UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CARL A. BARNES, et al., )

)

Plaintiffs, )

)

v. ) Civil No. 06-315 (RCL)

)

THE DISTRICT OF COLUMBIA )

)

Defendant. )

)

MEMORANDUM OPINION

(RESOLVING PARTIES’ MOTIONS IN LIMINE)

I. BACKGROUND AND PROCEDURAL HISTORY

This case concerns the District of Columbia Department of Corrections’ (“DOC”) 

practice of overdetaining and strip searching its inmates. The plaintiffs, former inmates subject

to overdetentions and strip searches, filed a class action against the District of Columbia 

(“District”) over six years ago. Compl., Feb. 23, 2006, ECF No. 1. This long-running case is 

virtually identical to a prior case before this Court, Bynum v. District of Columbia, Civil Action 

No. 02-956 (RCL) (filed in 2002). Given this extensive history, the Court assumes familiarity 

with its prior opinions, which set forth the background of this class-action litigation in greater 

detail. See, e.g., Barnes v. District of Columbia, 793 F. Supp. 2d 260, 265 (D.D.C. 2011) 

(discussing background of case up to summary judgment stage).

In June 2011, the Court granted plaintiffs’ Motion for Summary Judgment as to the 

District of Columbia’s liability for any overdetentions at its jails, throughout the class period, 

caused by the DOC’s application of the so-called “10 p.m. cut-off” rule, and all overdetentions 

occurring from September 1, 2005 to December 31, 2006. Id. at 286. The Court granted the 
2

District’s Motion for Summary Judgment as to overdetentions occurring from February 26, 

2008 forward that were not caused by the DOC’s enforcement of the 10 p.m. cut-off rule. Id. 

The Court denied both parties’ motions as to the District's liability for overdetentions that 

occurred from January 1, 2007 to February 25, 2008 (the “Trial Period”) that were not caused 

by the DOC's enforcement of the 10 p.m. cut-off rule. Id. at 286 & n.18. The District’s liability 

for that subset of overdetentions remains undetermined pending trial.

On March 1, 2013, a jury trial regarding the District’s liability for overdetentions during 

the “Trial Period” will commence. Before the Court are the parties’ pretrial motions in limine

to exclude or limit certain evidence from being introduced at the upcoming liability trial. The 

plaintiffs filed a motion styled as Plaintiffs’ Motion in Limine No. 1 to Exclude Introduction of 

Evidence of the District of Columbia’s Overdetention Numbers for the Trial Period, Jan. 11, 

2013, ECF No. 410. The District has filed an “Omnibus Motion in Limine,” encompassing five 

separate motions in limine. Def.’s Mot. in Limine, Jan. 11, 2013, ECF No. 409. Upon 

consideration of these motions, the oppositions and replies thereto, and the record herein, the 

Court will deny plaintiffs’ motion and grant in part and deny in part the District’s motion.

II. LEGAL STANDARD

While neither the Federal Rules of Civil Procedure nor the Federal Rules of evidence 

expressly provide for motions in limine, the Court may allow such motions “pursuant to the 

district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 

38, 41 n.4 (1984). Motions in limine are “‘designed to narrow the evidentiary issues for trial and 

to eliminate unnecessary trial interruptions.’” Graves v. District of Columbia, 850 F. Supp. 3d 6, 

10 (D.D.C. 2011) (quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1070 (3d Cir.

1990)). As Judge Kollar–Kotelly thoroughly explained in Graves:
3

Broadly speaking, the Federal Rules of Evidence permit the admission of 

“relevant evidence”—that is, evidence that “has any tendency to make a fact [of 

consequence] more or less probable than it would be without the evidence,” Fed. 

R. Evid. 401—provided it is not otherwise excluded by the Rules, the 

Constitution of the United States, or an Act of Congress, Fed. R. Evid. 402, and 

its probative value is not “substantially outweighed by a danger of...unfair 

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence,” Fed. R. Evid. 403.

In light of their limited purpose, motions in limine “should not be used to resolve 

factual disputes,” which remains the “function of a motion for summary 

judgment, with its accompanying and crucial procedural safeguards.” C & E 

Servs., Inc. v. Ashland Inc., 539 F. Supp. 2d 316, 323 (D.D.C. 2008)....In other 

words, “[f]actual questions should not be resolved through motions in limine,” 

Goldman v. Healthcare Mgmt. Sys., Inc., 559 F. Supp. 2d 853, 871 (W.D. Mich.

2008) (citation omitted), nor is a motion in limine a “vehicle for a party to ask the 

Court to weigh the sufficiency of the evidence,” Bowers v. Nat’l Collegiate 

Athletic Ass’n, 563 F.Supp.2d 508, 532 (D.N.J. 2008). Rather, parties should 

target their arguments to demonstrating why certain items or categories of 

evidence should (or should not) be introduced at trial, and direct the trial judge to 

specific evidence in the record that would favor or disfavor the introduction of 

those particular items or categories of evidence. U.S. ex rel. El–Amin v. George 

Washington Univ., 533 F. Supp. 2d 12, 19 (D.D.C. 2008). In short, motions in 

limine are a means for arguing why “evidence should or should not, for 

evidentiary reasons, be introduced at trial.” Williams v. Johnson, 747 F.Supp.2d 

10, 18 (D.D.C. 2010) (emphasis in original).

In deference to their familiarity with the details of the case and greater experience 

in evidentiary matters, trial judges are afforded broad discretion in rendering 

evidentiary rulings, a discretion which extends to assessing the probative value of 

the proffered evidence and weighing any factors against admissibility. 

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008). The trial 

judge’s discretion extends not only to the substantive evidentiary ruling, but also 

to the threshold question of whether a motion in limine presents an evidentiary 

issue that is appropriate for ruling in advance of trial. [See, e.g.,] United States v. 

Valencia, 826 F.2d 169, 172 (2d Cir. 1987)....The trial judge has the “discretion 

to rule in limine or to await developments at trial before ruling.” Stephen A. 

Saltzburg et al., FEDERAL RULES OF EVIDENCE MANUAL § 103.02[13] (9th ed. 

2006). “[I]n some instances it is best to defer rulings until trial, [when] decisions 

can be better informed by the context, foundation, and relevance of the contested 

evidence within the framework of the trial as a whole.” Casares v. Bernal, 790 F. 

Supp. 2d 769, 775 (N.D. Ill. 2011) (citation omitted).

Id. at 10–11. While the Court has broad discretion to make judgments about whether proffered 

evidence is sufficiently relative or overly prejudicial, see United States v. Project on Gov’t 
4

Oversight, 526 F. Supp. 2d 62, 66 (D.D.C. 2007), the Court should remember that making 

counsel object to inadmissible evidence at trial may “emphasize[] the evidence before the jury.” 

Banks v. District of Columbia, 551 A.3d 1304, 1310 (D.C. 1988); see also 75 AM. JUR. 2D. TRIAL 

§ 94 at 306–307 (1991) (“the mere asking of an improper question in the hearing of the jury may 

prove so prejudicial that, notwithstanding an instruction by the court to disregard the offensive 

matter, the moving party will be denied his right to a fair trial”).

III. PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE THE DISTRICT’S

OVERDETENTION NUMBERS AND DISCREPANCY REPORTS

The plaintiffs ask this Court to “exclude any testimony, introduction of, or reference to, 

evidence of the District of Columbia’s discrepancy reports (regardless of file type or format), 

graphs summarizing said reports, as well as any testimony, introduction of, or reference to, the 

District’s overdetention numbers from January 1, 2007 – February 25, 2008 (the “Trial Period”), 

which are based on the District’s discrepancy reports.” Pls.’ Mot. in Limine 1. 

The plaintiffs claim that (1) “the District’s overdetention numbers and discrepancy 

reports are not supported by reliable methodology and are misleading”; (2) “[t]he District needs 

expert testimony to establish that the methodology supporting its overdetention numbers and 

discrepancy reports is reliable” and the District has failed to designate an expert; and (3) 

witnesses “who testify about the District’s total overdetention numbers and discrepancy reports 

are offering lay opinion testimony or expert opinion testimony...based on unreliable 

methodology” that could mislead or confuse the trier of fact. Id. 2.

Beginning in January 2007, the District’s Department of Corrections began 

systematically tracking overdetentions through “discrepancy reports”—documents which list 

individual overdetentions and the purported reasons for those overdetentions. Barnes, 793 F. 

Supp. 2d at 270. A declaration filed by Kathy Souverain, the Records Administrator at the DOC 
5

since March 2007, describes the process of creating these discrepancy reports. Souverain Decl., 

June 7, 2011, ECF No. 301-2. According to Ms. Souverain:

I am familiar with the discrepancy reports produced by the DOC from July 2007 

forward. These reports indicate the number of over-detentions that occur each 

month....In order to identify an over-detention, the DOC runs a “Crystal Report,” 

which identified who have been potentially over-detained. The institutional file 

of each inmate on this list is then reviewed by hand and a notation is entered into 

Lotus Notes as to whether the inmate was over-detained or not. An overdetention is defined as anyone released after 11:59 PM on the day they were 

released, or alternately, situations where the end of sentence calculation was 

computed incorrectly.

Souverain Decl. ¶ 2–3. The DOC creates the discrepancy reports by running a Lotus Notes 

query in the institutional file system, JACCS, to identify potential overdetentions, and this 

preliminary data is individually reviewed by individual DOC employees who enter a notation 

into Lotus Notes. The discrepancy reports represent the net product of this process, and have 

been created contemporaneously on a monthly basis from January 2007 to May 2011. See, e.g., 

Souverain Decl.; ECF No. 302 (copies of all discrepancy reports).

The Court is on well tread ground here. The plaintiffs have repeatedly asked the Court to 

exclude the District’s discrepancy reports, and the Court has refused to do so each time. The 

plaintiffs first challenged the admissibility of the discrepancy reports on June 21, 2011, ECF No. 

