Free Objection - District Court of Arizona - Arizona

1 James M. McGee, Esq. 2 Attorney at Law State Bar No. 011931 3 P.O. Box 460 Cottonwood, Arizona 86326 4 Telephone: 928.639.4747 FAX: 928.639.2190 5 6 Attorney for Defendants Home Mortgage, Inc., Carl Brown, Molly Brown 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Plaintiffs' cannot have it both ways. In the first instance they claim that HMI vs. HOME MORTGAGE, INC., an Arizona corporation conducting business in Arizona; CARL BROWN; MOLLY BROWN; GREG BROWN; JANE DOE BROWN; DOES 1-10; XYZ CORPORATIONS; BLACK PARTNERSHIPS; DEFENDANTS. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CATHLEEN CHANNEL; THERESA WHARRY; STACIE HANSON; MONIQUE NICHOLS; PLAINTIFFS, NO.: CV2003-0100 OBJECTION AND RESPONSE TO PLAINTIFFS' MOTION IN LIMINE---TESTIMONY REGARDING DESTRUCTION OF CORPORATE RECORDS

21 has not maintained any corporate records of HMI and then NOW they claim that the 22 23 to. 24 25 substantial defense. That is not sensical or logical reasoning of any kind, in any Plaintiffs' are attempting via an "end around" to eviscerate Defendants' destruction of those same records by an independent third party cannot be referred

26 context, and should not be permitted. 27 Secondly, Plaintiffs' conveniently ignore the sworn affidavit and testimony of

28 Carl I. Brown (attached as Exhibit 1), dated December 4, 2003, wherein Carl I. Brown Case 2:03-cv-00100-ROS-MEA Document 159 Filed 08/02/2007 Page 1 of 5

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stated under oath: "HMI's landlord Johnson Grove Partnership caused all of HMI's

2 files kept at HMI's former offices to be shredded". Johnson Grove admitted that it 3 caused the files to be shredded in its reply to HMI's Answer and Counterclaim filed in 4 Johnson Grove Partnership v. Home Mortgage, Inc. (attached as exhibit 2), CV20025 6 7 8 9 already A MATTER OF PUBLIC RECORD, and a matter of fact, as that issue has NEVER been disputed, until NOW, albeit too late. In paragraph 16 to Defendant's Answer and Counterclaim in Johnson Grove 009563, Maricopa County Superior Court. The issue of the shredding of documents is

10 Partnership v. Home Mortgage, Inc., CV2002-009563 (attached as Exhibit 2), Defendant 11 12 13 14 2002 and May 21, 2002, Plaintiff shredded all 15,972 individual customer folders states once again, that "On May 16, 2002, Plaintiff and its agents caused an independent contractor to shred the Files." And, in paragraph 17, "Between May 16,

15 contained in the Files." 16 In its Reply to Counterclaim (attached as Exhibit 3) Plaintiff, Johnson Grove

17 Partnership, states at paragraph 7: "In response to paragraph 16, admits (emphasis 18 19 but denies the remaining allegations contained in paragraph 16 of the defendant's 20 21 counterclaim." There are NO other allegations contained in paragraph 16 with which the sworn added) that plaintiff and its agents caused an independent contractor to shred papers,

22 to enter a denial or respond to defendant's counterclaim. Furthermore,

23 affidavit of L. Gregory Brown (attached as Exhibit 4) dated 29 December 2006, states 24 at paragraph 7: 25 26 payoff of an office lease, Home Mortgages' landlord (Johnson Grove 27 Partnership) caused all of Home Mortgage's files kept at its former Case 2:03-cv-00100-ROS-MEA Document 159 2 Filed 08/02/2007 Page 2 of 5 On May 16, 2002, while Home Mortgage was attempting to negotiate a

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offices to be shredded. In its reply to Home Mortgage's Counterclaim, Johnson Grove admitted that it caused the files to be shredded (See CV2002-009563, Maricopa County Superior Court)." Rule 602, F.R.E. should be no secret to anyone. It states in part, "[a] witness may not testify to a matter UNLESS (emphasis added) evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own

9 testimony." Carl I. Brown's sworn affidavit should be sufficient to establish "personal 10 knowledge of the matter." Likewise, L. Gregory Brown's sworn affidavit states clearly 11 12 13 14 until after the fact, but had personal knowledge of the matter nevertheless. And, that Johnson Grove Partnership was the landlord that shredded the documents in question in a lease dispute and that none of the Browns' had any knowledge of that

15 PUBLIC RECORDS AND REPORTS are one exception to the "Hearsay" rule. See, 16 F.R.E. Rule 803(8). Records of the Brown's testimony are already a matter of public 17 record and constitute records of a public office and set forth either the activities of the 18 19 matters there was a duty to report, or both. A Federal District Court would or should 20 21 22 clearly fall into this category. In the case at bar, there is no question or doubt that Carl I. Brown, Molly Brown office or agency, or matters observed pursuant to a duty imposed by law as to which

23 or any other Brown family member had or has had "personal knowledge" of "the 24 documents destroyed by HMI's landlord, Johnson Grove Partnership, including 25 26 account files". Add to that mix, the existence of public Court records involving the 27 Case 2:03-cv-00100-ROS-MEA Document 159 3 Filed 08/02/2007 Page 3 of 5 corporate governance and financial records stored along with active mortgage

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Browns. Those two components should satisfy the requirements and leeway offered

2 by F.R.E. Rule 602. 3 In summary, paragraph 16 to Defendant's Answer and Counterclaim in

4 Johnson Grove Partnership v. Home Mortgage, Inc., CV2002-009563 (attached as 5 6 7 8 independent contractor to shred the Files." In its Reply to Counterclaim (attached as Exhibit 3) Plaintiff, Johnson Grove Partnership, states at paragraph 7: "In response to Exhibit 2), Defendant states "On May 16, 2002, Plaintiff and its agents caused an

9 paragraph 16, admits that plaintiff and its agents caused an independent contractor to 10 shred papers, but denies the remaining allegations contained in paragraph 16 of the 11 12 13 14 would show, neither Carl I. Brown, Molly Brown, nor HMI played any part in the defendant's counterclaim." Plaintiffs' misdirection is therefore faulty and baseless. As the attachments

15 shredding of any documents of any kind and therefore the allegation and insinuation 16 that they did so, to avoid the claim by Plaintiffs that they never maintained those 17 records in the first place, is utter nonsense, is contradictory and counterintuitive. It is 18 19 the shredding, and should be permitted to testify in that regard. 20 21 22 documents that were destroyed! THEREFORE, Defendants' would urge that the Plaintiffs' Motion in Limine be It was their OBVIOUS the Browns did have personal knowledge of the matter even after the fact,

23 DENIED. 24 25 * * 26 * 27 Case 2:03-cv-00100-ROS-MEA /s/ James M. McGee James M. McGee Attorney for HMI; Carl and Molly Brown Document 159 4 Filed 08/02/2007 Page 4 of 5 DATED this 2nd day of August, 2007.

Copy of the foregoing e-filed/FAXED/mailed this 2nd day of August, 2007 2 to the following: 1 3 Clerk, U.S. District Court-Phoenix 4 The Honorable Roslyn O. Silver 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Case 2:03-cv-00100-ROS-MEA Document 159 5 Filed 08/02/2007 Page 5 of 5 Client /s/ Tina McGee James Burr Shields, II