Free Response to Motion - District Court of Arizona - Arizona

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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

12 13 14 15 Meritage Homes Corporation, et al., 16 Plaintiffs, 17 v. 18 Ricky Lee Hancock, et al., 19 Defendants. 20 21 22 23 24 25 26 27 28 Hancock's Second Motion in Limine to exclude the deposition testimony of Linda Hancock adds nothing new ­ other than Hancock's misstatements of Meritage's earlier arguments, Arizona law, and this Court's discovery orders. As noted previously and not disputed by Hancock, Ms. Hancock's testimony was on and remains part of the public record and has never been held in confidence, and Hancock has not taken and of the necessary steps to maintain the confidentiality of the testimony. Arizona Rules for Civil AND RELATED COUNTERCLAIMS AND THIRD PARTY CLAIMS (Assigned to the Honorable Roslyn O. Silver) PLAINTIFFS' RESPONSE TO DEFENDANT GREG HANCOCK'S SECOND MOTION IN LIMINE TO EXCLUDE THE DEPOSITION TESTIMONY OF LINDA HANCOCK Case No. CV-04-0384-PHX-ROS IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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Case 2:04-cv-00384-ROS

Document 551

Filed 04/18/2008

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Procedure presume that all discovery is and should be public and require a party seeking to keep documents, deposition transcripts, etc. confidential to move for a protective order and establish good cause. Ariz. R. Civ. P. 26(c). Moreover, assuming arguendo that public deposition testimony in Arizona state court proceedings were to remain privileged or confidential automatically, Hancock has waived the privilege. First, Hancock took no steps to preserve the confidentiality of the testimony when it occurred. Second, in response to Meritage's subpoena for the records from the divorce lawsuit (including specifically Ms. Hancock's deposition testimony), neither Hancock's divorce attorney nor his current attorney objected on the basis of the marital communication privilege. Third, Hancock testified freely about the same matters in his deposition in this lawsuit therefore waiving any privilege that, for argument sake only, may have remained.1 I. HANCOCK FAILED TO PRESERVE THE CONFIDENTIAL NATURE OF THE MARITAL COMMUNICATIONS IN THE STATE COURT ACTION For the marital privilege to apply, Arizona requires that the communications be

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made and maintained in confidence. Livermore, Bartels & Hameroff, LAW OF EVIDENCE: 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Ms. Hancock's Deposition Testimony has not been and is not Currently Confidential nor Privileged ARIZONA at 136 (4th Ed. 2000). That is not the case here.

Hancock misstates Arizona law and erroneously argues that Linda Hancock's deposition testimony has remained confidential. Second Motion at 3:14-5. Depositions in Arizona state courts are not confidential unless so ordered. Ariz. R. Civ. P. 26(c)(1) (requires a motion for a protective order to preserve confidentiality and such an order is only permissible in limited circumstances); Lewis R. Pyle Memorial Hosp. v. Superior Court, 149 Ariz. 193, 198, 717 P.2d 872, 879 (1986); Craig v. Harney, 331 U.S. 367, 374 (1947) (there is a general common law right to access to civil proceedings). None of Ms. 1 The portions of Ms. Hancock's deposition testimony designated for trial are attached hereto as Ex. 1. It should be noted that Ms. Hancock testified three times under oath, so there are three separate transcripts. Her testimony dealt mainly with Olympic, its value, and Greg Hancock's threats that he would close down Olympic and quit his job at Meritage so that he would not have to share proceeds with his wife as part of the divorce. See Summary of Linda Hancock's Deposition Excerpts attached as Ex. 2.
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Hancock's depositions were ordered confidential, and, in fact, Hancock failed even to request a protective order during the divorce lawsuit. See Ariz. R. Civ. P. 26(c)(1) (party seeking protective order has the burden and obligation to file the motion, and the court can only grant such a motion upon a finding of good cause). The Arizona Supreme Court has created a presumption that all discovery is public and any person not a party to a lawsuit is entitled to materials and depositions from that lawsuit. Ariz. R. Civ. P. 26(c)(2).2 Pursuant to the Arizona Rules of Civil Procedure, the deposition testimony of Ms. Hancock in the divorce action was a public record unless she or Mr. Hancock so stipulated or had moved for a protective order and proved "good cause" for why a confidentiality order should be entered. Id. Neither happened in the divorce action.3 Ms. Hancock's deposition testimony is and has been, as a practical matter, available to any person for more than five years now. The testimony is and has been a public record, and, accordingly, the marital privilege does not apply and certainly does not justify interfering with the federal court's truthseeking mission by barring the deposition (or her live testimony should she become available subject to a subpoena). B. Hancock Misstates Meritage's Briefing, and Ulibarri is not Controlling

