Free Motion to Strike - District Court of Arizona - Arizona

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MARY JO O'NEILL # 005294 C. EMANUEL SMITH KATHERINE J. KRUSE # 019127 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, Arizona 85012 Telephone: (602) 640-5029 E-Mail: [email protected] [email protected] [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 MOTION TO STRIKE UNDISCLOSED EXHIBIT OFFERED BY DEFENDANT

Pursuant to this Court's Rule 16 Scheduling Order and Rule 26(e), Fed. R. Civ. P., Plaintiff, the Equal Employment Opportunity Commission ("Commission"), respectfully requests that the Court strike Defendant's exhibit 16, attached to it Reply in Support of its Summary Judgment Motion, filed November 22, 2005. (Dkt. # 100). Exhibit 16 accompanying Defendant's reply is, according to Defendant, a copy of a portion of 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). However, Defendant has never disclosed the document set forth as exhibit 16 to its Reply prior to offering it as documentary evidence in support of its Motion for Summary Judgment. The exhibit even contains information at the top indicating that it was sent by fax from CIGNA on November 21, 2005, the day before the Reply was filed. \\

Case 2:04-cv-00627-JAT

Document 103

Filed 12/07/2005

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Federal Rule of Civil Procedure 26(e) requires timely supplementation of disclosures by parties. This Court's Rule 16 Scheduling Order issued in this action, dated June 28, 2004 (dkt. # 14), states as follows: "[T]his Order contemplates that all exhibits and witnesses that may be offered at trial will have been disclosed before the close of discovery as established by the provisions of this Order." Defendant ignored this Court's Order by offering exhibit 16 in support of its motion for summary judgment although it had never disclosed the exhibit to Plaintiff during discovery. Defendant neither establishes good cause nor even offers any reason for failing to disclose this document prior to the close of discovery. Moreover, Defendant's failure to disclose exhibit 16 is prejudicial to Plaintiff because Plaintiff did not have the opportunity during discovery to ask questions or obtain information about the exhibit. Defendant claims it is disingenuous for Plaintiff to suggest it is unaware of the contents of the standard five-in-one posting, but Defendant offers no reason why Plaintiff should be aware of the contents. Nothing on the exhibit indicates the source of this "five-in-one" poster. Moreover, even if Plaintiff had been aware of the content of the poster, Plaintiff did not have the opportunity to inquire why Defendant obtained the poster partially depicted in the exhibit, or whether Defendant displayed the poster and, if so, when, where, and under what circumstances. For these reasons, Plaintiff respectfully requests that the Court strike exhibit 16 from Defendant's Reply in Support of its Motion, and that the Court order that Defendant may not utilize exhibit 16 in this action. RESPECTFULLY SUBM ITTED this 7th day of December, 2005. MARY JO O'NEILL Regional Attorney C. EMANUEL SMITH Supervisory Trial Attorney

s/Katherine J. Kruse KATHERINE J. KRUSE Trial Attorney

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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 7th day of December, 2005, 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

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