Free Response to Motion - District Court of Arizona - Arizona

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CENTRAL OFFICE FARMWORKER PROGRAM 305 South Second Avenue P.O. Box 21538 Phoenix, Arizona 85036-1538 (602) 258-3434 FAX (602) 258-4628 TDD (602) 254-9852

Kristina M. Campbell, AZ Bar No. 023139, [email protected] Pamela M. Bridge, AZ Bar No. 018252, [email protected] George H. McKay, AZ Bar No. 015910, [email protected] COMMUNITY LEGAL SERVICES 305 South Second Avenue P.O. Box 21538 Phoenix, Arizona 85036-1538 (602) 258-3434, ext. 2530 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) Eagle Produce Limited Partnership, ) Phoenix Agro-Invest, Inc., ) SAM Management, Inc. ) ) Defendants ) ________________________________) Abel Ruiz Diaz, Ubaldo Moreno, Piedad H. Renteria, Alejandro D. Mancilla, ________________________________

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Case No. CIV 03-2127 PHX-MHM

COMMUNITY LEGAL SERVICES

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO STRIKE

INTRODUCTION Plaintiffs Abel Ruiz Diaz, Ubaldo Moreno, Piedad H. Renteria, Alejandro D. Mancilla (hereinafter collectively "Plaintiffs"), by and through its undersigned counsel, hereby submit their response to the Defendants' Motion to Strike portions of the Plaintiffs' Statement of Genuine Issues in Opposition to Motion for Summary Judgment (herinafter "Plaintiffs' Statement of Facts"). This Court should deny the Defendants' Motion to Strike in its entirety, as Defendants have failed to demonstrate any legal or factual basis why the evidence they seek to strike in the Plaintiffs' Statement of Facts is inadmissible and should not be considered by this Court when deciding Defendants' Motion for Summary Judgment. Defendants' Motion to Strike misstates testimony and misconstrues the record to
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make false factual claims as to the nature of the evidence presented in this case. By asking this Court to strike relevant, admissible evidence presented by the Plaintiffs in response to Defendants' Motion for Summary Judgment, Defendants have committed an abuse of process by filing a frivolous motion that wastes judicial time and resources. As such, this Court should not grant Defendants' Motion to Strike in whole or in part, and the evidence presented by the Plaintiffs in their Statement of Genuine Issues in Opposition to Motion for Summary Judgment should be considered by this Court when ruling on Defendants' Motion for Summary Judgment. I. BECAUSE THE EVIDENCE PRESENTED BY PLAINTIFFS COULD BE PRESENTED IN AN ADMISSIBLE FORM AT TRIAL, IT MAY BE CONSIDERED ON SUMMARY JUDGMENT Plaintiffs submitted a detailed Statement of Facts, which included excerpts of deposition testimony from witnesses for both the Plaintiffs and Defendants, sworn affidavits, and other evidence in support of their response that satisfies the standard for admissibility under Rule 56. Plaintiffs have set forth specific facts showing that there is a genuine issue for trial, and these facts are supported by the record in this case. Defendants' claims that the evidence submitted by Plaintiffs' in their opposition is "speculative," "inaccurate," and "conclusory" is a frivolous attempt by Defendants to strike relevant, admissible evidence that can and should be considered by this Court in deciding the Defendants' Motion for Summary Judgment. In their Motion to Strike, Defendants' misstate the standard this Court should use for determining whether to consider evidence submitted in opposition to a summary judgment motion. The heart of Defendants' Motion to Strike is that this Court should exclude a large portion of the evidence submitted by Plaintiffs in their Statement of Facts because it is inadmissible under one or more of the Federal Rules of Evidence. However, in determining whether to consider evidence submitted in opposition to a summary judgment motion, the court does not use the same rules that govern the admissibility of evidence at trial, as the Defendants contend in their Motion. The Ninth Circuit Court of Appeals has held that "the nonmoving party need not produce evidence in a form that
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would be admissible at trial in order to avoid summary judgment." Fed. Deposit Ins. Corp. v. N.H. Ins. Co., 953 F.2d 478, 485 (9th Cir. 1991). "To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56." Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001). See also Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Therefore, because all of the evidence submitted by Plaintiffs in support of their opposition to Defendants' Motion for Summary Judgment meet the requirements of Rule 56, and as such are proper for consideration by this Court at the summary judgment stage, this Court should deny the Defendants' Motion to Strike in its entirety. II. THE EVIDENCE SUBMITTED BY PLAINTIFFS IN THEIR STATEMENT OF FACTS IS ADMISSIBLE UNDER RULE 56 AND SHOULD NOT BE STRICKEN Paragraph 1 is supported by admissible evidence under Rule 56. In addition to the Plaintiffs' Fourth Amended Complaint, sworn testimony establishes that Defendant Eagle Produce, along with Defendants Phoenix Agro-Invest and SAM Management, jointly employed Plaintiffs at all times relevant to this litigation. Witness for Defendants Steven Martori testified as follows about the nature of the business relationship between the Defendants in this matter: Q. A. Q. A. Q. A. Is there a general partner of Eagle Produce? Yes. And who is that? Phoenix Agro-Invest and Sam Management. They're both general partners? Um-hum. MR. NEWTON: THE WITNESS: Is that a "Yes"? Yes.