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Hancock argues that Meritage "totally ignore[d]" Ulibarri v. Superior Court, 184 Ariz. 382, 388-89, 909 P.2d 449, 455-56 (App. 1995). Second Motion at 3:8. That is

simply not true. See Plaintiffs' Response to Defendant Greg Hancock's Motion in Limine to Exclude the Deposition Testimony of Linda Hancock at 3:7-10 (Item 532). To the 2 The Federal Rules of Civil Procedure do not have a counterpart to Rule 26(c)(2) of the Arizona Rules of Civil Procedure. ARIZONA CIVIL RULES HANDBOOK at 301 (2006). Arizona Rule 26(c)(2) expressly requires Arizona courts, before they enter a protective order, to make "findings of fact" with respect to "any nonparty's or intervener's need to obtain access to such information or materials." Ariz. R. Civ. P. 26(c)(2). Later, in the same Rule, the Arizona Supreme Court expresses a presumption in favor of the release of information. Id. Hancock's decision not to move for a protective order might have been tactical. After all, he had commenced the divorce action with splashing both Ms. Hancock's extramarital affair and his business dealings with the Phoenix Suns over several issues of the ARIZONA REPUBLIC as well as talk radio. Hancock desired a public hearing of his personal disputes with his wife and with the Suns. Moreover, the state court might have viewed his request for confidentiality as less than sincere.
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extent that Ulibarri remains good law in Arizona after the Arizona Supreme Court's decisions in State v. Harrod, 200 Ariz. 309, 316 26 P.3d 492, 499 (2001), vacated on other grounds, 536 U.S. 953 (2002), reaffirmed on identical grounds, 2008 Ariz. LEXIS 22 (Ariz. Sup. Ct. Feb. 14, 2008) and State Farm v. Lee, 199 Ariz. 52, 58-60, 13 P.3d 1169, 1175-77 (2000), the Arizona Court of Appeals decision in Ulibarri is distinguishable from the instant facts because Hancock ­ unlike the spouse in Ulibarri ­ failed to preserve and expressly waived the marital communications privilege. Section II, infra. Further, the Arizona Supreme Court expressly rejected Hancock's "impeachment" argument in Harrod, 2008 Ariz. LEXIS 22 at ¶ 15. The guiding precedent of the Supreme Court's holdings in the two Harrod decisions is that mere testimony about marital communications waives the confidential nature of the communications and, once the confidentiality is lost, the privilege also is lost forever: In Harrod I, this Court held that when "a witness testifies about otherwise privileged marital communications, or denies having relevant communications with his spouse, he waives the marital communications privilege with respect to those communications and may be impeached by his spouse's testimony." 200 Ariz. at 317, P 37, 26 P.3d at 500. Moreover, this Court has previously held that "once the privilege is waived, the confidentiality sought to be protected is merely a legal fiction . . . . [Therefore], once waived, whether at a former trial or otherwise, [the defendant] cannot reassert his or her privilege." State v. Mincey, 141 Ariz. 425, 439, 687 P.2d 1180, 1194 (1984) (physician-patient privilege); see also 1 Joseph M. Livermore, Robert Bartels & Anne Holt Hameroff, ARIZONA PRACTICE: LAW OF EVIDENCE § 501.1, at 124 (4th ed. 2000) ("Once a privilege has been waived, and confidentiality lost, it may not be reasserted."); Edward J. Imwinkelried, THE NEW WIGMORE: EVIDENTIARY PRIVILEGES § 6.12.5(c), at 932-33 (2002) (observing that "the prevailing view is that so long as the retrial was not necessitated by an error affecting the privilege waiver, a waiver at the initial trial is still in effect at the retrial"). Id. (emphasis added). See

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C.

