Free Motion in Limine - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Dan W. Goldfine (#018788) Richard G. Erickson (#019066) SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Street Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 Facsimile: (602) 382-6070 [email protected] [email protected] Attorneys for Plaintiffs and Grant Woods, Esq. (#006106) GRANT WOODS, P.C. 1726 North Seventh Street Phoenix, Arizona 85006 Telephone: (602) 258-2599 Facsimile: (602) 258-5070 [email protected] Attorneys for Plaintiffs and Counterdefendants and Third Party Defendants

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Snell & Wilmer L.L.P.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Meritage Homes Corporation, et al., Case No. CV-04-0384-PHX-ROS Plaintiffs, v. Greg Hancock, et al., Defendants. (Assigned to the Honorable Roslyn O. Silver) PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE EVIDENCE RE: STANDARD OF CARE FOR DUE DILIGENCE

During the first week of trial, Defendant Hancock cross examined Meritage's witnesses concerning a theoretical standard of care for "due diligence" with regard to Defendant Hancock's ownership interests in properties and joint ventures when he was also President of Meritage-Hancock Communities. The Court will recall, for example, Mr. Frisbee's questions of Meritage's CEO, Steve Hilton, and Mr. Frisbee's suggestion that Meritage was bound by "due diligence" to identify from the Arizona Corporation

Case 2:04-cv-00384-ROS

Document 609

Filed 09/15/2008

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Commission website that Defendant Hancock had an interest in Olympic Properties shortly after completing the sale of Hancock Communities to Meritage. See Realtime Unedited Transcript, 9/10/08, at 99:5-100:25. Assuming that such a standard of "due diligence" even exists or applies as some kind of defense for Defendant Hancock, he has never disclosed this theory before trial. See Joint Proposed Pretrial Order, Section E(2), Contentions of The Parties - Defendants; Section H, Defendant's Contentions of Disputed Fact. Nor has Defendant Hancock ever disclosed an expert witness to opine about this alleged "due diligence" standard of care and that Meritage somehow fell below this standard of care because Meritage failed to regularly search for Defendant Hancock's name among thousands of corporate filings in Arizona. See Defendant Hancock's Rule 26(a)(1) Disclosures, dated 3/14/05, 5/20/08 and 6/2/08; Joint Proposed Pretrial Order, Section L, Experts; see also, Rule 26(a)(2), Fed.R.Civ.P. (requiring timely disclosure of the expert's identity, all opinions and the expert's written report). Any evidence concerning this "due diligence" standard of care is, furthermore, not relevant to make the existence of any material fact more or less probable. See Rules 401 and 402, Fed.R.Evid. Even if this evidence were relevant to a material fact, its probative value is substantially outweighed by the danger (1) that Meritage will be unduly prejudiced by the late disclosure of this standard of care theory; (2) that the evidence will confuse the real material issues that the jury must decide; and (3) that the evidence will mislead the jury to believe that Defendant Hancock's self-dealing in Olympic Properties can be excused if it can be shown that Meritage failed to discover this wrongdoing through "due diligence." See Rule 403, Fed.R.Evid. Finally, Defendant Hancock intends to call two of his attorneys as witnesses, Kurt Brueckner and Jon Titus. It is anticipated that he will ask these witnesses about due diligence and elicit their opinion that Meritage should have discovered Defendant Hancock's wrongful conduct with respect to Olympic during due diligence. This amounts to expert opinion, which has not been disclosed pursuant to Rule 26 and should be barred.
Case 2:04-cv-00384-ROS Document 609- 2 - Filed 09/15/2008 Page 2 of 4

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Snell & Wilmer L.L.P.

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

CONCLUSION For the reasons set forth above, Meritage respectfully requests that the Court enter an Order: · barring Defendant Hancock and his counsel from introducing any evidence that there was a standard of care to perform due diligence into Defendant Hancock's ownership interests while he was President of Meritage-Hancock Communities; and · barring Defendant Hancock and his counsel from making any reference in testimony, questioning or argument that any such standard of care was applicable. RESPECTFULLY SUBMITTED this 15th day of September, 2008. SNELL & WILMER L.L.P.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00384-ROS

Snell & Wilmer L.L.P.

By s/ Dan W. Goldfine Dan W. Goldfine Richard G. Erickson Snell & Wilmer, L.L.P. One Arizona Center 400 E. Van Buren Street Phoenix, Arizona 85004-2202 Attorneys for Meritage and

By s/ Grant Woods Grant Woods, Esq. GRANT WOODS, P.C. 1726 North Seventh Street Phoenix, Arizona 85006 Attorneys for Meritage

Document 609- 3 - Filed 09/15/2008

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

CERTIFICATE OF SERVICE I hereby certify that on September 15th, 2008, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to all CM/ECF registrants.

s/ Lindsey M. Perez
9107428.2

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00384-ROS Document 609- 4 - Filed 09/15/2008 Page 4 of 4

Snell & Wilmer L.L.P.