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

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MESCHKOW & GRESHAM, P.L.C.

Jordan M. Meschkow (AZ Bar No. 007454) Lowell W. Gresham (AZ Bar No. 009702) 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818 (602) 274-6996 (602) 274-6970 (facsimile) Attorneys for Plaintiff

GILES LEGAL, P.L.C.

Nancy R. Giles (AZ Bar No. 020163) 733 West Willetta Street Phoenix, Arizona 85007 (602) 252-1788 Attorney for Plaintiff UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA DAN COOGAN, doing business as COOGAN PHOTOGRAPHIC, Plaintiff, v. AVNET, INC., et al. Defendants. Plaintiff Dan Coogan ("Coogan") submits this Reply in Support of his Motion in Limine to Exclude Assertions By Defendants Contrary to Prior Admissions, requesting an Order of the Court excluding any evidence or references offered by any and all Defendants, including their counsel and witnesses, that tends to contradict, or directly contradicts, Defendants' prior admissions that at least one of Plaintiff's Photographs at issue in this case was on Defendants' home page at www.avnet.com from 2002 through early 2004. This Reply is supported by Plaintiff's Motion and Memorandum, the Memorandum of Case No.: CV-04-0621 PHX SRB

PLAINTIFF DAN COOGAN'S REPLY IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE ASSERTIONS BY DEFENDANTS CONTRARY TO PRIOR ADMISSIONS

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Points and Authorities below, and the entire Court record, incorporated herein by reference. MEMORANDUM OF POINTS AND AUTHORITIES I. BACKGROUND A. Factual Recap

As set forth in Plaintiff's Motion, Defendant Avnet made the following admissions unequivocally in this case: · #11: Admit that Exhibit A to Plaintiff's Fourth Request for Production of Documents to Avnet, Inc. is a true copy of a Reuters report on you winning a Stevie Award for your website as it appeared in 2003. · #15: Admit that at the time that you won at least one Stevie Award concerning your website, the home page of www.avnet.com carried at least one of Plaintiff's Photographs. · #33: Admit that the Stevie Award you won concerning your website

covered the Avnet website for 2003. · #36: Admit that the Reuters report on you winning a Stevie Award, stating "Avnet was recognized for providing Avnet.com visitors with more comprehensive, helpful information than many other corporate sites, including expanded Investor Relations content and the addition of Press Room and Quality sections[.]" · #37: Admit that during the time the Avnet website provided "Avnet.com visitors with more comprehensive, helpful information than many other corporate sites, including expanded Investor Relations content and the addition of Press Room and Quality sections", at least one of Plaintiff's Photographs was on the home page of Avnet's website. · #42: Admit that in 2002 Best Practices in Corporate Communications evaluated more than 500 corporate web sites on 40 different criteria in 2002, and ranked Avnet.com (http://www.avnet.com) No. 3.
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· #43: Admit that in 2002 Avnet.com (http://www.avnet.com) bore at least one of Plaintiff's Photographs directly on the home page for this website. See Avnet's Responses to Plaintiff's Third Requests for Admission, attached to Document #180, and incorporated by reference herein, as Exhibit C (bold emphasis added). As also set forth in Plaintiff's Motion, these admissions

demonstrate that the Avnet home page contained at least one of Plaintiff's copyrighted photographs from 2002 through 2003. Id. In Defendants' recent interrogatory answers dated March 14, 2006, however, Defendants directly contradict their earlier admissions, stating that the only use of any such photographs on Avnet's home page was from January 24, 2004 to February 25, 2004, completely ignoring the 2002 and 2003 uses of the photographs on Avnet's home page, to which Defendants admitted in their responses to Plaintiff's Third Requests for Admission. See Avnet's Second Supplemental Response to Plaintiff's First Set of Interrogatories, attached to Document #180, and incorporated by reference herein, as Exhibit B. B. What Defendants Did Not Do · Defendants did not identify the specific content of the prior admissions were incorrect or being modified. · Defendants did not identify how they came to believe their prior admissions were incorrect. · Defendants made no attempt to "correct" their Admissions until they were backed into a corner by Plaintiff's Motion. · Defendants made no explanation for Al Maag's written verifications of discovery responses that directly contradict each other. 1 Defendants initially did not verify their Second Supplemental Response to Plaintiff's First Set of Interrogatories. Even after requests by Plaintiff that they verify their Responses, they did not. It was not until Plaintiff filed his Motion stating that the Responses were not verified that Avnet finally produced a verification signed by Defendant Allen Maag.
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· Defendants have offered no signed verification stating that their prior admissions were incorrect, or explaining their sudden change. · Defendants gave no explanation for how this new information suddenly became available to them and was not previously available to them via the diligence required by the discovery process. · Defendants offered no documents or other evidence to explain or verify their sudden refutation of their prior admissions. AVNET'S INTERROGATORY ANSWERS CONTRADICT THEIR PRIOR ADMISSIONS. A. CANNOT

Avnet's Changing of Its Discovery Responses is Disingenuous.

