Free Response to Motion - District Court of Arizona - Arizona

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Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Plaintiffs, vs. CITY OF PHOENIX, a body politic of the State of Arizona; OFFICER LYLE MONSON and JANE DOE MONSON, husband and wife; OFFICER NICHOLAS LYNDE and JANE DOE LYNDE, husband and wife; OFFICER TOBY DUNN and JANE DOE DUNN, husband and wife; OFFICER T. HEDGECOKE and JANE DOE HEDGECOKE, husband and wife; and R. GRIFFIN and JANE DOE GRIFFIN, husband and wife Defendants. ____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV03-1892 PHX ROS

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION IN LIMINE REGARDING AZPOST BULLETIN

Plaintiff Teresa August responds that Defendants' Motion in Limine regarding the
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AZPOST bulletin should not be granted as the Bulletin is necessary for Plaintiff to impeach
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Defendants' expert, Commander Jeffeory G. Hynes. When questioned about the obviously excessive use of force referenced in the Bulletin, Commander Hynes repeatedly opined the wrong legal standard regarding excessive use of force. Also, Defendants received a copy of

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the document during Commander Hynes' deposition, and therefore, Defendants cannot claim
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surprise, prejudice or lack of disclosure. I. The AZPOST Bulletin is Relevant to Show Commander Hyne's Lack of Understanding of the Legal Standard for Excessive Use of Force. The AZPOST Bulletin is relevant, not because the fact pattern of Case No. 2 is

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identical to the fact pattern in this matter, but because it evidences Commander Hynes'
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failure to recognize the standard that applies to an excessive force claim.

During his

deposition, Commander Hynes repeatedly refers to the officer's subjective intent to harm the restrained detainee, describing the offense of excessive force when the officer "intentionally and knowingly caused injury to this person that was restrained." (EXHIBIT 1, February 28, 2005 deposition of Jeffeory G. Hynes, vol. II, 205:20-214:14.) As this Court well knows, this is not the standard that applies to a claim for excessive force, which requires the plaintiff to prove that the officers' actions were objectively unreasonable, without any reference to the subjective intent of the perpetrators:

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[T]he "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. See Scott v. U.S., 436 U.S. 128, 137-39, 98 S.Ct. 1717, 1723-24, 56 L.Ed.2d 168 (1978); see also Terry v. Ohio, [392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)] (in analyzing the reasonableness of a particular search or seizure, "it is imperative that the facts be judged against an objective standard"). An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional. See Scott v. U.S., 436 U.S. at 138, 98 S.Ct. at 1723, citing U.S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). Commander Hynes' failure to understand the applicable standard not only impeaches his

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credibility, but undermines the reliability, relevance and admissibility of his testimony as an
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expert. Case 2:03-cv-01892-ROS

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II.
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Plaintiff's Disclosure Was Timely Defendants propounded their request for production on April 16, 2004, only a month

and a half after Defendants' served their initial disclosure statement and before the parties had conducted any significant discovery. The request for production sought only documents regarding impeachment of defendants only, and did not ask for documents regarding lay or expert witnesses. The first depositions did not take place until June 2004, weeks after

Plaintiffs served their responses to Defendants' request for production. By propounding the request for production before any real discovery began, Defendants effectively laid a trap for Plaintiffs, hoping that Plaintiffs would forget about the early request for production that asked

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for documents that are expressly excluded from production by Rule 26, Federal Rules of Civil
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Procedure and instead rely upon Rule 26.

Throughout discovery, Defendants never

referenced nor requested documents related to impeachment and they never indicated that they believed their request for production of impeachment documents applied to anyone other than Defendants themselves. Defendants now seek to have a disclosed document excluded on a hyper technicality, arguing that, although they had a copy of the document in February of 2005, Plaintiffs should not be permitted to use the document to impeach Commander Hynes in trial 23 months later. To exclude disclosed evidence because the disclosure failed to reference a 10-month-old

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request for production is to exalt form over substance, which is not the purpose of discovery:
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The purpose of discovery is to provide a mechanism for making relevant information available to the litigants... thus the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues... Burlington Northern & Santa Fe Railway Co. v. U.S. Dist. Court, 408 F.3d 1142, 1148-49 (9th Cir. 2005) (upholding court's order to disclose documents) (quoting Rule 26(f) advisory

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committee's note (1983 Amendment)). The courts not only disfavor the use of discovery Case 2:03-cv-01892-ROS

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tools "as tactical weapons," but generally refuse to exalt form over substance. See Elliot v.
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Textron, Inc., 192 F.R.D. 494, 500 fn8 (D.Md. 2000) (defendant's claim that it did not have to produce documents because plaintiff made request by letter instead of formally through a Rule 34 request for production exalted form over substance and was another example of defendant's resistance to legitimate discovery requests) and A.S.I. Worldwide

Communications Corp. v. WorldCom, Inc., 115 F.Supp.2d 201, 205 fn5 ("To mechanically enforce the discovery plan deadline in this case would exalt form over substance, particularly because WorldCom could (and presumably would) present the same arguments contained in its present motion in a timely motion for summary judgment"). Simply stated, Plaintiff made

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the AZPOST Bulletin available to Defendants, and they cannot now claim that they did not
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receive it. Instead of objecting to the document at the time it was produced, Defendants waited nearly two years, until the eve of trial, to make any objections. III. Conclusion The Bulletin is relevant to the foundation of Commander Hynes' testimony, and is therefore, admissible. Plaintiffs timely disclosed the AZPOST Bulletin, and Defendants' arguments otherwise amount to gamesmanship through the discovery rules. DATED this 4TH day of January, 2007. TREON & SHOOK, P.L.L.C.

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By:
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s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

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CERTIFICATE OF SERVICE
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I hereby certify that on January 4, 2007, 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 to the following CM/ECF registrants: Daniel B. Treon: Kathleen Wieneke: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

Jennifer L. Holsman: Randall H. Warner:

By:
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s/ Aly Shomar-Esparza

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