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Banford v. Entergy Nuclear Operations, Inc.

United States District Court, D. Vermont

September 15, 2014




Plaintiffs David Banford, Robert Miller, Gary Stratton and Scott McGratty bring this suit against Defendant Entergy Nuclear Operations, Inc. ("Entergy") challenging their designation as exempt employees for purposes of overtime pay under the Fair Labor Standards Act and related state statutes. Plaintiffs work at Vermont Yankee, a nuclear power plant owned by Entergy, as Security Shift Supervisors ("SSS"). Trial is scheduled to begin on September 15, 2014.

On August 15, 2014 Defendant filed its Submission Regarding Evidence and Other Trial Issues in which it announced its intention to introduce two videos at trial not previously produced in discovery: (1) a video of a tabletop exercise conducted by the Training Department at Vermont Yankee ("the tabletop video") and (2) an industry video that describes how security at a nuclear power plant is handled ("the industry video"). In their Response, Plaintiffs noted that they would "strenuously object" to the introduction of these videos at trial. Pl. Resp. to Def.'s Submission Regarding Evid. and Other Trial Issues at 2.

At a pre-trial hearing on September 1, 2014 Plaintiffs first argued that the videos contained non-admissible hearsay. The court requested additional briefing on the admissibility of the videos, which the parties submitted on September 9, 2014.

For the reasons stated below, Plaintiff's request to exclude the videos is denied.

Factual Background

The tabletop video was created by the security training department at Vermont Yankee as a demonstration of the tabletop training exercises the department regularly conducts with Security Shift Supervisors. It features four men standing around a multi-level map. One of the men presents a description of a hypothetical security breach and the other three respond with what actions they would take in response in real time. Occasionally text appears on the screen when the speaker uses an acronym or jargon and this text spells out or explains the potentially unfamiliar word or phrase. The footage of the four men is occasionally intercut with several aerial photographs of Vermont Yankee with text and arrows pointing to specific areas for reference. It is 24 minutes and 5 seconds long.

Entergy provided affidavits from Chris Hager, Senior Security Trainer at Vermont Yankee, Ed Wilson, former Senior Security Trainer at Vermont Yankee, and Jeff Parker, Security Shift Supervisor at Vermont Yankee. Def.'s Resp. to Request for Affidavits Regarding Admissibility of Demonstrative Tabletop Video, Exs. A-C. Each affiant confirms the video fairly and accurately represents tabletop training exercises conducted regularly at Vermont Yankee through the training department. Mr. Wilson will be present at trial.

The industry video is an excerpt from Safe and Secure: Protecting Our Nuclear Energy Facilities , a video created by the Nuclear Energy Institute presenting "the security measures in effect at nuclear power plants." See Video Database , curity/video/nuclearpowerplantsecurityvideo. It features a computer generated model of a nuclear power plant that graphically highlights different areas of the plant and their respective security levels. It also features video footage of vehicles being searched, crash resistant gates, concrete barriers, metal detectors, a card reader and hand scanner, and security officers in a control room. The video is narrated by a female voice describing what is taking place on screen. It is 1 minute and 36 seconds long.


I. The Tabletop Video

The Court possesses broad discretion to determine the mode by which evidence is presented to the jury. See Fed.R.Evid. 611(a); SR Int'l Bus. Ins. Co. v. World Trade Center Properties, LLC , 467 F.3d 107, 119 (2d Cir. 2006). This discretion generally encompasses the authority to allow the use of demonstrative aids. Castaldi v. Land Rover North America, Inc. , 363 Fed App'x 761, 762 (2d Cir. 2009).

Plaintiffs argue that the actors' statements in the videos are hearsay not subject to any exception. Fed.R.Evid. 802, 803. Hearsay is "a statement that... a party offers in evidence to prove the truth of the matter asserted in the statement." Fed.R.Evid. 801(c). Entergy does not intend to offer the tabletop exercise video to prove the truth of the statements in the video but rather to demonstrate how one of the training exercises that the Plaintiffs engage in as part of their job is conducted. Def.'s Resp. at 2. Entergy does not seek to admit hearsay because statements that are not offered for their truth are not hearsay.

Demonstrative aids may be offered to illustrate or explain the testimony of witnesses if they are a fair and accurate representation of that testimony. See United States v. Yousef , 327 F.3d 56, 158 (2d Cir. 2003); 2 McCormick On Evid. ยง 214 (7th ed.). The affidavits from Vermont Yankee employees state that the tabletop video is a fair and accurate representation of tabletop exercises regularly conducted in the Training Department. Defendant does not claim it will introduce the video to prove the truth of "the duties of the SSS under an alleged ...

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