Lemuel BLAND, et al., Plaintiffs, v. PNC BANK, N.A., Defendant. Marat Gokhberg, et al., Plaintiffs, v. The PNC Financial Services Group, Inc., et al., Defendants 15cv104215cv1700 United States District Court, W.D. Pennsylvania Signed December 30, 2016 Counsel Diana J. Nobile, Gregory K. McGillivary, Molly A. Elkin, Woodley & McGillivary LLP, Washington, DC, Justin L. Swidler, Joshua Boyette, Swartz Swidler LLC, Cherry Hill, NJ, Marc A. Silverman, Frank, Weinberg, Black, P.L., Robert D. Soloff, Robert D. Soloff, P.A., Plantation, FL, for Plaintiffs. Richard L. Etter, Frost Brown Todd LLC, Gretchen Woodruff Root, Catherine S. Ryan, Reed Smith LLP, Pittsburgh, PA, for Defendant. Schwab, Arthur J., United States District Judge MEMORANDUM ORDER RE: RULINGS ON MOTIONS IN LIMINE *1 Pending before the Court are PNC's Omnibus Motion in Limine (Doc. No. 327) and Plaintiffs' Omnibus Motion in Limine (Doc. No. 329). The Court has reviewed the parties' motions, supporting memoranda and responses thereto, and reply in support (Doc. Nos. 327, 328, 329, 331, 337, 339, and 342), and makes the following rulings: A. Defendants' Motions in Limine In its omnibus motion, PNC includes 13 motions in limine. Motion in limine 13 relates to documents on the parties' joint exhibit list, objections to which are addressed by separate order of the Court. As indicated by Plaintiffs, (Doc. No. 339 at 1), both parties have stipulated that neither party will introduce evidence as to “Any and all references to any adverse publicity about PNC or Plaintiffs” (Defendants' Motion in Limine 1); “Any urging or suggesting a need to ‘send a message’ or to ‘put yourself in the parties' position’ or otherwise urging the jury to rely on impermissible grounds” (Defendants' Motion in Limine 2); and “Any reference to settlement negotiations” (Defendants' Motion in Limine 6). Accordingly, Defendants' motions in limine 1, 2, and 6 are GRANTED as agreed to by the parties. As to Defendants' remaining motions in limine, the Court rules as follows: 1. Any evidence or comments by counsel regarding any issues or claims decided, or to be decided, on summary judgment or class certification (Defendants' Motion in Limine 3) Defendants claim that these matters are irrelevant to the narrow issue to be decided by the jury and that reference to such issues and claims could mislead the jury and confuse the issue to be decided. Plaintiffs respond that Defendants moved for summary judgment as to the off-the-clock claims, and therefore, Plaintiff would be unable to introduce any evidence at trial if Defendants' motion is granted. Plaintiffs indicate that they intend to present evidence that: 1) PNC's official policy of reducing an MLOs commissions by 2/3 of the overtime reported and paid was a disincentive causing MLO's to not report all of their overtime and to not complain to PNC about off-the-clock work; and 2) that PNC failed to follow PNC's written terms and policies regarding compensation, both of which Plaintiffs assert are important for the jury to consider in weighing credibility of witnesses and considering the weight to provide to PNC's written policies on overtime. Neither evidence of terms and policies regarding the compensation scheme nor evidence of the failure to follow those policies is relevant to the issue for trial. Moreover, such would mislead the jury and confuse the issue for their decision. Plaintiffs, however, will not be precluded from proffering evidence and counsel will not be precluded from discussing evidence relevant to the single issue to be decided that is also relevant to the issues or claims to be decided on summary judgment or class certification. The parties, however, will be precluded from providing evidence or comments that other issues or claims are to be decided on summary judgment or class certification, and additionally, Plaintiffs are precluded from introducing evidence or comments by counsel regarding the compensation scheme, including the reduction of an MLOs commissions, unless Plaintiffs can provide to the Court evidence to show that the compensation scheme was intended to cause MLOs to work off-the clock. Plaintiffs also are precluded from introducing evidence or comments by counsel regarding whether or not PNC followed those compensation policies. Accordingly, Defendants' Motion in Limine 3 is GRANTED IN PART and DENIED IN PART. 2. Any evidence or comments by counsel suggesting that PNC, its agents, or counsel have attempted to deny access to any documents or information (Defendants' Motion in Limine 4) *2 Defendants argue that despite significant production of ESI, Plaintiffs will attempt to argue that PNC's email retention policy is an attempt to deny Plaintiffs access to documents and relevant information. Plaintiffs respond that each of the Plaintiffs deposed testified that they regularly sent emails to management and customers while off-the-clock and that management had emailed Plaintiffs not to record all hours worked, yet pursuant to the policy emails are destroyed every 60 days and individual users are not permitted to copy any emails. Plaintiffs are not prohibited in testifying as to relevant emails they sent or received, subject to other evidentiary objection. Consistent with the Court's ruling regarding the E-mail Retention Policy P-67, Defendants' motion in limine 4 is GRANTED. 