Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Morgan & Morgan, P. A.th 20 N. Orange Avenue, 16 Floor Orlando, FL 32801 Clay M. Townsend, Esquire Bar No.: 023414 Brandon S. Peters, Esquire Bar No.: 022641 Keith R. Mitnik, Esquire Bar No.: 436127 Attorneys for Neal Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al. Plaintiffs, vs. PLAINTIFFS' JOINT RESPONSE TO DEFENDANTS' MOTION IN LIMINE TO EXCLUDE EVIDENCE AND WITNESSES DISCLOSED AFTER THE DISCOVERY DEADLINE Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

HARLEM GLOBETROTTERS 11 INTERNATIONAL, INC., et al.; 12 13 14 15 Defendants.

Plaintiffs, Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon (collectively referred to as "Plaintiffs"), hereby file this Response to Defendants' Motion In Limine to Exclude Evidence and Witnesses Disclosed After the Discovery Deadline ("Motion"), and state as follows:

16 Defendants Motion makes a blanket (and false) assertion that Plaintiffs' have untimely served 17 18 19 20 21 22 23 24 25 26
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"numerous documents, exhibits, and lists of witnesses with little or no explanation of their delay." Defendants seek exclusion of all disclosures properly and timely made by Plaintiffs since the close of discovery on September 30, 2005. Defendants present Motion is redundant to their previous motions to strike Plaintiffs' supposedly untimely disclosures. Plaintiffs have responded to Defendants various motions to strike and briefed the discovery rules related to Plaintiffs' disclosures. (Doc#412, 518). Plaintiffs' responses and the supplemental disclosures themselves explain the good cause, substantial justification and timeliness, as well as brief the parties' ongoing obligations to supplement discovery responses under F.R.C.P. 26.1 Plaintiffs' address these generally due to limited response space:

Plaintiffs have responded in detail to Defendants' numerous evidentiary objections related to authenticity, relevance, in extensive responses and declarations. (Doc. #'s 310, 311, 314).

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Plaintiffs have responded to all discovery requests by Defendants timely and with numerous

responsive documents before 9/30/05 and signed affidavits that they had previously produced all documents in their possession, that nothing was intentionally withheld, and that previous efforts were made to locate all documents. (I.E. see Haynes Affidavit ¶¶ 3,4,5 to Plaintiffs 2d Supplemental Disclosure). Supplemental disclosures of independently acquired information are not untimely "discovery", and are not

6 the product of deposition, interrogatory or requests for production made after September 30, 2005 ­ i.e. 7 8 9 10 11 12 13 14 15 16 this obligation, even when disclosing seemingly insignificant documents. For example, Plaintiffs have 17 continued to disclose to Defendants magazine articles that were located by 82 year old Marques Haynes in a 18 19 20 21 22 23 24 25 26 27 28 storage box with Haynes affidavit (Ex. C to Sacks' Declaration, Doc#470; Joint Disclosure of October 27, 2006, Doc. #470, Ex. A). Another example involves Plaintiff Neal's locating documents pertaining to the union in a relative's storage box in New Orleans. Neal certainly would not have intentionally withheld documents that HELP his case and Neal's wife signed an affidavit that clearly demonstrated "good cause" for their recent discovery. Would Defendants rather have Neal destroy the documents and not provide them at all? When "new" documents or exhibits have been located by Plaintiffs, they have been instructed "discovery" directed toward Defendants of the kind contemplated by F.R.C.P. 26(a)(5). The 9th Circuit has held in L.A. News Serv. v. CBS Broad, Inc., 305 F.3d 924, 933-934 (9th Cir.2002) a discovery cutoff date does not affect admissibility of evidence obtained outside of the discovery process of the case in which the cutoff date is ordered. See also Whitaker Corp. v. Execuair Corp., 736 F.2d 1341, 1347 (9th Cir. 1984) distinguishing "discovery" process from "independent" processes. 2. Rule 26(e) does not set forth a deadline by which supplemental disclosures must be made.

See Fed.R.Civ.P. 26(e)(emphasis added); Advisory Committee Notes for 1993 Amendments to Fed.R.Civ.P. 26(e). Rule 26(e)(2) imposes an obligation upon the parties to supplement disclosures. Plaintiffs have met

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by Plaintiffs' counsel to provide these immediately, and a Rule 26 supplemental with affidavits has been provided to Defendants.2 3. Plaintiffs' filings of proposed charts and summaries that are the subject of Plaintiffs' Motion

for Pre-Admission (Doc#474) are clearly permitted by F.R.E. 1006, and Plaintiffs' cited authorities in their motion supporting that such exhibits may be used as long as they enjoy proper foundation and the

