Accurso v. Infra-Red Services, Inc.
169 F. Supp. 3d 612
E.D. Pa.2016Background
- Plaintiff Peter Accurso sued former employers (Brian Land, Audrey Strein, and three corporate entities) for EPPA violations, breach of contract, wage-payment violations, intentional interference, and civil conspiracy; defendants filed counterclaims including breach of fiduciary duty, fraud, and misappropriation of trade secrets.
- Court previously granted in part and denied in part summary judgment; trial was scheduled for April 1, 2016.
- Defendants filed multiple in limine motions seeking to exclude plaintiff damages evidence, block evidence of personal liability for Land/Strein, obtain an adverse inference for alleged email deletion, admit mixed-motive evidence on EPPA liability, apply the faithless-servant doctrine, and exclude inadvertently produced privileged materials.
- Plaintiff filed in limine motions seeking to exclude lay-opinion testimony of Brian Land and to exclude defendants’ damages evidence for alleged discovery failures.
- The court applied Rule 37(c) sanctions principles and Rule 37(e) (ESI spoliation) guidance, and evaluated admissibility under FRE 701 (lay opinion) and relevant state law for affirmative defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclude plaintiff damages for discovery noncompliance | Accurso had disclosed damages; deny exclusion | Defendants: Accurso failed to respond to interrogatories/depositions, so damage evidence should be barred | Denied — defendants failed to meet burden for extreme sanction; record shows some disclosure of damages |
| Exclude evidence of personal liability for Land/Strein (veil-piercing/agency) | Accurso can show personal liability via agency definitions in EPPA/PWPC Law and facts supporting veil-piercing | Defendants: no discovery evidence to pierce corporate veil; seek to bar any evidence of personal liability | Denied — motion treated as premature; agency definitions and record evidence may support personal liability or veil-piercing; not an evidentiary exclusion |
| Adverse inference for alleged email spoliation | N/A | Defendants: Accurso deleted emails showing solicitation of clients; seek negative inference | Denied without prejudice — no proof of loss, responsibility, inability to restore, or intent to deprive under Rule 37(e) |
| Mixed-motive framework for EPPA liability | Accurso: employer motivation is relevant; defendants may present objective reasons | Defendants: ask to use mixed-motive doctrine to show polygraph was not substantial factor | Denied without prejudice — evidence of motives is relevant; parties must identify specific evidence at trial; mixed-motive approach not decided by Third Circuit for EPPA but admissible for consideration |
| Apply faithless-servant doctrine to bar wages | Accurso: Pennsylvania has not adopted broad faithless-servant forfeiture; forfeiture disfavored | Defendants: seek recovery/forfeiture under faithless-servant principle (cites NY law) | Denied — doctrine not adopted under Pennsylvania law and defendants failed to show applicable affirmative defense |
| Exclude inadvertently produced privileged materials | N/A | Defendants seek protection against waiver from inadvertent production | Granted — court will exclude inadvertently produced privileged documents; parties may raise issues at trial if needed |
| Exclude Brian Land’s lay-opinion testimony on defendants’ damages | Accurso: Land’s opinions go beyond lay testimony and improperly invade legal issues/credibility | Defendants: Land, with industry experience, may give lay opinion on damages | Granted in part / Denied in part — Land may give lay testimony limited to identifying defendants’ damages based on personal knowledge; barred from opining on legal conclusions, intentional destruction of evidence, or tortious liability |
Key Cases Cited
- ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir.) (factors for exclusion of evidence for discovery noncompliance)
- Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894 (3d Cir.) (guidance on exclusion as a sanction)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (U.S.) (mixed-motive framework in employment discrimination)
- Worden v. SunTrust Banks, Inc., 549 F.3d 334 (4th Cir.) (EPPA and mixed-motive analysis on polygraph-based termination)
- Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir.) (admission of lay opinion testimony about business damages)
- McAdams v. United States, 297 Fed.Appx. 183 (3d Cir.) (spoliation and adverse-inference considerations)