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Deposition of Steven Martori, Tr. pg.16, ll. 12-19 (attached as Exhibit A) Additionally, the issue of whether or not Defendants jointly employed Plaintiffs has been
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fully briefed by both parties as it is the subject matter of the Plaintiffs' Motion for Partial Summary Judgment. Paragraph 3 is supported by admissible evidence as it the sworn deposition testimony of Defendants' witness Owen Brandt. The evidence presented in Paragraph 3 demonstrates that Mr. Brandt testified that planting occurred year-round at Eagle Produce in 2002, and that for the most part, tractor drivers with Eagle Produce are employed yearround. Mr. Brandt also testified that the job of the workers on Crew 94 was the same year in and year out, and that "nothing spectacular" happened in 2002 "as far as equipment and work goes." See Brandt Deposition Tr. pg. 36, ll. 1-19 (attached as Exhibit B). Even assuming arguendo that the meaning of Mr. Brandt's testimony is ambiguous or does not establish that the tractor operators in Crew 94 worked year-round in 2002, several of the Plaintiffs testified in their sworn depositions that the tractor drivers on Crew 94 worked year-round every year, including 2002. See Deposition of Alejandro Mancilla, Tr. pg. 7, ll. 19-22 (attached as Exhibit C); Deposition of Piedad Renteria, Tr. pg. 42, ll. 1523 (attached as Exhibit D). Because the Plaintiffs were terminated in 2002, and the Defendants claim that the Plaintiffs were laid-off at that time due to a work slow-down, there is a genuine factual dispute for trial on this issue, and summary judgment is not appropriate. Paragraph 4 is supported by admissible evidence as it is based on the sworn deposition testimony of witness for the Defendants Steven Martori. Mr. Martori testified that he is a principal in the business operations of all three Defendants in this case - Eagle Produce, Phoenix Agro-Invest, and SAM Management. See Exhibit A, Tr. pg. 10, ll. 3-21; pg. 53, ll. 8-11. It is undisputed that while the Plaintiffs in this matter were employed by Eagle Produce, they worked primarily on farmland in Aguila, Arizona. John Redmond testified at his deposition that Plaintiffs worked on land owned by Defendants: Q. A. Who owned the land that the workers worked on? Part of it is leased land and part of it is owned by Phoenix Agro.

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Deposition of John Redmond, Tr. pg. 22, ll. 21-22 (attached as Exhibit E). Additionally, Mr. Martori testified in his deposition that he is the owner and operator of the farmland worked on by the Plaintiffis in Aguila, Arizona: Q: BY MS RODIS: MR. NEWTON: THE WITNESS: How long have you owned and operated the farm in Aguila, Arizona? Form More than 20 years.

Exhibit A, Tr. pg. 15, ll. 3-6. As such, this evidence submitted by Plaintiffs meets the standard for admissibility under Rule 56, and should not be stricken. Paragraph 5 is supported by admissible evidence because it is based on the sworn testimony of witnesses for the Defendant Jimmy Byrd. Defendants' assertion that Mr. Byrd did not provide testimony regarding "whether or not crops are planted throughout the year" is pure semantics. The portion of Mr. Byrd's testimony cited by Plaintiffs in their Statement of Facts reads as follows: Q. A. Q. A. Q. BY MS. RODIS: What type of tractor work are the Crew 94 drivers doing from April to October?

