Free Memorandum - District Court of Arizona - Arizona

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Stephen G. Montoya (#011791)
MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

[email protected] Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Craig Tucker, plaintiff, vs. The City of Tempe, defendant. The City of Tempe disclosed Tempe Police Chief Ralph Tranter as a potential witness in this dispute for the first time in the parties' Joint List of Witnesses, filed with this Court on November 16, 2005, less than a week before trial. For some reason, the City did not disclose Chief Tranter as a witness in the Final Pretrial Order signed by counsel for the respective parties and approved by the Court. As the Supreme Court of the United States observed in Hickman v. Taylor, 329 U.S. 495, 501 (1947), the purpose of the discovery rules is to mandate the "fullest possible" disclosure of potential evidence to "reduc[e] the possibility of surprise" at trial. In

No. CIV 03-1425-PHX-DGC Plaintiff's Memorandum Regarding use of Tempe Police Chief Ralph Tranter as an "Impeachment Witness" at Trial

accordance with this principle, as explained in detail below, because the City did not timely disclose Chief Tranter as a potential witness, the City should not be allowed to call him as a witness at trial. A. The City of Tempe was required to disclose Chief Tranter as a witness.

Rule 26(a)(1), Federal Rules of Civil Procedure, provides (impertinent) part that: (1) Initial Disclosures.

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Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties: (A) 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. (Emphasis added.) Correspondingly, Rule 26(a)(3) provides that: (3) Pretrial Disclosures. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to other parties and promptly file with the court the following information regarding the evidence that it may present at trial other than solely for impeachment: (A) the name and, if not previously provided, the address and telephone number of each witness, separately identifying those whom the party expects to present and those whom, the party may call if the need arises. (Emphasis added.) Moreover, if a party discovers additional material after it has already made its initial disclosures, the rules require prompt supplementation of that material so that the opposing party is not misled by the original discovery as it prepares its case for trial. See Fed. R. Civ. P. 26(e). See also 8 Charles Alan Wright & Arthur Miller, Federal Practice and Procedure, § 2049.1 (2d Ed. 1994 & Supp. 1998). Finally, Rule 37(c)(1) provides: (c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit. (1) A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. Fed. R. Civ. P. 37(c)(1) (emphasis added). Thus, sanctions under Rule 37 are mandatory. If a party fails to make the required disclosures, it cannot use the undisclosed evidence at trial unless the failure is "harmless." Id.1

In the City's Memorandum in Support of Admission of Impeachment Evidence, the City does not contend that its failure to disclose Chief Tranter as a trial witness was "harmless."

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Accordingly, the City of Tempe was required to disclose both Chief Tranter and the substance of his anticipated trial testimony before the close of discovery on December 3, 2004, almost a year ago. Pursuant to Rule 37, the City's failure to timely disclose this evidence precludes it from using such evidence at trial. See, e.g., Yeti by Molly, LTD v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). B. The impeachment exception of Rule 26 is inapplicable.

Attempting to overcome its failure to timely disclose Chief Tranter as a potential witness, the City now claims that it will call Chief Tranter "solely" to "impeach" evidence introduced by Mr. Tucker at trial by means of "contradiction." As demonstrated below, Chief Tranter's anticipated testimony "contradicting" Mr. Tucker's trial evidence could also have been used as direct evidence in the City's case-inchief. The City's alleged "impeachment" evidence is consequently not being used "solely" for purposes of impeachment and is thus barred by Fed. R. Civ. P. 37(c)(1). For example, in Chaisson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993), the Fifth Circuit held that a video surveillance tape taken in reference to a personal injury claim was not offered "solely" for purposes of impeachment. The court first defined "substantive" evidence as "that [evidence] which is offered to establish the truth of a matter to be determined by the trier of fact." Id. at 517. The court then concluded that

"impeachment evidence, on the other hand, is that which is offered to discredit a witness . . . to reduce the effectiveness of [her] testimony by bringing forth evidence which explains why the jury should not put faith in [her] . . . testimony." Id. (Internal quotation marks omitted). The court also recognized that some evidence serves both substantive and impeachment purposes, and because such evidence is not "solely offered for impeachment," it is not covered by the impeachment exception to Rule 26's disclosure requirements. (Emphasis added.) As the court concluded, "because the tape is, at the very least, in part substantive, it should have been disclosed prior to the trial, regardless of its

The City has thus waived this argument.

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impeachment value." Id. at 517-18. Similarly, in Klonoski v. Mahlab, 156 F.3d 255, 269 (1st Cir. 1998)­cited with approval by the Ninth Circuit in Yeti by Molly, LTD v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)­the First Circuit held that an undisclosed letter offered by one party to contradict the testimony of the opposing party was "substantive" evidence which should have been disclosed in pretrial discovery. The court held that the letter constituted substantive evidence because, separate and apart from whether it contradicted the opposing party's testimony, it tended "to establish the truth of a matter to be determined by the trier of fact." Id., at 270. The court consequently concluded that the district court erred as a matter of law in finding that the letter fell within the impeachment exception to Rule 26 for evidence introduced "solely" purposes of impeachment. The same is true of the undisclosed evidence here. The City's alleged

"impeachment" evidence is in fact "substantive," because regardless of whether it contradicts other testimony, the evidence is being used to "establish the truth of a matter to be determined by the trier of fact." Chiasson, 988 F.2d at 518. See also United States v. Gilbert, 57 F.3d 709, 711 (9th Cir. 1995) ("Impeachment is improper when employed as a guise to present substantive evidence to the jury that would be otherwise inadmissible"). As demonstrated above, the mandatory sanction for failing to disclose evidence is the exclusion of that evidence at trial. See also, Labadie Coal Co. v. Black, 672 F.2d 92, 94-95 (D.C. Cir. 1982) (holding the district court's admission of documents was erroneous and prejudicial because the evidence was not properly disclosed.) C. Conclusion

The City's belated disclosure of Chief Tranter as a trial witness violates the letter and spirit of Rule 26. Indeed, the City's interpretation of the impeachment exception to Rule 26 would have the "exception swallow the rule" and would render the disclosure requirements of Rule 26 meaningless because all virtually evidence can be characterized as "impeachment by of means contradiction evidence." -4-

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Because the City failed to timely disclose this evidence, it should be excluded from evidence at trial. Dated this 25th day of November 2005. MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

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CERTIFICATE OF SERVICE

:

I hereby certify that on November 25, 2005, I electronically transmitted the attached document 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: Marlene A. Pontrelli Janis L. Bladine Kara L. Stanek Tempe City Attorney's Office P.O. Box 5002 Tempe, Arizona 85280 Attorneys for Defendants

:

I further certify that on November 28, 2005, the attached document was handdelivered to: The Honorable David G. Campbell United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

s/ Stephen G. Montoya

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