Free Memorandum - District Court of Arizona - Arizona

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EDWARD D. FITZHUGH P.O. Box 24238 Tempe, Arizona 85285-4238 (480) 752-2200 Bar No. 007138 Attorney for Plaintiffs IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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vs. Joe Ramirez and Ana Ramirez, Individually and as Parents and Legal Guardians of Jose Ramirez; Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CIV03-0060 PHX-ROS

PLAINTIFFS MEMORANDUM REGARDING DISCOVERY DISPUTE

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Glendale Union High School District No. 205; John Doe and Jane Doe I-X; ABC Corporations I-X; and XYZ Partnerships I-X, Defendants.

(Assigned to the Honorable Roslyn O. Silver)

COME NOW the parties, by and through their respective counsel, and submit their

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Joint Memorandum, stating their respective positions regarding the discovery dispute,

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which is to be heard by this Court on March 8, 2006, at 10:00a.m.

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Plaintiffs' Statement:

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There are two key areas of evidence about which, at the end of discovery, Plaintiffs

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learned they had been deceived:

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1. Handwritten Notes of Investigation.

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The Assistant Principal of Cortez High School, Annie Preston, testified in her deposition

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that she had investigated the assault on Plaintiff Jose Ramirez. Defendants originally had

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submitted two pages of computer generated notes. Based on Ms. Preston's deposition

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testimony, it was apparent that Plaintiffs had not received all of the notes, so Plaintiffs

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again requested all the notes. Defendants then produced three pages of computer

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generated notes, again insisting that they had produced all notes.

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However, Plaintiffs' have repeatedly pointed out that Defendants themselves disclosed the existence of handwritten notes. A one-page document submitted by prior defense counsel states that Defendant Preston had prepared handwritten notes: "Mrs. Preston told her [Mrs. Ramirez] she would rewrite her notes and give a copy to Mrs. Ramirez." (See, Exhibit 1 to Reply in Motion to Extend Time to Complete Discovery, handwritten document). Defendants have never actually denied the existence of handwritten notes, but have not produced them. In addition to the fact that the handwritten notes have not been produced, the contents of the computer generated notes give rise to additional questions about the completeness of those notes. While Defendant Preston testified that she interviewed the minor Plaintiff's teacher and the students who assaulted the Plaintiff, the computer generated notes do not contain any substantive information about what happened, no accounts of the incident. Where is the account from Dominic Guzman, the teacher's aide directly responsible for monitoring the students? The computer generated notes do not make any mention of Mr. Guzman. 2. Facts Surrounding School's Investigation & Guzman's Termination.

Prior Defense counsel told Plaintiffs' counsel that Mr. Guzman had voluntarily left his employment with the school district and moved to California. Defendants insisted they had no idea where Mr. Guzman could be located. In the Defendants' 26.1 Statement, they stated Mr. Guzman's "address and telephone number unknown." Given the history of withholding information in this matter (See, Plaintiffs' Motion for Sanctions), Plaintiffs recently insisted that Defendants, at a minimum, produce Mr. Guzman's last known address, so that Plaintiffs could attempt to locate the witness. Not surprisingly, Defendants produced Mr. Guzman's address and telephone number. Plaintiffs initiated a skip trace and located Mr. Guzman . . . living at the same address as when he worked for the school district.

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Mr. Guzman's deposition has been set for March 23, 2006. Mr. Guzman was recently arrested and incarcerated in the psychiatric ward of the Maricopa County Jail. 3. Additional Discovery

Plaintiffs do not believe that the March 2001 investigation by school district personnel of the assault on Jose Ramirez, and the March 2001 termination of Dominic Guzman are coincidental. Plaintiffs submitted written discovery to Defendants requesting additional information regarding Mr. Guzman's separation from the school district's employ. In correspondence of Feb. 13, 2006, defense counsel advised that he would provide the requested information "as quickly as possible." However, during scheduling discussions regarding this hearing, defense counsel stated that discovery had closed and that he would not produce the information. Apparently, upon reflection, defense counsel decided that he had nothing to lose by refusing to comply until the Court orders him to provide the information. 4. Summary

Defendants have a history of representing to Plaintiffs that they do not have information. Previously, despite multiple hearings on the matter, Defendants continued to represent to the Court that they had no knowledge of the whereabouts of one of the student perpetrators. That is, until Plaintiffs located the young man. Now, Defendants must admit that teacher's aide Dominic Guzman did not leave the state, as had been represented, and that they had his address all along. They must also admit that Annie Preston's handwritten notes exist, and they have not yet been produced. RESPECTFULLY SUBMITTED this 7st day of March, 2006. /s/ Edward D. Fitzhugh Edward D. Fitzhugh Attorney for Plaintiffs

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I hereby certify that on 2 March 7, 2006, I electronically transmitted the foregoing to the 3 Clerk's Office using the CM/ECF System for filing and transmittal 4 of a Notice of Electronic Filing to the following CM/ECF registrants: 5 J. Steven Sparks, Esq. 6 Sanders & Parks, P.C. 3030 N. Third Street, Ste. 1300 7 Phoenix, Arizona 85012-3099 Attorneys for Defendants 8

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A copy of the foregoing 10 was faxed this date to:

11 Hon. Roslyn O. Silver fax 602-322-7529 12 13 ___/s/S.J. Odneal____ 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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