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 TAPE RECORDINGS

Plaintiff Teresa August responds that Defendants' Motion in Limine regarding tape
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recordings that were the subject of Defendants' requests for admissions should not be
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deemed admitted or allowed into evidence in this matter. As an initial and dispositive issue, Defendants' motion is improper, because a Motion in Limine: Performs a gatekeeping function and permits the trial judge to eliminate from further consideration evidentiary submissions that clearly ought not be presented to the jury because they clearly would be inadmissible for any purpose. Case 2:03-cv-01892-ROS

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Jonasson v. Lutheran Child and Family Services, 115 F.3d 436, 440 (7th Cir. 1997).
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Defendants are not seeking to exclude evidence, they are seeking to have evidence admitted. Furthermore, the motion is based not upon a rule of evidence, but is in fact a request for sanctions under the Federal Rules of Civil Procedure; moreover, Defendants seek to sanction what is in reality Plaintiff's refusal to excuse Defendants' violation of A.R.S. § 13-3989.01(A) by giving the 9-1-1 tapes in question the same degree of authentication that it otherwise does not possess! Regardless, Defendants' request that the Court enter the recordings into evidence due to "Plaintiff's lack of good faith response" is an impermissible and inappropriate extension of

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the Court's authority to sanction alleged discovery abuses.
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I.

FACTUAL AND PROCEDURAL BACKGROUND Plaintiff's claim arises from a warrantless arrest gone wrong. Defendants' participation

in the events of June 10, 2002 were triggered by Plaintiff's call to 9-1-1. Defendants claim that the tape and transcript they produced are an accurate and complete record of Plaintiff's call, but despite repeated requests from Plaintiff, Defendants have never provided the foundational authentication required by A.R.S. §13-3989.01(A). Hence, Plaintiff denied

Defendants' request for admission, because without the authentication, the tape and accompanying transcript were irrelevant. Plaintiff has (and has expressed) similar concerns

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about the tapes purported to be complete and accurate records of police officer interviews,
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reflected in Plaintiff's denial of Defendants' request for admission no. 7. Whether the transcripts match the tapes proffered by Defendants is not the relevent issue; as stated in Plaintiff's responses to Defendants' requests for admissions, nos. 6 and 7, the issue is the lack of proper foundation for the recordings. In fact, Plaintiff offered to

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stipulate to admission in evidence of the 9-1-1 transcript even though Defendants' disclosure
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of the tape in no way complied with A.R.S. §13-3989.01(A). Defendants did not respond. II. LEGAL ANALYSIS A. Discovery Sanction of Admission is Inappropriate.

Deeming admitted Plaintiff's response to Defendants' requests for admission is a severe discovery sanction, and ordinarily a court should order the filing of an amended answer. Asea, Inc. v. Southern Pacific Transportation Co., 669 F.2d 1242, 1247 (9th Cir. 1981). Asea, in discussing the severe discovery sanction imposed by the district court, noted the offending party had participated in a "year of volatile and acrimonious fighting, during

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which many discovery disputes were placed before the judge as referee," and that the record
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contained evidence that the defendant in fact "had sufficient information to admit or deny the requested admissions." Id. However, Asea then "vacate[d] the judgment for the limited purpose of reconsideration of the order deeming the requests admitted and the filing of appropriate findings of fact," because of the severity of the sanction. Id. Defendants provide no basis for the imposition of such a severe discovery sanction; they are simply hoping that the Court will impose the sanction because of the language in Rule 36(b), Federal Rules of Civil Procedure. Plaintiff's answers to Defendants' requests for admission are not part of a pattern of discovery abuse, and Defendants have produced no

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evidence or argument supporting the imposition of such a severe sanction. If the Court finds
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that Plaintiff's concern about the lack of authentication is irrelevant to the tapes and transcripts, the appropriate remedy is to order Plaintiff to amend her answers. However, Defendants waited until the eve of trial to raise this issue with the Court. The time to raise the issue was in May 2004, after Plaintiff served her answers; certainly, discovery disputes should be addressed before or at the close of discovery, not months later.

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It is simply too late for Defendants to seek sanctions for discovery violations related to
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discovery made over 1 ½ years ago. B. Defendants' Requested Discovery Sanction is Impermissible.

Finally, Defendants seek not only to have Plaintiffs "admit" that the transcripts are true and accurate transcriptions, but Defendants want the Court to rule that the tapes and/or transcripts themselves are admissible, without having to provide the foundation and/or chain of custody as requested by Plaintiff (and as clearly required by the rules of evidence). Defendants cite no authority for admitting evidence without foundation as a sanction for failure to properly answer a request for admission. Even if the Court were to determine that

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Plaintiff should bear the severe discovery sanction of having the requests for admission
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deemed admitted, Defendants still must provide the proper foundation for admission of the evidence. Due to Defendants' failure to comply with the requirements of A.R.S. § 13-

3989.01(A) the evidence lacks the necessary foundation and is therefore, inadmissible. III. CONCLUSION Motions in Limine permit the court to determine the admissibility of evidence in an efficient manner. They are not intended to reward gamesmanship and impose sanctions for alleged discovery violations committed 1 ½ years earlier. DATED this 29th day of November, 2006. TREON & SHOOK, P.L.L.C.

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By:

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 November 29, 2006, 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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