3. Any reference to PNC's size, location, number of employees, financial resources, financial performance, or any aspect of PNC's financial condition (Defendants' Motion in Limine 5) Defendants argue that the mention of PNC's size, financial condition or financial performance is not relevant to the issue to be decided, particularly because damages are not at issue for the single matter to be determined, and that the evidentiary value of this evidence would be substantially outweighed by unfair prejudice. Plaintiffs respond that because whether PNC knew or should have known about the off-the-clock work, its size, sophistication and myriad of resources, including its technical resources and prowess, are relevant for the jury's consideration. The Court agrees with Defendants that PNC's size, financial condition, financial performance, and financial resources are not relevant to the single issue for trial and any probative value of same would be substantially outweighed by unfair prejudice. Accordingly, Defendants' Motion in Limine 5 is GRANTED. 4. Any mention of any other litigation against PNC (Defendants' Motion in Limine 7) Defendants argue that evidence of other litigation is not relevant to the single issue for trial, and thus, evidence, testimony or comment about other lawsuits filed should be excluded. Plaintiffs respond that Defendants improperly include in their motion the Gokhberg case, which is consolidated in the present action; that prior suits against PNC for off-the-clock violations are relevant to show PNC's knowledge that many of its employees have complained of off-the clock work; and that this evidence is admissible as “other acts” to show knowledge. Plaintiffs relent that the settlement agreements in those other cases are inadmissible. The Court finds evidence of the other litigation irrelevant to the single issue for trial. As the Gokhberg case is consolidated in this case, mention of it will be limited to that which is relevant, namely that the Gokhberg Plaintiffs are Plaintiffs that have sued PNC in this consolidated action. Accordingly, Defendants' Motion in Limine 7 is GRANTED. 5. Any evidence regarding mortgage loan officers' experiences outside of the statute of limitations period (Defendants' Motion in Limine 8) Defendants argue that testimony or other evidence related to purported policies, including the MLO Overtime Guidelines (P-64) and FLSA Power Point Slides (P-65), and the MLOs' experiences outside of the statute of limitations period pertaining to each individual Plaintiff's claims based on the filing date of his or her consent to join, are wholly irrelevant to whether PNC had a policy or practice that caused mortgage loan officers to work off-the-clock and, thus should be excluded. Defendants cite May v. Ark Forestry Comm'n, 993 F.2d 632, 635 (8th Cir. 1993), for the proposition that evidence was excluded as irrelevant where it was unrelated to the time period for which plaintiffs had made a claim for unpaid wages. In May the appellate court affirmed the district court's exclusion of the evidence of a stipulation occurring after the time period in question. Plaintiffs argue that although the overtime guidelines and power point slides were originally published in 2011, they have not been rescinded, the guidelines had not been changed, and the guidelines are still utilized. Plaintiffs have cited to evidence that the information in the guidelines and power point slides is relevant to the statutory period. The Court has in its separate memorandum order on the joint exhibit list overruled Defendants' objection to Exhibits P-64 and P-65. *3 The Court agrees that to the extent that Plaintiffs offer evidence relating solely to policies applicable outside the statutory time period and not to policies applicable inside the statutory period, such is excludable. Nevertheless, testimony or evidence relating to policies and guidelines implemented or used prior to the statutory period only will be permitted if the policies and guidelines also applied during the statutory period. Additionally evidence of the mortgage loan officer's experiences prior to the statutory period will be permitted if it relates to instruction by a manager or supervisor that the individual plaintiff was not to report overtime or was to work off-the-clock, unless such manager or supervisor countermanded