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Farming, crop related. Are they preparing the land to plant certain types of crops? They could be. They could be planting. They could be cultivating. They could be doing any task that is required on the farm. What would the tractor drivers in Crew 94 be doing from November to March? Mr. NEWTON: THE WITNESS: Form. I would have to say predominantly heavy tillage. Is that heavy tillage in preparation for a certain crop?

Q. A.

BY MS. RODIS:

It would be in preparation for all crops. Deposition of Jimmy Byrd, Tr. pg. 47, ll. 4-19 (attached as Exhibit F).

Even assuming arguendo that Mr. Byrd's testimony is ambiguous, there is a genuine factual
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dispute for trial on this issue, and summary judgment is not appropriate. Paragraph 6 is supported by admissible evidence as it is based on the sworn testimony of Plaintiff Piedad Renteria. Once again, Defendants are engaging in semantics by claiming that this statement misstates testimony. The relevant portion of Mr. Renteria's sworn deposition reads: Q. A. Q. A. OK. There's never an occasion ­ you have never seen an occasion in which there's not enough tractor work for all the tractor drivers. Well, when there's a little, when it goes down a little, they'll have you fixing equipment there. So there's occasions when tractor drivers do something other than drive the tractor. Well, yes. They have you fixing equipment, moving metal around. But one day. One day. One day or two days. Exhibit D, Tr. pg. 43, 11. 2-11 (emphasis added). Mr. Renteria's testimony is clear and unambiguous, and as such Defendants' request to strike this evidence should be denied. Paragraph 10 is admissible evidence because is it supported by the sworn deposition testimony of Defendants' witness Chester Daffern, who testified based on personal knowledge that he was terminated by Defendants because he was old. Defendants misstate the law as applied to the facts of this case by asserting that Daffern's belief that he was terminated is insufficient evidence for summary judgment purposes. Defendants' cite Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, 944 F.2d 1525 (9th Cir. 1991), which holds that when a declaration is not based on personal knowledge, but on information and belief, a triable issue of fact is not raised. Id. at 1529. However, Daffern's deposition testimony demonstrates that his statement regarding his termination was clearly based on personal knowledge: Q. BY MS. CAMPBELL: MR. COULTER: THE WITNESS: Do you know whose decision it was to terminate you? Form Yeah.

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Q. A. Q.

BY MS. CAMPBELL: Because I'm old.

Can you tell me why?

What do you mean when you say because you're old? MR. COULTER: THE WITNESS: Same objection. It couldn't have been because I didn't do my job, because they never had anybody that could do my job like I did. And Jimmy Byrd was constantly, "What am I going to do when you retire?"[.....] Foundation, form. I can't.

Q.

Are there any other reasons you can think of you were terminated? MR. COULTER: THE WITNESS:

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Deposition of Chester Daffern, Tr. pg. 94, ll. 9-35; pg. 96, ll. 4-7 (attached as Exhibit G). Defendants' claim that Daffern's testimony is inadmissible evidence because it is not based on personal knowledge is a misapplication of the legal standard for the admissibility of a declaration set forth in Columbia Pictures, Inc. and other precedent. The Ninth Circuit has held: "that a statement is self-serving bears on its credibility, not on its cognizability for purposes of establishing a genuine issue of material fact." United States v. Shumway, 199 F.3d 1093, 1104 (9th Cir. 1999). The Ninth Circuit also held in Shumway that "the declarations are based on personal experience in the industry, and as such, have a basis in fact. Therefore, they must be taken as true for purposes of determining whether there is a genuine issue of fact precluding summary judgment." Id. Credibility determinations are generally inappropriate at the summary judgment stage. In ruling on a summary judgment motion, the judge must leave "credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts" to the jury. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Whether or not Daffern's allegations that he was fired because he was old are true is a question of credibility, not of sufficiency. Thus, Defendants' request to strike Daffern's testimony should be denied.

