Free Objection - District Court of Arizona - Arizona

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John T. Masterson, Bar #007447 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7846 [email protected] [email protected] Attorney for Defendants Brad Weekley and Guy Gorman UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA James W. Field, Plaintiff, v. County of La Paz, et al., Defendants. DEFENDANTS' OBJECTION TO TRANSCRIPT OF TAPE RECORDED MEETING WITH PLAINTIFF FROM NOVEMBER 15, 2002 CV 03-2214-PHX SRB

Defendants Weekley and Gorman, through counsel, submit this Objection to Plaintiff's tape recording and partial transcript of an alleged interview with La Paz County representatives from November 15, 2002, disclosed in Plaintiff's Supplemental Disclosure Statement filed on December 28, 2006. Plaintiff's Motion must be denied because: (1) Plaintiff failed to set forth a "good cause" basis for untimely disclosing the tape or transcript from 2002; (2) the transcript contains hearsay and lacks foundation; and (3) the transcript is incomplete and the tape recording unintelligible. Accordingly, Defendants respectfully request that this Court preclude Plaintiff from using either the tape or transcript of the alleged meeting at trial.

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This motion is supported by the following Memorandum of Points and Legal Authorities, the pleadings and exhibits on file with the Court, and any oral argument the Court may hold in this matter. MEMORANDUM OF POINTS AND LEGAL AUTHORITIES I. PROCEDURAL BACKGROUND Plaintiff seeks to introduce "2 tapes...as well as a transcript of the tapes, that the Plaintiff transcribed to the best of his ability that he intends to use as impeachment evidence when necessary." Defendants received the two tapes and a partial transcript, as identified by the Plaintiff, sometime in the past month. When Defendants attempted to listen to the transcript, it was unintelligible. Thus, the Defendants have been unable to listen to the tape recording or verify the transcription of the tape. II. LEGAL ARGUMENT. A. No Good Cause Exists for Plaintiff's Late Disclosure. Pursuant to Rule 26(a)(1)(B), Plaintiff was required to disclose "a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment." As outlined in Rule 37(C)(1), FED. R. CIV. P., a party who fails to timely disclose documents or other tangible exhibits, "shall not, unless such failure is harmless, be permitted to use evidence at trial ... the information or witness not disclosed." Under Johnson v. Mammoth Recreations, Inc., when a party attempts to set aside or adjust the deadlines set in the Scheduling Order, "good cause" must be shown.1 Once the District Court has filed a Pretrial Scheduling Order pursuant to FED. R. CIV. P. 16, establishing a timetable for amending pleadings, the "schedule cannot be modified

975 F.2d 604, 609 (1992).
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except by leave of ... [the district court] upon a showing of good cause."2 Rule 16(b)'s "good cause" standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension."3 Moreover, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. Thus, if a party was not diligent in complying with the Court's deadlines, the inquiry should end.4 In this case, Plaintiff has had the tape recording of the meeting with La Paz County representatives since November 15, 2002. Yet, Plaintiff chose to sit idly by until a month before the second trial of this case to disclose information available to him over four years ago. Allowing Plaintiff to now have additional time to disclose the tape recording and transcript, will reward both Plaintiff's non-diligence and non-compliance with the Court Ordered deadlines established in this case. This severely prejudices the Defendants who have complied with the deadlines established by the Court and are less than one week away from beginning the second trial of this case. This untimely and prejudicial action by the Plaintiff cannot be tolerated and the documents must be precluded as trial exhibits in his case. Moreover, notably absent from Plaintiff's disclosure of the tape recording or transcript is a "good cause" basis for failing to disclose the exhibit earlier. Without any evidence as to why Plaintiff sat idly by until one month before the second trial of this case before disclosing the documents as trial exhibits, Plaintiff cannot establish a "good cause"

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Id. at 609. See generally Coleman v. Quaker Oats Co., 232 F.3d 1271 (Ariz. 2000); Johnson, 975 at 609; Fed. R. Civ. P. 16 advisory committee's notes (1983) amendment; Amcast Indus. Corp. v. Detrex Corp., 132 F.R.D.213, 217 (N.D. Ind. 1990); 6A Wright, Miller & Kane, Federal Practice and Procedures § 1522.1 at 231 (2d. ed 1990) ("good cause" means scheduling deadlines cannot be met despite party's diligence). 4 Johnson, 975 at 609.
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basis for allowing the exhibit to come into evidence at trial. Accordingly, the exhibits must be precluded at trial. B. Any Probative Value Regarding the Exhibits Is Outweighed By Its Prejudicial Effect. FED. R. EVID. 403 precludes the admission of evidence when the probative value is substantially outweighed by any unfair prejudice. Here, Plaintiff has produced an

6 unintelligible tape recording of a conversation alleged to have taken place but unable to be 7 confirmed. Moreover, the transcript produced by the Plaintiff is not complete. Allowing 8 this haphazard evidence is inappropriate and prejudices the Defendants from presenting a 9 defense to the exhibits. Because introduction of the tape recording or partial transcript 10 would be unduly prejudicial to Defendants, the evidence is inadmissible under FED. R. 11 EVID. 403. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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D.

The Exhibits Are Hearsay and Lack Foundation.

Moreover, the tape recording and partial transcript are inadmissible hearsay under FED. R. EVID. 803. In addition, the documents lack proper foundation or authentication under FED. R. EVID. 901. Accordingly, these documents must be precluded as exhibits at trial. III. CONCLUSION Based on the foregoing, Defendants respectfully request the Court preclude Plaintiff's tape recording and partial transcript of an alleged interview with La Paz County representatives from November 15, 2002 disclosed in Plaintiff's Supplemental Disclosure Statement filed on December 28, 2006.

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DATED this 16th day of January, 2007. JONES, SKELTON & HOCHULI, P.L.C.

BY /s/Jennifer L. Holsman John T. Masterson Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Brad Weekley and Guy Gorman ORIGINAL of the E-filed filed this 16th day of January, 2007, with: COPYth the foregoing mailed of this 16 day of January, 2007, to: James. W. Field PO Box 248 Salome, Arizona 85348 Plaintiff Pro Per David F. Gaona, Esq. Nicole Cantelme, Esq. Gaona Law Firm 3101 North Central Avenue Suite 720 Phoenix, AZ 85012 Attorney for Co-Defendants By /s/ Peggy Sue Trakes

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