that instruction prior to the statutory period. Accordingly, Defendants' Motion in Limine 8 is GRANTED IN PART and DENIED IN PART. 6. Any excerpts from Plaintiffs' depositions, interrogatory responses, and/or responses to requests for admission offered by Plaintiffs (Defendants' Motion in Limine 9) Defendants contend that the Plaintiffs' depositions, interrogatory responses and/or responses to requests for admission constitute hearsay, and that if Plaintiffs wish to introduce such evidence regarding named and opt-in plaintiffs then named and opt-in plaintiffs should appear and testify at trial. Defendants further assert that the use of Dr. Speakman to introduce summaries of opt-in plaintiffs' interrogatory responses would constitute a mere recitation by Dr. Speakman of inadmissible hearsay. As discussed in the separate memorandum order on objections to exhibits, Plaintiffs' interrogatory responses are hearsay and Plaintiffs have not shown that they fall within an exception to hearsay. See Kirk v. Raymark Indus., Inc. 61 F.3d 147, 168 (3d Cir. 1995) (rejecting argument that interrogatory responses of settled co-defendant were admissible under residual hearsay exception formally at Federal Rule of Evidence 803(24) and 804(b)(5), now embodied in current Federal Rule of Evidence 807, and observing admitting the responses “implicates many of the dangers the hearsay rules is designed to prevent”). Thus, the interrogatory responses in Plaintiffs' Exhibit P-75, as well as the demonstrative exhibit regarding same, Plaintiffs' Exhibit P-74, have been excluded per the Courts' separate order. The same applies to Plaintiffs' use of Plaintiffs' answers to the requests for admission, which likewise are hearsay. As to the use of Plaintiffs' depositions, however, the Federal Rules of Civil Procedure 32 (use of depositions) and 45 (regarding subpoenas) were amended in 2013 to the effect that where a witness, whether or not a party, is unavailable as defined by Rule 32(b)(4), which includes 32(b)(4)(B), relevant here, that the witness is more than 100 miles from the place of trial, unless that witness' absence was procured by the party offering the deposition, the witness' deposition testimony may be offered. Rule 32provides an additional exception to the hearsay rule and applies whether or not the witness is a party. Thus, a party's own deposition testimony or the testimony of their own witness may be offered by that party at trial “to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying,” Fed. R. Civ. P. 32(a)(1)(B), so long as that witness is unavailable within the meaning of Federal Rule of Civil Procedure 32(a)(4)(B). Each of the cases relied on by Defendants regarding the deposition testimony relate to application of the prior rule restricted to non-party witnesses. As to Defendants' argument that testimony of Dr. Speakman summarizing plaintiffs' interrogatory responses or answers to requests for admission is hearsay and should be excluded, the Court agrees. Inadmissible hearsay does not become admissible because a third party testifies as to a Rule 1006 summary of it. See, e.g., U.S. v. Pelullo, 964 F.2d 193, 194-195 (3d Cir. 1992). *4 To the extent that the Court admits any party's offered excerpts of depositions, responses to interrogatories, and answers to requests for admission, the Court will admit the additional portions of same or other writings or recorded statements pointed to by the opposing party that the Court determines in fairness ought to be considered at the same time as required by the rule of completeness codified at Federal Rule of Evidence 106, Beech v. Aircraft Corp. v. Rainey, 488 U.S. 153, 171 n. 14 (1988) (“We take this to be a reaffirmation of the obvious: that when one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant therefore admissible.”); Saltzburg, Federal Rules of Evidence Manual § 106.01[1] at 106-4 (11thEd. 2015) (“The rule does not mean than an entire writing or recording is automatically admissible whenever part of it is introduced.”). To this end, Plaintiffs argue that they should be able to offer Plaintiffs' own interrogatory answers and admissions, because Defendants have “cherry picked” some of Plaintiffs' responses to discovery, thus creating an incomplete and misleading picture of the discovery directed at certain opt-in Plaintiffs. In essence, Plaintiffs argue that they should be permitted to introduce any of their own responses to interrogatories and answers to requests for admission because the opposing party, not surprisingly, has selected for trial the best evidence therefrom in support of the defense. Plaintiffs, as pointed out by Defendants, can provide relevant live testimony at trial in support of their contentions contained in the excluded responses to interrogatories and answers to requests for admission. Plaintiffs' position