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 [email protected] (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 DISCLOSED AFTER THE DISCOVERY DEADLINE AND MOTION FOR SANCTIONS 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 Fed. R. Civ. P. 26(e)(1) and 37(c)(1) and the inherent powers of the Court, for an order precluding Plaintiffs from offering at trial exhibits and witnesses disclosed after the discovery deadline.1 The deadline for discovery was September 30, 2005. Order, 4/5/05, at 1 (Doc. # 114.) Since the deadline, Plaintiffs have bombarded Defendants with numerous

documents, exhibits, and lists of witnesses with little or no explanation of their delay.

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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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These disclosures occurred anywhere from November 15, 2005 (see Doc. # 222), to as recently as October 31, 2006 (see Doc. # 468). The Neal Plaintiffs served substantial disclosures around May 4, 2006, and May 15, 2006, and attempted to submit these documents to the Court for its consideration on summary judgment. Decl. of Clay Townsend and attachments, 5/9/06 (Doc. # 392-401); Decl. of Clay Townsend and attachments, 5/15/06 (Doc. # 406-409). Defendants moved to strike and preclude this material. (Doc. # 405, 410.) Lemon and the Neal Plaintiffs also disclosed new damages information in late October 2006 (Doc. # 467, 468), which Defendants have moved to strike as an expert report in disguise and as extremely prejudicial (Doc. # 469-472). Plaintiffs' counsel emailed a "revised" draft final pretrial order on November 10, 2006, that includes several witnesses never previously disclosed to Defendants. Finally, and most outrageously, Plaintiffs' counsel disclosed a final witness on the afternoon of November 15, 2006, as the parties were exchanging drafts of the joint final pre-trial order: HGI and the Jackson' counsel Edward Garvey! (Garvey Decl., 11/15/06, ¶ 5.) s Many of Plaintiffs' late-submitted exhibits 2 and witnesses3 have turned up in their exhibit and witness lists for trial. The Court should preclude Plaintiffs from introducing their late-submitted exhibits and calling their untimely disclosed witnesses at trial. The Federal Rules require parties to make mandatory disclosures under Rules 26(a) and 26(e)(1). The appropriate remedy for failure to comply with Rule 26(e)(1) is exclusion. Fed. R. Civ. P. 37(c) (unless there is a substantial justification, a party who fails to disclose information under Rule 26(e)(1), "is not, unless such failure is harmless, permitted to use as evidence at a trial, at

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Plaintiffs'untimely exhibits include the following: 4-5, 31, 55, 58-59, 68-69, 75-84, 88-133, 140-41, 143-68, 170-80, 192-95, 197-98, 376, 378, 541, 577.

Fifteen of Plaintiffs'late-disclosed witnesses have been included on their witness list for trial: Cynthia Lemon, Rose Neal, Ben Green, James Todd Smith, a/k/a LL Cool J, Jerry Saperstein, Phillip Crandall, Phillip Anderson, Roy Disney, Robert Perille, Michael A. DiLoreto, Jr., Kitty Hall, Joan Haynes, Custodian of Records of the Supreme Court of New York, Custodian of Records of the Eastern District of Arkansas, and Ed Garvey.

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a hearing, or in a motion any witness or information not so disclosed"); see also 7 Moore' Federal Practice, § 37.60[1]. The Advisory Committee Notes describe the s exclusion sanction as a "self-executing," "automatic" sanction to "provide[] a strong inducement for disclosure of material...." Fed. R. Civ. P. 37 advisory committee' note s (1993). There are two exceptions to the rule of exclusion: if the offending party' late s disclosure was "harmless" or "substantially justified." Fed. R. Civ. P. 37(c)(1). Here,

the supplemental disclosure is not harmless. Because discovery has closed, Defendants have not had an opportunity to examine Plaintiffs' witnesses about their late-submitted documents. Moreover, Defendants have not been able to depose the newly identified witnesses for any purpose. Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1038 (9th Cir. 2003) (excluding documents not produced until after the discovery cutoff date and relevant witness had already been deposed). Nor have the Plaintiffs established their burden of a substantial justification. See Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994) (the burden of establishing a substantial justification is on the party being sanctioned). For most of the late-submitted witnesses and documents, Plaintiffs offer absolutely no justification for their failure to name the additional witnesses or produce the additional documents while discovery was open. Substantial justification for the late disclosures thus does not exist for the vast majority of Plaintiffs' late-submitted information. The Neal Plaintiffs submitted selfserving statements that some of their May 2006 documents were recently found, but offered no explanation as to why they had not previously looked for these documents. (Doc. # 392-394, 398.) Plaintiffs have not provided substantial justification. Finally, defendants request that the Court impose sanctions in this case. Fed. R. Civ. P. 37(c)(1) allows for the award of fees and costs incurred by the failure to make a timely disclosure. In Paladin Assocs. v. Montana Power Co., 328 F.3d 1145, 1164-65 (9th Cir. 2003), the Ninth Circuit held that the district court did not abuse its discretion in
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sanctioning the plaintiff for disclosing an expert witness six months after the deadline imposed by the district court. Noting that sanctions include reasonable expenses,

including attorneys' fees, the Paladin court confirmed the district court' decision to s award costs and attorneys' fees associated with the defendants' depositions of the expert witnesses. Id. at 1164 & n. 23. Sanctions are warranted here due to the extreme lateness of Plaintiffs' disclosures, especially for the disclosure of their last witness, Edward Garvey. Not only is Mr. Garvey a Defendants' counsel, but he was "disclosed" just a few hours before the parties were to file the final joint pretrial order pursuant to the Court's July 26, 2006 Order. Defendants thus ask the Court to preclude Plaintiffs from presenting at trial the exhibits and witnesses identified in footnotes two and three of this motion, and to impose sanctions against Plaintiffs for their late disclosures. 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 after the discovery deadline. 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 Telephone: 212-328-6100 Madison, WI 53703 Facsimile: 212-328-6101 Telephone: 608-256-1003 [email protected] Facsimile: 608-256-0933 [email protected] Joel L. Herz, Esq. State Bar No. 015105 Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tucson, AZ 85718
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PHX/RHARRIS/1856710.1/43458.007

Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 Telephone: 602-916-5000

Case 2:04-cv-00299-DGC

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Filed 11/15/2006

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Telephone: 520-529-8080 Facsimile: 520-529-8077 [email protected] Attorneys for Defendant GTFM, LLC

Facsimile: 602-916-5999 [email protected] Attorneys for Defendants Harlem Globetrotters Int' Inc. and Mannie l, L. & Catherine Jackson

CERTIFICATE OF SERVICE
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PHX/RHARRIS/1856710.1/43458.007

1. I hereby certify that on November 15, 2006, a true and correct copy of Defendants' In Limine Motion to Exclude Evidence Disclosed After the Discovery Deadline was electronically transmitted to the Clerk' Office using the CM/ECF System s 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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