Free Memorandum - 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 v. PETER THIMMESCH, et al., Defendants. BILTMORE ASSOCIATES, as Trustee for the Visitalk Creditors' Trust, Plaintiff, CASE NO. CIV 02 2405 PHX HRH MEMORANDUM IN SUPPORT OF SNELL & WILMER'S MOTION TO STRIKE DESIGNATIONS OF WITNESSES HOFFMAN, YORK, TRUESDELL, FREED, LOVE AND TURLEY AND MAYO -andMEMORANDUM IN SUPPORT OF MOTION FOR EXPEDITED CONSIDERATION (Assigned to the Hon. H. Russell Holland)

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INTRODUCTION The Court's scheduling orders required the parties to identify each witness they planned to call at trial, during the fact discovery period, "such that he or she may be deposed." Snell & Wilmer has fully complied with those orders, and Plaintiff has had the opportunity to depose all of Snell & Wilmer's trial witnesses. With regard to the Plaintiff's trial witnesses, Snell & Wilmer has deposed more than two dozen witnesses identified by Plaintiff as potential trial witnesses, covering a total of 41 deposition days. Counsel for Snell & Wilmer served interrogatories, and repeatedly

corresponded with Plaintiff's counsel, before the cutoff of fact discovery, to make sure that it had the opportunity to depose all persons who might be Plaintiff's trial witnesses. Despite those efforts, Snell & Wilmer has had no opportunity to depose almost onethird of the non-Snell & Wilmer fact witnesses listed by Plaintiff in the Joint Pretrial Statement (8 out of 27). Six of those witnesses had been previously named by Plaintiff, but Plaintiff failed to provide accurate contact information for such witnesses during the discovery period, failed to schedule their depositions, and apparently still does not know how to reach them. Plaintiffs' counsel wrote two days ago, "We continue our efforts to locate these witnesses." Where Plaintiff is still looking for witnesses that we have been asking about for more than three years; factual discovery has been closed for 16 months; and trial is six weeks away, the prejudice to Snell & Wilmer if those witnesses are called at trial is obvious. The granting of this motion is necessary to enforce the Court's scheduling orders and to prevent trial by ambush. We also request expedited consideration of this motion so the parties may be guided in their final pretrial preparation by the Court's order. We are willing to file our reply brief on an expedited basis, and to participate in telephonic argument if more convenient for the Court, so that we may obtain a ruling in time to avoid unnecessary preparation for witnesses who will not be called at trial.

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STATEMENT OF FACTS This Court's May 7, 2004 Order required the parties to disclose all documents they intended to use at trial and all witnesses they intended to call at trial. Rule 26(a)(1) of the Federal Rules of Civil Procedure requires the prompt disclosure of all persons with relevant knowledge, and Rule 26(e) of the Federal Rules of Civil Procedure requires parties to seasonably supplement such disclosures. Moreover, Snell & Wilmer specifically requested Plaintiff to identify its potential witnesses and exhibits in its Non-Uniform Interrogatories. On June 14, 2005, Plaintiff provided its preliminary list of trial witnesses (Dkt. 241). Gerry Mayo was not on that list. He was likewise not listed as a potential trial witness on Plaintiff's list dated May 8, 2006 (Dkt. 303).1 Snell & Wilmer never had a chance to depose Mr. Mayo. He was not even mentioned in the correspondence outlined below regarding depositions of trial witnesses, because he had not been so identified. For these reasons, the designation of Mr. Mayo as a trial witness should be stricken. With regard to witnesses Hoffman, York, Truesdell, Freed, Love, and Turley, after receiving Plaintiff's two witness lists, and using its best efforts to find the listed witnesses with the limited contact information that was provided, Snell & Wilmer's counsel wrote to Plaintiff's counsel a letter dated June 13, 2006, attached as Exhibit A. That letter stated,

"Despite diligent efforts, we have been unable to contact the following people listed on your witness list." Snell & Wilmer identified each of the above six witnesses by name and

explained the difficulties in contacting them (i.e., "inadequate identifying information/no phone number," "number disconnected," etc.). paragraph: We have asked for updated contact information on all your witnesses but have received nothing. Some of the witnesses we have been able to contact. The above, we have not. The discovery cutoff is in seven weeks. These are your witnesses, and we should not have to spend our time tracking them down. If the
He was listed in Plaintiff's Disclosure Statement dated June 11, 2004 as someone with "relevant information," but the applicable list for determining who may testify at trial, pursuant to the Court's scheduling orders, is the Preliminary Trial Witness List.
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That letter concludes with the following