would swallow the hearsay rule whole. The Court will not simply admit wholesale the responses to interrogatories compiled and provided by Plaintiffs as Plaintiffs' Exhibit P-75, nor any and all discovery responses of opt-in Plaintiffs just because Defendants have selected portions therefrom in support of the defense. It should be noted that Plaintiffs' statement that “the instant trial is to determine class certification as to the off-the-clock claim,” (Doc. 339 at 6), is not wholly accurate. The Court's November 21, 2016 order setting this matter for trial indicated that the Court had identified a single issue of fact to be decided prior to the Court's determination of final certification and directed that the limited question for the jury trial to commence January 17, 2017 is “Did Plaintiffs prove by a preponderance of the evidence that PNC had a policy or practice that caused mortgage loan officers to work off-the-clock and, therefore, not receive wages for all hours worked?” (Doc. No. 296). The Court did not, however, state that the trial of the single issue was a class certification hearing or equivalent thereto, and thus Plaintiffs' reliance on cases regarding that setting are inapposite. Accordingly, as to Defendants' motion in limine 9, it is GRANTED IN PART and DENIED IN PART as follows: Defendants' motion to exclude the summary by Dr. Speakman of Plaintiffs' responses to interrogatories and requests for admission is GRANTED; Defendants' motion to preclude Plaintiffs from proffering their own discovery responses is GRANTED; and subject to any ruling that a portion of same is required for completeness, Defendants' motion to preclude Plaintiffs from offering deposition testimony of unavailable witnesses, whether or not a party, is DENIED. 7. Any testimony from Dr. Speakman (Defendants' Motion in Limine 10) Defendants argue that testimony from Dr. Speakman is objectionable because he is an expert and statistician and such will misled the jury to give added credibility to any admissible summary because it is provided by Dr. Speakman. Plaintiffs respond, however, that at trial on the single issue “Plaintiffs will not establish, though testimony or otherwise, Speakman's expert qualifications.” (Doc. No. 339 at 6 n.2). Further, they argue that Dr. Speakman is not excludable as the summarizing witness just because he also is an expert where he is not testifying in such a role. To the extent that any such summary testimony would be admissible, the use of Dr. Speakman to provide it is not objectionable where Plaintiffs will not be identifying his expert qualifications. Accordingly, Defendants' Motion in Limine 10 is DENIED. 8. Any evidence of comments by counsel regarding the probable or likely testimony of a witness who is absent, unavailable or not called to testify (Defendants' Motion in Limine 11) *5 Defendants argue that reference to the probable or likely testimony of a witness who is absent, unavailable, or not called to testify should be excluded because such evidence or references would mislead the jury and such speculation would be unfairly prejudicial. In circular fashion, Plaintiffs respond that the motion should be denied because if it is granted Plaintiffs will not be able to admit evidence or comments as to what the witnesses would have testified to but rather will need to call those witnesses. As indicated, this is not a class certification hearing. The Court finds that speculation as to probable or likely testimony where such testimony will not be admitted into evidence or provided to the jury would mislead the jury and that the unfair prejudice of such evidence or comments would outweigh its probative value. Regardless, the evidence and comments by counsel regarding the actual testimony by deposition properly offered into evidence of a witness, whether or not a party, who is unavailable within the meaning of Rule 32(b)(4)(B) will be permitted consistent with the Court's ruling regarding such deposition testimony. Accordingly, Defendants' Motion in Limine 11 is GRANTED IN PART and DENIED IN PART. 9. Any reference to any alleged off-the-clock work that any testifying witness did not personally witness (Defendants' Motion in Limine 12) Defendants argue that evidence that one MLO worked off-the-clock does not establish that any other MLO worked off-the-clock and is not relevant to the issue to be decided. Defendants further contend that such evidence would create an impermissible suggestion to the jury that because such work happened in the past with another MLO that it is more likely to have happened in each Plaintiff's case, and thus, even if the evidence were relevant, the probative value of such evidence would be substantially outweighed by unfair prejudice. Plaintiffs respond, again, that if Defendants' motion is granted, Plaintiffs will need to put on more