Free Motion in Limine - District Court of Arizona - Arizona

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STRUCKMEYER & WILSON 910 E. Osborn Rd. Phoenix, AZ 85014 PHONE: (602) 248-9222 FAX: (602) 263-0464 Donald R. Wilson, 1239 [email protected] Garvey M. Biggers, 9932 [email protected] Thomas J. Cesta, 21453 [email protected] Defendants Darrell Lee Ekdahl; Jane Doe Ekdahl; George Vanden Bossche; Karolyn Vanden Bossche; and Vandy's Transportation, Inc.

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Palma Baca Urrutia; Patricia Urrutia-Baca; Luis Javier Urrutia-Baca; Elizabeth UrrutiaBaca; Javier Arturo Urrutia-Arrieta; and Gloria Estela Sandate, ) ) ) ) ) Plaintiffs, ) ) vs. ) ) Darrell Lee Ekdahl and Jane Doe Ekdahl, ) husband and wife; George Vanden Bossche ) and Karolyn Vanden Bossche, husband and ) wife; and Vandy's Transportation, Inc., a ) California corporation, ) ) Defendants. ) ____________________________________) NO. CV-03-1990-PHX-PGR MOTION IN LIMINE TO PRECLUDE PLAINTIFFS' NEWLY DISCLOSED EVIDENCE: CASINO CHIPS, HUNDRED DOLLAR BILLS, WALLETS AND CLOTHING EVIDENCE; MOTION FOR ADVERSE JURY INSTRUCTION FOR SPOLIATION OF EVIDENCE (Oral Argument Requested) (Assigned to the Honorable Paul G. Rosenblatt)

Defendants, by and through undersigned counsel, move for the Court to preclude plaintiffs from using testimony newly disclosed in violation of FRCP 37(c) three years after the events in question. Defendants also move for an adverse jury instruction for

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spoliation of evidence.

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Plaintiffs contest medical examiner Dr. Zhang's opinion that the body recovered from the driver's seat is the body of Javier Luis Urrutia-Sandate (hereinafter, Javier). Plaintiffs seek to bolster their claim that decedent Jose Luis Urrutia-Arrieta (hereinafter,

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Jose) was driving, by offering testimony not before disclosed. Plaintiffs also claim to have located casino chips at the accident location. The plaintiffs have never produced the casino chips, and have never before admitted to the knowledge that Jose and Javier might have gone to a casino. Because plaintiffs have had this information in their possession since the accident occurred and never before disclosed it, certainly not within the

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deadlines named by the court, they are in violation of FRCP 37(c) cannot use it for any purpose, including to support their Motion in Limine, or to refute Dr. Zhang's opinion. Furthermore, plaintiffs failed to obtain surveillance videos from the places allegedly visited by Jose and Javier; and plaintiffs concealed the existence of these

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videotapes from defendants until defendants would have no opportunity to obtain these. I. FACTUAL BACKGROUND On July 17, 2006, plaintiffs filed the JPTS in which for the very first time they indicated that plaintiff Patricia Urrutia Baca (hereinafter, Patricia) assisted in the identification of her father by advising DPS of the clothing her father was wearing and

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the fact that he had a large amount of cash with him in $100 bills. What is most interesting about this newly concocted proposal is that not one single DPS officer has ever indicated such advice. Not one citation to a single line of testimony can be used to prove that such words were spoken. It was also described that Patricia would further testify that she and family

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members went to the scene and found personal items, including two chips from the Gila River Casino. Furthermore, the two casino chips described have never been produced.
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Plaintiffs also indicated that plaintiff Palma Baca de Urrutia would testify that decedent Urrutia was carrying a wallet with large bills, and that she too saw the two Gila River Casino chips at the scene of the accident.

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In addition, plaintiffs for the first time indicated that plaintiffs Javier Arturo Urrutia Arrieta and Gloria Estela Sandate will testify that their son did not use a wallet. This testimony had never been disclosed before. The testimony was neither elicited nor offered during deposition. It was never provided in response to any discovery request.

