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/MOTION TO STRIKE REGARDING PLAINTIFF'S IMPEACHMENT EVIDENCE

Plaintiff Teresa August responds that Defendants' Motion in Limine/Motion to Strike
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regarding Plaintiff's impeachment evidence should be denied because the request for
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production that forms the basis for Defendants' argument does not identify or relate to Defendants' expert witness, Michael Carhart, Ph.D. Since the request for production does not involve Dr. Carhart, Plaintiff's "failure to supplement her response" regarding Dr.

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Carhart's deposition transcripts for impeachment is irrelevant and does not support
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Defendants' Motion. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On March 16, 2004, Defendants submitted requests for production that included, "All impeachment evidence against any Defendant, whether or not it is to be used at trial." (emphasis added). Plaintiff responded on May 21, 2004, "No documents known at this time," and Plaintiff reserved the right to supplement her response. On August 2, 2004, almost five months after Defendants propounded the discovery request that is the basis of their motion, Defendants served their Eighth Supplemental Disclosure Statement, disclosing the identity

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and opinions of their experts, including Dr. Carhart.
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II.

LEGAL ANALYSIS A. Dr. Carhart is not the subject of the discovery request, and therefore, supplementation regarding impeachment evidence was not necessary.

"The purpose of impeachment is to challenge the credibility of a witness." United States v. Bagley, 772 F.2d 482, 487 (9th Cir. 1985). Therefore, the "impeachment evidence" Defendants requested is evidence to challenge the credibility of the witnesses named in the request for production, i.e., the defendants themselves. The impeachment evidence at issue

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in Defendants' motion is evidence to impeach the credibility of Dr. Carhart, who is not a
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defendant in this matter. Plaintiff is under no obligation to respond beyond the plain meaning
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of a request for production. Moreover, Plaintiff had no knowledge or information regarding the identify, let alone the credibility, of Dr. Carhart on March 16, 2004, since his identity and opinion had not yet been disclosed by Defendants, and would not be disclosed for nearly five more months. It

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defies logic for Defendants to request information on an expert witness who they have not yet
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identified through disclosure and have not identified by name in the request for production. B. Defendants' Request for Production Improperly Nullifies Rule 26(a)(1)(A) and (B).

Rule 26(a), Federal Rules of Civil Procedure, governs the disclosure requirements for
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parties.
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Under subsections (1)(A) and (B), the rule expressly excludes witness and

document disclosures that are "solely for impeachment," from the parties' disclosure obligations. To permit a party to use discovery to avoid the Rule renders the rule a nullity, and prevents parties from testing and challenging the truthfulness of the opposing party, permitting a less-than-honest party to craft testimony to fit and/or explain the evidence. III. CONCLUSION Defendants did not ask for impeachment evidence regarding Dr. Carhart in their request for production, so Plaintiff was under no obligation to supplement her response regarding the previous deposition testimony of Dr. Carhart. For this and the above-stated

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reasons, Defendants' motion should be denied.
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DATED this 29th day of November, 2006.

TREON & SHOOK, P.L.L.C. 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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