Free Motion to Quash - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 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) 200-7858 [email protected] [email protected] Attorneys for Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendant. NO. CV03-1892-PHX-ROS DEFENDANTS' MOTION TO QUASH SUBPOENA OF STEVEN AUGUST

Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson, through counsel, respectfully requests that the subpoena compelling Steven August appearance to testify at the subject trial scheduled to begin on January 9, 2007 be quashed based on non-disclosure of this witness.1 Fed. R. Evid. 45(c)(3) states that a subpoena can be quashed if it:(1) fails to allow reasonable time for compliance; (2) requires a person to travel an unreasonable distance; (3) requires disclosure of privilege or other protected matter; and (4) subjects a person to undue burden. Although Defendants' objection to the subpoena for Steven August's presence at trial does not fall squarely into these four categories, Alper v. U.S. is instructive. In Alper, 190 F.R.D.

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See correspondence and subpoena to Steven August, attached hereto as Exhibit 1.

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281 (D.Mass., 2000), the Court granted a Motion to Quash where a party subpoenaed a witness to testify at trial and included a request for production of documents. The Court found that the subpoena requesting documents at trial, that should have been issued during the course of discovery, should be quashed "because it improperly circumvented the discovery schedule." In this case, Plaintiff has similarly attempted to "circumvent the discovery schedule" by subpoenaing a witness that was never disclosed in this case. The first time Steven August was listed as a witness in this case was in Plaintiff's "witness" section of the Joint Pretrial Statement filed with the Court on November 17, 2006. The anticipated testimony states that "Stephen August is expected to testify regarding his mother's claims and damages as related to the incident on June 10, 2002. He will testify at trial."2 Defendants objected to Mr. August as a witness because "Plaintiff never listed this witness in her Rule 26 Statement or in answers to discovery." Thereafter, on December 6, 2006, Plaintiff's counsel sent Mr. August correspondence and a "subpoena in a civil case" demanding that he appear as a witness in the subject trial. On December 11, 2006, Defendants sent Plaintiff's counsel correspondence advising him as follows: We are in receipt of your subpoena and correspondence to Steve August regarding his testimony during the upcoming trial. As you know, not only was Mr. August not disclosed as a witness in this case, he was not listed as a potential witness in Plaintiffs' Responses to Defendants' Initial Request for Non-Uniform Interrogatories. As a result, please be advised that we object to Mr. August's testimony at trial based on non-disclosure under Rule 26.3 Plaintiff's counsel did not respond to Defendants' December 11, 2006 correspondence. In an attempt to follow up before filing this Motion, Defendants sent

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See Pretrial Statement, page 17. See correspondence, attached hereto as Exhibit 2.

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correspondence to Plaintiff's counsel again.4

Plaintiff's counsel did not respond to this

correspondence either. Accordingly, Defendants presume that Plaintiff intends to call Mr. August to testify at trial despite non-disclosure of the witness. For the foregoing reasons, Defendants respectfully request that the subpoena compelling Steve August's appearance at the trial scheduled to begin on January 9, 2007 be quashed. DATED this 15th day of December, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By /s/Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson Electronically filed and served this 15th day of December, 2006, to: ALL PARTIES ON ELECTRONIC SERVICE LIST COPY mailed this same date to: The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003

BY

s/Peggy Sue Trakes

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See correspondence, attached hereto as Exhibit 3.

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