Hancock does not Dispute and, in fact, Concedes that He Waived the Privilege under His Interpretation of Ulibarri

In his Second Motion, Hancock does not dispute that he engaged in the conduct
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that led to his waiver of the privilege. Rather, he further buttresses the case for waiver by asserting that he, his business partner in Olympic, and his lawyer who handled Olympic will testify that "neither Olympic nor Greg Hancock ever acquired any property whatever"4 and that Hancock's "divorce settlement agreement does not list Olympic Properties or any of its progeny as marital assets."5 Second Motion at 3:2-4 and n.1. He has made these or substantively similar assertions from nearly the first day that Meritage discovered Hancock's involvement in Olympic and commenced requesting documents related to Olympic. See Ex. 6, Transcript of Oral Argument of March 25, 2005 at 47:25 (arguing that Hancock was not obligated to produce any documents related to Olympic, either in his possession or his divorce attorney's possession, because Meritage's assertions of Hancock's involvement in Olympic were "absolutely untrue"). It is therefore Hancock Hancock mischaracterizes the issue with respect to what property rights Olympic acquired. Second Motion at 3:2-3. Meritage asserts that Olympic opened escrow and entered into purchase and option agreements with respect to several properties, including Riata West and Westwind, giving Olympic the right to own these properties at an advantageous price ­ ownership rights which Olympic assigned to another company to conceal Hancock's involvement. Notwithstanding Hancock's assertion to the contrary, Mr. Cornwall testified that "Olympic Properties negotiated purchase agreements, opened escrow." See Ex. 9, Cornwall Depo. at 53:12-13. He further explained that Hancock visited sites and assisted in the evaluation of Westwind, advised Olympic with respect to negotiating price, and negotiated financing. Id. at 53:12 to 74:14. Mr. Brueckner testified about Olympic's purchase agreements with respect to Westwind and Riata West. See Ex. 10, Brueckner Depo. at 99:23 to 118:1. Even Hancock acknowledged in his deposition that Olympic had acquired purchase rights in Westwind and Riata West. See Ex. 8, Hancock Depo. at 77:8 to 80:12. Hancock's exclusive focus on whether Olympic actually had title to Riata West and Westwind misses the point. Hancock makes a serious and mistaken statement about the settlement agreement in the divorce action, because he has not produced it in this lawsuit. Second Motion at 3:26, n.1. Even assuming that Hancock's settlement agreement were to contain no reference to Olympic, such an omission ­ given that Hancock and his attorney negotiated the settlement and were in the midst of the instant lawsuit ­ would not be surprising to anyone involved in this matter. After all, the core structure of Olympic was to circumvent Hancock's duties to Meritage. Frankly, irrespective of what the settlement agreement says or doesn't say, Olympic was a topic of serious dispute in the divorce action. See Ex. 11, letter from Ms. Hancock's attorney to Hancock (Feb. 10, 2003) (noting that Olympic was a marital asset and that Hancock had valued the asset at $12 million); Ex. 12, Hancock's Fourth Supplemental Disclosure Statement in the Divorce Action at 3 (Hancock intended to call witnesses with respect to Olympic); Ex. 13, Hancock's Position Statement on the Contested Issues in the Divorce Action at 3 (Hancock disputed that Olympic was a marital asset); Ex. 14, Ms. Hancock's Pre-Trial Memorandum in the Divorce Action at 35-37 (Olympic was worth at least $12 million, her share was $6 million, and Hancock intentionally tanked and concealed his interest in Olympic so that he would not have to share it with her).
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who has been and is positively asserting marital communications in his defense. In so doing, even under Hancock's interpretation of Ulibarri, 184 Ariz. at 387-89, 909 P.2d at 454-56, he has waived the privilege. II. ASSUMING ARGUENDO THAT THE PRIVILEGE REMAINED, HANCOCK WAIVED THE MATTER IN THE CURRENT LAWSUIT Hancock also repeatedly failed to maintain the confidentiality and assert the marital communications privilege throughout the instant lawsuit.

