Free Reply to Response to Motion - 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

REPLY IN MOTION TO EXTEND TIME TO COMPLETE DISCOVERY

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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 Plaintiffs and submit their Reply in Motion to Extend Time to Complete

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Discovery.

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Defendants' Response, submitted "for the sake of completeness," fails to explain

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why original defense counsel submitted only two pages of Defendant Preston's printed

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notes. Current defense counsel recently submitted these same notes, but the disclosure

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was three pages of printed notes.

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Defense counsel's "completeness" fails to explain the inconsistencies between the

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representation that Defendant Preston only prepared "computerized notes" of her

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interviews (Response, page 2, lines 24-26), and the fact that, included in the documents

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submitted by prior defense counsel is a handwritten, one-page document, prepared by

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another person, stating that Defendant Preston had prepared handwritten notes: "Mrs.

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Preston told her [Mrs. Ramirez] she would rewrite her notes and give a copy to Mrs.

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Ramirez." (See, Exhibit 1, handwritten document).

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The contention that Defendant Preston used a computer to prepare her notes is not logical. It would not have been practical for Defendant Preston to do so, because she did not interview the three perpetrators in her office, but, rather, in the hallway next to their teacher's, Ms. Soto's, classroom. (See, Exhibit 2, Deposition of Annie Preston, page 6, lines 5-8; page 11, lines 11-24). Presumably, Ms. Preston also interviewed the victim, Jose Ramirez and Ms. Soto at that time (See, Exhibit 2, page 13, lines 17-23; page 14, lines 29). Obviously, Defendant Preston was not lugging around a computer in 2001 creating "computerized notes," as counsel now claims. Had Ms. Preston at some point acknowledged that she had prepared notes, and upon transcribing them onto the computer, destroyed them, it would be an acceptable explanation. But, defense counsel, based upon Defendant Preston's information to him, represents that no handwritten notes ever existed. These handwrittten notes are important, not only for their original content, but also to explain Defendant Preston's recent testimony that she was unable to understand the three perpetrators and therefore could not conduct an interview. She testified, "In almost every case, when I interview I take notes. I know that I was totally frustrated that I couldn't ­ I couldn't get a word from them. One of the kids can't speak . . . ." (Exhibit 2, page 12, lines 7-13). Yet these same three young men were interviewed by the police and gave detailed accounts of the assault on Jose. The young men also gave accounts of the assault on Jose in deposition testimony. (See, Plaintiffs' Response to Motion for Summary Judgment). Defendant Preston's claim that she couldn't communicate with these young men, even with their teacher present (who communicates with the boys on a daily basis), is incongruous with the facts. Because of Defendant Preston's claim that she could not communicate with the three handicapped perpetrators, Plaintiffs intend to have their expert submit a supplemental opinion regarding the ability of these young men (16-18 years of age at the time of the assault) to communicate; re-depose Ms. Soto, who was present during the

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interviews; and depose school psychologist Dr. Moore, who was also present during Ms. Preston's investigation of the assault. Dr. Moore currently lives in Chicago, Illinois.

Plaintiff earlier set a deposition for Dr. Moore, but Defendant refused to produce the witness. Plaintiffs' counsel is now willing to travel to Chicago to take her deposition. Defendant provided an address for Dominic Guzman that is at least 4-5 years old. Plaintiffs are in the process of attempting to locate Mr. Guzman. Plaintiffs presume this is the last known address. Is it coincidental that Mr. Guzman, the teacher's aide responsible for monitoring these young men terminated his employment at the same time the school district conducted its investigation? If the dates are not coincidental, then Defendants had a obligation to disclose this fact. Plaintiffs should not be prejudiced by Defendants' willful withholding of relevant documents and information which should have, and has not yet been, fully disclosed. WHEREFORE, Plaintiffs respectfully request the Court extend discovery until 30 days after the ruling on the Motion to Compel. RESPECTFULLY SUBMITTED this 7th day of February, 2006. /s/ Edward D. Fitzhugh Edward D. Fitzhugh Attorney for Plaintiffs

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

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