Avnet states that after discovery closed "Avnet undertook a review of its Answers to Interrogatory No. 4 and the facts in support of those answers. To the extent that new or different information was discovered, Avnet supplied the information." First, Avnet had an obligation to conduct such a review and

investigation long before discovery closed, which it apparently did not do. Second, Avnet did not send any kind of supplemental disclosure to Plaintiff, but instead made this revelational discovery known only in its Response, after Plaintiff filed his Motion to preclude Avnet from contradicting prior admissions in this case. Third, Avnet has provided no additional documents relevant to web page use or home page use of Plaintiff's photographs, as Plaintiff's very first document request would require2 . Avnet should not be allowed to maintain only admissions that it views as favorable to its case. Nor should Avnet be allowed to casually change its answers midstream via a court filing, with no explanation of why they are changing their answers, where the "new" information came from, or what evidence supports this change of position. In order to reverse the admissions in question, Avnet would have had to discover some kind of way to trace previous See Defendants' Response Plaintiff's First Request for Production of Documents to Defendants, and Supplement to same, attached as Exhibits B and E, respectively to Document #108 (incorporated by reference, herein).
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web postings, which Avnet has vehemently denied having to date. Moreover, if Avnet is updating previous discovery responses, it should also be updating responses to previous document requests and producing the documents that led them to their new conclusion about the facts in this case. Avnet, however, gives absolutely no explanation or tangible evidence for its conflicting answers. Neither does Avnet commit to saying the first answers were wrong! Avnet just wants to withdraw them and have them changed to denials. If Avnet

"suddenly" discovered that none of Plaintiff's photographs ever showed up on their home page, this Court should first order them to offer believable evidence of that fact, other than the fact that Avnet needs a viable argument to refute Plaintiff's Motion in Limine. B. The Merits of the Case are Not Served By Avnet's Disingenuous Changes to Their Discovery Responses.

In Avnet's separately filed Motion to Withdraw Admissions, Document 191, Avnet refers to Rule 36, FED. R. CIV. P. for the proposition that the court may permit a change of an admission where the "presentation of the merits of the action will be subserved thereby..." That is, to say, if a party genuinely makes a mistake in their admissions, the court may allow them to change it in the interests of deciding the matter on the true facts. See, e.g., Carlson v. Freightliner LLC, 226 F.R.D. 343, 360 (D. Neb. 2004) (emphasizing that the party requesting withdrawal of its deemed admission "has the burden of proving a withdrawal is necessary to preserve a trial on the true merits of the case."). This exception is a narrow one, and does not allow parties to change answers without grounds, or as their cases become weaker or stronger. Id. at 361. ("The presence of improper conduct by the party moving to withdraw or amend an admission, and that party's lack of reasonable explanation for untimely discovery responses, may be considered by the court in determining whether to grant a motion to withdraw or amend a deemed admission."). Avnet has given this Court no reason to believe that their
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changed admissions are any more authentic than their original ones and, indeed, one might presume their original answers, given when they did not have an agenda of defeating a Motion, were the accurate ones. C. Ninth Circuit Law Does Not Permit An Interrogatory Answer to Trump an Admission.

Defendants' Response completely ignores Plaintiff's citation to the following Ninth Circuit case holding that, while conflicting interrogatory responses or deposition testimony may merely create issues of fact for trial, an admission in response to a formal Request for Admission is to be taken as established fact: An answer to an interrogatory is comparable to answers, which may be mistaken, given in deposition testimony or during the course of the trial itself. Answers to interrogatories must often be supplied before investigation is completed and can rest only upon knowledge which is available at the time. When there is conflict between answers supplied in response to interrogatories and answers obtained through other questioning, either in deposition or trial, the finder of fact must weigh all of the answers and resolve the conflict. On the other hand, if a party makes a crucial admission in his formal pleading, or in response to a formal request for admissions, then the admitted fact is to be taken as established.... Victory Carriers, Inc. v. Stockton Stevedoring Co., 388 F.2d 955, 959 (9th Cir. 1968) (emphasis added) (citations omitted). Thus, Defendants' admissions in response to Plaintiff's Third Requests for Admission are established fact in this case and Defendants, therefore, should not be allowed to contradict themselves without an exceptionally good reason for doing so.

D.

The Prejudice to Plaintiff is Overwhelming.

Avnet's Admissions were made before discovery closed. Avnet's sudden request to change their admissions is coming long after the close of discovery. Thus, Avnet now seeks to withdraw the admissions upon which much of Plaintiff's strategy and discovery plan has hinged.