6 underlying evidence is made available to Defendants.3 Plaintiffs have provided supporting affidavits and 7 8 9 10 11 12 13 14 15 16 "untimely" submissions do not constitute discovery outside of the September 30, 2005 deadline and 17 Plaintiffs' have briefed (again) this issue in its Response to Defendants' Motion to Strike Untimely 18 19 20 21 22 23 24 25 26 27 28
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foundational documentation. (See also Doc. #'s 457 and 518). 4. Plaintiffs have briefed their diligence to the Court as well as the failure of Defendants to

adduce any harm or prejudice at all. (Doc. #518, Pg. 5, 12).4 The independent discovery by Plaintiff Neal is of old union documents that should have been provided by Defendants, and the documents have been certified by the Arkansas clerk of the court and authenticated by the affidavit of former Globetrotter attorney Anderson (Plaintiffs' Ex. 166 that Defendants object to; see also Response, Doc. #310). HGI has asserted that it bought "all the assets" of the Globetrotters and yet has failed to produce these documents. 5. Plaintiffs have complied with the Court's order concerning the discovery cutoff. Plaintiffs'

Disclosures filed on November 1, 2006 (Plaintiffs' Response, Doc. #518). Additionally, even if Plaintiffs' witnesses were disclosed late (which they were not) the court has discretion to admit witnesses not listed in pre-trial order. Lirette v. Popich Bros. Water Transport, Inc., C.A.5 (La.) 1981, 660 F.2d 142. WHEREFORE, Plaintiffs respectfully request this Court deny Defendants' Motion In Limine to Preclude Evidence and Witnesses Violating the July 26, 2006 Order.

It is noteworthy that the Defendants have provided no supplemental disclosures of what one would think would be numerous key documents in their possession. 3 U.S. v. Myers, 847 F.2d 1408, 1412 (9th Cir. 1988). 4 Plaintiffs attach Ex. A which responds to each exhibit and witness objected to by defendants.

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Dated this 22nd day of November, 2006. ROSENQUIST & ASSOCIATES By: ____/S/ Anders Rosenquist___________ Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys for Plaintiff Meadowlark Lemon ____/S/ Clay M. Townsend____________ CLAY M. TOWNSEND, ESQUIRE Florida Bar No.: 363375 KEITH MITNIK, ESQUIRE Florida Bar No.: 436127 BRANDON S. PETERS Florida Bar No.: 965685 Morgan & Morgan, PA 20 N. Orange Avenue, 16th Floor Orlando, FL 32802 Telephone (407) 420-1414 Facsimile (407) 425-8171 Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders

By:

PLEASE TAKE FURTHER NOTICE that copies of the above-referenced document have been served via first class mail on the following attorneys: Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM Of Orlando, LLC Ira S. Sacks, Esq. Safia A. Anand, Esq. DREIER, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC

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Edward R. Garvey, Esq. and Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Ray K. Harris, Esq. Fennemore Craig PC 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson Certificate of Service Vanessa Braeley, declares as follows: 1. I hereby certify that on November 22, 2006, a true and correct copy of Plaintiffs' Response to Defendants' In Limine Motion to Exclude Evidence and Witnesses Disclosed After the Discovery Deadline was electronically transmitted 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: Safia A. Anand ­ [email protected] Florence M. Bruemmer ­ [email protected], [email protected] Edward R. Garvey ­ [email protected] Robert Williams Goldwater, III ­ [email protected] Ray Kendall Harris ­ [email protected] Joel Louis Herz ­ [email protected], [email protected] Anders V. Rosenquist, Jr. - [email protected] Ira S. Sacks ­ [email protected]

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2. I am and was at all times mentioned herein a citizen of the United States and a resident of Orange County, Florida, over 18 years of age and not a party to the within action or proceeding. My business address is 20 N. Orange Avenue, 16th Floor, Orlando, FL 32801, and I am employed as a legal

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assistant by Morgan & Morgan, P.A., Clay Townsend is an attorney admitted to practice in Florida and has been admitted pro hac vice in the District Court of Arizona, and directed that service be made. 3. I hereby certify that on November 22, 2006, a true and correct copy of Plaintiffs' In Limine Motion to Exclude Evidence and Witnesses Disclosed After the Discovery Deadline was sent by postageprepaid first-class U.S. Mail to the following parties, at the addresses listed, to-wit: Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Attorney for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM OF Orlando, LLC Ira S. Sacks, Esq. Safia Anand, Esq. DREIER LLP 499 Park Ave. New York, NY 10022 Attorneys for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC Edward R. Garvey, Esq. Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main Street, Ste. 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Ray K. Harris, Esq. Fennemore Craig PC 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson

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3. I declare under the penalty of perjury under the laws of the United States that the foregoing is true and correct. DATED: November 22, 2006. Signed: ____/S/Vanessa L. Braeley_________ Vanessa L. Braeley Legal Assistant to Clay Townsend MORGAN & MORGAN 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 Attorneys for the Plaintiffs Curly Neal, Larry Rivers, Dallas Thornton, Marques Haynes, Robert Hall and James Sanders

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