witnesses than it otherwise would. Plaintiffs cite to cases regarding the use of representative evidence to prove FLSA violations as to hours worked and amount paid where the employer breached its duty to keep adequate records, seeAnderson v. Mt. Clemens Pottery, 328 U.S. 686, 687 (1946); Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 1047 (2016), and where the plaintiffs otherwise improperly would have been punished by the impossible hurdle created by the employer's failure to keep adequate records. Again, this is not a class certification hearing or a hearing or trial on damages, and the single issue for trial is not the amount of hours worked prior to same. That Plaintiffs will have to put on their case is not unfair. Defendants' requested motion as stated, however, is too broad as it improperly would also exclude evidence and testimony elicited from PNC management regarding knowledge of off-the-clock work they were informed about but did not “witness.” Therefore, the Court will GRANT Defendants' motion as to any evidence offered by one MLO regarding the work of another MLO of which the offering MLO did not have personal knowledge, and will otherwise DENY the motion. Accordingly, Defendants' Motion in Limine 12 is GRANTED IN PART and DENIED IN PART. 10. Requested exclusion of Exhibits P-1, P-2, P-3, P-36, P-39, P-42, P-45, P-48, P-51, P-52, P-56, P-58, P-61, P-64, P-65, P-66, P-67, P-68, P-71, P-72, P-74, P-75 and P-76 (Defendants' Motion in Limine 13) Defendants request exclusion of several exhibits through its Motion in Limine 13. Ruling regarding these exhibits is addressed in a separate memorandum order by the Court on both parties' objections as indicated on the joint exhibit list provided to the Court. In accordance with that order, Defendants' motion in limine 13 is GRANTED IN PART and DENIED IN PART. B. Plaintiffs' Motions in Limine Plaintiffs' likewise file several motions in limine. Defendants object to all on the basis that Plaintiffs failed to file the Certificate of Conferral required by the local rules and that indicates that Plaintiffs sought to resolve the matters in the motions in limine prior to filing same. (Doc. No. 337 at 2). Plaintiffs with leave filed a letter reply (Doc. 342), admitting that they did not file the certificate because they had not finished the motions in limine until later on their due date of December 23, 2016, and did not have time to confer regarding all the motions prior to filing them. Plaintiffs indicate, however, that they did in fact confer regarding Plaintiffs' motion in limine 2 to exclude undisclosed witnesses and Plaintiffs' motion in limine 4 seeking an order to preclude Defendants' Exhibit D-6, and that based on Defendants' vehement opposition to Plaintiffs' remaining motions in limine that conferral therefore would have been in form only. The conferral requirement of the local rules serves an important function in achieving the purpose of Federal Rule of Civil Procedure 1 “to secure the just, speeding and inexpensive determination of every action and proceeding.” FED. R. CIV. P. 1. The Court will consider Plaintiffs' omnibus motion in limine, however, Plaintiffs' counsel is admonished that full and considered conferral is required and not to be “in form only” within the spirit of Rule 1 and the local rules. *6 As to Plaintiffs' motions in limine, the Court rules as follows: 1. Excluding from evidence the Responses to Interrogatories and Answers to Requests for admission of any opt-in Plaintiff offered by Defendants unless Defendants inform the jury as to the number of individuals who were subject to the discovery and the number of individuals who provided responses that are counter to those offered by Defendant (Plaintiffs' Motion in Limine 1) Plaintiffs seek exclusion of Defendants' proffered responses to interrogatories and answers to requests for admission by plaintiffs unless Defendants also provide certain information to the jury regarding all of the plaintiffs' responses and answers to that discover that are counter to the responses and answers that Defendants desire to proffer. Plaintiffs reason that Defendants will offer “cherry-picked” responses and answers from all of the responses and answers provided by plaintiffs. Plaintiff cites the rule of completeness codified at Federal Rule of Evidence 106, as discussed supra, and makes a sweeping request. That rule, however, does not automatically require admission of the answers and responses of all of the other Plaintiffs as Plaintiffs would like. See Saltzburg, Federal Rules of Evidence Manual § 106.01[1] at 106-4 (11th Ed. 2015) (“The rule does not mean than an entire writing or recording is automatically admissible whenever part of it is introduced.”). The cherry-picking Plaintiff urges in this context is nothing more than ordinary advocacy, which is expected on both sides in this adversarial process. Accordingly, Plaintiffs' Motion in Limine 1 is DENIED. 