Free Motion in Limine - District Court of Delaware - Delaware

Case 1:06-cv-00770-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE THE BOARD OF EDUCATION OF THE APPOQUINIMINK SCHOOL DISTRICT, and THE DELAWARE DEPARTMENT OF EDUCATION, Plaintiffs, Counterclaim Defendants, and VALERIE WOODRUFF, SECRETARY OF EDUCATION FOR THE STATE OF DELAWARE, Counterclaim Defendant, v. MR. & MRS. SQJ, IV, parents of SQJ, V, Defendants, and MR. & MRS. SQJ, IV individually and on behalf of their son, SQJ, V, Counterclaim Plaintiffs. : : : : : : : : : : : : : : : : : : : : : : : : :

C.A. No. 06-770-JJF

PLAINTIFFS' JOINT MOTION IN LIMINE TO EXCLUDE TESTIMONY BY ANY WITNESS NOT IDENTIFIED IN DISCOVERY Plaintiffs' hereby aver as follows in support of their Motion in Limine to Exclude Testimony by any Witness not Identified in Discovery: 1. Defendant has identified Mr. Harvey Zendt as a witnesses at trial. Defendant

failed to identify Mr. Zendt as a potential witness during discovery in the instant matter. 2. The Scheduling Order entered in the instant matter provided that the Parties were

to exchange the pre-discovery disclosures required by Fed. R. Civ. P. 26(a)(1) and D. Del. LR 16.2 by August 15, 2007. A required subject of initial disclosure pursuant to Rule 26(a)(1)(a) is

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"the name, and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses..." Defendant, however, failed to provided any of the information required by Fed. R. Civ. P. 26(a)(1) and D. Del. LR 16.2, and failed to identify Mr. Zendt, at any point, as a person who is likely to have discoverable information. 3. Subsequently, Plaintiff's served both Interrogatories and Requests for Production

of Documents on then-counsel for the Defendants. Defendants failed to respond to any of the Plaintiffs discovery requests. 4. It is well established that a trial court has the authority to bar the testimony of

witnesses a party has failed to disclose in discovery. Specifically, Fed. R. Civ. P. 37(c)(1) provides that a party who: without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition, case authority also supports the position that the Court may prohibit the testimony of witnesses not disclosed in discovery. See e.g. Praxair, Inc. v. ATMI, Inc., et al., 445 F. Supp. 2d 460 (D. Del. 2006) (exclusion of testimony by three witnesses not disclosed during discovery period proper; no justification existed for delay); Philips Elecs. North America Corp. v. Contec Corp., et al., C.A. No. 02-123-KAJ, Memo. Order (D. Del. Apr. 5, 2004) (granting, in part defendant CMT's motion to preclude testimony of four witnesses at trial); Guzman v. Abbott Lab., 61 F. Supp. 2d 784, 787 (N.D. Ill. 1999); Roberts v. Chicago, 434 N.E. 2d 420, 423 (Ill. App. Ct. 1982) (recognizing that the trial court has the discretion to exclude witnesses not

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identified in a plaintiff's interrogatories.); Landry v. Melancon, 558 So. 2d 1143, 1146 (La. Ct. App. 1989). 5. Here, Defendants' failure to disclose Mr. Zendt is without substantial

justification. Indeed, Defendants' failure to provide any of the disclosures required Fed. R. Civ. P. 26(a)(1) and D. Del. LR 16.2 is merely part of a larger pattern of simply ignoring Plaintiffs' legitimate discovery requests in the instant matter. 6. Accordingly, any person, including but not limited to Mr. Zendt, not identified by

the Defendants during discovery should be precluded from testifying at trial. WHEREFORE, Plaintiffs' respectfully request that Defendants be prohibited from presenting Mr. Zendt as a witness at trial and also from introducing any testimony from any other witnesses who were not identified during discovery.

YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ Michael P. Stafford, Esquire ______________________________________________ Scott A. Holt, Esquire (No. 3399) Michael P. Stafford, Esquire (No. 4461) The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: (302) 571-6623; 571-6553 Facsimile: (302) 576-3299; 576-3461 Email: [email protected]; [email protected] Attorneys for Plaintiff Appoquinimink Sch. Dist. Dated: February 7, 2008

DEPARTMENT OF JUSTICE /s/ Mary L. Cooke, Esquire ______________________________ Mary L. Cooke, Esquire (No. 3441) 102 West Water Street Dover, DE 19901 Telephone: (302) 739-7641 [email protected] Attorney for the Delaware Department of Education and the Secretary of Education, Valerie A. Woodruff

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