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Paragraph 11 should not be stricken because there is no genuine dispute of fact regarding whether or not Owen Brandt and Jimmy Byrd were employed by Defendants in 2002. Defendants are abusing judicial process by using their Motion to Strike to set forth arguments that have been already been fully briefed and responded to in previous pleadings, which in this case is the issue of whether or not the Defendants were joint employers of the Plaintiffs. Additionally, if there is a dispute as to whether or not the Defendants employed Brandt and Byrd in 2002, that is a genuine issue of fact that should be decided at trial rather than at summary judgment. Therefore, Defendants' request that this paragraph be modified to reflect their position that only Eagle Produce employed Brandt and Byrd in 2002 is not proper, and should be denied. Paragraph 12 is admissible evidence because it is supported by the sworn deposition testimony of Defendants' witness Chester Daffern: Q. Did you ever lay off workers? MR. COULTER: THE WITNESS: Form No.

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Exhibit G, Tr. pg. 62, ll. 7-9. Once again, Defendants are using their Motion to Strike to make factual arguments, rather than setting forth a basis for striking Plaintiffs' evidence. Daffern was the supervisor for all of the Plaintiffs on Crew 94 from 1997 until his termination in late 2001. Additionally, witness for the Defendants Gilberto Vigueria testified that since 1994, there was always enough work for tractor drivers in Crew 94: Q: Can you recall any time from `94 to the present when there wasn't enough work for tractor drivers in Crew 94? MR. NEWTON: THE WITNESS: Form. No.

Deposition of Gilberto Vigueria, Tr. pg. 95, ll. 23-25; pg. 96, ll. 1-2 (attached as Exhibit H). Despite the clear meaning of the testimony of Mr. Daffern and Mr. Vigeria, Plaintiffs are willing to modify Paragraph 12 to reflect that no workers on Crew 94 were laid off while
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Daffern was the supervisor of Crew 94 for the sake of clarity. Paragraph 13 is admissible evidence because it is supported by the sworn deposition testimony of Defendants' witness Chester Daffern. The relevant portion of Daffern's testimony cited by Plaintiffs is as follows: Q. BY MS. CAMPBELL: And you said you would send four or five workers over to harvest. Were those workers sent to do hand harvesting, or what kind of work was it?

A. Q.

They would be tractor drivers in harvest. Were there always tractor positions in harvest? MR. COULTER: THE WITNESS: Form Yes.

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Exhibit G, Tr. pg. 62, ll. 10-18. Defendants contend in their Motion to Strike that "there were not always openings for additional tractor drivers," and use this argument as the basis for their assertion that this paragraph should be stricken as misleading. As stated above, Defendants should not be setting forth unsupported factual claims in their Motion to Strike in an attempt to exclude Plaintiffs' legitimate, admissible evidence. Because Defendants' request has no legal basis, their request to strike this paragraph should be denied. Paragraph 27 is admissible evidence because it is based on the sworn deposition testimony of witness for the Defendants John Redmond. However, the Plaintiffs' Statement of Facts inadvertently cites the incorrect portion of Mr. Redmond's deposition. The testimony of Mr. Redmond that Plaintiffs intended to cite in support of Paragraph 27 reads as follows: Q. A. BY MS. BRIDGE: Do you remember anything significant about 2002 that was different than any other year? No, not to my knowledge. Exhibit E, Tr. pg. 36, ll. 6-9. As such, Paragraph 27 is based on admissible evidence and Defendants' request to strike should be denied.
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Paragraph 36 is based on admissible evidence. Defendants do not dispute the contents of the letter in question as recited by Plaintiffs in their statement of facts, but rather argue that it should be stricken by attempting to downplay damaging statements by the author of the letter, John Redmond, as merely "an explanation as to why [Plaintiff] Diaz was chosen to be laid off." This type of argument is an improper basis for striking evidence as inadmissible, and as such Defendants' request should be denied. Paragraph 40 is admissible evidence because it is supported by the sworn deposition testimony of Defendants' witness Chester Daffern. The portion of Daffern's testimony cited by Plaintiffs is as follows: Q. A. Q. BY MS. CAMPBELL: What kind of a worker was Mr. Moreno? He was good. He was stable and dependable. Did you ever have any disciplinary problems with Mr. Moreno? MR. COULTER: THE WITNESS: Form Not that I recall.

