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 RE: PLAINTIFF'S PSB INVESTIGATION CLAIM

Plaintiff Teresa August responds that Defendants' Motion in Limine re: Plaintiff's
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Professional Standards Bureau ("PSB") investigation claim should be denied because it
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mischaracterizes the significance of the incomplete PSB investigation and cuts off Plaintiff's ability to show Defendants' willful failure to secure and save important evidence from destruction. Moreover, as Plaintiff has repeatedly stated, she asserts no "negligent investigation" theory or tort, and thus Defendants' continued mischaracterization of the

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moment should be rejected as little more than a self-serving ploy.
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The Phoenix Police

Department failed to secure audiotapes of the dispatch radio transmissions broadcast by the officers at Mrs. August's house, and it appears that these audiotapes were not secured because Sgt. Tomory abandoned the Internal Affairs/PSB investigation on the fallacious claim that he needed more information from Mrs. August in order to conduct his investigation. Secondly, Plaintiffs allege that the Phoenix Police Department has "closed ranks," attempting to hide the actions of Defendants by preventing outside scrutiny of the events of June 10, 2002, to the extent that the Department failed to conduct any internal investigation, hired one of its own as a biased expert, and intentionally allowed audio tapes of

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communications between the officers and dispatch to be destroyed to avoid disclosure of
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embarrassing and damning evidence regarding Mrs. August's arrest.

In particular, Mrs.

August's complaint and the PSB investigation establishes that Defendants were on notice regarding the significance of the tapes and had the resultant duty to preserve the tapes. The PSB complaint and investigation is tied directly to Plaintiff's requested jury instruction regarding spoliation of evidence. I. FACTUAL BACKGROUND Within a few days of Defendant Officers dislocating her elbow, Mrs. August called the Phoenix Police Department and registered a complaint about the severe injury she suffered

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and the abusive conduct of the officers.
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Concurrently, Sgt. Eric Wykoff notified internal

affairs that a use of force complaint might be forthcoming. As a result, Sgt. Joe Tomory commenced an "investigation." On July 31, 2002, 51 days after the incident, Sgt. Tomory contacted Teresa August about the incident, telling her "I just wanted to let you know that I have been assigned to look into the events that occurred on, I believe it was... June tenth, yes ma'am." (emphasis added) Still upset and recovering

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from yet another surgery to repair her elbow, Mrs. August referred Sgt. Tomory to her
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attorney, Daniel Treon.

Sgt. Tomory then contacted Daniel Treon, informing Mr. Treon,

"...I'm with the Professional Standards Bureau of the Internal Affairs Division... and I've been tasked with looking into the matter...I'm just trying to gather the facts of the investigation..." (emphasis added) In response, Mr. Treon informed Sgt. Tomory about the status of Mrs. August's medical treatment and that she was not emotionally ready to talk with him. Mr. Treon invited Sgt. Tomory to call Mr. Treon around August 22, 2002, to discuss an interview with Mrs. August. Sgt. Tomory agreed to call again around August 22, 2002. Sgt. Tomory did not call again until October 17, 2002, or after Mr. Treon wrote Sgt.

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Tomory on October 14, 2002, asking for tapes of radio transmissions and requesting
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additional time before the interview of Mrs. August, due to her continuing health problems related to the dislocated elbow and her hurt and anger: "I appreciate that you have an investigation to conduct, however, it maybe [sic] better that a little more time passes before the August family is amenable to interview." (emphasis added) In his voice mail message, clearly left in response to the letter from Mr. Treon, Sgt. Tomory contradicted himself, say, "there is no investigation because, as of this time, there has been no formal allegations of any inappropriate behavior on the part of the officers on that evening." Sgt. Tomory made no further attempt to contact Mr. Treon or schedule an interview of Mrs. August.

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The radio transmissions were made as events unfolded, and could clearly contain
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factual information regarding what officers were doing, observing and reporting. Despite Sgt. Tomory's "investigation," initiated in direct response to Mrs. August's complaint made days after the incident, Sgt. Tomory did not secure the tape recordings and they were destroyed by the police department. (EXHIBIT 1, copy of September 24, 2002 memorandum from City of Phoenix to Daniel Treon re: request for radio transmissions).

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On November 22, 2002, Mrs. August filed her notice of claim with the City of Phoenix,
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in conformance with the 180-day requirement of A.R.S. §12-821.01. The notice of claim identified the facts supporting the claims of both Teresa and Mark August, including "While effecting her arrest, [Defendants] grossly dislocated [Mrs. August's] elbow, causing severe, permanent and disabling injuries" and specifically alleged, assault, excessive force, unreasonable seizure pursuant to 42 U.S.C. §1983, negligence, gross negligence and a violation of the City of Phoenix Police Department General Orders. Defendants now acknowledge that PSB conducted an "investigation," but are claiming that the investigation is irrelevant; alternatively, Defendants posit, if the PSB investigation is