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A.

Hancock Failed to Assert the Marital Communications Privilege During Discovery

Hancock waived the marital communications privilege early in this lawsuit when he produced the communications to Meritage without objection or privilege log. In Arizona, a "privilege must be claimed by the holder of the privilege or it is waived." ARIZONA CIVIL RULES HANDBOOK at 937 (2006) (citing Tripp v. Chubb, 69 Ariz. 31, 208 P.2d 312 (1949)); see Fed. R. Civ. P. 26(b)(5)(A) (generally requiring parties to object to the production of privileged information or documents in detail). "Such a waiver can be . . . implied from the failure to object to testimony on matters subject to the privilege." ARIZONA CIVIL RULES HANDBOOK at 937 (citing Throop v. F.E. Young & Co., 94 Ariz. 146, 382 P.2d 560 (1963)). reasserted." Id. As the Court may recall, Hancock took the position early in this lawsuit that he did not have to provide documents that were only in the possession of his other attorneys, such as his divorce attorney or his attorney in the similar California lawsuit. As a result, Meritage subpoenaed Hancock's divorce attorney for documents, among other documents, related to the divorce action including deposition transcripts. See Subpoena on Joe Both See "Generally, once a privilege is waived, it cannot be

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Romley, attached as Ex. 3 (specifically requesting all deposition transcripts). Hancock's divorce attorney and his current attorney objected to the subpoena.

Objection of Joe Romley attached as Ex. 4 (objecting on attorney-client privilege, relevancy and burdensomeness grounds); Objection of Robert Frisbee attached as Ex. 5 (objecting on burdensomeness and relevancy grounds). Significantly, however, neither
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of Hancock's attorneys objected that some of the documents contained confidential and privileged marital communications. This Court held a hearing on this discovery dispute, ordering Hancock's divorce attorney to turn over the files. Again significantly, neither of Hancock's attorneys objected that some of the documents contained confidential and privileged marital communications. Transcript of March 25, 2005 Hearing at 30:13 to 42:24, attached as Ex. 6. Furthermore, following the Court's Order which required Hancock to submit a privilege log, Hancock's attorneys produced each of Ms. Hancock's deposition transcripts without redacting a single word or making a mention of a privilege log. Declaration of Maureen Zachow attached as Ex. 7. Combined or separately, each of the above-mentioned actions in producing the marital communications to Meritage is a waiver of the marital communications privilege by Hancock. Notwithstanding his misleading implication to the contrary, see Second Motion at 3:16 ("over objection"), Hancock never asserted the marital communications privilege during discovery or objected on the grounds of the marital communications privilege. His bold accusation that this Court somehow wronged him by forcing him to produce the marital communications, see Second Motion at 3:15-8, is hogwash. This Court did

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nothing of the sort as a chronology of events reveals: First, Hancock simply ignored his discovery obligations in response to both interrogatories and requests for production of documents. Second, he presented general and baseless objections to this Court ­ only in the face of a motion to compel. He did not assert marital communications privilege or any other privilege in these objections. See Fed. R. Civ. P. 26(b)(5)(A) (requiring an