301; the Court rejected plaintiffs’ arguments when resolving summary judgment, and determined 

“that the discrepancy reports are admissible hearsay pursuant to Federal Rule of Evidence 

803(6), which creates an exception to the hearsay rule for business records” and held that the 

discrepancy reports “are admissible for all purposes[.]” Barnes, 793 F. Supp. 2d at 293. At that 

time, the plaintiffs objected to the reports because “by themselves [they] do not establish that 

these were the only over detentions [sic] during the period,” ECF No. 306. The plaintiffs make a 

similar argument in their Motion in Limine, repeating it at the most recent pretrial hearing. 
6

When the Court first considered this argument, it decided that “[t]o the extent that the plaintiffs’ 

and the District’s overdetention numbers come into conflict, the jury can sort out whose numbers 

are credible.” Barnes, 793 F. Supp. 2d at 293. The fact that the District’s discrepancy reports do 

not include all the overdetentions the plaintiffs think the reports should goes to the weight of the 

evidence, not necessarily its admissibility. Cf. Graves v. District of Columbia, 850 F. Supp. 2d 

6, 11 (D.D.C. 2011) (motions in limine should not be used to resolve factual disputes or ask the 

court to weigh the sufficiency of evidence).

Thereafter, the plaintiffs asked the Court (for the first time) to reconsider its summary 

judgment opinion, in part based on their argument that the discrepancy reports are inadmissible. 

Pls.’ First Mot. Reconsideration 8–11, Nov. 1, 2011, ECF No. 320. The Court denied 

reconsideration, again rejecting plaintiffs’ position on the admissibility of the discrepancy 

reports. Order Denying Mot. Reconsideration 3, Dec. 7, 2011, ECF No. 327.

After discovery, the plaintiffs again attacked the credibility and reliability of the 

discrepancy reports through a motion to compel, claiming that the District has not provided the 

entire release discrepancy database1 and other documents and data the District used to generate 

the final discrepancy reports. Pls.’ Mot. Compel 5–9, June 25, 2012, ECF No. 362. The Court 

ordered the District to release the database query it used to help generate the reports, but 

otherwise found that plaintiffs did not meet their burden of showing that the District’s production 

was incomplete. Barnes v. District of Columbia, __ F.R.D. __, 2012 WL 4466669, *21–*25 

(D.D.C. Sept. 28, 2012). “The Court urge[d] the plaintiffs to work diligently and quickly, after 

receiving the correct query, to determine if any files are missing, so discovery for the liability 

phase may finally come to an end.” Id. at *25. The plaintiffs did not use this newly produced 

 1

 The “release discrepancy database” refers to a set of data, pulled from a database via a specific search query, that

the DOC identified as possible overdetentions, and then reviewed in drafting its final discrepancy reports. See

Barnes v. District of Columbia, __ F.R.D. __, 2012 WL 4466669, *19–*25 (D.D.C. Sept. 28, 2012).
7

query to form the basis of a new motion to compel, argue that data was missing, or update expert 

reports after reviewing the newly produced query. The plaintiffs stated at a pretrial hearing that 

they did not intend to file any new motions or update their expert reports based on their 

examination of this query.

On September 7, 2012, the plaintiffs again asked the Court to reconsider its decision to 

admit the discrepancy reports; they further requested that the Court, upon throwing out the 

discrepancy reports, enter summary judgment for the plaintiffs. ECF No. 387. The Court again 

rejected this request, finding that the plaintiffs’ arguments did not present any new issues, and 

the plaintiffs were really asking the Court to weigh evidence and resolve factual issues. See

Mem. Op. & Order Denying Reconsideration 3–6, Oct. 31, 2012, ECF No. 399.

There are many problems with the plaintiffs’ so-called motion in limine. First, virtually 

all of the plaintiffs’ arguments against the discrepancy reports go to the weight of the evidence, 

not its admissibility. Cf. D.L. v. District of Columbia, 820 F. Supp. 2d 27, 30 (D.D.C. 2011). As 

contemporaneous business records, representing the DOC’s attempt to systematically track 

overdetentions, the discrepancy reports do not have to meet the same standards for “accepted 

methodology” that apply to expert reports. Essentially, the plaintiffs ask the Court, yet again, to 

decide that their expert reports represent the correct total number of overdetentions, and that the 

District’s numbers are inaccurate. The plaintiffs have “cloaked a motion for summary judgment 

in the form of a motion in limine, but the deadline to file dispositive motions has long since 

passed.” Williams, 747 F. Supp. 2d at 20; see also Dunn ex rel. Albery v. State Farm Mut. Auto. 

Ins. Co., 264 F.R.D. 266, 274 (E.D. Mich. 2009) (“[M]otions in limine are meant to deal with 

discrete evidentiary issues related to trial, and are not another excuse to file dispositive motions 

disguised as motions in limine.”) (internal quotation marks and citation omitted). The last time 
8

the plaintiffs asked the Court to exclude the District’s discrepancy reports, they said that 

excluding such evidence would require the Court to enter summary judgment for the plaintiffs.

Pls.’ Second Mot. Reconsideration, Sept. 7, 2012, ECF No. 387. This indicates that this “new” 

motion to exclude the discrepancy reports is really a dispositive motion in disguise. The 

plaintiffs “misconstrue[] the purpose of a motion in limine, which should not be used to resolve 

factual disputes among the parties.” Williams, 747 F. Supp. 2d at 20.

Another problem this Court has is that this motion in limine is essentially a motion for 

reconsideration of motion for reconsideration. On September 7, 2012, the plaintiffs filed a 

lengthy Motion for Reconsideration of Court’s Decision to Admit District’s PDF Discrepancy 

Reports and to Deny Summary Judgment to Plaintiffs’ for the Trial Period. ECF No. 387. In 

denying reconsideration, the Court stated:

Plaintiffs’ Motion for Reconsideration relies on many of the same claims the 

plaintiffs made about the District’s production in their Motion to Compel the 

Release Discrepancy Database. Compare [Pls.’ Second Mot. Reconsideration] at 

24–41, with Pls.’ Mot. to Compel Release Discrepancy Database 5–9, June 25, 

2012, ECF No. 362. This Court, denying in part plaintiffs’ motion to compel, 

found the plaintiffs did not meet their burden of showing the District withheld 

discrepancy reports or otherwise discoverable data relating to the disputed period. 

Barnes v. Dist. of Columbia, __ F. Supp. 2d __, 2012 WL 4466669, *20–*26 

(D.D.C. Sept. 28, 2012)....

In finding that the District’s Discrepancy Reports raised a genuine issue of 

material fact [at summary judgment], the Court did not declare that the District’s 

reports accurately reflect the number of overdetentions. It found—with all 

reasonable inferences drawn in favor of the District—that a reasonable jury could 

find these reports credible. Barnes, 793 F. Supp. 2d at 280. Unlike the Analysis 

of Releases, the Discrepancy Reports were more than a “conclusory allegation 

that the plaintiffs’ numbers...are wrong, and nothing more.” Id. at 279....

The plaintiffs stress that the District’s Discrepancy Reports are incomplete, based 

on faulty methods, and underestimate overdetentions. [Pls.’ Second] Mot

Reconsideration 24–41. The plaintiffs are free to make these arguments to a factfinder and convince a...jury 2 that their numbers are correct. By denying 

plaintiffs’ Motion for Reconsideration, the Court does not choose between either 

 2 The Court had originally said “judge or jury,” in case the parties later agreed to a bench trial on liability.
9

parties’ overdetention estimates. It merely holds that the plaintiffs have not 

convinced the Court that the District’s numbers are so flawed, so baseless that 

they amount to a mere conclusory allegation that plaintiffs’ numbers are wrong. 

If the Court grants reconsideration and enters summary judgment for plaintiffs, in 

effect it would weigh evidence and resolve factual issues. 

Mem. Op. & Order Denying Reconsideration 5–6, Oct. 31, 2012, ECF No. 399. In that opinion, 

the Court emphasized that this issue had been repeatedly argued:

The plaintiffs have raised doubts as to the accuracy and completeness of the 

District’s Discrepancy Reports. See, e.g., ECF Docket Entries 362, 373, 387, 395, 

398. The District has raised objections to the plaintiffs’ expert reports and their 

estimates of overdetentions. See, e.g., ECF Docket Entries 365, 369, 376-2, 381, 

383, 393. The District has also defended the completeness of its production and 

the integrity of its Discrepancy Reports. See, e.g., ECF Docket Entries 369, 376-

2, 393, 394. In order to resolve these disputes, the Court would need to weigh 

competing evidence and resolve issues of fact.

Id. at 6–7. Other than arguing that the District needs expert testimony to introduce the reports, 

the plaintiffs’ arguments are basically the same as those previously, and repeatedly, rejected by 

this Court. Not only are plaintiffs using a motion in limine as a backdoor motion for summary 

judgment, but are also using it as a backdoor motion to reconsider. The Court is full well aware 

that the plaintiffs object to its decision to admit the discrepancy reports, as the plaintiffs should 

be full well aware that this Court believes it is proper for the jury to decide whose overdetention 

numbers are accurate and credible.

The plaintiffs raise one new objection to the discrepancy reports—namely that the 

“District needs expert testimony to establish that the methodology supporting its overdetention 

numbers and discrepancy reports is reliable” and any opinion testimony used to support the 

reports and overdetention numbers would be opinion testimony “based on an unreliable 

methodology.” Pls.’ Mot. in Limine 2.

The discrepancy reports are not expert reports. They are business records—created not in 

anticipation of litigation, but in the normal course of business—that do not require a Rule 
10

26(a)(2) designated expert to authenticate them. Like the District’s earlier “Analysis of 

Releases,” the discrepancy reports “[do not] purport to be, and [are] not expert witness 

testimony; [they are] clearly [] report[s] created by DOC staff” summarizing the monthly count 

of overdetentions. Barnes, 793 F. Supp. 2d at 292. Testimony from a DOC official familiar with 

how these reports were generated, what criteria and methodology were used, et cetera, is direct 

testimony concerning the DOC’s business records. It is not expert testimony.

The Court also agrees with the District’s alternative argument that the Court could, if 

necessary, admit “‘lay opinion testimony’ to explain and interpret the District’s discrepancy 

reports,” Def.’s Opp’n 6. The opinions or inferences offered by Jeannette Myrick—who has 

extensive personal experience with reviewing inmate jackets and identifying potential 

overdetentions—would be “(a) rationally based on the perception of the witness, (b) helpful to a 

clear understanding of the witness’ testimony or the determination of a fact in issue and (c) not 

based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” 

Hall v. CIA, 538 F. Supp. 2d 64, 69 (D.D.C. 2008) (quoting Fed. R. Evid. 701). There is no need 

for the Court serve as a “gatekeeper”—ensuring that expert testimony is “valued,” with 

conclusions based on “good grounds,” Groobert v. President and Directors of Georgetown 

College, 219 F. Supp. 2d 1, 6 (D.D.C. 2002)—“for instances involving lay opinion testimony.” 