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Finally, defendants have contacted the Gila River Indian Casino, and the convenience store where Jose and Javier fueled the Urrutia truck. Defendants have learned that the casino surveillance tapes are destroyed in seven (7) days, and the convenience store tapes are destroyed not more than one (1) month after being created.

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(See Tom Cesta Affidavit dated August 9, 2006, incorporated by reference.) a. Plaintiffs Cannot Use Their Late Disclosure For Any Purpose, Including For a Motion In Limine To Preclude Defendants' Newly Discovered Evidence. Plaintiffs seek to use testimony from family members regarding clothing worn by decedent Jose Urrutia (hereinafter, decedent Urrutia) and large denominations of cash

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that they will testify that he was carrying. They intend to testify that Javier did not use a wallet. They also indicated having observed casino chips at the accident site. The first introduction of this testimony was when plaintiffs inserted it into the most recent JPTS filed on July 17, 2006. Plaintiffs must comply with F.R.C.P. 37(c)(1):

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A party that without substantial justification fails to disclose information required by Rule 26(a)... is not, unless such failure is harmless, permitted to use as evidence at trial, any hearing or on a motion any witness or information not so disclosed. (Emphasis added.)
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1.

No Substantial Justification.

"The burden of establishing a substantial justification is on the party being sanctioned." Russell v. State of Ariz., 2006 WL 273603, 1 (D.Ariz.,2006), citing Hyde &

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Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir.1994). No justification for this lack of disclosure could ever be substantial enough to excuse the intentional concealment. Plaintiffs have had more than three years to come forward with this testimony. 2. Defendants Would be Harmed by Admission of the Late Disclosed "Testimony." The failure to disclose this testimony and the failure to disclose the existence of the Gila River casino chips is not harmless. Defendants have no opportunity to contest the existence of these casino chips, and no capacity to comment on the meaning that these

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impart. The concealment until now that Jose and Javier may have taken a side trip to the Gila River Casino was an intentional failure to disclose relevant evidence, as was the failure to produce the casino chips. Defendants have been greatly prejudiced by this concealment and late disclosure. Defendants have incurred thousands of dollars in expert witness fees attempting to account for the decedents' time, travels, and events leading up

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to the accident. A. The Late Disclosure gives Defendants Little Chance to Explore the Impact of the Testimony. Defendants have never had the opportunity to address with their experts the impact of the late night gambling on the attentiveness of the driver. Furthermore, the

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failure to obtain the surveillance videos from the casino and the convenience store prevented defendants from having the opportunity to learn while discovery was still open
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that Javier was driving. The fact that Javier was driving shows that both Javier and Jose bear fault for the accident. The missing evidence is thus highly important and relevant. B. The Late Disclosure Has Prevented the Opportunity to Impeach the Testimony. Furthermore, plaintiffs have indicated that they described the clothing that decedent Urrutia was wearing. However, review of the medical examiner's report merely shows that the medical examiner noted the presence of clothing. There is no description of clothing adequate to contest the new testimony that plaintiffs suddenly intend to

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provide. Witnesses' memories fade. If allowed, defendants would now have to confront testimony that they never had an opportunity to investigate while still fresh. Because plaintiffs lacked substantial justification to excuse their failure to disclose the testimony for three years, and because admission of the testimony would not

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be harmless, the testimony should be excluded for all purposes. As emphasized above, any testimony excluded for violation of FRCP 37(c) can not be used to support a motion. On pages 4 and 5 of plaintiffs Motion in Limine, the plaintiffs claimed that "the information from family members regarding the type of clothing worn by Jose Urrutia and the fact that he was carrying cash in large denominations is consistent with the

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clothing and money found on the body of the driver." However, this is the testimony that plaintiffs have never before disclosed to defendants. b. Plaintiffs Intentional Concealment of Facts, and Failure to Obtain the Surveillance Tapes IS Spoliation. Defendants are prejudiced by plaintiff's failure to preserve evidence and failure to

