Free Memorandum - District Court of Arizona - Arizona

1 Jay A. Zweig (011153) Melissa R. Berren (020993) 2 GALLAGHER & KENNEDY, P.A. 2575 E. Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 3 (602) 530-8407 4 Attorneys for Defendants 5 6 7 8 Matthew Shaffer,
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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CIV-03-2344-PHX-FJM

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DEFENDANTS' MEMORANDUM REGARDING WHY PLAINTIFF vs. SHOULD BE PRECLUDED FROM PLAYING FOR THE JURY State of Arizona Citizens Clean Election EXCERPTS FROM DEFENDANT Commission; Colleen Connor and Chad COLLEEN CONNOR'S VIDEOTAPED Jacobs, husband and wife; and Jessica DEPOSITION EXCEPT FOR Funkhouser and Lindy Funkhouser, husband IMPEACHMENT PURPOSES and wife; John Does I-X; Jane Does I-X, Plaintiff, Defendants. Federal Rule of Evidence 403 permits the Court to exclude evidence that has a probative value which is substantially outweighed by, among other things, "considerations of undue delay, waste or time, or needless presentation of cumulative evidence." Fed. R. Evid. 403; see also, e.g., Grisom v. Logan, 334 F. Supp. 273, 279 (C.D. Cal. 1971) (finding that, in addition to other reason deposition testimony was excluded from trial, the deposition testimony would have been properly excluded because it was cumulative).
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Plaintiff has informed this Court and defense counsel that, separate and apart from

2 his examination on the stand of defendant Colleen Connor, plaintiff intends to introduce 3 video excerpts from his deposition of Ms. Connor. The portions of Ms. Connor's 4 deposition designated by plaintiff as the excerpts he intends to play for the jury are major 5 themes in the plaintiff's case, about which plaintiff's attorney will undoubtedly ask Ms. 6 Connor while she is on the witness stand. Permitting plaintiff to introduce Ms. Connor's 7 testimony about such issues both through her testimony at trial and through her 8 deposition testimony would allow plaintiff to introduce needless cumulative evidence, the 9 prejudice of which would outweigh the probative value of a presentation of the evidence 10 in both forms. 11 Moreover, counsel has been reminded by the Court that that there are significant

12 time constraints on trial in this matter. Permitting plaintiff to play video excerpts of Ms. 13 Connor's deposition for the jury would create undue delay and would be an unnecessary 14 waste of time. Additional delay would be caused by a recitation of additional portions of 15 Ms. Connor's deposition necessary to place plaintiff's video clips in context. 16 For these reasons, defendants respectfully request that this Court order that

17 plaintiff is not permitted to play video excerpts of Ms. Connor's deposition to the jury, 18 except during his examination of her, as permissible for impeachment purposes under 19 Rule 32(a)(1), Fed. R. Civ. P. At the very least, the Court should require plaintiff to state 20 for the record good cause why he should be permitted to use cumulative evidence, or how 21 22
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1 the playing and reading of her deposition testimony in addition to Ms. Connor's trial 2 testimony does not constitute cumulative evidence. 3 4 5 6 7 8 9 RESPECTFULLY SUBMITTED this 19th day of September, 2005. GALLAGHER & KENNEDY, P.A. By: s/Jay A. Zweig______________ Jay A. Zweig Melissa R. Berren 2575 E. Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 Attorneys for Defendants

COPY of the foregoing electronically 10 transmitted via the U.S. District Court Electronic Case Filing system and hand-delivered 11 this 19th day of September, 2005 to: 12 Richard J. Harris, Esq. Richard J. Harris Law Offices, P.C. 13 4445 E. Holmes Avenue, Suite 106 Mesa, Arizona 85206-3398 14 Co-Counsel for Plaintiff 15 David C. Larkin, Esq. David C. Larkin, P.C. 16 4645 S. Lakeshore Drive, Suite 6 Tempe, Arizona 85282-3747 17 Co-Counsel for Plaintiff 18 19 20 21 22
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s/Dawn Sylvester_________