Free Motion in Limine - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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 IN LIMINE/MOTION TO STRIKE REGARDING PLAINTIFF'S IMPEACHMENT EVIDENCE

Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson, through counsel, move for an Order in limine excluding all impeachment evidence listed by the Plaintiff in the Joint Pretrial Order or any other impeachment evidence Plaintiff intends to use at trial. Defendants sent Plaintiff a Request for Production requiring the production of all impeachment exhibits. Plaintiff produced nothing. Accordingly, Plaintiff should be precluded from using any impeachment evidence at trial. This Motion is supported by all Pleadings on file, the following Memorandum of Points and Authorities, and the Attached Exhibits. /// ///

1712893.1

Case 2:03-cv-01892-ROS

Document 162

Filed 11/17/2006

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I.

MEMORANDUM OF POINTS AND AUTHORITIES FACTUAL BACKGROUND. On March 16, 2004, Defendants sent their Initial Requests for Production to Plaintiff. Request for Production Number 7 requested Plaintiff to produce: All impeachment evidence against any Defendant, whether or not it is to be used at trial. On May 21, 2004, Plaintiff responded: No documents known at this time. Plaintiffs reserve the right to supplement this request1 for production as such other evidence becomes known. Plaintiff never submitted any supplemental responses to Defendants' Initial Request for Production regarding the requested impeachment evidence. In the Joint Pretrial Order Plaintiff identified over 100 exhibits and listed eight "impeachment exhibits." The impeachment exhibits, although not produced to

Defendants, consist of transcripts of testimony of one of Defendants' expert witnesses.2 None of these "impeachment exhibits" were ever produced in response to Defendants' Request for Production, nor were they provided to Defendants when they requested them

See Plaintiff's Response to Defendants' Request for Production dated May 21, 2004, attached hereto as Exhibit 1. 2 These include: (1) Michael Carhart, Ph.D's, 02/21/2002 deposition testimony in Hess v. EMC Insurance Company (binding arbitration); (2) Michael Carhart, Ph.D's 03/28/2002 deposition testimony in Brier v. Toyota and State of Arizona, Maricopa County Superior Court Case No. CV1999-005603; (3) Michael Carhart, Ph.D's 04/15/2003 deposition testimony in Koss v. Maricopa County, et. al., Maricopa County Superior Court Case No. CV2001-001247; (4) Michael Carhart, Ph.D's, 08/19/2003 deposition testimony in Chapman v. Morrison-Knudsen, et. al., Maricopa County Superior Court Case No. CV2001-008434; (5) Micahel Carhart, Ph.D's 01/19/2004 deposition testimony in Greenhalgh v. Zurich Insurance (binding arbitration); (6) Michael Carhart Ph.D 04/19/ 2004 deposition testimony in Hanson v. James, Maricopa County Superior Court case; (7) Michael Carhart, Ph.D's 04/27/2004 deposition testimony in Wyatt v. Blaser, State of Arizona, et. al., Maricopa County Superior Court Case No. CV2002-013631; (8) Michael Carhart, Ph.D's 04/29/2004 deposition testimony in Delucchi v. Cardoza Properties, et. al., Contra Costa County Superior Court of the State of California case.
1712893.1

1

2

Case 2:03-cv-01892-ROS

Document 162

Filed 11/17/2006

Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

via email on November 15, 2006 and in correspondence dated November 17, 2006.3 II. LEGAL ARGUMENT. A. Plaintiff Failed To Timely Produce Impeachment Documents. Defendants understand that FED. R. CIV. P. 26(a)(1)(B) does not require the disclosure of exhibits to be used solely for impeachment. Nevertheless, Defendants

timely served Plaintiff with a Request for Production of all exhibits which Plaintiff intended to use as impeachment at trial. Plaintiff did not object to the request, but instead stated that she would supplement with documents as the "evidence became known." (See Exhibit 1.) Since May 21, 2004, however, Plaintiff failed to supplement her initial response and has never produced any documents responsive to Defendants' Requests for Production. In what appears to be an effort to waylay Defendants, Plaintiff, on the eve of trial, has identified at least eight impeachment exhibits, still without ever actually producing them to Defendants, in violation of her obligation to disclose under Rule 34. Plaintiff cannot now be allowed to profit from her failure to respond to Defendants' Requests. Accordingly, Plaintiff's impeachment evidence identified in the Joint Pretrial Order, as well as any yet undisclosed impeachment evidence, must be precluded at trial. III. CONCLUSION. Based on the foregoing, Defendants respectfully request that their Motion in Limine excluding all impeachment evidence by the Plaintiff be granted.

./ / / ///
3

See correspondence attached hereto as Exhibit 2.

1712893.1

3

Case 2:03-cv-01892-ROS

Document 162

Filed 11/17/2006

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
1712893.1

RESPECTFULLY SUBMITTED this 17th day of November, 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 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

s/Gloria Gray

4

Case 2:03-cv-01892-ROS

Document 162

Filed 11/17/2006

Page 4 of 4