Eq 1 letter

Case 1:20-cv-07787-JGK-KHP Document 157 Filed 04/03/23 Page 1 of 3

April 3, 2023 VIA ECF Hon. John G. Koeltl United States Courthouse Southern District of New York 500 Pearl Street New York, NY 10007 RE:

Europe v. Equinox, et al., Case No. 20-CV-7787 (JGK)

Dear Judge Koeltl, This letter is respectfully submitted in support of Plaintiff’s request for a pre-motion conference, in accordance with Your Honor’s Rules II.B., regarding her intention to seek to amend the proposed Joint Pre-Trial Order (“JPTO”), which has not yet been “so-ordered,” pursuant to Fed. R. Civ. Proc. 16(e). Plaintiff seeks to add certain demonstrative summaries as trial exhibits, pursuant to Fed. R. Evid. 1006, and to add to her witness list the firm’s employee who compiled the data and created the summaries. These proposed exhibits were not listed on the JPTO as they had not yet been created, though they merely summarize information already contained in exhibits on the previously submitted JPTO, and they include no new data or information. Plaintiff also seeks leave to make several other minor amendments to the JPTO, with Defendants’ consent. The proposed JPTO, with amendments to which Defendants consent in redline, and amendments to which Defendants object highlighted in yellow, is attached as Exhibit A, and a clean copy is attached as Exhibit B. This is Plaintiff’s first such request.

Defendants will respond in detail as directed by the Court. A conference is already scheduled for April 5, 2023.

On February 10, 2023, the parties submitted the JPTO. Dkt. No. 133. On March 17, Plaintiff notified Defendants by phone that she sought to enter her demonstratives into evidence, and on March 22, she sent them by email. These demonstratives, which include summaries and charts of several uncontested exhibits, were so helpful to counsel understanding the complex and cumbersome underlying data, that Plaintiff now sees them as highly useful to the jury’s understanding as well.

I.

The Proposed Summary Exhibits and Witness

The newly proposed exhibits are summary charts which compare Plaintiff’s lateness to that of the other managers at her location. They are important because one of the central factual

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disputes in this case is whether Defendants disciplined and then fired Plaintiff solely for her lateness, as Defendants claim, or whether the lateness was a pretext for race and/or gender discrimination, as Plaintiff claims. The evidence at trial will include, in relevant part, three disciplinary records created by Equinox (Exhibits J2, P15/ D15, and J5), a schedule which includes the start times of each manager at Plaintiff’s location from December 2018 – August 2019 1 (J8), records of Plaintiff’s “swipe-in” times (J9), and records of the other managers’ swipe-in times (P18, an exhibit to which Defendants do not object). The managers’ swipe-in records include 62 pages of raw data; the manager schedules include twelve pages of daily schedules for each manager over eight months. Using Excel formulas, Plaintiff used this data to create the documents she now seeks to introduce: (1) (2) (3)

a set of graphs showing the eight location managers’ lateness over each day of the relevant eight-month period, with various buffer periods (i.e., 15 minutes late or more; 30 minutes late or more), Plaintiff’s proposed P19; a set of pie charts indicating each manager’s percentage of late arrivals during the same timeframe as shown with the same buffer periods, Plaintiff’s proposed P20; and a set of charts comparing Plaintiff’s average lateness during certain time periods, ostensibly used as a basis for discipline, to that of her similarly situated supervisor, proposed P21.

Plaintiff also seeks to amend the JPTO to include as a witness Laura Jenkins, an employee of the law firm who created these charts, solely to authenticate them and attest to their accuracy, and who can be produced for a deposition expeditiously at Defendants’ request, obviating any potential prejudice to Defendants regarding the addition of this witness.

II.

The Court Should Allow Plaintiff to Amend the JPTO to Include the Summary Charts and Authenticating Witness

Courts have discretion to modify the pretrial order, even after a final pretrial conference.

