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 PLAINTIFF'S SUPPLEMENTAL DISCLOSURE REGARDING VIRUS EMAILS CV 03-2214-PHX SRB

Defendants Weekley and Gorman, through counsel, submit this Objection to Plaintiff's Supplemental Disclosure Pursuant to FED. R. CIV. P. 26(e)(1) Regarding Virus Emails filed on December 28, 2006. Plaintiff's Disclosure Statement includes several emails in an attempt to show that "virus emails" were sent to him in 2004 allegedly from La Paz County. These emails were untimely disclosed, are irrelevant, contain hearsay and lack foundation. Moreover, Accordingly, Defendants respectfully request that this Court prohibit any evidence or testimony on the "virus emails" disclosed in Plaintiff's Supplemental Disclosure Statement. 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.

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MEMORANDUM OF POINTS AND LEGAL AUTHORITIES PROCEDURAL BACKGROUND Plaintiff seeks to introduce, "the virus emails that the County sent to him in order to try and whip out all of the emails he and the County had sent back and forth over a period of a years so that the Plaintiff could not use them against the County in trial however this did not work because Plaintiff had a virus scan in his computer that did not allow him to open these emails...This was done purposely in order to try and cause irreparable harm to the Plaintiffs case and has caused unspeakable mental suffering and anguish." As the Court is aware, the discovery deadline in this case was November 30, 2005. The "newly discovered evidence" Plaintiff now seeks to introduce at trial includes emails from 2004. Not only did Plaintiff not disclose this information prior to the discovery deadline, he waited over six months after the conclusion of the initial trial in this case, and only one month before the second trial, to disclose these documents. As is clear from the documents, Plaintiff has had these documents in his possession for nearly three years! Plaintiff cannot be allowed to profit from his untimely disclosure and sandbagging of the Defendants at this late hour. 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."
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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 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 not been diligent in obtaining or producing discovery materials to support his claims. The "virus emails" are from 2004, three years prior to the filing of this subject Motion. Plaintiff has inappropriately chosen to sit idly by until a month before the second trial of this case to disclose this information. Allowing Plaintiff to now have additional time to disclose these documents, 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 disclosure cannot be tolerated and the "virus emails" must therefore be precluded as trial exhibits. 975 F.2d 604, 609 (1992). 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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Moreover, notably absent from Plaintiff's disclosure of the damages documents is a "good cause" basis for failing to disclose the "virus emails" 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" basis for allowing the exhibits to come into evidence at trial. Accordingly, the "virus emails" must be precluded at trial. B. The "Virus Emails" Are Irrelevant.

FED. R. EVID. 401 states that relevant evidence is evidence that tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. In this case, the sole remaining issue is whether La Paz County violated Plaintiff's right to due process by requesting APS terminate his electrical service due to hazardous conditions on the property. The "virus emails" are unrelated in anyway to the issues remaining in this case. Further, introduction of the "virus emails" would only confuse and mislead the jury regarding the limited issue of liability. Accordingly, the "virus emails" are irrelevant under Rule 401 and must be precluded. C. Any Probative Value Regarding the "Virus Emails" Are 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. Defendants anticipate that Plaintiff will attempt to introduce the "virus emails" to support his claim of a "conspiracy" to violate his rights and cause him damages (a claim that has been dismissed by the Court). If the jury hears testimony on this type of irrelevant evidence, there is a strong possibility the jurors will erroneously view the information as evidence of wrongdoing by La Paz County, rather than deciding this case on its merits.

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Because introduction of the "virus emails" would be unduly prejudicial to Defendants, the evidence is inadmissible under FED. R. EVID. 403. D. The "Virus Emails" Are Hearsay and Lack Foundation.

Moreover, the "virus emails" 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. II. CONCLUSION Based on the foregoing, Defendants respectfully request the Court prohibit evidence or testimony regarding the "virus emails" included in Plaintiff's Supplemental Disclosure Pursuant to FED. R. CIV. P. 26(e)(1) filed on December 28, 2006. 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, 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
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Phoenix, AZ 85012 Attorney for Co-Defendants By /s/ Peggy Sue Trakes

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