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relevant, then Plaintiff's attorney Daniel Treon is a witness because he is "the person
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responsible for the halting of the PSB investigation." Defendants have produced no evidence regarding guidelines for PSB investigations, provided no basis for their claim that the PSB could not conduct any investigation until it had interviewed Mrs. August, explained why it did not make any further attempts to interview Mrs. August, or why it could not simply secure the audio tapes as part of the investigation already underway. II. LEGAL ANALYSIS A. Simple Relevance

This is not a "subsequent remedial measures" issue ­ it's a very simple issue related
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to Defendants' spoliation of evidence ­ crucial evidence which would have shed light on the
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officers' communications at the scene: why did they stormed into Mrs. August's home without a warrant and why did they feel the need to be so outrageously aggressive with her? The PSB investigation is immaterial to whether the officers were punished or even investigated ­ it relates simply to the fact that it was an ongoing investigation and Sgt. Tomory did not take the crucial step of securing and saving the radio dispatches. Sgt. Tomory's failure deprived

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Mrs. August of the ability to show that the reasons the officers now claim they had to storm
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into her house did not exist prior to their actions but are, in fact, manufactured, after-the-fact, trumped up justifications. It is undisputed that Defendants were conducting an investigation into the officers' conduct ­ why else would Sgt. Tomory call Mrs. August on July 31, 2002 and tell her he was "investigating the matter?" It is also undisputed that even though the tape recordings had not been destroyed by July 31, 2002, Sgt. Tomory, by failing to secure the tapes as part of his investigation, allowed them to be destroyed by the 60th day after the incident. In this case, Plaintiff intends to use the PSB process to demonstrate that Defendants

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were on notice regarding Plaintiff's claim within days of June 10, 2002, based on a telephone
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call from Mrs. August, but at the very least by July 15, 2002, the date of Sgt. Wyckoff's Use of Force/Injured Prisoner Report. Despite the obvious importance of all evidence and

records related to the events that day, Defendants failed to preserve the tapes of the radio transmissions between the responding officers and dispatch. B. The Evidence Related to the PSB Investigation Does Not Constitute Subsequent Remedial Measures/Rule 407 Does Not Apply. Unlike the

The cases cited by Defendants are wholly irrelevant to this moment.

investigations in Maddox v. City of Los Angeles, 792 F.2d 1408 (9th Cir. 1986) and Specht v. Jensen, 863 F.2d 700 (10th Cir. 1988), the PSB investigation here did not produce any conclusions or result in any discipline. Specht specifically identified the reference to the exercise of poor judgment by the officers and the taking of disciplinary action as the "remedial measures taken by the City to prevent the recurrence of the poor judgment the investigation revealed, and is therefore within the ambit of Rule 407." Specht at 701-02

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(citing Maddox and Rocky Mountain Helicopters, Inc. v. Bell Helicopters, Inc., 805 F.2d 907,
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918-19 (10th cir. 1986). Case 2:03-cv-01892-ROS

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In Rocky Mountain Helicopters, the court distinguished between an investigation into
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the cause and the "actions taken to remedy any flaws or failures indicated by the test." Rocky Mountain Helicopters at 918. Furthermore: "[w]e believe that the policy considerations that underlie Rule 407, such as encouraging remedial measures, are not as vigorously implicated where investigative tests and reports are concerned. To the extent that such policy concerns are implicated, they are outweighed by what the Westmoreland [v. CBS Inc., 601 F.Supp. 66, 68 (S.D.N.Y. 1984)] court referred to as the danger of depriving "injured claimants of one of the best and most accurate sources of evidence and information." Rocky Mountain Helicopters at 918-19. Since the investigation by PSB did not result in any

"subsequent remedial measures," Maddox, Specht and Rule 407 do not apply.
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C.
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The Prejudicial Effect Does Not Outweigh the Probative Value.

Sgt. Tomory was definitely conducting an investigation into the incident on June 10, 2002, and Plaintiffs seek only to show that his investigation failed to secure the tapes. Sgt. Tomory reached no conclusions, and no disciplinary action was taken against the officers. Therefore, the analysis in Maddox, which involved a completed internal affairs investigation that resulted in disciplinary action against the defendant police officer, does not apply. Moreover, Maddox noted that the "evidentiary issue presents a close question," and declined to second guess the "balancing of the probative value and prejudicial effect" done by the district court. Maddox at 1417-18. If Maddox is a close question, then the facts in this matter

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weigh heavily toward the probative value and against the claim of prejudicial effect.
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Based on the Phoenix Police Department's inadequate, superficial and aborted "investigation," the jury may rightfully infer that the lack of investigation was intentional, and therefore the failure to preserve the recordings of the radio transmissions was intentional, because the transmissions contained evidence harmful to Defendants. This probative value

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greatly exceeds any possibility the jury "could wrongfully infer responsibility upon [sic] the
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City based on the attempt to conduct (or lack of) [sic] a PSB investigation." C. The Documents Included in Plaintiff's Fifth Supplemental Disclosure Statement Should Not Be Precluded as Evidence.

