Free Motion in Limine - District Court of Arizona - Arizona

Robert M. Frisbee #018779 FRISBEE & BOSTOCK, PLC 2 1747 Morten Ave. E. Suite 108 Phoenix, Arizona 85020 3 Phone: (602) 354-3689 [email protected] 4 Attorneys for Defendant Greg Hancock
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MERITAGE CORPORATION, a Maryland corporation Plaintiff, vs. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

NO. CIV 04-0384-PHX-ROS

GREG HANCOCK, an individual; RICK HANCOCK, an individual; and 12 RICK HANCOCK HOMES, L.L.C., an Arizona Corporation,
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DEFENDANT GREG HANCOCK'S SECOND MOTION IN LIMINE TO EXCLUDE THE DEPOSITION TESTIMONY OF LINDA HANCOCK

Defendants.
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1. Introduction
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In its Order of April 1, 2008, the Court denied without prejudice Greg Hancock's
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motion in limine to exclude the testimony of his ex-wife, Linda Hancock, on condition that
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the motion be resubmitted. Greg Hancock now does so. What he seeks to exclude is
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Meritage's Linda Hancock's divorce deposition testimony implying that Greg Hancock
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ceased looking for financing for Olympic Properties because he didn't want to share
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proceeds with her (Meritage Disputed Fact Statement 9.1), that Hancock had a side deal with
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Dave Cornwall to hide Olympic from her (Meritage Disputed Fact Statement 9.2), and that
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Hancock was attempting to avoid the restrictions of his employment agreement with
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Meritage (pp.5-8, Meritage's Response to Hancock's Motion In Limine).
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As will be shown, all such testimony must be excluded as a matter of law.
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Case 2:04-cv-00384-ROS

Document 550

Filed 04/04/2008

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2. Argument FRE Rule 501, preserves state privileges. A.R.S. § 12-2232 provides in part: 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, except: 1. In an action for divorce or a civil action by one against the other. * * * The proffered testimony obviously came about through "communication" between Greg Hancock and his then wife, and the use of an ex-wife's divorce deposition testimony in a non-related employment dispute is the equivalent of "being examined." The seminal Arizona case on the issue is Ulibarri v. Superior Court in and for County of Coconino, 184 Ariz. 382, 909 P.2d 449 (App. 1995), corrected, review granted, review vacated, review denied 186 Ariz. 419, 924 P.2d 109. The case involved a woman's action against her psychiatrist for alleged non-consensual sex. The psychiatrist sought to offer testimony from the ex-husband that during the marriage the woman had told him she'd had "an affair" with the psychiatrist. The testimony was excluded, the court saying: * * * The marital communications privilege `seeks to throw a veil of secrecy' over marital communications of any sort. The marital privilege protects any confidential communications made by one spouse to another in reliance on the marital relationship. [Citations omitted.] The policy behind the marital communications privilege is to promote family harmony and to encourage spouses `to share their most closely guarded secrets and thoughts, thus adding an additional measure of intimacy and mutual support to the marriage'. [Citations omitted]. Because the fear of disclosure after death or divorce might prevent communications during marriage, this privilege survives the marriage. (909 P.2d at 454.) Apropos of this case, the court further observed that judicial enforcement of the privilege is the only protection a spouse has from an ex-spouse "who is more than willing to reveal pillow talk from doing so during the course of litigation, and, quoting Wright & Graham, Federal Practice and Procedure § 5572 (1989), at 538: "One does not have to be very cynical to imagine that there are some cases in which the threat of exposure of marital secrets in discovery could plausibly be made as a settlement tactic." (909 P. 2d at 454.)
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It is obvious that Linda's self-serving divorce testimony is intended by Meritage to impeach the testimony of Hancock, Cornwall, Kurt Brueckner and others that neither Olympic nor Greg Hancock ever acquired any property whatever.1 The Ulibarri court even addressed the impeachment issue, saying "if `relevant impeachment' is enough to override the marital communications privilege, the privilege does not mean much, for it would be subject to disintegration whenever an ex-spouse agreed, for whatever reason, to `tell all' to the opposition." (909 P.2d at 455,456.) In its Response to Hancock's first motion in limine, Meritage totally ignores Ulibarri and instead makes several fallacious contentions. It says that Hancock waived the privilege because Meritage questioned him about the allegations contained in Linda's testimony (all of which he refuted). This gives less legitimacy to her testimony, not more. Meritage also claims that because Linda's several depositions are a "public record" the privilege is not applicable. Meritage cites no cases saying that deposition testimony is exempt from the privilege statute, for there is none. It also ignores the fact that depositions, if filed prior to trial, are sealed and not available to the public. Meritage also implies that because this Court ordered, over objection, that the entirety of Hancock's divorce file be turned over to Meritage there must have been a waiver of the privilege. Surely the Court cannot have intended such a result, and there is no case holding such. Finally, Meritage contends that Linda Hancock's testimony contains "false exculpatory statements" and were "ongoing fraud" by Greg Hancock. As earlier mentioned, Ulibarri snubbed the claim that impeachment vitiates the privilege. Linda Hancock has not sought to re-open the divorce case to assert fraud in any respect, much less the Olympic Properties matter. The case cited by Meritage, U.S v. Ramos-Oseguera, 120 F.3d 1028, 1042 (9th Cir. 1997), actually holds the exact opposite of the proposition for which it is cited,

As Meritage must know from having reviewed it, the divorce settlement agreement does not list Olympic Properties or any of its progeny as marital assets.

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holding instead that it was error to force a wife to testify against her husband, and that the "joint crime" exception to the marital privilege only applies where both spouses are engaged in a criminal enterprise. Moreover, the limited exception to the marital privilege applies only in criminal cases, and this is not a criminal case. 3. Conclusion Meritage's proffer of Linda Hancock's deposition testimony runs afoul of the marital privilege contained in A.R.S. § 12-2232 as preserved by FRE Rule 501. Admitting it would also require Greg Hancock to revisit the reasons for and the nature of the divorce litigation, a topic unnecessary to this proceeding. Greg Hancock's motion to exclude Linda Hancock's testimony should be granted.

RESPECTFULLY SUBMITTED this 4th day of April, 2008.

FRISBEE & BOSTOCK, PLC /s/ Robert M. Frisbee Robert M. Frisbee Attorney for Greg Hancock

The foregoing Second Motion in Limine was electronically filed and served this 4th day of April, 2008, and copy 20 thereof mailed to the Honorable Judge Silver.
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/s/ Robert M. Frisbee