2. Excluding from evidence the interrogatory responses of Melendez, Gomez, Foster and O'Halloran unless Defendants also introduce: (a) the definition of policy adopted by PNC in Mr. Boomer's deposition; (b) the responses given by Melendez to interrogatory numbers 2 and 14; (c) the responses given by Gomez to interrogatory numbers 2, 7, and 14; (d) the responses given by Foster to interrogatory number 3; and (e) the responses given by O'Halloran to interrogatory numbers 2 and 14 (Plaintiffs' Motion in Limine 2) As opposed to Plaintiffs' motion in limine 1, Plaintiffs' motion in limine 2 refers to specific and targeted responses to interrogatories and deposition testimony that Plaintiffs claim is required for completeness where Defendants seek to offer certain discovery responses. Federal Rule of Evidence 106 specifically provides: If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recoded statement—that in fairness ought to be considered at the same time. FED. R. EVID. 106. The rule seeks avoidance of unfair distortion or creation of misunderstanding. Beech v. Aircraft Corp. v. Rainey, 488 U.S. at 171 n. 14 (1988). Defendants argue that the responses contain hearsay, and that Rule 106does not empower the Court to admit hearsay in the interest of fairness and completeness, citing an Eighth Circuit case. There is a split an authority on this issue and whether Federal Rule of Evidence 106 provides an exception to hearsay as does Federal Rule of Civil Procedure 32 regarding depositions, with the Third Circuit not having determined which side of the divide it will land, as detailed and recognized by Kochert, The Admission of Hearsay Through Rule 106: and Now You Know the Rest of the Story, 46 Ind. L. Rev. 499, 506-507 (2013). Suffice it to say, the Court will not be ordering the admission of hearsay, but rather if Defendant chooses to proffer the referenced responses, then the additional responses indicated below must be proffered as well. The choice, however, will be up to Defendants. *7 Turning to the specific requests, Plaintiffs argue that the definition of policy testified to by Mr. Boomer on behalf of PNC in his deposition defining it as “a formal written policy contained within ... policies and procedures,” (Doc. NO. 331 Ex. A at 24-25), must be provided with the answers to interrogatory number 9, which requests information regarding PNC policies, because interrogatory number 9 as propounded on plaintiffs did not define “policy.” In the Court's estimation taking the definition of policy provided by Mr. Boomer and automatically applying it to plaintiffs' responses to discovery would have more of a tendency for distortion and misunderstanding. There is nothing to suggest that in general plaintiffs in their responses specifically were using Mr. Boomer's definition. The definition of policy that would be relevant would be that used or understood by answering plaintiffs. To the extent, however, there is testimony by Mr. Boomer admitted at trial referring to policy, the portion of his deposition defining same should also be admitted. That Defendants did not define “policy” in propounded discovery and Plaintiffs likewise did not see fit to define the term policy when responding to the discovery is not occasioned on Defendants. In reviewing the Responses to Interrogatory number 9 for Melendez, Gomez, Foster, and O'Halloran, and comparing to Responses to Interrogatory numbers 2 and 14 for Melendez, Responses to Interrogatory numbers 2, 7, and 14 for Gomez, Response to Interrogatory number 3 for Foster, and Responses to Interrogatory 2 and 14 for O'Halloran, the Court determines that in fairness and for completeness and context that if Defendants' offer their responses to Interrogatory number 9, that certain of these additional responses should be introduced at the same time. As to Melendez, the response to Interrogatory number 2 only shall be included and the Court does not find the identified additional response to 14 to be required in fairness; as to Gomez, the response to Interrogatory numbers 2 and 7 only shall be included and the Court does not find the response to 14 to be required in fairness; as to Foster, the Court does not find the identified additional interrogatory response to be required in fairness or helpful to avoid misunderstanding or distortion; and as to O'Halloran, the Court does not find the identified additional interrogatory responses to be required in fairness or helpful to avoid misunderstanding or distortion, particularly because the response by O'Halloran to interrogatory number 9 specifically indicates that O'Halloran is referring therein to official written policies. Accordingly, Plaintiffs' Motion in Limine 2 is GRANTED IN PART and DENIED IN PART. 3. Precluding