expressed objection with specific detail). Notwithstanding Hancock's insinuations to the contrary, see Second Motion at 3:15-8, this Court did not order Hancock to turn over any privileged materials. It simply ordered Hancock to comply with the Rules of Civil Procedure. It said that Hancock could and should assert any privileges and that Hancock was therefore perfectly entitled produce a log of privileged items including marital communications, but he did not. Fed. R. Civ. P. 26(b)(5)(A). Instead, he produced the marital communications in this lawsuit. Indeed, Hancock and his attorneys repeatedly
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produced both his multiple deposition transcripts and Ms. Hancock's multiple deposition transcripts ­ all containing many references to marital communications. Assuming that any privilege still remained after Hancock failed to move for a protective order in the divorce action, both Hancock's failure to object to producing marital communications and affirmative production of marital communications are a waiver. See, e.g., FEDERAL CIVIL RULES HANDBOOK at 653 (2008) ("[p]rivileges generally are waived by voluntary disclosure, either during discovery or elsewhere"); In re Lott, 424 F.3d 446, 452 (6th Cir. 2005) (same); In re Grand Jury Proceedings Subpoena to Testify to: Wine, 841 F.2d 230, 234 (8th Cir. 1988) (same).6 B. Hancock Waived the Marital Communications Privilege by Testifying to the Communications without Objection

In this lawsuit, Hancock never asserted the marital communications privilege (until 12 he filed the instant motion in limine on the eve of trial) and freely testified about the same 13 discussions that he now seeks protection. In other words, he uses his version of the 14 marital communications as a sword but then asserts the privilege as a shield to prevent the 15 jury from hearing his ex-wife's version. That is simply not permitted, and amounts to 16 another waiver of the privilege. See, e.g., Harrod, 200 Ariz. at 316 26 P.3d at 499. The 17 Arizona Supreme Court explained that to preserve the privilege Hancock was required not 18 to respond to questions about marital communications: 19 20 21 22 23 24 25 26 27 28 The statutorily created marital communications privilege does not merit greater protection than the Fifth Amendment privilege. Harrod could have refused to take the stand or respond to questions about communications in order to ensure that his wife could not contradict his version of events. See United States v. Benford, 457 F. Supp. 589, 597 (E.D. Mich. 1978) ("When the defendant attempted to take advantage of his wife's forced silence by testifying to things known only to himself and to her, he attempted to use the privilege for a purpose it was never meant to cover."). But once he testified, it was appropriate to allow the jury to hear Anne Costello's impeaching testimony. We therefore hold that where a witness testifies about otherwise privileged marital communications, or denies having relevant communications with his spouse, he waives the marital communications privilege with respect to those 6 Meritage also subpoenaed Ms. Hancock for documents, copying Hancock on the subpoena. Ex. 15. Yet, Hancock failed to object to this subpoena as well.
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communications and may be impeached by his spouse's testimony. Id. (emphasis added); see also State Farm, 199 Ariz. at 58-60, 13 P.3d at 1175-77 (2000) (expanding the doctrine of waiver in Arizona). Hancock freely testified about his communications with his wife and attempted to parrot the discussions in a manner favorable to him. First, he testified about his marital communications involving his 2001 $12 million valuation of Olympic and disputed a contemporaneous writing to the contrary: Q. BY MR. WOODS: Do you recognize what's been marked as Exhibit No. 3? A. Yes. Q. And can you tell me what that is? A. That's part of my notes that I made for the Antichrist. Q. Was that with your -- with your now ex-wife? A. Yes. Q. And I've just read about that in the deposition here, but -A. Lucky you. Q. Yeah. So I wanted to ask you about it. When did you make these notes? A. I have no idea. You have to remember, I threw this away, and it was picked out of the trash can. Q. And as I recall -- I think it was your ex-wife's testimony -you had made these -- you had made these notes in doing some sort of valuation of the Olympic Properties? A. Actually, it was the whole -- it was the whole estate. Q. Well, tell me what it was, if you could. I -A. It was in bed one night. I started writing this down, just jotting it down. Q. Okay. A. The Olympic's down at the bottom, on the right-hand side. Q. Right, right. And why did you do that? A. Why did I do what?