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disclose facts and the existence of video data and of Casino Chips. The tapes ceased to

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exist because plaintiffs spoliated them, and the casino chips have never been produced. Spoliation will be explained by the following case law and argument. Defendants do allege spoliation. The body of law regarding spoliation is not yet

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well developed along the line that defendants urge, but there are cases that support a ruling in this regard. Moreover, policies behind spoliation favor this interpretation. Precedent is important, but jurisprudence grows strong when logic is also employed. Spoliation is "The intentional destruction, mutilation, alteration, or concealment of evidence, usu. a document. If proved, spoliation may be used to establish that the

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evidence was unfavorable to the party responsible." Blacks Law Dictionary, (8th Ed. 2004). "Once spoliation has been established, the sanction chosen must achieve deterrence, burden the guilty party with the risk of an incorrect determination and attempt to place the prejudiced party in the evidentiary position it would have been in but for the

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spoilation." Trigon Ins. Co. v. U.S., 204 F.R.D. 277, 287 (E.D.Va.,2001). 2. Factors Controlling the Decision to Apply the Presumption of Spoliation. The Washington Court of Appeals indicated that two factors are controlling in the decision to apply the presumption "(1) the potential importance or relevance of the

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missing evidence; and (2) the culpability or fault of the adverse party." Henderson v. Tyrrell, 80 Wash.App. 592, 607, 910 P.2d 522, 532 (Wash.App. Div. 3,1996) (citing Sweet v. Sisters of Providence in Washington 895 P.2d 484, 491 (Alaska,1995) and also Baliotis v. McNeil, 870 F.Supp. 1285, 1289 (M.D.Pa.,1994) for the proposition that a balancing of these interests is required.)

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//

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A.

Importance of the Evidence.

In review of the actions of plaintiffs, the concealment until now that Jose and Javier may have taken a side trip to the Gila River Casino was an intentional failure to

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disclose relevant evidence, as was the failure to produce the casino chips. Defendants have been greatly prejudiced by this concealment and late disclosure because they have never had the opportunity to address with their experts the impact of the late night gambling on the attentiveness of the driver. Furthermore, the failure to obtain the surveillance videos from the casino and the convenience store prevented defendants from

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having the opportunity to learn while discovery was still open that Javier was driving. The fact that Javier was driving shows that both Javier and Jose bear fault for the accident. The missing evidence is thus highly important and relevant. B. Plaintiff's Fault for the Destruction.

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The key question is thus the degree of blame that plaintiffs have for the destruction of the evidence. With the casino chips, this is an easy analysis. Plaintiffs claim to have encountered the chips at the scene of the accident. If so, then these chips were entirely in their control. Plaintiffs either failed to retain the chips, or disposed of them later without ever telling defendants of their existence (unless plaintiffs still have

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them and still have not produced them.) This intentional concealment and destruction of evidence shows that plaintiffs are extremely blameworthy for spoliation. With the videos, if the analysis is followed to its logical end, then the only reasonable conclusion is also that plaintiffs are to blame for the destruction of this evidence. It may be true that plaintiffs never had these in their possession before they

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were destroyed. The casino recycled the parking lot video in seven days, and the convenience store did so in 30 days. Nevertheless, what is most significant is that before
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the videos were destroyed, plaintiffs never made defendants aware of the possibility of relevant evidence, and plaintiffs made no effort to preserve these videos. "If a party cannot fulfill this duty to preserve because he does not own or control the evidence,

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he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence." Silvestri v. General Motors Corp., 271 F.3d 583, 591 (C.A.4 (Md.),2001). Furthermore, "[p]eculiar knowledge or possession of evidence carries with it the duty of giving it out if one would avoid the imputation that its concealment naturally reflects."

