Free Reply to Response to Motion - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Elizabeth A. Petersen (#018377) Robert G. Vaught (#020717) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6378 [email protected] [email protected] Attorneys for Defendant DriveTime Automotive Group IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Debra Jilka, Plaintiff, v. DriveTime Automotive Group aka Ugly Duckling Corporation, Defendant. Defendant DriveTime Automotive Group aka Ugly Duckling Corporation ("DriveTime"), through its undersigned counsel, hereby submits its Reply in support of its Motion to Strike the Affidavit of Chris Romano. Plaintiff does not dispute that she failed to disclose Mr. Romano as a witness before the June 27, 2005 discovery deadline. She also does not dispute that the Court may only consider admissible evidence in ruling on DriveTime's Motion for Summary Judgment. Plaintiff incorrectly suggests that she was not required to disclose Mr. Romano prior to the discovery deadline because he is a "Real Party in Interest," and may therefore testify under the "Federal Spousal/Marital Privilege." The Federal Rules of Civil REPLY IN SUPPORT OF MOTION TO STRIKE THE AFFIDAVIT OF CHRIS ROMANO No. CV-03-1369-PHX-MHM

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Procedure are clear and unambiguous. Plaintiff was required to disclose "the name and,

Case 2:03-cv-01369-MHM

Document 119

Filed 10/12/2005

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses." Fed. R. Civ. P. 26(a)(1)(A) (emphasis added). No "Federal Spousal/Marital Privilege" exists that would relieve Plaintiff of her disclosure obligations under this rule. In addition, Plaintiff's suggestion that Mr. Romano is a "Real Party in Interest," has absolutely no bearing on this issue. Plaintiff and Mr. Romano were not married until after her termination from DriveTime. See Deposition of Debra Jilka at 28:25-29:13, attached as Exhibit A. The fact that DriveTime did not depose Mr. Romano is similarly irrelevant. DriveTime does not bear the burden of identifying and disclosing witnesses that Plaintiff may use to support her claims. Contrary to Plaintiff's suggestion, the Romano Affidavit is not based entirely on Mr. Romano's personal knowledge. For instance, it is inconceivable that Mr. Romano would know that Ms. Leatherman "NEVER wrote a disciplinary document that did not have a signature from the employee," or that Ms. Leatherman had "her `favorites' that she would allow more flexibility in their attendance and performance." Romano Affidavit at ¶¶ 20, 21. Any opinions not based on Mr. Romano's direct knowledge amount to

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inadmissible speculation, and should be precluded under Fed. R. Evid. 602. For the foregoing reasons, DriveTime respectfully asks the Court to strike the Affidavit of Chris Romano, submitted with Plaintiff's Response to DriveTime's Motion for Summary Judgment. ... ... ...

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Document 119 2 - Filed 10/12/2005

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

RESPECTFULLY SUBMITTED this 12th day of October, 2005. SNELL & WILMER L.L.P.

By: /s/ Robert G. Vaught Elizabeth A. Petersen Robert G. Vaught One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Attorneys for Defendant DriveTime ORIGINAL of the foregoing filed electronically with the Clerk of the U.S. District Court this 12th day of October, 2005. and I hereby certify that on the 12th day of October, 2005, I served the attached document by mail, on the following, who is not a registered participant of the CM/ECF System: Debra Jilka 1738 W 6th Ave. Mesa, AZ 85202 480-969-7263 Pro Per /s/ Roonie McFarland
26785.0149\VAUGHTR\PHX\1737449.2

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Case 2:03-cv-01369-MHM

Document 119 3 - Filed 10/12/2005

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