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Case 2:04-cv-00384-ROS

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Q. Why did you make this? A. It was just husband and wives doing what-ifs. Q. Okay. And so you did your aggressive projection, your conservative projection, and that was basically to try to figure out where you stood at that point in time; right? A. Correct. Q. Okay. And Olympic, as you point out, is there at the bottom after Buckeye. Olympic you have at 12 million? A. Correct. Q. And did you view that as -- it's not in the category -- as aggressive or conservative? A. What it was, it was a guesstimate, in my mind, of 8 to 10 years down the road, what would it eventually be worth. And it was purely a number on a piece of paper. It didn't relate to anything. It didn't relate to any projects. It didn't relate to Westwind. It didn't relate to Riatta. It didn't relate to anything. It was simply something I put down. Q. Okay. So do you know if -- when you prepared this, if you had already -- Olympic had purchased the option on those properties? A. Probably. Maybe. There's no date on this, because it was, like I said, done in bed one night. So I don't -- it's -- it's possible. Q. Okay. And I understand what you're saying, that you were just -- especially on these long-terms, you were coming up with some, you know, guess at what it might be worth at some point in time. Since you say long-term, then, were you thinking that your percentage that would ultimately, I guess, get you 12 million would be 60 percent? A. Yes. Q. So if we -- if we did the math here, you thought, at some point in time, Olympic would be worth 40 percent more than 12 million, I guess. A. Yeah. Q. Whatever that comes to. A. 16, 17 million, maybe. Q. Okay. And are you saying that was based not only on those -- those properties, but also on whatever other business
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Olympic might be able to do in the future? A. Yeah. I -- prior to November the 8th, I was excited about Olympic. I thought it had a great future.I really did. I didn't want to be a homebuilder the rest of my life. I really didn't. I did it for 30 years. That was enough. Depo. of Hancock, See Ex. 8, at 103:14 ­ 106:17. Hancock did not object to any of these questions. Indeed, he did not raise any marital communications objections even once during his deposition. Hancock later testifies directly contradicting what Ms. Hancock testified that Hancock had told her with respect to the deceitful purpose of Olympic, the shady structure of the Olympic option, and that his explanation for exiting Olympic was not because he was seeking to comply with his employment duties but was to cheat Ms. Hancock: Q. Okay. Yeah. I'm going to go through a couple things with you here, and I'll be done. But some of them have to do with - unfortunately, with your ex-wife and her testimony and how it relates to all of this, so I'll just go through it and see what you have to say. A. Okay. Q. She testified that -- that the purpose ­ that she learned from you that the purpose of Olympic Properties was for you to be able to go forward in the land business and get around your employment agreement with Meritage. If that's what she testified, is that --would that be accurate? Would that be true? I'm sorry. A. No. She wouldn't know the truth if it hit her in the butt. Q. And she also testified -- I'm just looking over testimony here -- that the 25 percent -- structuring the Olympic deal at 25 percent plus the option for 35 was done simply to evade the employment agreement, but that you actually had full control from the beginning. Would that -- would that be true? A. No. Q. And then I know you understand that she testified that the reason you pulled out of Olympic Properties was not the reasons you've given us, but that that was community property and you didn't want to have to pay her any portion of anything that you didn't have to?
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A. I gave her $13 million after six and a half years of marriage. I think she was well compensated. That had nothing to do with it. There was no financing. Devon was gone. And I walked in -- we separated on the 10th of November, 2001, for the sixth and final time in six and a half years of marriage. And I walked in on the 12th, because we were going to a Joe Garagiola benefit dinner, and I said, by the way, I want to let you know, Olympic is dead. The investor has pulled out, Devon Properties. And she looked right at me and said, well, isn't that convenient? And I said, what does that mean? She said, you know what it means. We're getting divorced, and you're now telling me Olympic is dead. I said, it is dead. So my story's consistent. She doesn't know anything about Olympic or Devon or anything else. Id. at 139:5 ­ 140:23.7 Again, Hancock fails to object even once. In sum, after failing to preserve the privilege countless times in both state court and in this Court, Hancock freely testified about the subjects of his marital communications. III. HANCOCK CONVENIENTLY IGNORES THE PLAIN LANGUAGE OF A.R.S. § 12-2232 As he did in the initial motion, Hancock does in the Second Motion as well: he ignores the plain language of A.R.S. § 12-2232.8 Section 12-2232 expressly bars