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Without the ability to independently web search and to depose all witnesses with knowledge of these facts, including additional deposition time of the very witness who verified both Avnet's Response to Plaintiff's Second Request for Admissions to Defendant Avnet, Inc. and Avnet's Second Supplemental Response to Plaintiff's First Set of Interrogatories, Defendant Allen Maag, who was deposed after the Response to Plaintiff's Second Request for Admissions to Defendant Avnet, Inc. and before the Second Supplemental Response to Plaintiff's First Set of Interrogatories, Plaintiff (the party who obtained the admission) hereby satisfies the Court that withdrawal or amendment will prejudice him in maintaining the action or defense on the merits. See Brook Village North Associates v. General Electric Co., 686 F.2d 66, 70 (1st Cir. 1982) ("The prejudice contemplated by the Rule is not simply that the party who initially obtained the admission will now have to convince the fact finder of its truth. Rather, it relates to the difficulty a party may face in proving its case, e.g., caused by the unavailability of key witnesses, because of the sudden need to obtain evidence with respect to the questions previously answered by the admissions."). Thus, Avnet's request that the Court permit it to amend its Responses by denying Request to Admit Nos. 15 and 43 of Plaintiff's Third Request for Admissions should be denied in full. If the Court permits Avnet to change its prior admissions, the Court should award Plaintiff costs and attorneys fees for all of work and strategy relating to the prior admissions as well as responding to this motion. In addition, Plaintiff should then be allowed to re-depose everyone involved, including Defendant Allen Maag, who verified both the admissions in question and the new Interrogatory Answers, with Defendants' being responsible for all parties' costs and fees incurred in doing so.

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III.

REGARDLESS OF THE PARTY OFFERING THE ADMISSION, NO PARTY, INCLUDING THE INDIVIDUAL DEFENDANTS, MAY INTRODUCE FALSE EVIDENCE. Defendants cite Castiglione v. United States Life Ins. Co., 262 F. Supp. 2d

1025, 1030 (D. Ariz. 2003), for the proposition that one defendant's admission is not binding on another defendants. While this proposition is correct, it is

inapplicable to the instant situation. What Castiglione points out is that, for example, if John and Jane are co-defendants and, in a response to a request for admission, John admits that "Jane stole the money," this admission is not a conclusive admission that binds Jane and disproves her defense. This concept is not at issue in the instant case. Indeed, Castiglione goes a step further to emphasize the importance and conclusiveness of an established admission: [T]he Fifth Circuit has held that "an admission that is not withdrawn or amended cannot be rebutted by contrary testimony or ignored by the district court simply because it finds the evidence presented by the party against whom the admission operates more credible." Am. Auto. Assoc. v. AAA Legal Clinic, 930 F.2d 1117, 1120 (5th Cir. 1991); see also Airco Indus. Gases v. Teamsters Welfare Pension Fund 850 F.2d 1028, 1036 (3d Cir. 1988) (noting that an admission of fact is "not merely another layer of evidence, upon which the district court can superimpose its own assessment of weight and validity"). Castiglione, 262 F. Supp. 2d at 1030. Plaintiff requests that Defendant Avnet not be allowed to withdraw or amend its prior admissions, thus binding Avnet to its admissions that Plaintiff's photograph(s) appeared on Avnet's home page from 2002 to 2004. Due to this admission, Plaintiff requests that Avnet then be precluded from introducing any evidence or reference that tends to contradict or directly contradicts this admission (that at least one of Plaintiff's Photographs at issue in this case was on Defendants' home page at www.avnet.com from 2002 through 2004). While the individual defendants may be allowed to introduce any previously-disclosed evidence they possess that the photographs were not on the home page from 2002 to 2004, what they cannot do is utilize a "back-door" method of offering evidence
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that Avnet did not mean to admit to such matters.

Avnet's admission is

conclusively established. Moreover, Individual Defendant Al Maag should also be precluded from introducing any contrary evidence, as he personally signed and verified Avnet's admissions.

IV.

CONCLUSION For the reasons set forth herein and in Plaintiff's Motion, Plaintiff

respectfully requests that Defendants, their witnesses, and their counsel, be prohibited from mentioning or introducing any evidence or reference that tends to contradict or directly contradicts Defendants' prior admissions that at least one of Plaintiff's Photographs at issue in this case was on Defendants' home page at www.avnet.com from 2002 through 2004. Respectfully submitted this 27th day of April, 2006, s/Jordan M. Meschkow Jordan M. Meschkow MESCHKOW & GRESHAM, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014 Telephone: (602) 274-6996 Facsimile (602) 274-6970 ATTORNEYS FOR PLAINTIFF

Nancy R. Giles GILES LEGAL, P.L.C. 733 West Willetta Street Phoenix, Arizona 85007 Telephone: (602) 252-1788 ATTORNEY FOR PLAINTIFF

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CERTIFICATE OF SERVICE I hereby certify that on 27 April 2006 I electronically transmitted the attached document to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Jordan Greene FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants

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