FRCP 16(e). “A district court has significant discretion in determining how to apply this directive.” Maehr v. NRG Home Solar, No. 2:16 Civ 03897 (ADS) (SIL) (E.D.N.Y. Apr. 10, 2019) (citing Helena Assocs., LLC v. EFCO Corp., No. 06 Civ 0861, 2009 WL 2355811, at *2 (S.D.N.Y. July 29, 2009)). “A district court must balance ‘the need for doing justice on the merits between the parties . . . against the need for maintaining orderly and efficient procedural arrangements.’” Guccione v. Harrah’s Marketing Services, No. 06 Civ. 4361 (PKL), at *4 (S.D.N.Y. July 29, 2009) (quoting Laguna v. Am. Exp. Isbrandtsen Lines, Inc., 439 F.2d 97, 101 (2d Cir. 1971). Courts generally consider “‘(1) the prejudice or surprise in fact to the opposing party; (2) the ability of the party to cure the prejudice; (3) the extent of disruption of the orderly and efficient trial of the case; and (4) the bad faith or willfulness of the non-compliant party.’”

Granados-Coreas v. Nassau Cnty., No. 18 Civ. 6092 (AYS) (E.D.N.Y. Feb. 15, 2023) (quoting Potthast v. Metro-North R.R. Co., 400 F.3d 143, 153 (2d Cir. 2005)). “[A] trial court will typically amend the pretrial order when ‘no substantial injury will be occasioned to the opposing 1

Defendants’ destruction of the East 92nd Street September 2019 Manager Schedule prevented Plaintiff from including September 2019 data on her demonstratives, even though it is highly probative. See Dkt. No. 95.

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party, the refusal to allow the amendment might result in injustice to the movant, and the inconvenience to the court is slight.’” Guccione, No. 06 Civ. 4361 (PKL) at *4 (quoting SEC v.

U.S. Envtl., Inc., No. 94 Civ. 6608, 2002 U.S. Dist. LEXIS 19839, at *4 (S.D.N.Y. Oct. 17, 2002) (citing FRCP 16 advisory committee’s note).

FRE 1006 permits the admission of a “summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” “Summary evidence is admissible as long as the underlying documents also constitute admissible evidence and are made available to the adverse party.” Valjean Mfg. v. Michael Werdiger, Inc., 2007 U.S. App. LEXIS 20475 (2d Cir. Aug. 27, 2007) (citing Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53 [2d Cir. 1993]). The Second Circuit has “regularly affirmed the use of such charts.” United States v. Blackwood, 366 F. App'x 207 (2d Cir. 2010) (citing United States v. Yousef, 327 F.3d 56, 158 [2d Cir. 2003]) (evidence of 100 phone calls over three days was sufficiently “voluminous” for summary evidence); United States v. Miller, 954 F.3d 551 (2d Cir. 2020) (same for eight pages of phone records). Courts should admit summary charts where they “summarize[] information that otherwise would [be] difficult for the jury to synthesize and evaluate,” are helpful to the jury, and are “based upon and fairly represent competent evidence already before the jury.” Blackwood, 366 F. App'x at 212 (citing Conlin, 551 F.2d at 538 [internal quotation marks omitted]).

Here, the proposed summary charts, as authenticated by the proposed witness, should be admitted under FRE 1006. They are based on uncontested trial exhibits which constitute voluminous records because they include over a hundred pages consisting of thousands of data points. The charts are the only practical way for the jury to assess Plaintiff’s lateness as compared with the other managers. They are created from Defendants’ own evidence. They were created and exchanged timely, minimizing any possible “prejudice or surprise” to Defendants.

Granados-Coreas, No. 18 Civ. 6092 at *3. Lastly, the introduction of these charts into evidence would create no delay or “inconvenience” to the Court, especially as the JPTO has not yet been so-ordered, nor has the pretrial conference taken place. Guccione, No. 06 Civ. 4361 (PKL) at *4; see also Valjean, 2007 U.S. App. LEXIS 20475 at *4 (upholding admission of an FRE 1006 chart when the underlying documents were not produced until one week before trial).

Prohibiting these amendments to the pretrial order could “result in injustice” to Plaintiff, as the charts capture and convey data that is unintelligible to the jury in its raw form. Id. On the other hand, allowing the charts into evidence will give the jury a better and more comprehensive grasp of the claims and defenses in the case, thereby aiding the Court in its objective to “efficient[ly] resol[ve]” this matter. Lamborn v. Dittmer, 873 F.2d 522, 527 (2d Cir. 1989).

We thank the Court in advance for its consideration.

Sincerely, Susan Crumiller