Free Motion in Limine - District Court of Arizona - Arizona

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Mishka L. Marshall (#016641) MARSHALL LAW GROUP, P.C. 777 East Thomas Road, Suite 210 Phoenix, AZ 85014 Telephone: 602/274-7873 Facsimile: 602/274-8207 Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

SEAN L. HARGROW, Case No. CIV 2003-0642 PHX DGC Plaintiff, V. FEDERAL EXPRESS CORPORATION, a Delaware corporation doing business in Arizona; JOHN and JANE DOES I-X;
BLACK CORPORATION I-X, WHITE LIMITED LIABILITY COMPANIES I-X, PLAINTIFF'S MOTION IN LIMINE RE MARY H. BEARD

Defendants.

Plaintiff Sean Hargrow submits this Motion in Limine seeking to preclude Defendant from offering or eliciting testimony and documentary evidence from attorney Mary Beard, who currently represents Defendant. Fed.R.Civ.P. 26, and 37 as well as Fed.R.Civ.P. 403 preclude the testimony of counsel at trial. MEMORANDUM OF POINTS AND AUTHORITIES Mary Beard is an in-house Senior Attorney for Defendant and currently represents Defendant in this matter. 1 In the Proposed Joint Pretrial Order, Defendant has listed Ms. Beard as a witness who "may testify regarding her initial contact with Ms. Montgomery
1

Despite Ms. Beard's representation to this Court that Defendant would file a substitution of counsel, no such substitution had been filed as of the filing of this motion.

Case 2:03-cv-00642-DGC

Document 135

Filed 11/02/2006

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Wilson."

Ms. Beard was never disclosed as a witness or person with discoverable

information during the discovery period in this case as required by Fed.R.Civ.P. 26(a)(1) and (3) and Fed.R.Civ.P. 26(e). The deadline for completion of discovery in this case was initially April 29, 2005. Ms. Beard was not disclosed as a witness prior to that date. The discovery completion deadline was extended twice, to June 30, 2005 and finally to August 31, 2005. Defendant also failed to disclose Ms. Beard as a witness by August 31, 2005. In fact, Defendant failed to mention Ms. Beard as a person with knowledge relevant to this case until February 2006. On February 16, 2006, Defendant filed a motion for reconsideration of the Court's ruling on Defendant's motion for summary judgment. Ms. Beard submitted an affidavit in support of the motion for reconsideration in which she claimed to have knowledge of when Defendant became aware of Plaintiff's lawsuit. The Court denied Defendant's motion for reconsideration and rejected Defendant's attempts to present new evidence such as Ms. Beard's affidavit and deposition testimony not provided in support of the motion for summary judgment. Now, Defendant names Ms. Beard as a trial witness, despite the fact that she is still counsel of record for Defendant and the fact that Ms. Beard was not disclosed at any point in the discovery period. The purpose of Rule 26 is "to prevent ambush, resulting in surprise or prejudice of undisclosed or late disclosed evidence." Equant Integrations Serv., Inc. v. United Rentals (North America), Inc. 217 F.R.D. 113 (D. Conn. 2003) (Emphasis added). Defendant failed to disclose Ms. Beard as a witness during the discovery period, then submitted her affidavit almost six months after the close of discovery in this case. Defendant's actions denied Plaintiff the opportunity to conduct discovery as to Ms. Beard's knowledge of Plaintiff's lawsuit and any documents related to that knowledge (Ms. Beard's affidavit refers to an email she received about Plaintiff's lawsuit but the email was never produced). Fed.R.Evid.403 permits the exclusion of relevant evidence because of the danger of

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"unfair prejudice."

In this case, Sean Hargrow will be unfairly prejudiced because

Defendant failed to disclose Ms. Beard as a witness or produce any documents related to Ms. Beard's knowledge of Plaintiff's lawsuit during the relevant discovery period. The information Ms. Beard claims to have is critical to Plaintiff's retaliation claim and certainly a matter on which Plaintiff should have been allowed the opportunity to conduct discovery. For the reasons set forth above, Defendant should not be permitted to call Mary Beard at trial or use any documentary evidence drafted by, or related to, Ms. Beard's actions in this case. Alternatively, Plaintiff should be granted leave to depose Ms. Beard in Phoenix, Arizona and Defendant should be ordered to produce any and all documents related to Ms. Beard's testimony. Plaintiff would also request leave to depose Jay

Grytdahl, who Ms. Beard identified in her affidavit as the attorney who transferred Plaintiff's case to Ms. Beard. Respectfully submitted this 2nd day of November, 2006. s/Mishka L. Marshall Mishka L. Marshall MARSHALL LAW GROUP, P.C. 777 E. Thomas Rd., Suite 210 Phoenix, Arizona 85014 Attorney for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on November 2, 2006 I transmitted by electronic filing the foregoing Motion in Limine re Mary Beard to the United States District Court for the District of Arizona using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mary H. Beard FEDERAL EXPRESS CORPORATION 3620 Hacks Crossing Road, Building B-3rd Floor Memphis, Tennessee 38125

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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 Lori Higuera Alec Hillbo FENNEMORE CRAIG, PC 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Counsel for Defendant s/Mishka L. Marshall Mishka L. Marshall

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