Motions in Limine in an Employment Trial: What They Can Keep Out
A motion in limine asks the trial judge to rule on evidence before the jury hears it. For an employer defending a discrimination, retaliation, or wrongful termination case, it’s the main way to keep out settlement talks, unrelated workplace gossip, and inflammatory material that has little to do with the claims. Courts grant these motions for genuine evidence problems, not for disguised summary judgment motions or trial logistics. A focused set of motions can shape what the jury sees, and that often shapes the verdict.
What is a motion in limine for?
To keep inadmissible, prejudicial evidence away from the jury. The Court of Appeal put it plainly in Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659: “The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party.”
The same opinion explained why they’re useful. They permit “more careful consideration of evidentiary issues than would take place in the heat of battle during trial.” Once a jury hears something damaging, an instruction to disregard it rarely undoes the harm. A ruling before opening statements keeps the lawyers from mentioning the evidence at all.
What legal standard decides most of these motions?
Usually Evidence Code section 352. Section 352 says the court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
The word substantially matters. Relevant evidence comes in unless the harm clearly outweighs its value, and the judge has wide discretion either way. That’s why a motion in limine works best when it ties a specific item of evidence to a specific risk, such as a long detour into an unrelated dispute that would add days to trial and invite the jury to punish the company for something not at issue.
What evidence do employers commonly move to exclude?
It depends on the case, but a few categories come up again and again.
Settlement discussions are the clearest. Evidence Code section 1152(a) makes an offer to compromise, “as well as any conduct or statements made in negotiation thereof,” inadmissible “to prove his or her liability for the loss or damage or any part of it.” A pre-litigation severance offer, a mediation proposal, or a demand-letter response shouldn’t reach the jury as proof the company knew it was liable. Mediation communications have their own separate confidentiality rules.
Other common targets include the company’s size, revenue, or net worth before punitive damages are at issue; references to insurance; testimony about other lawsuits against the company that don’t involve similar decision-makers or conduct; and lay opinions from coworkers about why the employee was fired. Evidence about other employees’ complaints is its own fight, covered in the firm’s post on other employees’ complaints at a discrimination trial.
| Category | Typical basis | What the motion asks |
|---|---|---|
| Settlement offers and negotiations | Evid. Code § 1152 | Exclude offers and statements made to compromise |
| Unrelated misconduct or disputes | Evid. Code § 352 | Exclude evidence whose prejudice substantially outweighs its value |
| Company wealth before punitive phase | § 352 and bifurcation | Keep financial condition out until liability for punitive damages is found |
| Undisclosed witnesses or opinions | Discovery rules | Exclude what wasn’t produced or disclosed in discovery |
What won’t a court decide on a motion in limine?
Several things, and filing them can cost credibility. Kelly warned against using the motion to lock in testimony. It is “a misuse of a motion in limine to attempt to compel a witness or a party to conform his or her trial testimony to a preconceived factual scenario based on testimony given during pretrial discovery,” the court wrote. If the employee’s story changes between deposition and trial, the answer is impeachment in front of the jury, not a pretrial order.
Kelly also said that “Matters of day-to-day trial logistics and common professional courtesy should not be the subject of motions in limine,” a point the opinion made after a trial where the parties filed a large stack of them. Courts are also wary of motions that would dispose of a whole claim. A motion asking the judge to bar all evidence of retaliation is a dispositive motion in disguise, and judges usually expect that argument in a summary judgment motion or a nonsuit after the employee rests. The firm’s post on nonsuit motions in employment trials covers that route.
How should an employer choose which motions to file?
By picking the few that would change the trial. A judge who receives forty boilerplate motions tends to deny most of them or defer them until the evidence comes up. A judge who receives eight targeted motions, each tied to a specific exhibit or witness, tends to read them closely.
The strongest motions name the exact evidence, explain why it’s inadmissible or unfairly prejudicial, and propose a narrow order, such as excluding a specific email chain or barring a reference to an unrelated lawsuit in opening statements. When the judge defers a ruling, counsel should renew the objection when the evidence is offered, so the record is preserved for any post-trial motion or appeal. A tentative ruling in limine isn’t a final one.
The court’s own trial rules matter too. Many superior courts set a deadline for exchanging motions in limine before the final status conference and limit how many can be filed, and some judges post their own standing orders. Those deadlines belong on the calendar as soon as a trial date is set.
What should an employer heading to trial do now?
Most motions in limine are built from the discovery record, so the work starts well before the final status conference.
- Confirm the litigation hold still covers the personnel file, the decision documents, payroll records, and each decision-maker’s emails and texts.
- Calendar the court’s deadlines for motions in limine, exhibit lists, and witness lists, and give the EPLI carrier a trial report if the policy requires one.
- Identify the witnesses the employee is likely to call and what each one may say that is hearsay, speculation, or unrelated to the claims.
- Pull the exhibits that would do the most damage out of context, including any settlement correspondence, and decide which can be excluded and which have to be explained.
- Talk to trial counsel about a short list of motions that would actually change the trial, and about settlement before the motions are heard.
Trial planning is a core part of California employment trial defense for the firm’s employer clients.
Motion in limine questions employers ask
Is a ruling on a motion in limine final?
Not always. A judge can revisit an in limine ruling as the trial unfolds, especially when the other side opens the door by raising the topic itself. A ruling that excludes evidence is also only as good as the objections that follow it. If the evidence comes up anyway, counsel generally needs to object again, ask for an instruction, and, in a serious case, consider a mistrial motion so the issue is preserved.
Can an employer keep out evidence of its own wealth?
Often until it matters. A company’s financial condition is relevant to the amount of punitive damages, but not to whether it discriminated or retaliated. Employers commonly ask the court to keep revenue and net worth out of the liability phase and to address them only if the jury finds the conduct supports punitive damages. Courts regularly handle punitive damages that way, and a motion in limine is the usual vehicle for asking.
What if the employee changes their story at trial?
That’s a cross-examination issue, not an in limine issue. Kelly said a motion in limine shouldn’t be used to force a party to testify consistently with a deposition. The deposition transcript is still the employer’s best tool: counsel can read the earlier testimony to the jury and let the jurors decide which version to believe. A careful deposition long before trial is what makes that impeachment work.
If your employment case has a trial date
If your company is preparing for trial on a discrimination, retaliation, or wrongful termination claim, the motions in limine filed in the weeks before trial often decide which evidence the jury hears at all. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving evidence disputes before an employment trial. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Evidence Code sections 352 and 1152. The limits on motions in limine are from Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.