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Exhbit G, Tr. pg. 73, ll. 13-19. Daffern's testimony is clear and unambiguous. Defendants' merely set forth a semantic argument over the phrasing of the paragraph, rather than the substance of Daffern's testimony. As such, Defendants' request to modify this paragraph should be denied. Paragraph 43 is based on admissible evidence because the notes from John Redmond's telephone conversation with the EEOC investigator is not hearsay because it is an admission by a party-opponent. FRE 801(d)(2) states that an admission by a partyopponent is not hearsay when: The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement made by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship In this case, the EEOC investigator spoke with John Redmond in his official capacity as the

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Financial Manager of Defendant Eagle Produce regarding the Plaintiffs' age discrimination complaints filed with that agency. As such, the statements made by John Redmond to the EEOC investigator fall clearly within the scope of FRE 801(d)(2), and the notes of their telephone conversation are not hearsay. Even if the EEOC investigator's notes are hearsay, they still may be considered by this Court in deciding the Defendants' Motion for Summary Judgment. The Ninth Circuit Court of Appeals has held that at the summary judgment stage, the focus is on the admissibility of the contents of the evidence rather than the evidence's form. See Block, 253 F.3d at 418-19. In this case, the EEOC investigator's notes are merely a written summary of the telephone conversation between the investigator and John Redmond. Both Mr. Redmond and the investigator have personal knowledge of the substance of their telephone conversation. The evidence contained in the notes of the telephone conversation could be admissible in many other forms at trial. If the EEOC investigator or Mr. Redmond testified at trial about the subject matter of their conversation based on their personal knowledge. See Fed.R.Evid. 602. Additionally, the notes of the telephone conversation could be used to refresh the recollection of either the EEOC investigator or Mr. Redmond if they were to forget some details while testifying, even if the notes themselves are inadmissible evidence. See Fed.R.Eviv. 612; United States v. Frederick, 78 F.3d 1370, 1376 (9th Cir. 1996). Finally, even if the notes of the telephone conversation did not refresh the recollection of the EEOC investigator, he may still be able to read the notes into the evidence as a recorded recollection under Fed.R.Evid. 803(5). Because it is clear that the subject matter of the notes of the EEOC investigator's telephone conversation with Mr. Redmond could be presented in an admissible form at trial, this Court should consider the contents of the notes when deciding Defendants' Motion for Summary Judgment. See Fraser, 342 F.3d 1032 at 1037 (because contents of a diary could be presented in an admissible form at trial, the diary may be considered on motion for summary judgment); Accord Hughes v. United States, 953 F.2d 531, 543 (9th
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Cir. 1992) (despite hearsay and best evidence rule objections, affidavit may be considered on summary judgment motion; the facts underlying the affidavit are of the type that would be admissible as evidence even though the affidavit itself might not be admissible). Paragraph 58 is admissible evidence because it is based on the sworn affidavit of Plaintiff Piedad Renteria. Defendants' argument that Mr. Renteria's affidavit "hints" that he was the only employee of Eagle Produce who was disciplined for cashing checks is not only inaccurate, but it is also an insufficient legal basis to strike Mr. Renteria's sworn testimony. In his sworn affidavit, Mr. Renteria stated that: 11. I cashed checks every payday in front of the farm office for several years without ever being reprimanded or told to stop cashing checks on Eagle Produce property. It was not until Owen Brandt was hired as the tractor foreman for Crew 94 that I was told to stop cashing checks on Eagle Produce property. I was not the only employee of Eagle Produce who cashed checks on their property, but to my knowledge I was the only one disciplined for doing so. Affidavit of Piedad Renteria (attached to Plaintiffs Statement of Facts as Exhibit E). There is nothing in Mr. Renteria's affidavit that is ambiguous. The substance of Mr. Renteria's affidavit is based on his personal knowledge, and is therefore admissible under Rule 56(e). Paragraph 59 is admissible evidence because it is based on the sworn affidavit of Plaintiff Piedad Renteria. Defendants' argument that Mr. Renteria's affidavit should be stricken because it is a "sham" affidavit is baseless, inflammatory, and completely without merit. In making such a frivolous accusation against Mr. Renteria, Defendants clearly misapply the standard for striking evidence based on the "sham" affidavit rule. In their Motion to Strike, Defendants' cite Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262 (9th Cir. 1991), which clearly states that the "sham" affidavit rule does not apply when, as in this case, an affidavit is offered to clarify or explain previous testimony if the affiant was confused at the time his former testimony was given: "[The `sham' affidavit] rule does not

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12.