United States v. Eiland, 2006 WL 2844921, *2 (D.D.C. Oct. 2, 2006).

Lay opinion testimony is admissible if “the specialized knowledge at issue was gained 

though experience rather than though scientific or technical training,” so long as the witness 

testified “based solely on personal experience with the case at issue.” Armenian Assembly of 

Am. v. Cafesjian, 746 F. Supp. 2d 55, 65 (D.D.C. 2010). People at different jobs can obtain 

different kinds of “specialized knowledge” based on their training and experiences at that job. 
11

See, e.g., United States v. Lawson, 653 F.2d 299, 303 (7th Cir. 1981), cert. denied, 454 U.S. 

1150, (1982) (concluding that lay opinion testimony by FBI agents as to defendant’s sanity was 

properly admitted despite fact that the agents had little opportunity to view the defendant);

United States v. Mastberg, 503 F.2d 465 (9th Cir. 1974) (permitting under Rule 701 the 

testimony of a customs inspector that the defendant appeared nervous); State v. Johnson, 719 

P.2d 1248, 1256-57 (Mont. 1986) (holding that, in a prosecution for driving under the influence 

of alcohol, a police officer was properly allowed to testify as a lay witness on the basis of his 

own experience as to what generally happens to a car when its power steering fails, where he had 

worked on vehicles of all kinds for over ten years and had experienced power steering failure 

several times); State v. Hall, 353 N.W.2d 37, 43 (S.D. 1984) (permitting police officers to give 

lay opinion concerning defendant’s intoxicated state, under state rule analogous to Federal Rule 

of Evidence 701). Any “specialized knowledge” the District’s witness would need to comment 

on how the DOC compiled the discrepancy reports and reviewed inmate jackets would be based 

on the witness’ experience with said reports. Therefore, even if lay opinion testimony is needed 

to testify about the discrepancy reports, the testimony of Jeannette Myrick—who has direct

experience reviewing inmate jackets and potential overdetentions—would qualify as such.3

The discrepancy reports, and testimony about them, are admissible at the liability trial. 

However, the Court should refine its earlier statement that the discrepancy reports are 

“admissible for all purposes.” Barnes, 793 F. Supp. 2d at 293. That is not entirely accurate. 

The District mentioned, at the latest pretrial conference, that it may use the discrepancy reports 

and related testimony to contest the overdetention numbers provided by the plaintiffs’ experts. 

 3 Jeanette Myrick’s extensive experience with reviewing inmate jackets and tracking overdetentions might have 

qualified her as an expert witness outright, similarly to how Mr. Day’s experience with analyzing overdetention data 

qualifies him as an expert witness. See infra Part IV.C. However, the District’s failure to timely designate an expert 

or a rebuttal expert makes this point moot. See Barnes, 2012 WL 4466669, *13.
12

Certainly it may do so indirectly—by presenting its overdetention numbers and explaining how 

the DOC prepared them, the District may provide a compelling alternative to plaintiffs’ numbers, 

and convince a jury to credit its figures over those provided by the plaintiffs. Ms. Myrick—or 

any other District witness—cannot speak beyond her personal experience and expertise in 

tracking overdetentions and preparing reports. Even if Ms. Myrick were qualified to comment 

on the statistical methods used by plaintiffs’ experts, the District has not designated her as a 

rebuttal expert. As noted by this Court:

[T]he District passed on several opportunities to timely designate a rebuttal 

expert....On March 6, 2010, the District received Mr. Day's first report on his 

review of inmate jackets. Def.’s Reply ISO its Mot. to Strike 2, Aug. 15, 2012, 

ECF No. 381. The District did not then designate a rebuttal expert. On 

November 15, 2010, Dr. Kriegler released his first expert report, estimating 

overdetentions based on a stratified random sample of inmate jackets provided by 

Mr. Day. Id. at 2–3. The District did not then designate a rebuttal expert. On 

December 2, 2010, Dr. Kriegler revised the numbers in his first expert report. Id. 

at 3. The District did not then designate a rebuttal expert. On December 13, 

2010, Mr. Day filed a supplemental report based on additional reviews of jackets. 

Id. at 4. The District did not then designate a rebuttal expert. A day later, Dr. 

Kriegler again revised his first report based on Mr. Day's new report. Id. The 

District did not then designate a rebuttal expert. On December 7, 2011, the Court 

reopened limited discovery until April 6, 2012; on February 14, 2012 Dr. Kriegler 

filed his Second Supplemental Report. Id. at 4–5. The District did not then 

designate a rebuttal expert. From April 3, 2012 onwards, the Court extended 

discovery, eventually setting the deadline for plaintiffs’ supplemental expert 

reports for June 14, 2012. Id. at 5. The District did not then designate a rebuttal 

expert. At no time, in the almost two years since receiving the first report, did the 

District feel the need to designate a rebuttal expert. It is only now, after all the 

extended deadlines have passed and the Court has stated that “[n]o further 

extensions of discovery will be permitted,” Order, Apr. 27, 2012, ECF No. 345, 

that the District decides it might need an expert witness to rebut Mr. Day and Dr. 

Kriegler’s reports.

Barnes, 2012 WL 4466669, *13. Not having designated an expert to rebut Mr. Day and Dr. 

Kriegler’s reports may prove detrimental to the District, but the Court reminds the District that it 

passed on several opportunities to designate an expert. The District cannot correct for this 

oversight by using Ms. Myrick and its discrepancy reports as ersatz rebuttal expert testimony.
13

IV. DEFENDANT’S MOTIONS IN LIMINE

A. Motion to Preclude Mention of Settlement in Bynum

The District moves to exclude all evidence or mention of the settlement in Bynum v. 

District of Columbia, Civil No. 02-956 (RCL). The Bynum case dealt with a virtually identical 

issue—the class plaintiffs claimed that the District’s DOC had a practice of overdetaining and 

strip searching inmates. See Compl., May 16, 2002, ECF No. 1, 02-cv-956. In fact, Messrs.

Barrett Litt, Paul Estuar, and William Claiborne—attorneys of record in the present action—also 

represented the plaintiffs in Bynum. This Court approved of a settlement in Bynum in January 

2006. Bynum v. District of Columbia, 412 F. Supp. 2d 73 (D.D.C. 2006). The approved 

settlement provided monetary relief to individual class members who had been overdetained, id. 

at 77–78, and provided the following class-wide prospective relief:

The parties agree that the injunctive relief objective of this agreement is the 

elimination of over-detentions and court release strip searches. To that end, the 

District will, for a period of two years, provide to Class Counsel annually a report 

on whether 1) it has strip searched any court returns entitled to release absent 

individualized reasonable suspicion to do so, and whether 2) it has released any 

detainees or inmates more than 24 hours after the time they become entitled to 

release, and the reasons therefore. In addition, under the terms of this settlement 

elaborated further on in this Order, the District must invest substantial funds in 

new renovations that will substantially contribute to processing of inmates in the 

jail.

Id. at 78. Of the $12 million in settlement funds, $3 million was to “revert to the D.C. 

Department of Corrections to be spent on programs and services which relate to the subject of 

this complaint,” id. at 79, including “build[ing] a state of the art Inmate Processing Center (IPC) 

within the foot print of the DC Jail site, which will be a project totaling approximately $5 

Million. The additional $2 million required to complete the project will be provided by the 

District government,” id. at 83. The Bynum settlement also provided:

Neither this Final Order of Approval of Settlement, the Settlement Agreement, 
14

nor any of its terms or the negotiations or papers related thereto shall constitute 

evidence or an admission by the Defendant that any acts of wrongdoing have been 

committed, and they shall not be deemed to create any inference that there is any 

liability therefore. Neither this Final Order of Approval of Settlement, nor the 

Settlement Agreement, nor any of its terms or the negotiations or papers related 

thereto shall be offered or received in evidence or used for any purpose 

whatsoever, in this or any other matter or proceeding in any court, administrative 

agency, arbitration, or other tribunal, other than as expressly set forth in the 

Settlement Agreement.

Id. at 87. The District did not admit to any wrongdoing in settling Bynum. Id.

The District strongly objects to the introduction or mention of the Bynum settlement in 

the upcoming liability trial, claiming it “fails every test of admissibility under the Federal Rules 

of Evidence.” Def.’s Mot. in Limine 5 (formatting altered). According to the District, the 

Bynum settlement is irrelevant, precluded by Federal Rule of Evidence 408(a), and unfairly 

prejudicial, confusing, and cumulative. Id. at 5–8.

First, the Court must consider whether the evidence is relevant. The District argues that 

the “Bynum class period ended seventeen months before the start of the Trial Period. A prior 

case about events that took place seventeen months previous and ended in a no-fault settlement 

does not make it any more or less likely that the District had a pattern and practice of 

overdetention during the Trial Period.” Id. at 6. Certainly, if the plaintiffs sought to use the 

Bynum settlement to prove that the District overdetained inmates prior to 2006 and, thus, was 

more likely to have overdetained thereafter, the Bynum settlement would be of limited probative 

value. More important, introducing the settlement for this purpose would violate Federal Rule of 

Evidence 408(a), which provides that evidence of a settlement is not admissible “to prove 

liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or 

impeach through prior inconsistent statement or contradiction.” Therefore, the Court will not 

allow plaintiffs to use or mention the Bynum settlement to suggest that the District had 
15

overdetained inmates during the time covered by the Bynum settlement. To allow otherwise 

would plainly violate Rule 408(a), and the prejudicial effect of this evidence would outweigh its 

probative value.

The District’s Motion in Limine makes assumptions about how plaintiffs will use the 

Bynum settlement, but the plaintiffs aver that they

do not seek to introduce the Bynum settlement for the purpose of arguing that, 

because the District reached a settlement in the Bynum matter they are liable for 

overdetentions during the Barnes Trial Period. Rather, plaintiffs will introduce 

the Bynum settlement for the purpose of demonstrating 1) the District had long 

been on notice of the ongoing problem of overdetentions in its jails, 2) the District 

was to accomplish very specific changes in the way it processed out inmates, 3) 

the District had committed to various alterations in its practice that went 

unaddressed, and 4) the District’s failure to take steps addressed in the Bynum

settlement contributed substantially to the ongoing problem of overdetentions. 

Such evidence is probative of knowledge, deliberate indifference, and custom and 

policy.

