United States District Court, D. Utah, Eastern Division
FIRST AMERICAN TITLE INSURANCE COMPANY and FIRST AMERICAN TITLE COMPANY, LLC, Plaintiffs,
NORTHWEST TITLE INSURANCE AGENCY, LLC, MICHAEL SMITH, JEFF WILLIAMS, and KRISTI CARRELL, Defendants.
MEMORANDUM DECISION AND ORDER GRANTING 
PLAINTIFFS' MOTION TO STRIKE ALL DESIGNATED DEPOSITION
TESTIMONY OF DENNIS J. GILMORE
Nuffer United States District Judge
filed a motion to strike all designated deposition testimony
of Dennis J. Gilmore,  the chief executive officer of First
American Financial Corporation. Defendants opposed the motion,
the plaintiffs replied to that opposition.
filed a similar motion to prevent the defendants from taking
Gilmore's deposition. Judge Warner denied the motion,
finding that “Mr. Gilmore appears to have unique
knowledge and/or personal involvement sufficient to permit
the deposition under the liberal discovery
standards.” In the Reply, the plaintiffs correctly
point out that at this stage the question is no longer
considered under the “liberal discovery standards of
Rule 26(c), ” but rather “under the Federal Rules
of Evidence, ” specifically Rules 401 and 403.
argue that the designated deposition of Dennis J. Gilmore is
necessary trial testimony for several reasons. First, defendants
argue that the designated deposition is per se relevant and
probative because Gilmore is the CEO, serves on the board of
directors of First American Financial, and is President of
First American Title Insurance Company. Second, and
related to the first, the defendants argue that as a member
of the First American Financial's board of directors,
Gilmore is the “only witness from First American
Financial who has been identified by either party to
testify.” Finally, defendants argue that the
designated deposition is important because Gilmore provided
information about confidential information.
plaintiffs argue that the designated deposition should be
excluded based on Rules 401 and 403 of the Federal Rules of
Evidence. Rule 401 states:
is relevant if:
has any tendency to make a fact more or less probable than it
would be without the evidence; and
fact is of consequence in determining the action.
Rule 403 states:
The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more
of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.
arguments for including Gilmore's designated deposition
are either not relevant or are outweighed by Rule 403
considerations. A person's position does not
automatically make the testimony relevant. Gilmore, as a
board member of First American Financial, does not provide a
unique perspective on First American Financial documents.
After reviewing Gilmore's designated depositions, his
testimony regarding those documents is limited and
superficial. The alleged confidential information Gilmore
discusses relates to claims and documents no longer at
issue. But even so, anything Gilmore says about
those documents is cumulative: The 30(b)(6) witness, Karen
Lanning, provides testimony on those documents.
defendants argue the Gilmore designated deposition is
“highly relevant to Plaintiffs' claims [because, ]
[t]o the extent the President of the company knew nothing
about the purchase of Equity Title by First American title
Insurance Company and subsequent merger into First American
Title Company, LLC, the knowledge of such details cannot
reasonably be imputed to the Individual
Defendants.” There is no ...