Free Reply in Support of Motion - District Court of Arizona - Arizona

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Gary L. Birnbaum (#004386) [email protected] Charles S. Price (#006197) [email protected] Timothy J. Thomason (#009869) [email protected] Scot L. Claus (#14999) [email protected] MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A. 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012-2705 Phone: (602) 285-5000 Fax: (602) 285-5100 Attorneys for Defendants Snell & Wilmer, LLP

9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF ARIZONA 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff's "Objection" to Snell & Wilmer's Motion to Strike, filed on February 1, 2008, was untimely filed in light of this Court's January 28, 2008, order requiring that it be filed by noon on January 31, 2008. Based on the untimely filing of the Objection, the Motion to Strike should be summarily granted. In any event, the Objection provides no reason to deny the Motion to Strike, or any portion thereof. With regard to witness Gerry Mayo, Plaintiff does not contend that Mayo was listed on either preliminary trial witness list. While he was listed in plaintiff's disclosure statement, as a "person with knowledge," he was never identified as a potential "trial witness." The very purpose of the Court's protocol regarding witnesses was to require the parties to meaningfully v. PETER THIMMESCH, et al., Defendants. BILTMORE ASSOCIATES, as Trustee for the Visitalk Creditors' Trust, Plaintiff, CASE NO. CIV 02 2405 PHX HRH REPLY IN SUPPORT OF SNELL & WILMER'S MOTION TO STRIKE DESIGNATIONS OF WITNESSES HOFFMAN, YORK, TRUESDELL, FREED, LOVE, TURLEY AND MAYO

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consider which individuals they would actually call at trial, then to identify those witnesses, "such that he or she may be deposed." Mr. Mayo was not listed on either the preliminary witness list or the final witness list. Plaintiff's attempt to call Mr. Mayo, having never timely identified him as a trial witness, violates the Court's Orders and the Rules of Civil Procedure. Permitting him to testify would be extremely prejudicial to Snell & Wilmer. With respect to witnesses Hoffman, York, Truesdell, Love and Turley, Plaintiff does not contend that it gave Snell & Wilmer accurate information as to their whereabouts. Plaintiff concedes that they have never been deposed. This Court's order of May 7, 2004 required the names of each witness to be timely disclosed during the discovery period "such that he or she may be deposed." Plaintiff does not even contend that it knows where those

witnesses are now. Plaintiff makes the naked assertion that it acted "industriously and in good faith." Plaintiff provides no affidavit or other showing, however, of what efforts (if any) it made to locate those witnesses during such that they could be deposed, in accordance with this Court's scheduling orders. Such a failure should be fatal, by itself, to Plaintiff's attempt to call those witnesses. See, e.g., Jimenez v. Reno, 2007 U.S. Dist. Lexis 39598 (C.D. Cal. 2007) (striking witnesses for failure to list them on appropriate disclosures, in the absence of any explanation for the failure; defendants' "failure to provide any justification for doing so--never mind a substantial justification--requires a finding that these witnesses be precluded from testifying at trial. See Fed. R. Civ. Pro. 37(c)(1)"). Plaintiff does not allege that it has ever spoken to Hoffman, York, Truesdell, Love or Turley about their testimony. This is troubling in view of the summaries of testimony that plaintiff included for these witnesses in the Joint Pretrial Statement. The Court was clear in its July 17, 2007 Order that counsel must "disclose the testimony expected to be elicited from that witness at trial. The disclosure shall be specific and not general, the purpose being to avoid surprise and delay at trial and to give opposing counsel an adequate basis for developing cross examination." Clearly here, the descriptions of those witnesses' testimony are not, in fact,

