Free Motion in Limine - District Court of Arizona - Arizona

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GAONA LAW FIRM
A PROFESSIONAL CORPORATION

3101 NORTH CENTRAL AVE, SUITE 720 PHOENIX, ARIZONA 85012 _____________

(602) 230-2636 Fax (602) 230-1377

David F. Gaona, State Bar No. 007391 Nicole Seder Cantelme, State Bar No. 021320 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MONICA ORTEGA-GUERIN, Plaintiff, vs. CITY OF PHOENIX, FRANK FAVELA, AND FRANK PERALTA Defendants. No. CV04-0289 PHX MHM
DEFENDANTS' MOTION IN LIMINE NO. 2 REGARDING THE CITY'S INTERNAL INVESTIGATION

Defendants, City of Phoenix, Frank Favela and Frank Peralta respectfully request this Court issue a pretrial order in limine precluding the Plaintiff from introducing evidence of the Internal Investigations conducted by the City and conclusions of those investigations relating to Defendants Favela and Peralta. These investigations are subsequent remedial measures taken by the City of Phoenix and, are excludable as well pursuant to Rule 403, Federal Rules of Evidence.

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Case 2:04-cv-00289-MHM

Document 37

Filed 11/14/2005

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3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

DATED this 14th day of November, 2005. GAONA LAW FIRM /s/ David F. Gaona David F. Gaona 3101 N. Central Ave., Suite 720 Phoenix, Arizona 85012 Attorneys for Defendants I. BACKGROUND In October, 2003, the City commenced an internal investigation relating to the conduct of defendants Favela and Peralta relating to an incident involving the Plaintiff and Mr. Peralta. The purpose of the investigations was to determine if the individual defendant City employees violated "City or Department work rules and regulations." The result of that investigation determined that the individual defendants, both Mr. Peralta and Mr. Favela violated City policies and should be disciplined. II. THE CITY'S INTERNAL INVESTIGATION OF THE DEFENDANT IS AN INADMISSIBLE SUBSEQUENT REMEDIAL MEASURE This Court should not allow the Plaintiff to introduce evidence of the City's internal investigation of defendants Peralta and Favela in this case because it is an inadmissible subsequent remedial measure. Pursuant to Rule 407, Federal Rules of Evidence: When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of subsequent measures is not admissible to prove negligence, culpable conduct, a defect in product, a defect in the product's design, or a need for a warning or
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instruction. This Rule did not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. The Plaintiff will not try to offer the findings and conclusions of the City's internal investigation as proof of ownership, control or feasibility of precautionary measures or for impeachment. Rather, she will seek to improperly use the outcome to establish the City's and the individual defendants' liability in this case. However, any evidence of discipline is a subsequent remedial measure that is inadmissible under Rule 407. Maddox v. City of Los Angeles, 792 F.2d 1408, 1417 (9th Cir. 1986) (internal investigation of police officers and measures taken by the City are subsequent remedial measures that are inadmissible to prove liability); Specht v. Jensen, 863 F.2d 700, 701 (10th Cir. 1988) (investigation and disciplinary action constitute inadmissible subsequent remedial measures.) The public policy reasons for excluding evidence of the internal investigations are obvious. Failure to exclude such evidence would place the City in an untenable position because instead of simply trying to conduct a thorough investigation to discover the truth and take corrective action, the City would be hindered by the necessity of considering the future litigation implications at every step of the process. The intended effect of Rule 407 is to avoid placing employers in such positions. In addition, pursuant to a Rule 403 analysis, the evidence is also inadmissible. While the evidence of the investigations and the results of those investigations are,
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superficially, relevant, the relevance of those investigations is outweighed by the prejudice in introducing the investigations and their outcome. These investigations were internal, related to specific internal personnel policies, and did not relate to the particulars of a Title VII claim and the burden of proof associated with a Title VII claim, a 42 U.S.C. § 1983 claim and the burden of proof related to such claims, or, other legal claims articulated by the Plaintiff and alleged in this case. Consequently, to place such evidence before the jury would unfairly prejudice each of the defendants as the investigations, although superficially relevant to the issues, involved investigations of individuals and assessing policies and procedures different and apart than the legal analyses engaged in this case and the role of the jury in assessing the facts and the law on which the jury will ultimately be instructed. With respect to an appropriate

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GAONA LAW FIRM

balancing, this evidence is inadmissible pursuant to Rule 403, Federal Rules of Evidence. For the foregoing reasons, Defendants City of Phoenix, Frank Favela and Frank Peralta respectfully request this Court issue a pretrial order precluding the Plaintiff from introducing evidence of the investigations, and results of the investigations or subsequent remedial measures, taken by the City in this case. /// /// ///

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3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

DATED this 14th day of November, 2005. GAONA LAW FIRM /s/ David F. Gaona David F. Gaona 3101 N. Central Ave., Suite 720 Phoenix, Arizona 85012 Attorneys for Defendants

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3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

CERTIFICATE OF SERVICE I hereby certify that on November 14, 2005, I electronically transmitted the attached 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: Stephen G. Montoya, Esq. MONTOYA JIMENEZ, P.A. The Great American Tower 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 I further certify that on November 15, 2005, the attached document was handdelivered to: The Honorable Mary H. Murguia United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003 s/David F. Gaona

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