Free Motion in Limine - District Court of Arizona - Arizona

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Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 (602) 916-5414 Edward R. Garvey, admitted pro hac vice GARVEY McNEIL & McGILLIVRAY 634 W. Main Street, Suite 101 Madison, WI 53703 (608) 256-1003 Attorneys for Defendants Harlem Globetrotters Int' l, Inc. and Mannie L. & Catherine Jackson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al., Plaintiffs, vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al.; Defendants. DEFENDANTS' IN LIMINE MOTION TO EXCLUDE EVIDENCE AND WITNESSES VIOLATING THE COURT' JULY 26, 2006 ORDER S Nos. CV-04-0299 PHX DGC and CV-041023 PHX DGC

Defendants GTFM, LLC, Harlem Globetrotters International, Inc. and Mannie L. and Catherine Jackson submit this joint motion pursuant to this Court' Order of July 26, s 2006 Resetting Final Pretrial Conference Deadlines (Doc. # 436), for an order precluding Plaintiffs from offering at trial exhibits and witnesses disclosed after the November 1, 2006, deadline.1 This Court' July 26, 2006 Order Resetting Final Pretrial Conference Deadlines s (the "July 26 Order") states that the parties must exchange copies of their proposed final pretrial order (including witness lists) and exhibits no later than November 1, 2006, or 14

This motion is made without prejudice to Defendants'other in limine motions, Trial Brief, Motion to Strike or Opposition to Plaintiffs'Motion for Pre-Admission.

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PHX/RHARRIS/1856712.1/43458.007

Case 2:04-cv-00299-DGC

Document 511

Filed 11/15/2006

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days before the November 15, 2006, submission deadline for the joint proposed final pretrial order. (Order, ¶¶ 2, 5.) Plaintiffs submitted their final pre-trial order and exhibits to Defendants on or before November 1, 2006. (Garvey Decl., 11/15/06, ¶ 2.) However, since that time, Plaintiffs have disclosed several more exhibits and witnesses to Defendants, in violation of the July 26 Order. This late disclosure is prejudicial to Defendants and Plaintiffs should be precluded from presenting the new exhibits and witnesses at trial. On November 10, 2006, Plaintiffs emailed Defendants a "revised" version of their final pretrial order. (Garvey Decl. ¶ 3.) The new version listed the following thirteen witnesses not contained in Plaintiffs' October 31, 2006, proposed final pre-trial order. Dallas Thornton Kitty Hall Joan Haynes Oliver Phipps Peter Gallo Phillip Crandall Roy Disney Robert Perille Michael DiLoreto Phillip Anderson Paul Horton Custodian of Records, Supreme Court of New York Custodian of Records, Eastern District of Arkansas (Id.) Some of these witnesses had never been previously disclosed to Defendants,

including Kitty Hall, Joan Haynes, and the two Custodians of Records. (Id. ¶ 4.) On the afternoon of November 15, 2006, as the parties were exchanging drafts of the pre-trial order to be filed with the Court, Plaintiffs outrageously added yet another witness to their list: Defendants HGI and Jacksons' counsel Edward Garvey. (Id. ¶ 5.) Needless to say, Mr. Garvey had never previously been disclosed as a Plaintiffs' witness. On November 10, 2006, Defendants received a package containing nineteen exhibits not included in Plaintiffs' November 1, 2006, exhibit production. The new exhibits were labeled Plaintiffs' exhibits 379-398. (Id. ¶ 6.) Additionally, Defendants

did not receive correct copies of Plaintiffs' exhibits 574-576 until November 13, 2006, after requests by Defendants' counsel.
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Plaintiffs' late witness and exhibit identification is clearly in violation of the Court' July 26 Order. Plaintiffs were aware of this deadline for over three months and s still did not submit a complete list of witnesses and set of exhibits to Defendants on time, nor did they ask the Court for additional time to do so. Plaintiffs' late identification is prejudicial to Defendants, who must now scramble to assemble appropriate motions in limine and other documents before the November 15, 2006, deadline. This prejudice is compounded by deadlines in the July 26 Order, for submission of other documents on or before November 15, 2006. Defendants fear that if Plaintiffs' late-identified witnesses and exhibits are allowed at trial, Defendants and the Court will be subjected to future late disclosures. Defendants have repeatedly responded to late submissions from Plaintiffs throughout this litigation (e.g., Doc. # 405 (Defs' Mot. to Strike and Preclude Plaintiffs' Untimely Summary Judgment Disclosures); Doc. # 469 (Defs' Mot. to Strike the New Analyses of Oliver Phipps & Pls' Jt. Supplemental Discl. Stmts)), a practice which is becoming tiresome and will become increasingly prejudicial to Defendants as trial approaches. Defendants thus ask the Court to preclude Plaintiffs from presenting at trial the late-identified exhibits and witnesses described in this motion. PROPOSED LANGUAGE FOR ORDER Pursuant to ¶ 7 of the Pretrial Order, Defendants respectfully request that the Court enter an order stating that Plaintiffs are precluded at trial from offering exhibits and calling witnesses disclosed in violation of the Court' July 26 Order. s RESPECTFULLY SUBMITTED this 15th day of November, 2006. By: s/ Ira S. Sacks_________________ By: s/ Edward R. Garvey____________ Ira S. Sacks, admitted pro hac vice Edward R. Garvey, admitted pro hac vice Safia A. Anand, admitted pro hac vice Christa Westerberg, admitted pro hac vice DREIER LLP GARVEY McNEIL & 499 Park Avenue McGILLIVRAY, S.C. New York, NY 10022 634 W. Main St. #101
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PHX/RHARRIS/1856712.1/43458.007

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Document 511

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Telephone: 212-328-6100 Facsimile: 212-328-6101 [email protected]

Madison, WI 53703 Telephone: 608-256-1003 Facsimile: 608-256-0933 [email protected] Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 Telephone: 602-916-5000 Facsimile: 602-916-5999 [email protected] Attorneys for Defendants Harlem Globetrotters Int' Inc. and Mannie l, L. & Catherine Jackson

Joel L. Herz, Esq., # 015105 State Bar No. 015105 Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tucson, AZ 85718 Telephone: 520-529-8080 Facsimile: 520-529-8077 [email protected] Attorneys for Defendant GTFM, LLC

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PHX/RHARRIS/1856712.1/43458.007

CERTIFICATE OF SERVICE 1. I hereby certify that on November 15, 2006, a true and correct copy of the attached document was electronically transmitted to the Clerk' Office using the s 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] Edward R Garvey [email protected], [email protected], [email protected] Robert Williams Goldwater III [email protected] Ray Kendall Harris [email protected], [email protected] Joel Louis Herz [email protected], [email protected] Alec R Hillbo [email protected], [email protected] Brandon Scott Peters [email protected], [email protected], [email protected] Anders V Rosenquist , Jr [email protected] Ira S Sacks [email protected] Clay M Townsend [email protected], [email protected]; [email protected] Christa O Westerberg [email protected] 2. I hereby certify that on November 15, 2006, a true and correct copy of the attached document was sent via U.S. Mail, postage paid thereon, to the following parties, at the addresses listed: Keith R. Mitnik Morgan & Morgan, PA 20 N. Orange Ave. Suite 1600 Orlando, FL 32802 s/Melody Tolliver

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