Defendants from calling any witness at trial not disclosed pursuant to Federal Rule of Civil Procedure 26 (Plaintiffs' Motion in Limine 3) Plaintiffs seek an order precluding Defendants from calling at trial witnesses not disclosed in PNC's Federal Rule of Civil Procedure 26 disclosures. Specifically, Plaintiffs allege that 14 witnesses were not previously disclosed to Plaintiffs by Defendants on Defendants' November 10, 2015 “Rule 26(a)(1) Initial Disclosures” and Defendants' April 20, 2016 “Supplemental Disclosures,” (Doc. No. 331-6), but appeared on Defendants' Trial Witness Designations. (Doc. No. 306). Defendants respond that they complied with the Court's deadline for Rule 26(a)(3) disclosures. Further, Defendants argue that in accordance with Rule 26(e)(1)(A), the disclosure by supplement to the Rule 26(a)(1)disclosures is required only if “the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” FED. R. CIV. P. 26(E)(1)(A). The parties agree on the applicable factors to consider for determining whether to preclude Defendants from calling these witnesses: (1) Prejudice or surprise; (2) Ability to cure prejudice; (3) The extent that allowing the evidence would disrupt the orderly and efficient trial of the case or other cases; and *8 (4) Bad faith or willfulness. Nicholas v. Penn. State Univ., 227 F.3d 133, 148 (3d Cir. 2000). Defendants assert that two of the fourteen witnesses were disclosed as part of PNC's mortgage organization chart and at the October 13, 2016 deposition of Peter Boomer, and that Plaintiffs themselves had identified an additional ten of the fourteen witnesses. As to the remaining two of the fourteen witnesses, Jason Brown and Joan Brustman, Defendant does not offer how they had been identified to Plaintiffs such that this failure of disclosure should be excused—and thus makes no argument as to these two individuals. Therefore, Motion in limine 3 as to Jason Brown and Joan Brustman is GRANTED. As to the ten witnesses identified by Plaintiffs, motion in limine 3 will be DENIED. Finally, as to the two witnesses indicated on the organization chart and at the October 13, 2016 deposition of Peter Boomer, the matter is a closer call. Defendants have offered that prejudice can be avoided by permitting trial deposition, albeit the offer is only if witnesses appear on PNC's final witness list other than for the limited purpose of rebuttal or impeachment. Given the impending trial, given the voluminous discovery documents that included the organization chart, and the exceedingly late disclosure at deposition, the Court determines that the factors under Nicholas weigh in favor of excluding Andreotti and Chuba as witnesses at the scheduled single issue trial. Although Plaintiffs' motion in limine 3 as to Andreotti and Chuba will be granted, Plaintiffs will be permitted subsequently to depose Andreotti and Chuba and Defendants will be permitted to proffer Andreotti and Chuba as witnesses at trial subsequent to the single issue trial scheduled for January 17, 2017. Accordingly, Plaintiffs' Motion in Limine 3 will be GRANTED IN PART and DENIED IN PART. 4. Precluding Defendant from introducing certain portions of the depositions designated by Defendants (Plaintiffs' Motion in Limine 4) Plaintiffs move to preclude the admission of certain portions of depositions that have been designated by Defendants. The Court subsequently will address Plaintiffs' challenges to Defendants' deposition designations by separate order. 5. Precluding Defendant from introducing Defendants' Exhibit D-6 (Plaintiffs' Motion in Limine 5) Plaintiffs' motion in limine 5 is addressed in the Court's separate memorandum order on trial exhibits. In accordance with the order, Plaintiffs' Motion in Limine 5 is DENIED. 6. Precluding Defendant from introducing evidence or referring to the total annual compensation and total commissions earned by Plaintiffs (Plaintiffs' Motion in Limine 6). Plaintiffs argue that Defendants should be precluded from introducing evidence of the total annual compensation and total commissions earned by MLOs because the evidence is not relevant and is substantially more prejudicial than probative. Defendants respond that the evidence is relevant as it is probative on whether or not the MLO chose to record all hours worked because of an unwritten policy or practice. The Court finds both that the evidence is irrelevant in this single issue trial and that in this context as well any probative value is substantially outweighed by unfair prejudice. Accordingly, Plaintiffs' Motion in Limine 6 is GRANTED. C. CONCLUSION *9 The Parties shall meet with the law clerk in the Jury Room following the Preliminary PreTrial Conference on Tuesday, January 3, 2017 at 9:30 a.m., to remove or redact any exhibits consistent with this Memorandum Order. SO ORDERED, this 30th day of December, 2016.