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automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony. Rather, the . . .court was concerned with `sham' testimony that flatly contradicts earlier testimony in an attempt to `create' an issue of fact and avoid summary judgment." 952 F.2d at 267. The Seventh Circuit Court of Appeals held in Miller v. A.H. Robins Co., 766 F.2d 1102 (7th Cir. 1985), that "[a]n inconsistent affidavit may preclude summary judgment...if the affiant was confused at the deposition and the affidavit explains those aspects of the deposition testimony." Id. at 1104. In this case, Mr. Renteria stated in his affidavit that he "became confused during the line of questioning" during his deposition, and part of the purpose of his affidavit was to clarify the meaning of his prior testimony. Additionally, the Ninth Circuit held in Kennedy that "the district court must make a factual determination that the contradiction was actually a `sham.'" 952 F.2d at 267. Mr. Renteria's affidavit clearly does not fall within the purview of the "sham" affidavit rule as articulated by the Ninth Circuit Court of Appeals. Therefore, because this Court cannot make a factual finding that Mr. Renteria's sworn affidavit is a "sham," Defendants' motion to strike Paragraph 59 of the Plaintiffs' Statement of Facts must be denied. Paragraph 67 is admissible evidence because it is based on the sworn deposition testimony of Defendants' witness Owen Brandt. Mr. Brandt testified in his deposition that it was "possible" that some of the workers hired to work on Crew 94 after the Plaintiffs were terminated were hired to perform the work previously done by the Plaintiffs. Earlier in his deposition, Mr. Brandt also testified that on Crew 94, the workers "all do everything the same way, same time, same year, next year, the following year, every year. So, I mean, it's pretty much repetitive." Exhibit B, Tr. pg. 36, ll. 1-4. The reasons set forth by the Defendants for striking Mr. Brandt's testimony are legally insufficient to support their claim that Mr. Brandt's testimony was "pure speculation." Brandt testified about the work performed by the employees on Crew 94 based on his personal knowledge as the former supervisor of Crew 94. If Mr. Brandt's testimony is not clear as to whether or not some of the individuals hired to work on Crew
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94 following the Plaintiffs' terminations were hired to perform work previously done by the Plaintiffs, that is a question of fact that should be left for trial and is not appropriate for decision at the summary judgment stage. Thus, Defendants' request to strike Paragraph 67 should be denied. III. EXHIBIT N OF PLAINTIFFS STATEMENT OF FACTS IS NOT HEARSAY AND DEFENDANTS' MOTION TO STRIKE MUST BE DENIED Paragraphs 38, 44, 54, 55 and 65 are admissible evidence and should not be stricken. Exhibit N to the Plaintiffs' Statement of Facts, which is the basis for the aforementioned paragraphs the Defendants' wish to strike, is not hearsay because it is an admission by a party-opponent under FRE 801(d)(2). Exhibit N clearly falls within the definition of an admission by a party-opponent under FRE 801(d)(2). Exhibit N is a chart that was prepared by John Redmond, the former Financial Officer of Defendant Eagle Produce, and provided to Plaintiffs by Defendants during discovery in the course of this litigation. The chart was provided to Plaintiffs by Defendants in response to Plaintiffs' requests for the employee files and payroll records of the individuals who worked on Crew 94 in 2002, and contains the names, birthdates, dates of hire and dates of termination. Mr. Redmond's deposition testimony regarding the information contained in Exhibit N is as follows: Q. A. Q. A. Q. How do you come up with these - how did you come up with this information? Pulled it off our payroll records. And the payroll records, where do you keep the payroll records? In Scottsdale. So is this an accurate chart of the payroll records that you keep? MR. NEWTON: THE WITNESS: Q. Foundation I hope so.

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BY MS. BRIDGE: And the payroll records, you keep payroll records I'm sorry, you keep payroll records in the normal course of business, correct?

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A. Q.

Correct. And the plaintiffs were not given the payroll records for all of these people, correct? MR. NEWTON: THE WITNESS: Form. I don't know.