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examination of one of the spouses only. See A.R.S. § 12-2232 (a "husband or wife shall not, during the marriage or afterward, without the consent of the other, be examined as to any communications made by one to the other during the marriage") (emphasis added). Admissible hearsay "of one spouse can be introduced over the objection of the other It is Ms. Hancock's testimony that Hancock and her discussed that the goal of Olympic was to cheat Meritage and to circumvent Hancock's duties to Meritage implicates the crime-fraud exception. The Court need not reach the issue of whether this discussion and the secrecy efforts, in the context of the pending divorce action, were sufficient to implicate the crime-fraud exception because Hancock's failure to preserve the confidentiality of the communications and his repeated waivers are sufficient grounds to deny Hancock's motion in limine. Both Hancock's original Motion in Limine and his Second Motion only cite to A.R.S. § 12-2232, the anti-marital fact privilege. Arizona's marital communications privilege statute also contains the same limitation. See A.R.S. § 13-4062 ("shall not be examined) (emphasis added); Livermore, Bartels & Hameroff, LAW OF EVIDENCE: ARIZONA at 137 (4th Ed. 2000) (stating that all the limitations that apply to A.R.S. § 12-2232 also apply to A.R.S. § 13-4062.
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spouse who is a party" because the spouse is not being examined. Livermore, Bartels & Hameroff, LAW OF EVIDENCE: ARIZONA at 133, 137 (4th Ed. 2000). An admissible hearsay declaration of one spouse can be introduced over the objection of the other spouse who is a party. Its admission does not involve testimony, or in the words of our statute, examination "as a witness," within the meaning of the privilege. Id. at 133. The Ninth Circuit has ruled that the spouse's out-of-court statements

7 containing marital communications are admissible despite the privilege. See, e.g., United 8 9 Archer, 733 F.2d 354, 359 (5th Cir. 1984); United States v. Cook, 2007 U.S. Dist. LEXIS 10 11 Hancock at trial but rather would introduce her public record testimony from earlier
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

State v. Tsinnijinnie, 601 F.2d 1035, 1037-38 (9th Cir. 1979); accord United States v.

2916, *11 (D. Wash. 2007). At this point,9 Meritage does not seek to "examine" Ms.

12 depositions. 13 CONCLUSION 14 For the above reasons, Hancock's Motion in Limine to exclude the deposition 15 testimony of Linda Hancock should be denied. 16 17 18 19 20 21 22 23 24 25 26 27 28
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Snell & Wilmer L.L.P.

RESPECTFULLY SUBMITTED this 18th day of April, 2008. 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 Ms. Hancock has not yet been served with a trial subpoena, although significant efforts have been made to serve her. Plaintiffs and its process server have contacted her former attorneys as well as several former addresses and now believe Ms. Hancock lives in Hawaii. These efforts will continue until trial. Plaintiffs have asked Greg Hancock's counsel for assistance more than eight months ago, but there has been no response to that request.
Document 551- 13 Filed 04/18/2008

Case 2:04-cv-00384-ROS

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

and

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

CERTIFICATE OF SERVICE I hereby certify that on April 18th 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 the following CM/ECF registrants: Robert M. Frisbee Frisbee & Bostock, PLC 1747 East Morton Avenue Suite 108 Phoenix AZ 85020 Attorneys for Greg Hancock

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Snell & Wilmer L.L.P.

s/ Lindsey M. Perez 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00384-ROS Document 551- 14 Filed 04/18/2008 Page 14 of 14
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