the future, on additional testimony from Benjamin or 

others that is similarly unreliable, is impermissible character evidence or hearsay, Defendant 

reserves its right to raise further objections. 

ARGUMENT

I. THE EVIDENCE CITED ABOVE IS INADMISSIBLE BECAUSE IT IS 

UNRELIABLE, CHARACTER, OR HEARSAY EVIDENCE. 

At Benjamin’s deposition, Plaintiff’s attorney asked Benjamin a number of questions that 

elicited inadmissible evidence on which Plaintiff now intends to rely. Specifically, Plaintiff is 

currently relying on the above four statements to bolster her claims that CTC was an outlaw 

company resolute on violating the law. 

A. Benjamin’s Testimony About Why Bradstreet Waited To Reclassify 

Employees Is Inadmissible Hearsay Testimony. 

As a preliminary matter, Plaintiff states that Benjamin testified that “Bradstreet did not 

want to change the classifications until she figured out how much money was involved.” 

(Plaintiff’s Objection at 4, citing Benjamin Dep. at 99-100). However, this is a gross 

misclassification of what Benjamin said. Benjamin testified as follows: 

Q. And is your impression from the meeting and conversation with Tracy that she 

was taking more of a we’ll get this fixed eventually attitude toward that issue? 

A. Well, her issue was, yeah, we’ll get it fixed eventually, but also we don’t know 

how this is going to impact. So, if they had employees that had been working 

overtime that needed to be back paid for the overtime, we needed to make sure 

that we let the finance team know so that the money was accrued for, as well as 

notifying the employees, giving them, you know actual letters as to why they had 

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not been receiving it, and they were trying to figure out how far they needed to go 

back, if they did. SO that was something that Tracy was working on I guess, 

directly wit the legal team. 

Q. So, she didn’t want to change it until she figured out how much money was 

involved and have the company save up the money? 

A. Right, I guess that’s accurate. It was more so that we needed to explain, when I 

processed payroll, we needed to explain any additional funds, and because we 

didn’t know how far back we needed to go back for some employees, there was a 

lot of the employees had just newly came into the role so that it was just that 

current year, but they were trying to determine how far they needed to go back. 

There were issues with the with the acquisition that I really didn’t have direct 

experience with to know why they were making the change or why it was never 

done previous to them coming over to CTC’s payroll, but Tracy was supposed to 

be looking into how far they needed to go back, what kind of communication they 

were going to send the employees regarding that, or if they were going to move 

them into roles that were actually nonexempt. 

(Benjamin Dep. at 99-101, attached as Exhibit 1).

Clearly, Benjamin was not saying that Bradstreet was simply waiting to “change the 

classifications until she figured out how much money was involved.” (Plaintiff’s Objection at 4). 

However, even if she were, Benjamin’s testimony appears to be wholly based on hearsay 

statements that Benjamin overheard or understood. Plaintiff’s counsel asked Benjamin for her 

“impression” from speaking to Bradstreet. Therefore, Benjamin’s testimony is based solely on 

Bradstreet’s statements and is being offered for the truth of the matter asserted, i.e. that 

Bradstreet was waiting to change classifications. Consequently, the statements are hearsay and 

must be excluded under Rule 801. 

Additionally, it is clear from the above colloquy, that Benjamin herself was not involved 

in the decision making process and had no first hand knowledge of the events. Therefore, her 

testimony is unreliable and, as such, must be excluded. See Chappell v. GTE Products Corp., 

803 F.2d 261 (6th Cir. 1986)(excluding evidence based on “personal beliefs, conjecture and 

speculation” as unreliable). 

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B. Benjamin’s Testimony Concerning Bradstreet’s Character Is Inadmissible 

Under Rule 404 and 403. 

Plaintiff relies on Benjamin for the proposition that “Bradstreet was known to ‘let things 

slide’ and ‘hope they would get done eventually.’” (Plaintiff’s Objection at 9, citing Benjamin 

Dep. at 71-72, attached as Exhibit 1). This is inadmissible character evidence under Rule 404. 

Federal Rule of Evidence 404 prohibits the use of character evidence “for the purpose of 

proving action in conformity therewith.” Fed. R. Evid. 404(a). Plaintiff’s proposed use of 

Benjamin’s testimony violates both of these provisions. 

Benjamin’s testimony concerning Bradstreet’s proclivities and attitude are clearly being 

offered as evidence of Bradstreet’s character to influence the jury about Bradstreet’s unrelated 

action. Plaintiff is attempting to show that Bradstreet was unconcerned with potential legal 

violations and is offering this evidence to show that Bradstreet condemned Cook for being more 

proactive than she was. This is quintessential character evidence prohibited under Rule 404(a). 

Additionally, evidence that Bradstreet was known to “let things slide” and “hope they 

would get done eventually” is highly prejudicial and should be excluded under Rule 403. 

C. Benjamin’s Testimony Concerning Bradstreet’s Reaction to Cook Calling the 

Department of Labor is Both Unreliable and Hearsay. 

All evidence must be reliable. Benjamin’s testimony concerning Bradstreet’s alleged 

reaction to Cook calling the Department of Labor is unreliable, lacks foundation and is hearsay. 

Plaintiff is again twisting Benjamin’s actual testimony. Benjamin testified that she 

concluded that Bradstreet was angry “that [Cook] had contacted the Department of Labor and 

was raising all these flags for the company.” (Ex. 1, Benjamin Dep. at 98). Therefore, it is 

unclear whether Benjamin concluded that Bradstreet was angry concerning the Department of 

Labor issue or a separate matter. 

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Even if Benjamin did testify that Bradstreet was angry that Cook telephoned the 

Department of Labor, Benjamin testified that she reached this conclusion based on Bradstreet’s 

“tone and body language”. Therefore, because Benjamin’s testimony is based on her 

interpretation of Bradstreet’s body language and tone, it is hearsay and must be excluded under 

Rule 801. 

Finally, Bradstreet herself testified that she was unaware that Cook had ever called the 

Department of Labor and Cook testified that she only told Benjamin that she contacted the 

Department of Labor, not Bradstreet. (Bradstreet Dep. at 225, attached as Exhibit 2; Cook Dep. 

at 100-106, attached as Exhibit 3). 

It is unclear, therefore, on what basis Benjamin could have concluded that Bradstreet was 

angry with Cook, or if she even reached this conclusion. The fact that the testimony is 

contradicted both by the alleged perpetrator and the alleged victim confirms that it is completely 

untrustworthy and should not be offered to the jury. See Chappell v. GTE Products Corp., 803 

F.2d 261 (6th Cir. 1986)(excluding such testimony as unreliable). 

CONCLUSION

WHEREFORE, Defendant CTC respectfully request that this motion be allowed 

. 

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 Respectfully Submitted, 

CTC COMMUNICATIONS CORP. 

 By their Attorneys, 

 Marshall Law Group 

 

 /s/ Samantha C. Halem__________

Samantha C. Halem, NH Bar No. 17293 

Mary L. Marshall, Pro Hac Vice 

 37 Walnut Street, Suite 300 

 Wellesley, Massachusetts 02481 

 (781) 235-4855 

Dated: October 12, 2007 

CERTIFICATE OF SERVICE

 I certify that a copy of the foregoing Defendant’s Motion in Limine to Exclude Plaintiff 

From Introducing Testimony From Jawanna Benjamin That Is Unreliable, Character and/or 

Hearsay was served on this date and in the manner specified herein: Electronically served 

through ECF: Samantha C. Halem, Esq., counsel for the Defendant.. 

October 12, 2007 /s/ Samantha C. Halem_________

 Samantha C. Halem 

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