Pls.’ Opp’n to Def.’s Mot. in Limine 3. The plaintiffs’ focus on the relevance of the prospective 

and injunctive provisions of the Bynum settlement—in particular its stipulation that DOC use $3 

million of the settlement fund to prevent future overdetention problems. Id. at 4. They also wish 

to use the fact that the Bynum class sued the District to show that the District was on notice of a 

potential overdetention problem. Id. at 5–6.

For plaintiffs, the issue is not whether DOC was liable for overdetentions prior to the 

class period, but whether the Bynum suit and the settlement’s injunctive provisions put DOC on 

notice of a problem, and whether the District’s alleged failure to follow through on the Bynum

settlement shows deliberate indifference. When put this way, evidence of the Bynum settlement 

is clearly relevant to the upcoming liability trial. In fact, this Court found this kind of evidence 

highly relevant when ruling on summary judgment in this case:

This rolling overdetention problem at the DOC during the first 16 months of the 

class period is all the more shocking when the Court considers that the DOC and 
16

the District were on notice, via the Bynum litigation, that the prevailing release 

practices were deeply inadequate, and that fundamental change was needed. The 

Court would have expected, given that lawsuit, a concerted effort on the part of 

the District and the DOC to identify and eliminate every major contributing factor 

to the overdetention problem. But that’s not what happened. Even when the facts 

are viewed in the light most favorable to the District, the DOC’s first meaningful 

change to the status quo didn't come until July 2008, when it instituted the 

courthouse release program, permitting a subset of inmates to be released directly 

from the Superior Court....

Other major changes—such as the completion of the Inmate Processing Center, a 

move to a paperless system to process releases rather than a dogged insistence on 

releasing inmates only upon receipt of paper court orders, or simply permitting 

releases based upon faxed (or, to be even more futuristic, scanned and emailed) 

court orders—were either rejected by the DOC or remain, to this day, caught in a 

whirlpool of delays. In the meantime, free men and women were treated as 

prisoners, hoping the DOC’s paper-bound and Byzantine release process would 

favor them with an on-time release.

Barnes, 793 F. Supp. 2d at 279. In granting summary judgment for the plaintiffs for the first 

sixteen months of the class period, this Court expressed “alarm at the DOC’s lack of urgency in 

responding to this disturbing pattern of overdetentions despite the notice provided by the Bynum

litigation.” Id. If the Court found the Bynum suit, and the injunctive provisions of its settlement, 

significant to its ruling on summary judgment, certainly those matters could be relevant to 

liability for the trial period.4

 

Relevance only gets the plaintiffs so far. Relevant evidence can still be excluded if it is 

unduly prejudicial, or otherwise barred by the Federal Rules of Evidence. Rule 408 applies to 

this situation, so the Court must determine whether the Bynum settlement is being offered “either 

to prove or disprove the validity...of a disputed claim or to impeach by a prior inconsistent 

statement or a contradiction,” or whether this evidence is being “admit[ted] for another purpose.” 

 4 The District claims that “the Bynum settlement is poor evidence for the District’s knowledge during the Trial 

Period because Bynum deals, at best, with the situation in the District’s jails seventeen months before that time.” 

Def.’s Mot. in Limine 8 n.4. Again, this misconstrues which part of the Bynum settlement plaintiffs wish to rely on. 

The injunctive provisions of the settlement ordered prospective relief. These issues are not buried a (mere) 

seventeen months in the past, but were ongoing obligations of the District to take certain measures to reduce the risk 

of overdetentions. The prospective injunctive relief is relevant to knowledge and deliberate indifference during the 

trial period.
17

Fed. R. Evid. 408. Defendant primarily relies on Trebor Sportswear Co., Inc. v. The Limited 

Stores, Inc., 865 F.2d 506, 510 (2d Cir. 1989) for the proposition that a party may not offer a 

settlement for a purpose too “closely intertwined” with the substance of the issues before the 

Court. In Trebor, a party wished to use settlement negotiations to show that that statue of frauds 

had been satisfied and thus an enforceable contract existed. 865 F.2d at 510. “Because the 

question of whether the statute of frauds is satisfied is by its nature inextricably intertwined with 

the question of whether a contract is enforceable (and thus with the question of liability), the 

Trebor court held that it was not an abuse of discretion to exclude evidence of settlement 

communications.” Faulkner v. Arista Records LLC, 797 F. Supp. 2d 299, 317 (S.D.N.Y. 2011). 

The District claims that the 

only matters at issue for trial are whether the District was deliberately indifferent 

to plaintiffs’ rights and had a custom and practice of overdetentions during the 

trial period. Given the narrow scope of the trial, there are simply no collateral 

issues that the Bynum settlement could be used to prove under FRE 

408(b)....Even if the plaintiffs argue that the Bynum settlement can be admitted to 

show that the District knew about problems with overdetentions during that trial 

period, that issue is clearly intertwined with the central question of deliberate 

indifference.

Def.’s Mot in Limine. The District continues this line of argument in its Reply: 

Barnes and Bynum both allege the same wrongs (strip searches and 

overdetentions) taking place at the same location (the D.C. Jail) by the same actor 

(the District) against virtually identical classes of people (prisioners during their 

respective time periods)....Bynum settled, and now the plaintiffs want to use it to 

show that the District was deliberately indifferent to strip searches and 

overdetentions during the Barnes period because it knew about Bynum and the 

terms of the Bynum settlement.

Def.’s Reply 2.

Again, the District misunderstands how the plaintiffs seek to use the Bynum case. It 

would be impermissible for plaintiffs to use the Bynum settlement to show that since the District 

“was liable for a...overdetention that happened on August 31, 2005,” this proves that “the exact 
18

thing against the exact same defendant...occurred one day later.” Def.’s Reply 2–3 (emphasis 

omitted). Once more, plaintiffs are not using the Bynum settlement to show that an individual 

overdetention actually happened during the Bynum class period, or that any individual 

overdetention happened during the Barnes trial period—and to the extent plaintiffs might have, 

they are hereby barred from doing so. The plaintiffs are not arguing that prior overdetentions by 

the District show a propensity for future overdetentions. Cf. Dodson v. CBS Broadcasting Inc., 

423 F. Supp. 2d 331, 334 (S.D.N.Y. 2006) (evidence of prior suits by EEOC to prove 

defendant’s propensity for sex discrimination irrelevant and prejudicial). The Bynum settlement 

shows notice of a problem, and a promise by DOC to take specific measures to alleviate the 

problem. But proving this does not win the case for plaintiffs if they cannot show that there were 

any overdetentions, or that the District did not take sufficient measures to address the potential 

problem. The defendant’s argument that the Bynum settlement goes too much to the “heart of 

the case,” and is not sufficiently “collateral,” does not prevail.

The District’s heavy reliance on Trebor—a Second Circuit case from 1989 that has only 

been cited by two district courts in this Circuit5

—is unavailing. Even within the Second Circuit, 

courts have questioned Trebor. In 2008, the Second Circuit allowed introduction of evidence of 

settlement communications in order to prove a defense of estoppel by acquiesce. PRL USA 

Holdings, Inc. v. U.S. Polo Assoc., Inc., 520 F.3d 109, 112 (2d Cir. 2008). Most important for 

this case, the Second Circuit held that “[its] conclusion in Trebor that the district court had 

discretion to exclude the evidence of compromise negotiations did not mean that the district 

court in Trebor was required to exclude that evidence.” Id. at 116 (emphasis in original). 

 5 One case, Watt v. All Clear Business Solutions, LLC, 840 F. Supp. 2d 324, 326–27 (D.D.C. 2012), dealt with a 

completely different issue within Trebor; and another, C & E Services, Inc. v. Ashford, 539 F. Supp. 2d 316, 320–21 

(D.D.C. 2008) distinguished Trebor and allowed plaintiffs to offer a settlement into evidence, with a limiting 

instruction to the jury.
19

Furthermore, a court in the Southern District of New York recently held that although it must 

consider the “public policy behind Rule 408 [in] promoting the compromise and settlement of 

disputes” this did “not outweigh the need” for evidence of settlement negotiations. Faulkner, 

797 F. Supp. 2d at 317.

Within this Circuit, Judge Facciola considered Trebor, PRL, and Rule 408 in C & E 

Services, Inc. v. Ashland Inc., 539 F. Supp. 2d 316 (D.D.C. 2008). His approach is instructive 

here. In this case, the General Services Administration conducted a post-award audit on 

defendant Ashland, and concluded that Ashland had overcharged government customers. The 

GSA referred the matter the U.S. Attorney’s Office, who began a False Claims Act investigation, 

which was ultimately resolved by a seven-figure settlement between Ashland and the 

government. The plaintiff in that action claimed that Ashland withheld this information from 

them “as part of a scheme by Ashland to place the defectively priced products into [plaintiff’s] 

GSA contract schedule.” Id. at 318. Plaintiff brought a breach of contract action, and sought to 

introduce the settlement between Ashland and the U.S. Attorney “as evidence of express 

misrepresentations, half truths, and deceptions as to the nature of the audit, its conclusions, and 

the Settlement itself-which they claim led to their injuries.” Id. at 321.

Judge Facciola began his discussion by recognizing that “as a magistrate judge who often 

presides over settlement discussions, I am constantly exposed to the concern of litigants that a 

settlement may be used by a third party to establish liability. The very policy underlying Rule 

408 would be defeated if it did not operate to preclude the admissibility of settlement discussions 

in a case involving another party or another claim.” Id. at 320. With this in mind, he considered 

Rule 408’s “other purposes” exception, and Trebor’s suggestion that “when the claim settled and 

the claim asserted are inextricably intertwined, the exclusion that permits the use of settlement 
20

discussions for other purposes cannot apply.” Id. After considering PRL’s “refine[ment]” of 

Trebor, Judge Facciola allowed plaintiffs to introduce the settlement because “it is not being 

used to establish the validity of the underlying claims extinguished by the Settlement, but rather 

for the ‘other purpose’ of establishing Ashland’s misrepresentations upon which plaintiffs’s 

allegedly relied.” Id. at 321.

Following this approach, this Court will allow plaintiffs to mention the Bynum settlement 

because it is not being used to establish the validity of the underlying claims extinguished by the 

settlement—whether the District had previously acted in deliberate indifference and overdetained 

inmates—but for the “other purpose” of showing the District had notice of a potential problem, 

and undertook specific steps to reduce the risk of overdetentions. Following Judge Facciola’s 

approach, this Court will guard against the risk of prejudice or confusion by issuing a limiting 

instruction to the jury, and “insist[ing] that the evidence pertaining to the settlement be presented 

as briefly as possible and [hopefully] in the form of a stipulation between the parties.” Id.