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above people have not been located by you and scheduled for deposition within that time period, we will move to have them excluded as witnesses. (Emphasis in original) On June 26, 2006, Snell & Wilmer's counsel again wrote to Plaintiff's counsel [Exhibit B] and stated, "Please add Steve DelBianco to the list of people we cannot locate despite diligent efforts. Again, we are looking to you to contact the witnesses referenced in my letter

6 of June 13 (along with Mr. DelBianco) and obtain deposition dates for them within the 7 remaining discovery period, just as we have arranged for the attendance of witnesses on our 8 9 10 and offered some contact information for six witnesses, including three who are subjects of 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 As to the witness list, it simply is not acceptable to say that dozens of people are on your witness list, but you can't find them. If you manage to find them before trial and they are allowed to testify without our being able to depose them, we will have been significantly prejudiced. We have located all our fact witnesses and 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. On July 12, 2006, Plaintiff's counsel wrote to Snell & Wilmer's counsel [Exhibit E], and stated, "The following list below is information we have now obtained regarding the following witnesses on the Plaintiff's Witness List."
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side." (Mr. DelBianco was ultimately located and deposed.)2 On June 29, 2006, Plaintiff's counsel wrote to Snell & Wilmer's counsel [Exhibit C]

this motion. Plaintiff's counsel stated: [A]lthough we have agreed to attempt to schedule depositions with former employees of Visitalk, we never agreed that we would schedule the depositions for every person identified in our witness list. We also never agreed that if we are unable to schedule depositions with any person on our list that witness would not be able to testify at a trial. Our witness list has remaining basically unchanged for many months and both sides have had an equal opportunity to depose witnesses. The Rules of Civil Procedure simply do not impose a burden on a party to schedule the depositions of every person on its witness list. On June 29, 2006, Snell & Wilmer wrote to Plaintiff's counsel [Exhibit D], and stated:

Information was provided on nine

As was accurately noted in the June 26, 2006, letter, there is not a single witness on Snell & Wilmer's trial witness list who was not located by Snell & Wilmer and made available for deposition within the fact discovery period.

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witnesses, including three (Turley, Love and York) who are subjects on this motion. Plaintiff's counsel stated, "We are attempting the scheduling of interviews and/or depositions with these witnesses." On July 20, 2006, Snell & Wilmer's counsel wrote the letter attached as Exhibit F, stating, "Please let me know if you have succeeded in setting up depositions or interviews with any of the nine individuals identified in your letter of July 12." Despite the representation by Plaintiff's counsel in the July 12 letter that depositions or interviews were being set up, and the request by Snell & Wilmer's counsel in the July 20 letter for further information, no deposition dates were ever offered for witnesses Turley, Love or York (nor for any of the other witnesses listed in Snell & Wilmer's original letter on this subject, i.e., Hoffman, Truesdell and Freed). Recently, Snell & Wilmer's counsel again wrote to Plaintiff's counsel [Exhibit G] and asked if they were really planning to call the witnesses who are the subject of this motion. The Response is attached as Exhibit H. As to Mr. Mayo, plaintiff's counsel does not dispute that he was not listed on the witness lists but argues that he was mentioned in a disclosure statement. That argument is addressed below. As to the remaining six witnesses, the

response (three and a half years after the Court's initial scheduling order and six weeks before trial) is that Plaintiff is still looking for those witnesses and will let us know if they are successful. This is, quite simply, trial by ambush; it is inconsistent with the Court's orders; and the seven witnesses whom Snell & Wilmer never had the chance to depose should not be allowed to testify at trial. ARGUMENT Rule 26(a)(1) of the Federal Rules of Civil Procedure required plaintiff to disclose the identity, address, and telephone number, not just of witnesses, but of all individuals who possessed "discoverable information that . . . [plaintiff] may use to support its claims." Rule 26(e) of the Federal Rules of Civil Procedure required the parties to seasonably supplement those disclosures.