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summaries of what they will actually say, but merely counsel's "wish list" of categories of possible testimony. That is a violation of the Court's July 17, 2007 Order, providing another basis for excluding such witnesses at trial1. With regard to Chad Freed, Plaintiff argues that it had all along (and gave to Snell & Wilmer) accurate contact information for Mr. Freed. That argument is, in fact, a reason to exclude him as a witness. Snell & Wilmer located, and arranged for the depositions of, all of the witnesses on its side. It counted on Plaintiff to do the same, and said so in writing. In the June 29, 2006, letter from Snell & Wilmer's counsel attached at Exhibit D to the Memorandum in Support of Snell & Wilmer's Motion to Strike [etc.] ("Memorandum in Support"), counsel stated: We have located all our fact witnesses and have arranged with you to have them deposed. We are asking that your side proceed in the same way. As to any witnesses whom you cannot find, and for whom you have not offered us deposition dates within the discovery period, we will, as we have said, seek to have them excluded as trial witnesses. Plaintiff's counsel responded on July 12, 2006 [Exhibit E to Memorandum in Support], saying, "The following list below is information we have now obtained regarding the following witnesses on the Plaintiff's Witness List," and concluding, "We are attempting the scheduling of interviews and/or depositions with these witnesses." Those witnesses did not include Mr. Freed, leading Snell & Wilmer to conclude that Freed had dropped off the witness list. As the discovery cutoff loomed, Snell & Wilmer's counsel again wrote to Plaintiff's counsel on July 20, 2006 [Exhibit F to Opening Memorandum] and stated, "Please let me know if you have succeeded in setting up depositions or interviews with any of the nine

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Indeed, if plaintiff has not actually contacted these individuals, and truly does not know their whereabouts, it is a mystery as to how these individuals will know that they should appear and testify. If plaintiff does not know their whereabouts, how will these individuals be served with a subpoena? Plaintiff has provided no factual showing to suggest that it has been making diligent efforts to locate them that might bear fruit in the next few weeks. Of course, if Plaintiff knows where the witnesses are and isn't telling, exclusion is automatic.
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individuals identified in your letter of July 12"--who, as noted, did not include Mr. Freed. In agreeing to an extension of the discovery cutoff, Snell & Wilmer made "absolutely clear" that the extension was only for the purpose of "finaliz[ing] the discrete list of identified witnesses" set forth in the stipulation, which again did not include Mr. Freed (see Docket # 318). Snell & Wilmer's counsel stated: Chris--I have attached revisions to the Stipulation. We want to make absolutely clear to the Court that we are moving the discovery deadline only to finalize the discrete list of identified witnesses. At this time, it is difficult to understand why the depositions of the identified witnesses necessitates moving all other deadlines by 31 days. We would agree to move the expert deadline by 2 to 3 weeks. Please provide your feedback. Scot Claus (See July 27, 2006 email from Scot Claus to Christopher Kaup et al, Exh. A hereto) According to the Plaintiff, Mr. Freed's whereabouts were known to Plaintiff throughout the relevant time period. Given that fact, and the above correspondence, it is simply not fair for Plaintiff, having taken no steps to schedule his deposition, to now try to sneak him in as a trial witness and argue that it was Snell & Wilmer's obligation to contact him and schedule his deposition.2 Plaintiff's request for an evidentiary hearing should be denied. Plaintiff does not make any showing of what evidence, or even what kinds of evidence, would be introduced at such a hearing. The Court has all relevant facts before it. Plaintiff's numerous violations of Court orders in the naming of its witnesses, and the summarizing of their testimony, hardly requires the rest of us to spend time and energy in an "evidentiary hearing."

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In the event the Court allows Mr. Freed to stay on the witness list, Snell & Wilmer would request the opportunity to take a brief deposition of Mr. Freed, expected to last no more than an hour or two.

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CONCLUSION For the foregoing reasons, Snell & Wilmer's Motion to Strike Designation of Witnesses Hoffman, York, Truesdell, Freed, Love, Turley and Mayo should be granted, and their testimony excluded. DATED this 4th day of February, 2008. MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A.

By: s/ Charles S. Price_______ Gary L. Birnbaum Timothy J. Thomason Charles S. Price Scot L. Claus Attorneys for Defendant Snell & Wilmer, LLP

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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 hereby certify that on February_4, 2008, a copy of the foregoing will be sent via FedEx to: Judge H. Russel Holland UNITED STATES DISTRICT COURT 222 West 7th Avenue No. 54 Anchorage, AK 99513 907-677-6251 I hereby certify that on February 4th, 2008, I electronically transmitted the attached document(s) 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: I hereby certify that on February 4th, 2008, I caused the attached document to be served by first class mail on the following, who are not registered participants of the CM/ECF System: Peter Thimmesch 11329 Stonehouse Place Potomac Falls, Virginia 20165-5123 Defendant Pro Se s/ Cheryl Lostracco CERTIFICATE OF SERVICE Biltmore Associates v. Peter Thimmesch, et al. (Case No. CV 02-2405-PHX-HRH)

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