Free Reply to Response to Motion - District Court of Arizona - Arizona

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MARY JO O'NEILL # 005294 C. EMANUEL SMITH KATHERINE J. KRUSE # 019167 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, Arizona 85012 Telephone: (602) 640-5029 E-Mail: [email protected] Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Equal Employment Opportunity Commission, Plaintiff, vs. Connecticut General Life Insurance Company, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CIV 04-0627 PHX JAT PLAINTIFF'S REPLY IN SUPPORT OF ITS MOTION TO STRIKE UNDISCLOSED EXHIBIT OFFERED BY DEFENDANT

Defendant's response helpfully sets forth information that confirms why this Court should strike the undisclosed document it offered for the first time as an exhibit to its Reply in Support of its Motion for Summary Judgment. As explained in the EEOC's Motion to Strike, the undisclosed document, Exhibit 16 to Defendant's summary judgment reply, is, according to Defendant, a copy of a portion of

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a poster entitled "Federal 5-in-1 Labor Law Posting" containing a component on equal employment opportunity requirements. (Def.'s Reply at 8 and Ex. 16 thereto). The law Defendant cites, in its Response to the EEOC's Motion to Strike, explains that a party need not disclose witness names already revealed by a deponent during a deposition. (Def.'s Resp. at 3). However, Defendant is not offering witness names. Defendant is offering a document it never disclosed. The deposition testimony is not a substitute for the document, because the deposition testimony merely indicated that the document existed. The deponent expressly stated that she could not testify as to the documents contents.

Case 2:04-cv-00627-JAT

Document 106

Filed 01/09/2006

Page 1 of 3

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Defendant's Response to the EEOC's Motion to Strike confirms the deponent's lack of knowledge of the contents of the document Defendant now seeks to offer despite its failure to disclose. In its Response, Defendant cites at length from the testimony of CIGNA Director of Human Resources Tiffanie Dillard. In that cited testimony, Ms. Dillard indicates that she is unaware of the content of the "Five-in-One" Posting as it regards equal employment opportunity law. The testimony proceeded as follows: Q: A. What's the equal employment opportunity component of the Five-inOne posting? I think - - I have not looked at that recently to be able to recite what's on it.

(Defendant's Response at 4 (emphasis added)). Defendant offered the new exhibit 16 precisely to set forth information about the content of the Five-in-One posting, the content about which Ms. Dillard was unable to testify. Defendant's Reply in support of its Motion for Summary Judgment states the following about Exhibit 16: [I]t is disingenuous, at best, for the EEOC to suggest it is unaware of the content of the standard five-in-one posting. Regardless, attached is a copy of the relevant portion of the five-in-one posting, setting forth the prohibition of discrimination on the basis of sex, and providing the EEOC's contact information for those who wish to exercise their rights. (Def.'s Reply in Support of its Mot. for Summ. J. at 8, (citing Exhibit 16, Five-in-One Posting). As this excerpt reveals, Defendant is offering the contents of a document it never disclosed, a document whose content were never available to the EEOC in any manner, including the deposition testimony of Ms. Dillard, despite the EEOC's efforts to obtain the information at that time. Moreover, Defendant's assertion, that it is disingenuous for the EEOC to suggest it is unaware of the content of the Five-in-One posting, is unsupported by any evidence. In their Response to the Motion to Strike, Defendant offers no reason for its failure to provide to the EEOC a document that Defendant now seeks to use in evidence. It does not claim that the evidence was unavailable or could not be located.

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Both parties to this litigation had the responsibility to disclose the documents they "may use to support [their] claims or defenses." Fed. R. Civ. P. 26(a)(B). The obligation is confirmed in this Court's Rule 16 scheduling order. Moreover, Plaintiff requested, in its Second Request for Production of Documents at item 15, all documents Defendant planned to introduce into evidence at trial. Defendant did not provide the contents of Exhibit 16 either via disclosure statement, deposition testimony, or discovery response. For these reasons, and the reasons set forth in its Motion to Strike, the EEOC respectfully requests that the Court strike Exhibit 16 from the Defendant's Reply in Support of its Motion for Summary Judgment, and that the Court prohibit Defendant from attempting to use the exhibit at trial. RESPECTFULLY SUBM ITTED this 9th day of January 2006. MARY JO O'NEILL Regional Attorney C. EMANUEL SMITH Supervisory Trial Attorney s/Katherine J. Kruse KATHERINE J. KRUSE Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 North Central Ave., Suite 690 Phoenix, Arizona 85012-2504 Attorneys for Plaintiff I certify that on this 9th day of January, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: J. Mark Ogden, Esq. J. Greg Coulter, Esq. Kristin R. Culbertson, Esq. LITTLER MENDELSON 2425 East Camelback Rd., Suite 900 Phoenix, AZ 85016 Attorneys for Defendant s/Katherine J. Kruse 3 Case 2:04-cv-00627-JAT Document 106 Filed 01/09/2006 Page 3 of 3