Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona PETER M. LANTKA Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Donald Chapman, Plaintiff, v. John E. Potter, Postmaster General, United States Postal Service; and Yvonne Pearson, separately and in her individual capacity, Defendants. CIV-03-2537-PHX-DGC DEFENDANTS' RESPONSE TO PLAINTIFF'S SECOND MOTION IN LIMINE; MOTION TO STRIKE OR DISALLOW WITNESSES AND TESTIMONY NOT TIMELY DISCLOSED

Defendants John E. Potter, Postmaster General, United States Postal Service; and Yvonne Pearson, separately and in her individual capacity, by and through undersigned counsel, respectfully submit their Response to Plaintiff's Second Motion in Limine; Motion to Strike or Disallow Witnesses and Testimony not Timely Disclosed. Defendants' Response is supported by the attached Memorandum of Points and Authorities, exhibits, and all matters of record. MEMORANDUM OF POINTS AND AUTHORITIES Consistent with their efforts throughout litigation, on December 9, 2005, Defendants served Plaintiff with their ninth supplemental disclosure pursuant to Fed. R. Civ. Proc. 26(e)(1). Plaintiff, who served Defendants with his fifteenth supplemental disclosure that

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same day, now seeks to strike Defendants' filing and bar the witnesses and testimony therein. As further explained, Defendants' supplemental disclosure was in accordance with the Federal Rules and was not prejudicial to Plaintiff. Plaintiff's motion in limine should therefore be denied.1 I RELEVANT BACKGROUND On November 30, 2004, this Court entered its initial case management order pursuant to Fed. R. Civ. Proc. 16 in which it set the deadline for initial disclosures at December 15, 2004 and the deadline for completing factual discovery at May 25, 2005 [Doc. No. 25]. Both parties complied with the deadline for initial disclosures; and, after several extensions, the Court set the final discovery deadline at December 9, 2005. [Doc. No. 58]. Pursuant to the Federal Rules, both parties continually supplemented their initial disclosures throughout discovery, each serving their final supplemental disclosures on December 9, 2005. See (Pla. Ex. 18)(Defendants' Ninth Supplemental Disclosure) [Notice at Doc. No. 152]; (Dft. Ex. A)(Plaintiff's Fifteenth Supplemental Disclosure) [Notice at Doc. No. 153]. II DEFENDANTS' SUPPLEMENTAL DISCLOSURE WAS SERVED IN COMPLIANCE WITH THE FEDERAL RULES Under the Federal Rules, a party must, without awaiting a discovery request, provide opposing parties with the name and contact information of individuals likely to have discoverable information, a copy and description of all documents and data in the party's possession, a damage computation, and evidence of any applicable insurance. Fed. R. Civ. Proc. 26(a)(1). Disclosure, however, is not a one-time event. Rule 26 establishes a duty to supplement or correct initial disclosures to include information thereafter acquired "if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the

Due to the mirrored nature of Plaintiff's first and second motions in limine, Defendants incorporate by reference the argument and legal citations from their Response to Plaintiff's "Motion in Limine; to Strike or Disallow Expert; Alternatively to Limit Expert Report," filed contemporaneously with the present Response. LRCiv 7.1(d)(2).

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other parties during the discovery process or in writing." Fed. R. Civ. Proc. 26(e)(1). Supplementation is an ongoing duty which must occur at "appropriate intervals" throughout litigation. Id.; see also(Committee Notes on Amendments (1993) (supplementation should be "made at appropriate intervals during the discovery period, and with special promptness as the trial date approaches"). Parties' duty to supplement their disclosures is further enforced through Rule 37, which prescribes exclusion for noncompliance. Fed. R. Civ. Proc. 37(c)(1) ("A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed."). Both parties have complied with Rule 26(e) throughout litigation to the utmost degree. As demonstrated by the Court docket, Plaintiff has supplemented his initial disclosures a total of fifteen times, with Defendants supplementing their disclosures nine times. While numerous, the parties' efforts do not represent "gamesmanship" as Plaintiff contends. (Pla. Mot. at 4-5). Rather, the supplements demonstrate a continuing effort to advise opposing counsel of "additional or corrective information [that] has not otherwise been made known." Fed. R. Civ. Proc. 26(e)(1). In light of this fact, it is confusing why Plaintiff filed the present motion, especially when Plaintiff filed his final disclosures the same day as the filing he desires to strike. Also confusing is Plaintiff's rendition of the applicable deadlines. See (Pla. Mot. at 2) (alleging that Defendants' ninth disclosure occurred "many months" after this Court's discovery deadline). As discussed in Defendants' response to Plaintiff's first motion in limine, this Court extended the discovery deadline to December 9, 2005, [Doc. No. 58], the day on which both parties submitted their final disclosures. Again, Defendants' final disclosure did not occur "many months" after discovery closed. Even if it had, Rule 26(e)'s duty to supplement or correct discovery occurs "notwithstanding the discovery cut-off date." Abbott

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Laboratories v. Syntron Bioresearch Inc., 2001 WL 34082555, *8 -9 (S.D. Cal. 2001). The disclosure was proper. Further, Plaintiff cannot contend that he was surprised at Defendants' final disclosure. Among supplemental disclosures and discovery, the parties corresponded extensively about newly discovered witnesses and exhibits. For example, Pla. Ex. 15 represents a November 28, 2005 letter from former defense counsel informing Plaintiff of Defendants' final witness list in toto. Notably, the correspondence alerts Plaintiff of seven individuals to be added to Defendants' upcoming supplemental disclosure. Id. at 2; See also (Dft. Group Ex. B)(correspondence from former defense counsel to Plaintiff's attorney discussing discovery issues; correspondence was issued subsequent to Defendants' eighth supplemental disclosure and prior to December 9, 2005). Plaintiff was not taken off guard at Defendants' disclosure. Defendants' actions were in accord with Rule 26(e) and were not prejudicial to Plaintiff. Plaintiff's second motion in limine should accordingly be denied. III INTERCESSION INTO MATTERS UNRELATED TO PLAINTIFF'S MOTION IN LIMINE IS UNNECESSARY Separate from his second motion in limine, Plaintiff accuses former defense counsel of improperly suggesting information to Postal Service employees in an attempt to conduct "no holds barred" litigation. (Pla. Mot. at 5). Defendants make no representation to the legitimacy of Plaintiff's statements, and assure the Court that any action similar in ilk to that alleged by Plaintiff will no longer occur. Further, as discovery is now closed and the Court is beginning consideration of the parties' dispositive motions, intercession into discovery efforts is unnecessary. IV CONCLUSION For the foregoing reasons, Defendants John E. Potter and Yvonne Pearson respectfully request that this Court DENY Plaintiff's Second Motion in Limine; Motion to Strike or Disallow Witnesses and Testimony not Timely Disclosed.

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Respectfully submitted this 17th day of January, 2006 PAUL K. CHARLTON United States Attorney District of Arizona

s/Peter M. Lantka PETER M. LANTKA Assistant U.S. Attorney CERTIFICATE OF SERVICE I hereby certify that on January 17, 2006, I electronically transmitted the attached document, including exhibits, 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:
William R. Hobson Law Offices of William R. Hobson 7303 W. Boston Street Chandler, Arizona 85226 s/Nancy Stotler

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