The Court understands the defendant’s concerns about the public policy implications of 

allowing introduction of the Bynum settlement. It understands that “[t]he Rule [wa]s drafted to 

provide every incentive for compromise, and without such a broad rule of exclusion, litigants 

would be deterred from free-flowing settlement negotiations where multiple suits have been or 

might be brought.” 2 STEPHEN A. SALTZBURG, MICHAEL M. MARTIN & DANIEL CAPRA,

FEDERAL RULES OF EVIDENCE MANUAL § 408.02 at 408-13 (9th ed. 2006). However, in support 

of the District’s position that allowing evidence of the Bynum settlement “would have a 

devastating effect on settlement negotiations, contrary to the purposes of FRE 408,” Def.’s Reply 

3, the District cites a case that says no such thing. In Faulkner, the court stated that “[i]n 

applying the ‘another purpose’ exception to Rule 408, ‘the trial judge should weigh the need for 
21

such evidence against the potentiality of discouraging future settlement negotiations.’” 797 F. 

Supp. 3d at 316 (quoting Starter Corp. v. Converse, Inc., 170 F.3d 286, 293 (2d Cir. 1999)). In 

Faulkner, the court found that these factors favored the plaintiff, and admitted evidence of the 

settlement. Id. at 316–17.

When this Court weighs the need for evidence of the Bynum settlement against the 

potentiality of discouraging future settlement, it finds that the interests favor admitting the 

settlement. This Court itself found, at summary judgment, that the Bynum suit and settlement 

were relevant evidence of deliberate indifference. Barnes, 793 F. Supp. 2d at 279. Allowing this 

settlement to come in, for this limited purpose, would not unduly discourage future settlement 

negotiations. A key interest in settlement, especially of class actions, is finality; parties could not 

be assured of finality if third parties could use the settlement, as an admission of guilt, in 

subsequent actions. Cf. William B. Rubenstein, Finality in Class Action Litigation: Lessons 

from Habeas, 82 N.Y.U. L. REV. 790, 820–25 (2007) (discussing finality as traditional interest in 

class action litigation). The finality offered by settlement is typically retrospective, and does not 

usually foreclose liability for future misdeeds. A defendant should not be able use a settlement 

as a shield if it continues to engage in the same unlawful conduct, and new plaintiffs would need

to look at the history of the defendant’s knowledge and conduct to make their case. In fact, if 

Rule 408 operated to curtail the ability of plaintiffs to bring new suits if the defendant continues 

to injure them in the same way, then this could discourage plaintiffs from settling. In cases 

where notice and past practice are key elements, the District cannot simply ask everyone to 

ignore the prospective obligations it undertook as part of the Bynum settlement.

With respect to the Bynum settlement, the Court finds that the fact that a suit was filed, 

and that the District undertook prospective injunctive obligations, are relevant to the issue of 
22

deliberate indifference. Rule 408 applies, but this limited use of the Bynum settlement falls 

under the “other purposes” exception of 408(b). To mitigate any possible prejudice, the Court 

will issue a limiting instruction to the jury, and asks the parties to propose a stipulated jury

instruction by the final pretrial conference on Monday, February 25, 2013. The Court also 

instructs the parties to attempt to introduce this evidence by stipulation, so it may be presented as 

briefly as possible. The plaintiffs are prohibited from introducing the Bynum settlement for any 

reasons other than those described above, including using the Bynum settlement to show that the 

District had previously overdetained inmates in deliberate indifference of their constitutional 

rights during the Bynum class period.

B. Motion to Exclude the Testimony of the Individual Class Members

Plaintiffs have indicated that they expect to call up to five class members to testify at the 

liability trial. The District argues that “[b]ecause this testimony would be irrelevant to the issues 

at hand, time-consuming, confusing, duplicative, and prejudicial, the District requests that it be 

excluded.” Def.’s Mot. in Limine 9. The plaintiffs intend to call two witnesses—Judith Jameson 

and Razina Jones—who were allegedly overdetained during the Barnes class period, but prior to 

the trial period currently in dispute. The plaintiffs also propose to have up to three class 

members, who were allegedly overdetained during the trial period, testify. See Ex. 1 to Def.’s 

Mot. in Limine 1–3, 17–18. These witnesses will testify “about their Commitment Date, their 

last court date, where they went after last court appearance..., how they were processed back 

into the DC Jail/CTF, how and when they were ultimately released, and their Release Date.” Id. 

at 17–18. The plaintiffs argue this “testimony is relevant to the jury’s understanding of the 

release process from the perspective of a person who has been overdetained.” Pls.’ Opp’n 15.

The District avers that testimony from class members is irrelevant to the issue of 
23

“whether the District was deliberately indifferent to plaintiffs’ rights through a custom and 

practice of overdetentions during the trial period.” Def.’s Mot. in Limine 10. The District 

argues that none of the class members’ proposed narratives relates to the factors relevant to 

deliberate indifference, which include “‘the delays associated with necessary administrative 

procedures, the total number of persons overdetained during the period, the rate of 

overdetentions given the total number of releases processed and the duration of individual 

overdetentions.’” Id. (quoting Barnes, 793 F. Supp. 2d at 277). The District also argues that 

focusing on the individual experiences of class members may be misleading to a jury, suggesting 

that the length of their overdetentions or experiences may be typical. The District also argues 

that individual testimony is a waste of time and duplicative, and that the sympathetic narratives 

by class members may prove prejudicial to the District. Id. at 12–13.

The plaintiffs respond that the testimony of class members will not cause undue delay, as 

they expect each witness will only testify for 15–20 minutes on direct examination. Pls.’ Opp’n 

15. They claim that class member testimony is not cumulative or duplicative; while Dr. Kriegler 

will testify about his opinions on the total number of overdetentions, and the length of those 

overdetentions, “[h]e will not be able to offer testimony from the perspective of an inmate who 

was actually released after midnight on the day he or she was entitled to release.” Id. at 17. “By 

offering testimony of the process of commitment, appearing for court, and release from three 

different class members, the jury will obtain a complete picture of the process from the 

perspective of a class member.” Id.

The Court agrees that there is value in having representative class members explain the 

process by which they were overdetained. The District claims that the testimony of individual 

class members only proves that five people were overdetained over a 14-month period, and 
24

would be unnecessary in light of plaintiffs’ proffered expert testimony. Def.’s Mot. in Limine 

12–13. Unless the testimony is inadmissible under the Rules, the District cannot dictate the 

plaintiffs’ trial strategy, or how they should present thier evidence. Using individual stories in 

conjunction with statistical analysis is one way to present the facts. Five witnesses, briefly 

explaining their first-hand experiences, would not waste the Court’s time. Cf. CHRISTOPHER

MUELLER & LAIRD KIRKPATRICK, 1 FEDERAL EVIDENCE, § 4:15 (3d ed. 2012) (“Not all evidence 

that is duplicative is therefore cumulative, and evidence should not be excluded merely because 

it overlaps with other evidence....The corroborative force of overlapping testimony can be 

important in persuading juries, and multiple witnesses may be more persuasive because they 

reinforce each other and bring to bear different perspectives or experiences[.]”).

The testimony of Judith Jameson and Razina Jones—who were overdetained prior to the 

trial period, but during the Barnes class period—may be relevant to show a pattern and practice 

of overdetentions, that things did not change at DOC for the people going through the process. 

This testimony is only relevant if the three class members from the trial period testify; if the 

plaintiffs cannot secure class witnesses from the trial period to testify, the testimony of Jameson 

and Jones will be excluded as irrelevant.

The District raises concerns about “sympathetic narratives,” Def.’s Mot. in Limine 12, 

that may distract the jury or prejudice the District. The plaintiffs are permitted to put a “human 

face” on the harms they allege, as long as the testimony is not inflammatory, or extend beyond 

matters relevant to the District’s liability for overdetentions. Each witness must limit its 

testimony to their personal experiences being overdetained, and the process they went through; 

they are not permitted to discuss strip searches—for the reasons discussed infra Part IV.E—or 

“injury” testimony that would be primarily relevant to the damages stage. If the plaintiffs are not 
25

willing to limit their witnesses’ testimony to these matters, the Court will not permit them to 

testify, as the probative value would be outweighed by its potential for undue prejudice.

The Court shares the District’s concern with the fact that the plaintiffs have yet to name 

three of their class member witnesses. The Court understands that it is difficult to locate suitable 

witnesses—especially when, by definition, all potential witnesses have been “in and out of the 

system.” But the Court does not agree that the District would suffer little prejudice by plaintiffs 

providing short notice of who will testify. Cf. Elion v. Jackson, 554 F. Supp. 2d 1, 4–6 (D.D.C. 

2008) (discussing standards for considering whether to exclude witnesses not previously named 

in pretrial disclosures). The District has a right to investigate whether the class witnesses are 

reasonably representative of the class, or whether they are “outliers” whose atypical experiences 

would confuse the jury, prejudice the District, and diminish the probative value of their 

testimony. To this end, the Court will order plaintiffs to name their class witnesses within 10

days of this date. Failure to do so will prevent the plaintiffs from calling any class witnesses, 

including that of Judith Jameson and Razina Jones, whose testimony would become irrelevant 

without a comparator witness from the trial period.

C. Motion to Exclude Expert Testimony or Evidence from Sean Day

The District asks the Court to preclude the plaintiffs from introducing expert testimony or 

evidence from Sean Day, and in turn exclude or “severely circumscribe” Dr. Kriegler’s reports 

that were based on data provided by Mr. Day. Def.’s Mot. in Limine 13, 20.6

 The District 

claims that Mr. Day “cannot qualify as an expert, and his testimony would be unfairly 

 6

 The District gives this reference to, a fortiori, excluding the expert testimony of Dr. Kriegler one sentence within a 

seven-page argument. Def.’s Mot. in Limine 20 (“Moreover, because Dr. Kriegler’s proffered testimony and 

evidence rests entirely on the ‘analysis’ provided by Mr. Day,...it, too must be excluded or severely 

circumscribed.”). This deserves more attention, as excluding both Mr. Day and Dr. Kriegler’s expert testimony 

severely undermines plaintiffs’ ability to present its case. Just how plaintiffs’ Motion in Limine was the functional 

equivalent of a dispositive motion, this Motion in Limine from the District essentially asks the Court to grant 

summary judgment to the District.
26

prejudicial, giving the jury an inflated idea of how many overdetentions occurred here.” Id. at 

13. The District argues that Mr. Day’s expert testimony is neither “relevant” or “reliable,” and 

thus must be excluded. Id. at 14 (quoting United States v. H & R Block, Inc., 831 F. Supp. 2d 27, 

30 (D.D.C. 2011)).

