Free Motion in Limine - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Rolsman, Bar #022787 JONES, SKELTON & ROCHULI, P.L.C. 2901 North Central Avenne, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858

[email protected]
[email protected] Attorneys for Defendants City of Phoenix, Griffin, Dnnn, Lynde and Monson UNITED STATES DISTRICT DISTRICT COURT

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OF ARIZONA NO. CY03-1892-PHX-ROS

10 II Teresa August, et ai, II 12 Plaintiff,

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v.

DEFENDANTS' MOTION IN LIMINE REGARDING TAPE RECORDINGS

131 The City of Phoenix, et aI, 14 15 16 II Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson, move for Defendant.

17 II an Order in limine to allow selected tape recordings to come into evidence in this case. 18 II This request is based on Plaintiffs lack of good faith response to Defendants' Requests for 19 20 21 22

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Admission regarding the audiotapes and transcripts produced in this matter. As a result of lack of good faith response, the audiotape recordings should be entered into

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evidence.

This Motion

is supported

by all Pleadings

on file, the following

23 II Memorandum of Points and Authorities, and the Attached Exhibits.

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MEMORANDUM OF POINTS AND AUTHORITIES FACTUAL BACKGROUND. On March 16, 2004, Defendants sent their Initial Rcquests for Admission to Plaintiff. Request for Admission Numbers 6 and 7 requested Plaintiff to admit: 6. Admit that the 911 transcript attached hereto as Exhibit" 1", is a true and accurate transcription of the audio tape attached as Exhibit 112 n. Admit ~ Deny _

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7. Admit that the police officer interviews attached hereto as Exhibits "3 through 4", are true and accurate transcriptions of the audiotapes attached as, Exhibits "5 through 6". Admit Deny _

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On May 21, 2004, Plaintiff denied Question Number 6 and stated: "Theresa August has no way of authenticating the 911 tape, a recording made by police and in police custody and control, and thus subject to possible tampering, thus she cannot know if the tape is actually what was said to the 911 operator, thus she cannot authenticate the transcript of the tape prepared by agents of the police.'" Plaintiff also denied Question Number 7 and stated: "Theresa August has no way of authenticating the tape recordings, which were recordings made by police and in police custody and control, and thus subject to possible tampering, thus she cannot know if the tape is actually what was said to the police interrogators, authenticate the transcript of the tapes prepared by agents of the police.' thus she cannot

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I See Plaintiffs Response to Defendants' Request for Production dated May 21, 2004, attachcd hereto as Exhibit I. .' See Exhibit I. Dcfendants anticipatc that Plaintiff will assert that the tape recordings violate A.R.S. 13-3989.01. That statute, however, only "authenticates" the tape pursuant to Rule 901(b)(lO) of the ARIZ.R. EVlD. At trial, Defendants will be calling the Custodian of Records to authcnticate the tape recordings.

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Attached to Plaintiffs denial to Defendants' Request for Admission was a

I Verification stating: !II have read the foregoing Plaintiffs' Response to Defendants' First
I Request
for Admissions and Non-Uniform Interrogatories and know the contents thereof; except as to such matters as are stated upon

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information and belief, and as to such matters I believe the same to be true.1I3 During Plaintiffs Deposition Plaintiff was asked: Question (Ms. Wieneke): Now what I want to know is when you got

I Exhibit I compare

Number 6, these requests for admissions, did you ever listen to the tape and it to the transcript at that time, which would have beenAnswer (Plaintiff): Question (Ms. Wieneke): Answer (Plaintiff): No. -- sometime prior to May 21"No. -- 2004? No. So you never made an attempt as of May 2004 to listen to the transcript and compare it to the audiotape of the 9-1-1 call? True. True? Yes, I did not listen to the tape and compare it to this.

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Question (Ms. Wieneke): Answer (Plaintiff): Question (Ms. Wieneke):

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Answer (Plaintiff): Question (Ms. Wieneke): Answer (Plaintiff):

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See Exhibit 1. 3 Document 169 Filed 11/17/2006 Page 3 of 6

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Question (Ms. Wieneke):

And the same question goes for the audiotape and accompanying transcript for the interview of you at the scene of your home, did you ever make that comparison either? Yeah. You made that comparison? I made it yesterday, yeah. Okay. Prior to yesterday had you made that comparison? No'

Answer (Plaintiff): Question (Ms. Wieneke): Answer (Plaintiff): Question (Ms. Wieneke):

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Answer (Plaintiff):

In the Joint Pretrial Order, Defendants listed the 911 tape as an Exhibit. Plaintiff has objected on the basis of "lack of foundation." Defendants have also listed the 911 operator as a foundational witness for the 911 tape. Nevertheless, Plaintiff still insists on making Defendants go through the process of authenticating the 911 tape and laying foundation. The Foundation For the 911 Tape Should Be Deemed Satisfied bv Plaintiff's Failure to Answer Defendants' Request for Admission in Good Faith.

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If a party believes that a response to a Request for Admission is insufficient, that party can move the court to determine whether the answer was sufticient.5 If the

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Court thereafter determines that the answer was insufficient, it can deem the answer an

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, See Plaintiffs deposition transcript, pages 104-109, attached hereto as Exhibit 2.
5 Tri-State Hasp. Supply Corp. v. United States, 226 F.RD. 118, 138 (DD.C. 2005); In re Heritage Bond Litigation, 220 F.R.D. 624, 626 (C.D. Ca!. 2004).

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The sole purpose of Defendants' Requests for Admission was to simplify

3 I evidentiary issues prior to trial. The subject Requests for Admission asked whether the 4 II transcriptions of the tape were true and accurate, and did not request the Plaintiff to 5 II authenticate the tape. This simple request would have allowed for the admission of the 6 II transcript along with the tape recording (after authenticity had been established) to make 7 II the review and analysis of the facts easier for the jury. 8 9 As outlined above, Plaintiff admitted that although she denied the request and signed a Veritication, she failed to even listen to the audiotapes to compare them with

10 II the transcripts attached to Defendants' Requests for Admission before making the denial. II ~There is no question that Plaintiffs response to the Request for Admission was

12 I insufficient, as she failed to even take the first "step" in determining whether the denial 13 I was appropriate! As a result of Plaintiffs failure to sufficiently respond to the Request,

14 I the Court should deem Request for Admission Numbers 6 and 7 as "admitted" and allow 15

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the audiotape recordings be entered into evidence. CONCLUSION. Based on the foregoing, Defendants respectfully request that their Motion

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18 II in Limine be granted. 19

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6 See Ruran v. Beth El Temple of West Hartford, Inc. , 226 F.RD. 165, 168 (D.Conn. 2005); Security Ins. Co. of Hartford v. DIlL Worldwide Exp. NV, 2001 WL 55460 (N.D. Ill. 2001).

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RESPECTFULLY SUBMITTED this 17th day of November, 2006. JONES, SKELTON & HOCHULI, P.L.C.

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By s/Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 290 I North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants City of Phoenix, Griffm, Dunn, Lynde and Monson Electronically filed and served this 17th day of November, 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

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sNicki Wells

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