Exhibit E, Tr. pg. 47, ll. 8-25. Mr. Redmond clearly testified that he created Exhibit N from payroll records that were kept by Defendants' in the normal course of business. It was Defendants' choice to provide Plaintiffs with a chart summarizing the documents requested rather than the original business records. For Defendants to now claim that the chart created by Mr. Redmond and provided to Plaintiffs in discovery cannot be used as evidence by the Plaintiffs in response to the Defendants' Motion for Summary Judgment because "it cannot be said that Exhibit N accurately summarizes admissible evidence" is a transparent and disingenuous argument. Plaintiffs could not verify the accuracy of the information contained in Exhibit N because, despite repeated requests and motions brought before this Court during discovery, Defendants never provided Plaintiffs with the complete employee files of the individuals whose information is summarized in the chart. Although partial employee files and some payroll records were provided to Plaintiffs after Defendants asserted that the information in Exhibit N was inaccurate, it is impossible for Plaintiffs to create a chart similar to Exhibit N because of the incomplete records provided by Defendants. Aside from Exhibit N, and the Defendants' letter of February 24, 2005 purporting to correct some of the information contained in Exhibit N, none of the documents turned over to Plaintiffs in discovery list the hiring dates and termination dates of the individuals who worked for Crew 94 in 2002. Defendants' argument that Exhibit N is inadmissible because "it is unknown the exact materials Redmond utilized" in making the chart is fallacious and is an attempt by Defendants to exclude an admission by a party-opponent. Defendants cannot respond to discovery requests, and then months after the fact when it has become apparent that

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CENTRAL OFFICE FARMWORKER PROGRAM 305 South Second Avenue P.O. Box 21538 Phoenix, Arizona 85036-1538 (602) 258-3434 FAX (602) 258-4628 TDD (602) 254-9852

Plaintiffs are relying on the information provided in discovery to claim that the evidence is inaccurate and inadmissible when it was provided by the Defendants themselves. The Ninth Circuit has held that documents produced by a party in discovery are deemed authentic when, as in this case, they were offered by the party-opponent. See Maljack Prods., Inc. V. GoodTimes Home Video Corp., 81 F.3d 881, 889 n. 12 (9th Cir. 1996). Therefore, Defendants' argument that Exhibit N is inadmissible hearsay is completely without merit, and their request to exclude the chart prepared by Mr. Redmond should be denied. However, even if Exhibit N is hearsay, the chart is still admissible for consideration at the summary judgment stage because the contents of the chart could be presented in an admissible form at trial. See Fraser, 342 F.3d 1032 at 1037. The chart itself does not have to be admissible at trial to be taken into consideration for purposes of deciding a motion for summary judgment - the contents of the chart merely need to be able to be presented in an admissible form at trial. See Accord, 953 F.2d 531, 543 (9th Cir. 1992). Defendants' argument that it is "unknown exactly what `payroll records' Redmond examined in order to create Exhibit N is not a valid argument for excluding the chart, since Mr. Redmond testified in his deposition that he created Exhibit N from payroll records that Defendants' regularly kept in the course of business. As such, the payroll records are admissible under FRE 803(6) and may be presented as evidence at trial, and the Defendants' request to strike Exhibit N and Paragraphs 38, 44, 54, 55, and 65 should be denied. IV. CONCLUSION Defendants have wasted the time and resources of this Court by filing a frivolous Motion to Strike admissible evidence presented by the Plaintiffs in their Statement of Facts. Defendants have made no credible legal arguments that would allow this Court to sustain any of their motions to strike Plaintiffs' evidence. As such, Plaintiffs respectfully request that this Court deny Defendants' Motion in its entirety and consider all the evidence set forth in Plaintiffs' Statement of Genuine Issues in Opposition to Motion for Summary Judgment.
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CENTRAL OFFICE FARMWORKER PROGRAM 305 South Second Avenue P.O. Box 21538 Phoenix, Arizona 85036-1538 (602) 258-3434 FAX (602) 258-4628 TDD (602) 254-9852

RESPECTFULLY SUBMITTED this 30th day of September, 2005. s/Kristina M. Campbell Kristina M. Campbell Pamela Bridge George H. McKay COMMUNITY LEGAL SERVICES Attorneys for Plaintiffs I hereby certify that on September 30, 2005, I electronically transmitted the attached document 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: J. Mark Ogden J. Greg Coulter Brandon A. Newton LITTLER MENDELSON, P.C. 2425 East Cambelback Rd., Suite 900 Phoenix, Arizona 85016 /s Laura Smith

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