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On May 7, 2004 (Dkt. 186), this Court entered an Order mandating compliance with Rule 26(a). The Court prescribed a protocol for identifying intended trial witnesses for whom disclosure had been made. The Court's May 7, 2004 Order stated: Preliminary trial witness lists shall be filed not later than 45 days before the day of fact discovery and not later than 45 days before the close of expert discovery. These witness lists must incorporate the names of all witnesses whom a party might elect to call at trial. A witness not disclosed at these times (such that he or she may be deposed) will not be permitted to testify at trial. Order at 3.3 On June 14, 2005, Plaintiff propounded its first preliminary list of trial witnesses. Mr. Mayo was not identified on such list. On May 8, 2006, Plaintiff filed its final preliminary list of trial witnesses. Mr. Mayo was again not identified on such list. Pursuant to the Court's scheduling orders, the designation of Mr. Mayo as a trial witness must be struck based on the fact that he was not included on either list of witnesses propounded during the fact discovery period. [May 7, 2004 Order (Dkt. 186) at 3] The remaining six witnesses who are the subjects of this motion were on the witness lists. Snell & Wilmer tried over a period of more than a year to locate those witnesses, and sent the correspondence referenced above to Plaintiff's counsel in a final attempt to locate them before the discovery cutoff. Where a party timely, and repeatedly, notifies the other

side that it is unable to locate particular witnesses because the identifying information is incomplete, outdated, or inaccurate; where correct information is never provided; and where depositions never take place during the discovery period, there has been no timely disclosure of such witness "such that he or she may be deposed." In such circumstances, the Court's scheduling orders make clear to all parties that such witnesses "will not be permitted to testify at trial."
Similarly, this Court's February 18, 2004 Order (Dkt. 170) ("Compliance with Rules 16(b) and 26(f)") contains the same language requiring the disclosure of "the names of all witnesses whom a party might elect to call at trial," and further ordering that a witness must be timely disclosed "such that he or she may be deposed," or else the witness "will not be permitted to testify at trial."
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Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure provides that, "[A] party must without awaiting a discovery request, provide to other parties... the name and, 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, unless solely for impeachment, identifying the subjects of the information." Fed. R. Civ. P. 37(c)(1) provides that, "a party

that without substantial justification fails to disclose information required by Rules 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." Snell & Wilmer's inability to depose nearly onethird of Plaintiff's non-Snell & Wilmer fact witnesses is hardly "harmless." Fed R. Civ. P. 16(f) provides, "if a party or party's attorney fails to obey a scheduling or other pretrial order... the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37 (b)(2)(b),(c), (d)." Fed R. Civ. P. 37(b)(2)(b) authorizes "an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing from introducing designated matters in evidence." The Court's May 7, 2004 scheduling order (Dkt. 186) makes clear that if a witness is not timely identified "such that he or she may be deposed," that witness "will not be permitted to testify at trial." Snell & Wilmer never had a chance to depose the witnesses who are the subjects of this motion, either because they were never located by Plaintiff during the discovery period and have not been located to this day, or because (in the case of Mr. Mayo) there was no timely listing on any witness list. It should finally be noted that this Court's Amended Order for Pretrial Proceedings & Final Pretrial Conference dated July 17, 2007 (Dkt. 375) requires [at 3] that disclosures of expected testimony from witnesses "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

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cross-examination." The testimony disclosures for the seven witnesses subject to this motion are generic, not specific. They list topic areas for testimony rather than actual expected testimony. They are obvious "cut and paste" jobs, because the wording of much of the disclosures is identical.4 It appears, based on Plaintiff's counsel's most recent letter, that Plaintiff may not have located or spoken to witnesses Hoffman, York, Truesdell, Freed, Love, and Turley, even as of today. Thus the supposed "testimony disclosures" are in fact wish lists of topics as to which Plaintiff hopes the witnesses have something to say, if and when they are located. This creates not only the possibility, but a guarantee, of surprise and delay at trial, contrary to the letter and spirit of the Court's July 17, 2007 Order. Based on the foregoing rules and Court orders, witnesses Hoffman, York, Truesdell, Freed, Love, Turley and Mayo should be excluded from testifying at trial.

DATED this 25th day of January, 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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When the George York disclosure was cut and pasted to create the George Kettle disclosure, for example, the wording was not only identical in large part, but in one place the name of the prospective witness remained unchanged!

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CERTIFICATE OF SERVICE Biltmore Associates v. Peter Thimmesch, et al. (Case No. CV 02-2405-PHX-HRH) I hereby certify that on January 25th, 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 January 25th, 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 January 25th, 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

By: s/ Cheryl Lostracco 16 17 18 19 20 21 22 23 24 25 26
U:\ATTORNEYS\TJT\Snell & Wilmer adv. Visitalk\Snell M-Strike 1-25-08\efiled cml Jan 25 Memorandum in Support of SW's Motion to Strike Designation of Witnesses.doc

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