Free Reply to Response to Motion - District Court of Arizona - Arizona

1 William R. Hobson, SBN 006887
LAW OFFICE OF WILLLAM R. HOBSON
2 7303 W. Boston Street
. Chandler, AZ 85226
3 Telephone No. (480) 705-7550
Facsimile No. (480) 705-7503
4 Attorney for Plaintiff
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8
9 IONALD CHAPMAN
Case No: CV 03 2537 PHX DGC
10
11 PLAINTIFF’S REPLY TO
plaintiff, DEFENDANT’S RESPONSE
12 MOTION TO STRIKE OR
D{_%g%Lh(;gNNVÂ¥ITNESSES AND
13 OHN E. POTTER, 1=·osTMAsTER NOT TIMELY
GENERAL, UNITED smrns DISCLOSER
14 OSTAL SERVICE; NATIONAL
P OSTAL MAIL I—IANDLER’S UNION,
15 VONNE 1>EARsoN, SEPARATELY
, Ol`31 .AI`gl.II'I1€Hl] Requested
16 CAPACITY,
17 Defendants.
18
19
20 Defendant United States Postal Service ("USPS") responds to Plaintiff Donald
2] Chapman ("Chapman") motion to strike untimely disclosed witnesses and testimony by
22 arguing that this Court enlarged the time for discovery to December 9, 2005. This is error.
23
The discovery cutoff was clearly indicated in this Court’s Case Management Order. It
24
25 provided that "the deadline for completing fact discovery shall be May 25, 2005 . . ." The
26 Court in at least two other sections ofthe Case Management Order, permits some latitude
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l to counsel but on the condition that the discovery deadlines not be altered. The Court’s
, 2 final section in the Case Management Order states:
3 The Deadlines are Real. The parties are advised that the Court intends to enforce
4 the deadlines set forth in this Order, and should plan their litigation activities
5 accordingly.
6 While it is true that this Court altered some of the discovery deadlines for certain
7 kinds of information and procedures (ag., additional time for disclosure of USPS’s
; expert’s Rule 26 report), it did not, as claimed by the USPS (Response at 2) "set the
é IO discovery deadline at December 9, 2005." What the Court said in its July 29, 2005 order,
E _g xg ll was that USPS’s motion for extension of time was granted "to complete expert and fact
g E SE1 12 depositions . . ." This Court’s did not contemplate or agree that discovery was wide-
g 5 gf open. The purpose of the additional time was to complete depositions of previously
E § g 15 disclosed witnesses. Any other reading of the Court’s Case Management Order and this
§ 16 Court’s July 29, 2005 order is inconsistent with the law of this case.
E 17 Chapman did continue to supplement disclosure and did provide a brief synopsis
E of witnesses and testimony to be adduced from some of the late disclosed witnesses of
I 20 USPS and reports received from witnesses being interviewed by counsel for USPS.
21 Exhibit l to Response. Chapman did not, by making this supplementation waive any
22 objection to late disclosure. Chapman had earlier objected to the manner in which
it USPS’s counsel was continuing to depose undisclosed (or untimely disclosed) witnesses.
25 Counsel’s representation to the Court was that the witnesses were timely disclosed. This
26 was untrue. That Chapman had to operate under a system whereby continued depositions
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1 of undisclosed fact witnesses were permitted based on counsel’s representations, should
E 2 not be permitted to prejudice Chapman’s rights. In fact, this Court has made clear in its
3 prior ruling that the issue of due diligence of the parties is the operative one for the
5 Court’s consideration and not that of prejudice as argued by USPS. Response at 4.
6 It is true, as argued by USPS (Response at 2 through 4) that parties have a duty to
7 supplement discovery even after discovery deadlines. This duty to seasonably
; supplement is not intended, however, to permit parties to be able to ignore the plain
E 10 meaning of Case Management Orders. Indeed, the late disclosure of lists of names (in
E Tg NO 11 November of 2005) in letters that USPS’s counsel forwarded to Chapman’s counsel
lg E § 12 (attached to USPS’s Response as Exhibit B and without the information Rule 26 requires
§ E E for disclosure of witnesses) is hardly consistent with the policy behind the procedures for

§ g Us 15 judicial involvement in case management. The point of case management is to “front
LQ 16 1oad" case development. Forwarding name of witnesses within weeks of the cutoff for
5 17 deposition testimony is not consistent with the purpose for which case management
E procedures and orders were intended. This is all the more compelling when the Court
20 reviews the paucity of USPS’s initial disclosure (Exhibit l to Motion).
21 USPS points out that Chapman’s complaint about "i1nproperly suggest[ed]
22 int`ormation" to witnesses will no longer occur. (Response at 4). Chapman accepts
il cour1sel’s representation without agreeing that the damage to himself and to the judicial
25 process was de minimus.
26 USPS’s disclosure of witnesses was not just a few days late. It was many months
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1 after the Court’s deadline. USPS’s representations to the Court were untrue that the
Z 2 myriad depositions she was conducting were of properly disclosed witnesses. They were
3
not. The witnesses timely disclosed by USPS are attached to Chapmarfs motion as
4
Exhibits 1 through 4.1 When this Court indicated in its July 29, 2005 order b
5 Y
6 interlineations that the parties had until December 9, 2005 "to complete expert and fact
7 witness depositions" the Court did not enlarge discovery deadlines otherwise.
8
Pursuant to Rule 37(c)(l), Fed. R. Civ. Proc., Chapman requests that late disclosed
9
z
Q 10 witnesses of USPS be excluded.
¤¤
E ll - r1
¤é 1.;; § Dated this 25 1 day of January, 2006.
E E e 12
E E 3 LAW OFFICE OF ILLIAM R. HOB ON
égg 13 QQ { 2 {
“* E g 14 By: CAD o i ""·—·—- {
3 S E William R. Hobson
E F U 15 Attorney for Plaintiff
LH
O Origin 1 tiled and copies mailed
E 16 this 26% day of January, 2006 to:
A 17
Peter M. Lantke, Esq.
18 Assistant United States Attorney
United States Attorney’s Office
19 40 N. Central, Ste 1200
Phoenix, AZ 85004-4408
20 Attorney for U.S.P.S. and Yvonne Pearson
21 20 U
22 """
23
24
25 ...;-.- .-
I There are other deficiencies in the disclosure by the USPS. See Rule 26(a)(1) Fed. R.
26 Civ. Proc. and compare Exhibits l through 4 attached to Chapman’s motion.
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