Mr. Day is a “lawyer licensed in state and federal courts in Maryland (1995) and the 

District of Columbia (1996), with more than 10 years experience in criminal defense and § 1983 

litigation.” Day Decl. ¶ 1, March 18, 2010, ECF No. 101-14 (“March 2010 Day Decl.”). He 

bases his statements about reviewing inmate jackets upon his “education, training, experience, 

expertise, including prior experience in reviewing Dept. of Corrections case jackets, and [his] 

review of jackets and data in this case.” Id. ¶ 2. Mr. Day previously assisted “with the review 

of class member claims...in [Bynum], which involved reviewing approximately 500 DOC jackets 

to determine overdetentions....This was a particularly involved process because [he] reviewed all 

bookings for each person during the class period, not just one booking period per person.” Id. ¶ 

3. Mr. Day’s works with plaintiffs’ statistical expert Dr. Kriegler to generate expert reports on 

the total number of overdetentions occurring during particular periods. Specifically, Mr. Day

cross-references potential overdetentions generated from the electronically stored JACCS data 

with physical inmate jackets. Mr. Day explains the process in more detail:

A potential over-detention is a release that has been tagged (electronically through 

JACCS data) using certain criteria developed by the parties. Each party then 

needs to classify the potential over-detentions as over-detained or on-time (in the 

Plaintiffs’ terminology, or as Appropriate, Late, Erroneous, or Other in the 

District’s case). To do this, each side must conduct manual examinations of the 

data in the jackets to make its classifications. Neither side is able to make a 

classification for a booking with certainty solely by reference to JACCS data; 

information in the person’s DOC jacket is also needed. So, the parties’ practice in 

identifying persons held late (whatever the criteria is) is to first run computer 

queries in the JACCS data to identify potential overdetentions, and then to 

examine the person’s DOC jacket for further observations about the release.
27

Suppl. Report of Sean Day 2 n.2, June 11, 2012, ECF No. 360-2. Mr. Day reviews the 

individual, physical inmate jackets to determine whether a potential overdetention flagged by the 

database query meets the class definition of an overdetention. See id.

Federal Rule of Evidence 702, which governs testimony by expert witnesses, provides:

A witness who is qualified as an expert by knowledge, skill, experience, 

training, or education may testify in the firm of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help 

the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of 

the case.

Expert testimony must be “both relevant and reliable.” H & R Block, 831 F. Supp. 2d at 30. 

“The burden is on the proponent of the testimony to show by a preponderance of the evidence 

that the proffered expert witness is qualified, that his proposed testimony would be useful to the 

finder of fact, and that the testimony is reliable.” Skyes v. Napolitano, 634 F. Supp. 2d 1, 5 

(D.D.C. 2009 ) (citing Meister v. Med. Eng’g Corp., 267 F.3d 1123, 1127 n.9 (D.C. Cir 2001)). 

“This Court’s role is to act as a ‘gatekeep[er],’ excluding any expert testimony that is not 

sufficiently reliable or helpful to the jury.” Parsi v. Daioleslam, 852 F. Supp. 2d 82, 85 (D.D.C. 

2012) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)).

Under the traditional Daubert standard, the court may consider the following factors to 

determine whether expert testimony is admissible under Rule 702:

(1) whether the expert’s technique or theory can be or has been tested; 

(2) whether the expert’s technique or theory has been subject to peer review and 

publication; 

(3) the known or potential rate of error of the technique or theory when applied; 

(4) the existence and maintenance of standards and controls; and 

(5) whether the technique or theory has been generally accepted in the scientific 

community.

Daubert, 509 U.S. at 593–94. However, Courts frequently encounter situations where these 
28

Daubert factors do not readily apply. The Supreme Court has stated that Daubert itself “made 

clear that its list of factors was meant to be helpful, not definitive.” Kumho Tire Co., Ltd. v 

Carmichael, 526 U.S. 137, 151 (1999). “In matters where [the Daubert] factors do not apply, 

reliability concerns may focus on personal knowledge or experience. The gatekeeping inquiry is 

‘flexible’ and ‘the ‘law grants a district court the same broad latitude when it decides how to 

determine reliability as it enjoys in respect to its ultimate reliability determination.’” Groobert, 

219 F. Supp. 2d at 9 (quoting Kumho, 526 U.S. at 141–42). Even when applying this ‘flexible’ 

standard, the Court must still ensure that the expert testimony is relevant and reliable. Id.

The District’s first objection is that Mr. Day’s proffered testimony is irrelevant because it 

“relates to matters of common sense that a jury can decide for itself.” Def.’s Mot. in Limine 15 

(quoting Keys v. WMATA, 577 F. Supp. 2d 283, 285 (D.D.C. 2008) (internal quotation marks 

omitted). The District continues:

Here, Mr. Day’s testimony is irrelevant, as the determination of liability for 

overdetention is a legal question,...and the facts underlying any given inmate’s 

release can be accurately and intelligibly described to the jury, who will be just as 

capable as Mr. Day (or anyone else) of comprehending the primary facts and 

drawing the correct conclusion as to whether an overdetention occurred.

Id. at 16. Here, the District seems to suggest that the jury is perfectly capable of running

database queries against JACCS data to identify potential overdetentions, and then know how to 

read an individual inmates’ file to determine whether that inmate was overdetained per the class 

definition, and then repeat this process hundreds of times over.

7

 Certainly, a person with 

experience and training on how to read inmate jackets—such as Ms. Myrick, or perhaps Mr. 

Day—could accomplish this task. Perhaps if the jury were trained as Legal Instrument 

Examiners, they could do all the work by themselves. That would be an absurd result, and it also 

 7

 Even if this task is limited to just cross-referencing the list of potential overdetentions with physical inmate 

jackets to determine actual overdetentions, this still sounds like a daunting and complicated task.
29

raises the question: If the jury is perfectly capable of doing what Mr. Day did on its own, then 

why are the District’s own overdetention numbers relevant? With sufficient training, couldn’t 

the jury figure out for itself how to generate discrepancy reports from the JACCS data?

Next, the District argues that Mr. Day’s testimony would be unfairly prejudicial, 

confusing, and misleading. The District worries that “the jury could be misled into the belief that 

all the overdetentions ‘objectivley’ determined by the Mr. Day were the fault of the District.” 

Def.’s Mot. in Limine 17. The District claims that “Mr. Day does not view any reason for delay 

as legitimate or justified, ascribing all overdetentions to the District, including instance where 

the District received paperwork late from a third-party, or where a federal agency miscalculated 

an inmate’s sentence.” Id. (emphasis in original). In other words, the District thinks “Mr. Day’s 

‘jacket analysis’ is [ ] impermissibly overbroad, putting the blame on the District for numerous 

overdetentions caused by the actions of third parties.” Id. at 18.

Mr. Day’s analysis is not undermined, or unduly prejudicial, because he does not exclude 

potential overdetentions that the District wants to see excluded—the same way that the District’s 

discrepancy reports are not inadmissible simply because they exclude potential overdetentions 

the plaintiffs want to see included. Mr. Day cannot be faulted for applying the class definition 

when doing his jacket analysis. The certified class in Barnes covers:

Each person who has been, is, or in the future will be incarcerated in any District 

of Columbia Department of Corrections facility from September 1, 2005 forward; 

and who was not released, or, in the future, will not be released by midnight on 

the date on which the person is entitled to be released by court order or the date 

on which the basis for his or her detention has otherwise expired.

Barnes, 242 F.R.D. 113, 121 (D.D.C. 2007). The class definition does not exclude cases where 

the late release was the “fault” of some third party.

Whether the District is at “fault” for certain types of overdetentions is open to some 
30

debate, and the plaintiffs are entitled to provide a report covering all the overdetentions for which 

they think the District is liable, and take a different position on whether the District is liable for 

certain late releases. The District has previously taken positions that it was not “at fault” for 

certain types of late releases, only to have the Court disagree. Most significantly, the District 

argued that it was not liable for overdetentions caused by the “10 p.m. cut off rule,” but the Court 

decided that “the DOC’s enforcement of the District’s 10 p.m. cut off rule violated the due 

process rights of class members who were overdetained, during all parts of the class period, 

because of that rule.” Barnes, 793 F. Supp. 2d at 278.

If the District has an issue with how Mr. Day classified certain late releases, it may 

address this on cross-examination. Disqualification of Mr. Day—and likely, by extension, Dr. 

Kriegler—is not warranted. See, e.g., Harris v. Koeng, 815 F. Supp. 2d 6, 10 (D.D.C. 2011) 

(Expert’s “testimony will unquestionably ‘assist the trier of fact,’....Whether or not it is based on 

‘unreasonable assumptions’ will be determined at trial after full cross-examination. Defendant’s

objections go to the weight, not the admissibility of his Report.”); S.E.C. v. Johnson, 525 F. 

Supp. 2d 70, 76 (D.D.C. 2007) (“It is for the jury, not the Court, to determine whether [expert’s]

opinions are suspect because facts upon which he relied were shown to be inaccurate or 

unproven.”); cf. Micro Chemical, Inc. v. Lextron, Inc., 317 F.3d 1387, 1392 (Fed. Cir. 2003) 

(“When, as here, the parties’ experts rely on conflicting sets of facts, it is not the role of the trial 

court to evaluate the correctness of facts underlying one expert’s testimony.”).

Finally, the District argues that Mr. Day’s methodology is inadmissibly unreliable, and 

does not withstand scrutiny. Def.’s Mot. in Limine 19 (citing Groobert, 219 F. Supp. 2d at 9 

(expert testimony is unreliable “when an expert chooses to utilize her own unique methodology 

rather than the proper analysis which is well-known and respected”); id. at 8 (“General 
31

acceptance in the community is an important factor in evaluating an expert’s methodology[.]”)). 

The District objects to the sui generis nature of Mr. Day’s analysis, arguing that it is unreliable 

because “there is no indication that anyone else has ever used Mr. Day’s methodology before.” 

