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' RESPONSE TO PLAINTIFF'S SUPPLEMENTAL DISCLOSURE (RENTAL RECEIPTS) CV 03-2214-PHX SRB

Defendants Weekley and Gorman, through counsel, submit this Response to Plaintiff's Supplemental Disclosure Pursuant to Fed. R. Civ. P. 26(e)(1) filed on December 28, 2006. Plaintiff's Disclosure Statement include "receipts from his rentals between the year 2000 & 2001." Also included in the Disclosure Statement is unsupported damages calculations regarding "Snowbird Season's Lost," "42 RV Sites Available to Rent," and "Migrant Worker Seasons Lost," "Occupancy at Termination," and "Available Migrant Worker Rental Units." This "damages" documentation is unsupported by the evidence, speculative, hearsay and lacks foundation. Moreover, Plaintiff failed to disclose any of this "damages" documentation prior to the November 30, 2005 discovery deadline. Accordingly, Defendants respectfully request that this Court prohibit any evidence or

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testimony on the "damages" documentation 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. MEMORANDUM OF POINTS AND LEGAL AUTHORITIES I. PROCEDURAL BACKGROUND Plaintiff seeks to introduce: (1) "receipts from his rentals between the year 2000 & 2001"; (2) speculative damages information regarding "Snowbird Season's Lost"; (3) speculative damages information about "42 RV Sites Available to Rent"; (4) speculative damages information about "Migrant Worker Seasons Lost"; (5) speculative damages information about "Occupancy at Termination;" and (6) speculative damages information about "Available Migrant Worker Rental Units." 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 rental receipts from 2000 and 2001.1 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 had these documents in his possession since 2000 and 2001, nearly six or seven years! Plaintiff cannot be allowed to profit from his untimely disclosure and sandbagging of the Defendants at this late hour.

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Defendants object to these rental receipts as not being closer in time to the termination of Plaintiff's electrical service in 2002.
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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.2 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."3 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."4 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.5

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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). 5 Johnson, 975 at 609.
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In this case, Plaintiff has not been diligent in obtaining or producing discovery materials to support his damages claim. The rental receipts are dated from 2000-2001, six or seven 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 information in his possession for six or seven years. Allowing Plaintiff to now have additional time to disclose these damages 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 "damages" documents must therefore be precluded as trial exhibits. Moreover, notably absent from Plaintiff's disclosure of the damages documents is a "good cause" basis for failing to disclose the rental receipts or other damages documentation 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 documents must be precluded at trial. B. Any Probative Value Regarding the "Damages" Documents 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. Defendants anticipate that

21 Plaintiff will attempt to introduce the rental receipts and unsupported damages documents 22 to support his allegation of "lost income." Yet, Plaintiff's untimely disclosure of these 23 documents is inherently prejudicial to Defendants who were not afforded an opportunity 24 to depose Plaintiff about the documents or retain an expert to evaluation potential lost 25 income. Thus, if the jury hears this type of evidence, without also being able to hear a 26
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defense rebuttal, there is a strong possibility the jurors will provide undue weight to the exhibits. Because introduction of the "damages" documentation would be unduly prejudicial to Defendants, the evidence is inadmissible under FED. R. EVID. 403. D. The "Damages Documents" Are Hearsay and Lack Foundation.

Moreover, the rental receipts 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 "damages" documentation 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 Randall H. Warner 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Brad Weekley, Penny Dahlberg, Guy Gorman and Dave Boatwright 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
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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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