Defendants' objection to Plaintiff's Fifth Supplemental Disclosure Statement is
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misplaced and misleading. As an initial matter, Defendants do not indicate how they are
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prejudiced by the timing of the disclosure. More disturbing, and more misleading, is the fact that Defendants had possession and knowledge of the February 17, 2005 letter since February 17, 2005, because counsel for Defendants authored the letter. Defendants failed to cite any authority for the proposition that a plaintiff must disclose what a defendant not only possesses, but was actually created by counsel for the defense. The other two letters, dated September 20, 2006 and September 21, 2006, could not have been disclosed by the discovery deadline of February 28, 2005 for the simple reason they were not written until September 2006, and therefore, disclosure on October 6, 2006

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would be untimely for good cause.
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E.

Plaintiff's Counsel Daniel Treon is Not a Proper Witness.

Plaintiff Teresa August never refused to submit to an interview with Sgt. Tomory; therefore, Plaintiff's counsel Daniel Treon's testimony regarding the reason why an unfounded assertion did not occur is irrelevant, unnecessary, and improper. Mr. Treon has no factual information in this matter, unlike the plaintiff's attorney in Detoy v. City and County of San Francisco, 196 F.R.D. 362 (N.D.Cal. 2000) (attorney had possession of vehicle decedent was riding in, defendants entitled to question attorney about what was done to car, would not intrude on attorney-client or work product privileges). All Defendants hope to do is

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to blame the undersigned for Sgt. Tomory's failure to secure the audio tapes.
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That

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accusation is silly on its face, and Defendants should not be allowed to flail away at Plaintiff's
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counsel with a "blame the lawyer" strategy. The courts typically do not permit an attorney to even be deposed unless: (1) No other means exist to obtain the information than to depose opposing counsel; The information sought is relevant and nonprivileged; and The information is crucial to the preparation of the case.

(2)
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(3)

American Cas. Co. of Reading, Pennsylvania v. Krieger, 160 F.R.D. 582 (S.D.Cal. 1995) (citing Shelton v. American Motors corp., 805 F.2d 1323, 1327 (8th Cir. 1986)). Other

witnesses regarding Mrs. August's alleged failure to submit to an interview include Sgt. Tomory, and Mrs. August herself. The information is not relevant and it is privileged. Finally, the information is not crucial. Defendants' attempt to drag Mr. Treon into the case as a witness is improper, and for the same reasons the court typically does not permit deposition of opposing counsel ­

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"experience teaches that countenancing unbridled depositions of attorneys often invites
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delay, disruption of the case, harassment, and unnecessary distractions into collateral matters." Epling v. UCB Films, Inc., 204 F.R.D. 691 (D. Kan. 2001) (citation omitted) (motion for protective order granted) and Krieger at 588. The chilling effect on the attorney-client relationship is also a concern. See Krieger at 588. Indeed, the reason for Mrs. August's alleged refusal to be interviewed is a collateral matter, and the only purpose is to disrupt and harass. This is not an insurance bad faith case like Savoy v. Richard A. Carrier Trucking, Inc., 178 F.R.D. 345 (D.Mass. 1998) or State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, 13 P.3d 1169 (2000). Mrs. August was under

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no contractual or common law obligation to submit to an interview, and if she in fact refused
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is irrelevant from the perspective of the police investigation (unless the reason is improper
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intimidation by the officers under investigation) and does not place any privileged communication at issue. Moreover, the reasons for the delay in the interview were plainly logical: Mrs. August was under the duress of multiple surgical procedures to attempt to repair her permanently injured elbow, and she was understandably traumatized and angered by the unprovoked and violent attack by Defendants. Defendants allegation that Plaintiff's counsel "did want [sic] his client `creating a record' of this incident before suit was filed or without the benefit of his directing the interview" presumes that Mrs. August's case would not benefit from Defendants' early recognition of their liability, or that Plaintiff's attorney could not be

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present during an interview with Sgt. Tomory. Defendants' argument is speculative and
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irrelevant, and does not address Defendants' obligation to protect the public from attack by rogue officers and to preserve obviously relevant evidence. Furthermore it is more than a little disconcerting that internal affairs apparently will not investigate an incident when an unusual, serious injury occurs unless the arrestee, despite the ongoing threat of prosecution, willingly submits to an interview with another member of the same police department that inflicted the very injuries being investigated. Such a policy can only encourage improper intimidation of arrestees after an incident of excessive force. Based on the case law, applied to the facts of this matter, Mr. Treon is not a proper

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witness: he has no personal knowledge of non-collateral facts, and the attorney-client
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communications are not at issue in this case. III. CONCLUSION The fact that Sgt. Tomory was conducting a PSB investigation and that as part of such an investigation he knew to secure the radio dispatch tapes, but did not is relevant because it directly supports Plaintiff's claim that Defendants intentionally allowed the recordings of

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contemporaneous radio transmissions made during the events at issue in this excessive
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force claim to be destroyed.

Defendants knew of the potentially improper behavior and

Plaintiff's claim arising therefrom, based on the routine nature of the initial call and investigation, and the severe injury to the elderly woman, caused by the police from whom she sought assistance. The evidence is relevant and not prejudicial, for the aforestated reasons, and Mr. Treon is not a proper witness on this or any other issue in this matter. 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

CERTIFICATE OF SERVICE 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:
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Randall H. Warner:
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By:

s/ Aly Shomar-Esparza

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