Def.’s Mot. in Limine 19; but see McReynolds v. Sodexho Marriott Services, Inc., 349 F. Supp. 

2d 30, 45 (D.D.C. 2004) (question is not whether other courts have admitted an expert’s 

testimony in the past, but whether his testimony in the instant case is sufficiently reliable and 

relevant to warrant admission); Dyson v. Winfield, 113 F. Supp. 2d 44, 48–49 (D.D.C. 2000) 

(expert’s failure to publish and subject conclusions to peer review not reason to find expert’s 

methodology unreliable, when there was no reason to publish study because of lack of interest in 

subject matter).

The fact that the District could not find a reported decision certifying an expert who 

provides testimony about whether “an overdetention occurred,” id., suggests that it is 

inappropriate to use the more rigid Daubert framework to determine whether Mr. Day’s methods 

are reliable. As explained in Groobert:

The defendant fails to recognize, however, that the standard under Federal Rule of 

Evidence 702 is a liberal and “flexible” one, and that personal experience can be a 

reliable and valid basis for expert testimony. Kumho Tire Co., 526 U.S. at 149. 

This is particularly true with non-scientific testimony, where the Daubert factors 

may not apply because the issue is “highly particular and has not attracted 

scientific scrutiny.” Ambrosini [v. Labarraque, 101 F.3d 129, 134 (D.C. Cir.

1996)] (holding that courts must consider “other indicia of reliability” when the 

Daubert factors offer limited assistance in evaluating an expert’s testimony); see 

also Pipitone v. Biomatrix, Inc., 288 F.3d 239, 245–46 (5th Cir. 2002) (holding 

that the lack of literature on injection-related infections of the joint did not 

undermine the expert's hypothesis because the trial court could rely on first-hand 

observations and professional experience to assess the expert’s reliability). The 

Supreme Court has recognized that “the factors identified in Daubert may or may 

not be pertinent in assessing reliability, depending on the nature of the issue, the 

expert's particular expertise, and the subject of his testimony.” Kumho Tire Co., 

526 U.S. at 151.

219 F. Supp. 2d at 7. The Court finds that Mr. Day’s testimony—being highly specialized and 
32

specific—is not amenable to analysis under the Daubert factors. It cannot evaluate Mr. Day’s 

“reliability based on such Daubert factors as ‘whether the expert’s technique or theory has been 

tested’ or ‘whether the technique or theory has been subject to peer review and publication’ 

because of apparent lack of information on the subject.” Id. (quoting Daubert, 509 U.S. at 590). 

As in Groobert, this Court finds that “[p]ersonal experience is the proper method of assessing the 

reliability” of Mr. Day’s expert testimony. Id. (citing Kumho, 526 U.S. at 150).

Mr. Day has years of experience—dating back to the Bynum litigation—reviewing DOC 

inmate jackets and other data to determine whether an inmate was overdetained. March 2010 

Day Decl. ¶¶ 2–4. He has personally reviewed hundreds of inmate jackets, and has educated 

himself on the DOC’s system of collecting inmate date. Id. Rule 702 “allows for experience 

such as employment in the field as well as experience in performing tests or studies.” Groobert, 

219 F. Supp. 2d at 7 (citing United States v. Ramsey, 165 F. 3d 980, 984 (D.C. Cir. 1999) 

(holding that an expert’s testimony regarding the plaintiff’s past criminal history satisfied Rule 

702 because of his specialized knowledge, education, skill, and expertise as an agent of the Drug 

Enforcement Administration); United States v. Hankey, 203 F.3d 1160, 1169–70 (9th Cir. 2000) 

(holding that the trial court properly admitted expert testimony concerning the plaintiff’s gang 

membership since the expert was a 21-year veteran of the police department who has devoted 

years to working with gangs)). Given the hyper-specific and narrow nature of Mr. Day’s 

expertise in analyzing DOC data, his almost ten years of professional experience reviewing 

hundreds of inmate files allows him to qualify as an expert through knowledge, skill, experience, 

training or education. See Fed. R. Evid. 702.

Several cases have found “expert testimony unreliable when an expert choses to utilize 

her own unique methodology rather than the proper analysis which is well-known and 
33

respected.” Groobert, 219 F. Supp. 2d at 9 (citing Kumho, 526 U.S. at 158 (stating that 

experience-based expert testimony was unreliable because there was no indication that others in 

the industry used the expert's two-factor test); Meister, 267 F.3d at 1131 (holding that an expert 

lacked reliability when “no reasonable scientist would rely on this methodology in the face of 

voluminous epidemiological evidence to the contrary”); Raynor v. Merrell Pharm. Inc., 104 F.3d 

1371, 1375 (D.C. Cir. 1997) (rejecting expert testimony because an overwhelming body of 

evidence utilizing a “sound” methodology pointed in the opposite direction)). 

In this case, there is no “well-known and respected” “proper analysis” when it comes to 

determining whether an inmate was overdetained. General acceptance in the community can be 

an important factor, but it is only relevant when there is a “community” to accept that

methodology. Basically, it comes down to Mr. Day and Dr. Kreiger’s expert reports versus the 

District’s discrepancy reports. The District has not shown that Mr. Day’s methodology is 

persistently flawed, or that there is “an analytical gap between the data and the opinion 

proffered.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). At best, the District has 

offered that it would have—and did in its discrepancy reports—not count certain late releases it 

did not feel were the “fault” of the District. See Def.’s Mot. in Limine 17–18. Simply pointing

to a possible alternative methodology does not establish that Mr. Day’s methodology was 

unreliable. See Capitol Justice LLC v. Wachovia Bank, N.A., 706 F. Supp. 2d 34, 41–42 (D.D.C. 

2009) (Lamberth, C.J.) (noting that expert could have used alternative method of calculating 

damages does not render testimony unreliable). 

The District’s problems with Mr. Day’s methodology largely go to the weight of the 

evidence, not its admissibility, and can be addressed on cross-examination. See, e.g., Ambrosini, 

101 F.3d at 141 (“[B]y attempting to evaluate the credibility of opposing experts and the 
34

persuasiveness of competing studies, the district court conflated the questions of the 

admissibility of expert testimony and the weight appropriately to be accorded such testimony by 

a factfinder.”); Groobert, 219 F. Supp. 2d at 9 (“The only difference between [the defendant’s 

expert’s] evaluation and [the plaintiff’s expert’s] analysis is that [the defendant’s expert’s]

analysis focuses on past income, which goes to the weight of the evidence rather than its 

admissibility.”); Voilas v. Gen. Motors Corp., 73 F. Supp. 2d 452, 462 (D.N.J. 1999) (holding

that an expert's failure to evaluate all available options “neither renders his methodology 

unreliable nor his report inadmissible but, rather, goes to the weight of his testimony”).

The District should not be permitted to exclude Mr. Day’s testimony because it disagrees 

with how he defines “overdetention,” or because he is among the first to provide this type of 

expert testimony. Cf. Benedi v. McNeil–P.P.C., Inc., 66 F.3d 1378, 1385 (4th Cir. 1995) 

(holding that expert testimony was reliable despite the lack of studies or tests because a 

“defendant should not be allowed to escape liability simply because...there are, as yet, no 

epidemiological studies concerning [this specific subject area]”). Nor should the Court force the 

jury to review hundreds of inmate jackets to determine for themselves whether an inmate was 

overdetained. Mr. Day’s testimony and reports are relevant, not unduly prejudicial, and based on 

a reliable methodology. His experience reviewing DOC inmate data and making determinations 

about whether overdetentions have occurred qualifies him as an expert under Rule 702.

D. Motion to Exclude Evidence or Testimony from Karen Schneider

The District asks the Court to preclude the plaintiffs from introducing evidence or 

testimony from Karen Schneider. Ms. Schneider prepared a report, dated May 2008, titled 

“Review of Paperflow Process between the Superior Court, the U.S. Marshals Service and the 

Department of Corrections,” (“Schneider Report”) commissioned by the District’s Criminal 
35

Justice Coordinating Council (“CJCC”), with the concurrence of the D.C. Superior Court, the 

U.S. Marshals Service, and the DOC. The purpose of the Schneider Report was to review the 

transfer of court-generated paperwork among these agencies, and suggest ways to make this 

process more efficient, so as to avoid erroneous and late releases of inmates. Schneider Report 

1, Pls.’ Ex. 406, ECF No. 221-8 (under seal); see also Pls.’ Opp’n 28–29. While the report “did 

not focus on the reasons why the late release of inmates at the DC Jail may occur, it was 

recognized that some late releases could occur due to problems related to the paperflow process 

at the Court.” Id. at 21–22.

First, the District objects to the Schneider Report and her testimony because they “are 

hearsay, and should be excluded on that ground alone, as they are offered as out-of-court 

statement for the truth of the assertions contained therein.” Defs.’ Mot. in Limine 21 (citing 

Mahnke v. WMATA, 821 F. Supp. 2d 125, 154 (D.D.C. 2011) (expert reports and CVs are 

inadmissible hearsay)). The Schneider Report is not an expert report created in anticipation of 

litigation. The Schneider Report is either a party admission—and thus not hearsay—or falls 

under the public records exception to the hearsay rule. The District itself commissioned the 

study, and Ms. Schneider worked under the direction of the CJCC to focus “on how the process 

[of transferring court-generated paperwork] can become more efficient so as to avoid erroneous 

releases and potential overdetention of inmates.” Schneider Report 1. Since Ms. Schneider 

acted as the District’s agent in preparing the Report, the Report is a party admission, and 

therefore not hearsay.8

 See Niagara Mohawk Power Corp. v, Jones Chemical Inc., 315 F.3d 

171, 177 n.1 (2d Cir. 2003) (report produced at the direction of a party constitutes a party 

 8

 The District claims in its Reply that “the Schneider report is not a party admission” as “Ms. Schneider was never 

authorized to speak for the district on the subject of potential overdetentions.” Def.’s Reply 8. Ms. Schneider—

unless she was lying—was certainly authorized to offer findings and recommendations on the subject of “the 

transfer of court-generated paperwork among [D.C.] agencies focusing on how the process can come more efficient 

so as to avoid erroneous releases and potential overdetention of inmates.” Schneider Report 1 (emphasis added).
36

admission); Green v. Baca, 226 F.R.D. 624, 636 (C.D. Cal. 2005) (outside counsel retained by 

County of Los Angeles to review Sherriff’s Department’s operations was County’s agent in 

preparing the reports; therefore the statements contained in the report were party admissions, not 

hearsay).