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Southwest Cotton Co. v. Clements, 25 Ariz. 124, 130, 213 P. 1005, 1008 (Ariz.1923). When plaintiffs failed to obtain the videos for preservation, or even to inform defendants of the whereabouts of Jose and Javier, at a time that defendants could also have obtained the videos, plaintiffs did not fulfill their duty to preserve, and did not act

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with candor or professionalism. Plaintiffs argument that they did not know that defendants would allege that Javier was driving is without merit. The duty to preserve the evidence began before the lawsuit was filed. Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998). 3. Public Policy IS in Accord with Imposing the Presumption

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The case law supports defendants' position that plaintiffs are liable for spoliation not just for the casino chips, but also for the surveillance videos. The public policy behind spoliation likewise supports this finding. The presumption should be used to achieve deterrence, put the risk of an incorrect determination on the spoliator, and attempt to return the prejudiced party to the position he would occupy if the destruction

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had not occurred. Trigon Ins. Co. v. U.S., 204 F.R.D. 277, 287 (E.D.Va.,2001).

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In cases where comparative fault applies, plaintiffs have all of the facts. Plaintiffs should not be allowed to hide the facts until the proof is destroyed. To act as a deterrent, the court should find that plaintiffs willful concealment of relevant evidence is spoliation,

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especially because plaintiffs were the only party in the position to ensure preservation of the evidence at a time when there was an opportunity to do so. Plaintiffs should have to face the risk that the jury will conclude that the videos contained evidence that was harmful to plaintiffs. Defendants should not labor under the burden of lack of evidence when the lack was occasioned by plaintiffs' willful failure to preserve it. Thus, the court

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should impose the rebuttable presumption of spoliation against the plaintiffs. Plaintiffs diligently wrote to Vandy's to preserve many items of evidence. (Exhibit B). But plaintiffs ignored the surveillance tapes. Plaintiff's acts beg the question, "Why were you able to write to Mr. Vanden Bossche to preserve a list of

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documents, were you not able to request the 7-11 tapes?" 7-11 destroys tapes after 30 days. Gila River destroys tapes after 7 days. Well before the complaint was even filed, before defendants filed an Answer, and years before plaintiffs told defendants about the decedents' activities, the tapes ceased to exist because plaintiffs did not attempt to preserve them. Only plaintiffs were in the position to know of the decedents' activities.

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Only plaintiffs were in a position to preserve the tapes while they still existed. Furthermore, the inability to get the tapes is the only prejudice plaintiff's claim. Thus, while absolute prejudice exists to defendants, plaintiffs cannot show prejudice at all. II. CONCLUSION Plaintiffs' testimony is violation of the court's orders, and the mandates of FRCP

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37(c). Plaintiffs cannot show substantial justification for the late disclosure, and admission would not be harmless. Thus, it must be precluded.
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However, plaintiffs' testimony does show that plaintiffs intentionally concealed relevant testimony and evidence. Defendants are entitled to an adverse jury instruction regarding the casino chips and the video surveillance tapes.

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RESPECTFULLY SUBMITTED this 9th day of August, 2006.

STRUCKMEYER AND WILSON

By s/Garvey M. Biggers Donald R. Wilson Garvey M. Biggers Thomas J. Cesta Attorneys for Defendants Darrell Lee Ekdahl; Jane Doe Ekdahl; George Vanden Bossche; Karolyn Vanden Bossche; and Vandy's Transportation, Inc. I hereby certify that on August 9, 2006, I electronically transmitted the foregoing document to the Clerks Office using the cats CM/ECF System for filing and transmittal of a notice of Electronic Filing to the following CM/ECF registrants Augustine B. Jimenez III. ORIGINAL of the foregoing filed. COPY of the foregoing hand-delivered this 9th day of August, 2006 to: The Honorable Paul G. Rosenblatt UNITED STATES DISTRICT COURT Sandra Day O'Connor US Courthouse 401 W. Washington St. Phoenix, AZ 85003

s/Garvey M. Biggers
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