The Court also agrees with the plaintiffs’ alternative ground for admitting the Schneider 

Report, that it “meets the public record exception of Fed. R. Evid. 803(8)(A)(iii).” Pls.’ Opp’n 

31. The plaintiffs explain that the Report “was commissioned by the CJCC, an independent 

agency of the District of Columbia, with the concurrence of the DC Superior Court, as well as 

the Department of Corrections. It is a public record of a governmental agency, which sets forth 

factual findings resulting from an investigation made pursuant to authority granted by law, and

as such, is admissible.” Id.; see Huthance v. District of Columbia, 793 F. Supp. 3d 183, 210

(D.D.C. 2011) (Lamberth, C.J.) (hearsay rule does not bar admission of the District’s Office of 

Police Complaints’ report that made factual findings and recommendations with respect to 

wrongful arrests for disorderly conduct, as the report was a public record of a governmental 

agency within the meaning of Fed. R. Evid. 803(8)(c)).

The Supreme Court held, in Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 161–65 

(1988), that evaluative reports containing statements of opinion are admissible under Rule 

803(8)(c), as the focus of Rule 803(8)(c) analysis is trustworthiness, not whether the report 

should be deemed “fact” or “opinion.” There is no reason to question the trustworthiness of the

Schneider Report; it provides a detailed explanation of its underlying methodology, Schneider 

Report 2–4, and the District gives the Court no reason to doubt her trustworthiness.

Apart from its hearsay objection, the District claims that the Schneider Report is not 

relevant. The District avers that the purpose of the Schneider Report was “not to determined 
37

how many overdetentions occurred, or even why overdetentions occurred.” Def.’s Mot. in 

Limine 21. While Schneider indicated that her “study did not focus on the reasons why the late 

releases at the DC Jail may occur,” the Report noticed “that some late releases could occur due to 

problems related to the paperflow process,” and went on to try to “determine if there was a nexus 

between the late release and the paperflow process,” Schneider Report 21–22.9

 The Schneider 

Report’s relevance is evident from its first page:

The District’s system to transfer commitment and release orders from the Court to 

the DOC for processing is a very lengthy, cumbersome, paper-driven process 

involving multiple agencies....[I]t is not surprising that paperwork has gotten lost 

or has no been received at the Jail in a timely fashion. Unfortunately, lost or 

delayed paperwork potentially can lead to serious consequences – either the 

overdetention or the erroneous release of an inmate.

Id. at 1 (emphasis added). The Report’s discussion of the District’s paperflow process, and how 

it could result in the overdetention of inmates in D.C. Jails, is clearly relevant to the issue of 

whether the District had a pattern and practice of overdetaining inmates. Granted, it does not 

offer a concrete total number of overdetentions, but that is not the only issue remaining. See 

Barnes, 793 F. Supp. 2d at 277, 284 (also relevant, inter alia, are “the delays associated with 

necessary administrative procedures,” and whether the District was “on notice that absent 

significant intervention on its part, a pattern of unconstitutional behavior would certainly 

continue at the DOC”). The Schneider Report provides a “piece of the puzzle” to explain 

whether the District is liable for overdetentions during the Trial Period.

Finally, the District states that “there are numerous indications that [Ms. Schneider] 

studied and reported on events, documents, and procedures that occurred outside the Trial 

Period.” Def.’s Mot. in Limine 21. Therefore, the District argues that portions of the Schneider 

 9

 The Schneider Report used the term “late release” rather than “overdetention” in part because of worries that 

labeling late releases due to the 10 p.m. cutoff rule as overdetentions “may not be appropriate.” Schneider Report 

21 n. 35. This Court has already decided that it is entirely appropriate to label late releases due to the 10 p.m. cut-off 

rule as “overdetentions.” Barnes, 793 F. Supp. 2d at 282–83.
38

Report contains irrelevant material, as the “Court has determined that only the District’s liability 

during the Trial Period is to be determined at the upcoming trial.” Id. at 22. Furthermore, the 

Report would be confusing to the jury, as the District claims that “[i]t will be exceedingly 

difficult, if not impossible, for the jury to only consider events and situations within the Trial 

Period, in light of Ms. Schneider’s reports and proffered testimony.” Id.

In response, the plaintiffs make the salient point that “the Schneider Report was issued in 

May 2008, at most 3 months after the end of the Trial Period (February 25, 2008). Moreover, 

Ms. Schneider prepared and presented her preliminary report in December 2007, within the Trial 

Report, indicating that most of her analysis was completed by this time.” Pls.’ Opp’n 33–34. 

This point is well taken. The parties must remember that the “Trial Period” is an artificial 

construct—a period demarcated, ex post, by this Court based “on the varying availability of 

undisputed facts for different periods.” Mem. Op. & Order Denying Reconsideration 2, ECF No. 

399. The Court cannot ask a contemporarily created report to fall neatly within the Trial Period. 

The fact that the Schneider Report may contain a few months of “irrelevant material” should not 

disqualify it. If the District thinks a brief limiting instruction is necessary to mitigate any 

possible prejudice or confusion, it should submit one by the Final Pretrial Conference. Since the 

Schneider Report provides relevant evidence, and is either a party admission or falls under the 

public record exception to the hearsay rule, the Court will deny the District’s motion in limine to 

exclude the Schneider Report or testimony from Ms. Schneider.

E. Motion to Preclude Mention of Facts Regarding Strip Searches

The District requests that the Court preclude any mention of strip searches during the trial 

on liability. The District argues that the strip search issue is not relevant to liability for 

overdetentions, and in any event would be overly prejudicial. Def.’s Mot. in Limine 22–23. 
39

While this Court has said that “the overdetention problem and the strip search problem are 

interrelated, one leading to another,” Barnes, 798 F. Supp. 2d at 266, the District is correct that 

“it is overdetentions that lead to strip searches, not vice-versa,” Def.’s Mot. in Limine 22–23. 

While many overdetained inmates may have been strip searched, many inmates who were not

overdetained have also been strip searched. Therefore, the relevance of this evidence under 

Federal Rules of Evidence 401 and 402 is weak. Furthermore, evidence about strip searches—an 

invasive, embarrassing practice—could be unduly inflammatory, distracting, and prejudicial. Per 

Federal Rule of Evidence 403, the Court will preclude the plaintiffs from mentioning facts 

regarding strip searches.

V. CONCLUSION

If insanity is doing the same thing over and over again and expecting different results, 

both parties should be concerned. The plaintiffs ask the Court, for the fifth time, to exclude the 

District’s discrepancy reports. For the fifth time, the Court refuses, and will let a jury decide the 

question of whose overdetention numbers are more credible. The District is embroiled in this 

litigation because—after settling Bynum and agreeing to spend $3 million of class funds to help 

solve the problem—it continued the same unconstitutional practices, and showed no urgency in 

enacting the kind of major, fundamental changes needed to address the overdetention problem.10 

Now it asks the Court to forbid the plaintiffs from mentioning the District’s promises, made in 

the Bynum settlement, to take specific actions to prevent future overdetentions —such as 

developing an Inmate Processing Center. With an appropriate limiting instruction, the plaintiffs 

have a right to offer the injunctive provisions of the Bynum settlement as proof of notice and 

deliberate indifference. Understanding the possible prejudicial effect of introducing the Bynum

 10 The Court has found, as a matter of law, this was true for at least the first sixteen months of the Barnes class 

period. 793 F. Supp. 2d at 279–80. The District now has a chance to prove that it had made enough progress to 

preclude liability during the Trial Period.
40

settlement, the Court asks the parties to consider introducing the relevant provisions via 

stipulation, and will require the plaintiffs’ discussion of the settlement to be brief and focused. 

The Court will allow plaintiffs to introduce testimony from up to three class members 

who were overdetained during the trial period (and two witnesses who were overdetained during 

the first sixteen months of the class period) so long as: (1) the plaintiffs identify these witnesses 

within 10 days of this days of this date, and these witnesses should be reasonably representative 

of the class—offering outliers or extreme cases could lead to preclusion; (2) the witnesses keep 

their testimony as brief as possible, and only focus on matters relevant to the liability phase—

such as the process they went through that led to their overdetainment; the witnesses may not 

discuss strip searches, and should not offer testimony that is primarily related to individual 

damages; and (3) if the plaintiffs fail to name Trial Period witnesses by the deadline, they may 

not call the two witnesses who were detained prior to the beginning of the Trial Period.

The Court will allow the expert testimony and reports of Sean Day. Mr. Day offers 

testimony on a very narrow, specific issue—how to determine overdetentions from DOC 

records—so the lack of peer review and acceptance in the community of his methodology should 

not be held against him. His kind of expert testimony is virtually sui generis, but he has shown

enough professional experience examining DOC records to demonstrate particular expertise in 

the field. The District objects to how Mr. Day defines an overdetention, but Mr. Day cannot be 

faulted for applying the class definition. Essentially, the District’s complaints about Mr. Day’s 

testimony go to its weight, not its admissibility, and the District will have an opportunity to 

cross-examine plaintiffs’ experts thoroughly at trial.

The Schneider Report examining the paperflow process in the D.C. criminal justice 

system is clearly relevant to notice and deliberate indifference. It discusses the systematic and
41

bureaucratic problems that can lead to erroneous and late releases. As a document created by an 

agent of the District and at the direction of the defendant, the Report is a party admission and not 

hearsay. Alternatively, the report falls under the public records exception to the hearsay rule. 

The Report is not fatally prejudicial because it might cover a few months’ worth of events that 

fell outside of the Trial Period. The idea of a “Trial Period” was created ex post by this Court, in 

part because of the varying availability of evidence for differing periods. The District cannot 

expect a contemporaneous document to fall neatly within the Trial Period, and any concerns that 

linger can be dealt with by a limiting instruction to the jury.

The plaintiffs will not be allowed to mention strip searches during the overdetention 

liability trial. While the fact that an inmate was overdetained makes it more likely he was strip 

searched, the fact that an inmate was strip searched does not make it more likely that he was 

overdetained. Whatever probative value mentioning strip searches would have is outweighed by 

the potential for undue prejudice and confusion. The topic of strip searches is likely to evoke 

strong reactions in a jury, and the Court need not accept the risk of such emotional reactions 

when evidence of strip searches proves so little about liability for overdetentions.

A separate order consistent with this memorandum opinion shall issue this date.

Signed by Royce C. Lamberth, Chief Judge, on February 14, 2013.