Free Memorandum - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13
Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

TEMPE CITY ATTORNEY'S OFFICE MARLENE A. PONTRELLI, #016980 JANIS L. BLADINE, #018244 KARA L. STANEK, #020161 21 E. Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280 Phone: (480) 350-8227 Fax: (480) 350-8645 Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CRAIG TUCKER, No. CV 03-1425 PHX DGC Plaintiff, v. THE CITY OF TEMPE, Defendant. DEFENDANT'S MEMORANDUM IN SUPPORT OF ADMISSION OF IMPEACHMENT EVIDENCE

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Pursuant to the Court's request at the November 17, 2005 Final Pretrial Conference, Defendant City of Tempe ("Tempe") hereby submits its memorandum in support of admitting non-disclosed evidence for impeachment purposes. Because the Federal Rules of Civil Procedure do not require disclosure of witnesses or documents for impeachment purposes, Tempe respectfully requests that this Court allow Tempe to offer non-disclosed witnesses and documents solely for impeachment purposes. This request is further supported by the attached Memorandum of Points and Authorities. DATED this 22nd day of November, 2005. TEMPE CITY ATTORNEY'S OFFICE /s/ Marlene A. Pontrelli Marlene A. Pontrelli Janis L. Bladine Kara L. Stanek Attorneys for Defendant

Case 2:03-cv-01425-DGC

Document 36

Filed 11/22/2005

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13
Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

MEMORANDUM OF POINTS AND AUTHORITIES The Federal Rules of Civil Procedure, the comments to the Rules, and case law recognize that impeachment evidence need not be disclosed under Rule 26 and is not subject to automatic exclusion by the Court under Rule 37. Although Rule 26 of the Federal Rules of Civil Procedure requires the disclosure of certain specified information, the rule itself specifically excludes witnesses and evidence that will be used for impeachment purposes. (1) Initial Disclosures. 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, ...; (B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;... Rule 26(a)(1)(emphasis added). Additionally, the portion of Rule 26 mandating pretrial disclosure of evidence also specifically excludes impeachment evidence. (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: Rule 26(a)(3)(emphasis added). Non-disclosed witnesses and information are generally subject to automatic exclusion at trial pursuant to Rule 37. However, the exclusion only applies to witnesses and information not disclosed as required by Rule 26(a) or 26(e)(1). Impeachment

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

information is not required to be disclosed under Rule 26. The comments to Rule 37 further clarify and support use of undisclosed evidence for impeachment purposes. Paragraph (1) prevents a party from using as evidence any witnesses or information that, without substantial justification, has not been disclosed as required by Rules 26(a) and 2
Case 2:03-cv-01425-DGC Document 36 Filed 11/22/2005 Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13
Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

26(e)(1). This automatic sanction provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence, whether at a trial, at a hearing, or on a motion, such as one under Rule 56. As disclosure of evidence offered solely for impeachment purposes is not required under those rules, this preclusion sanction likewise does not apply to that evidence. 1993 Comments to Rule 37(c)(1) (emphasis added). The court in Halbasch v. Med-Data, Inc., 192 F.R.D. 641, 648 (D. Oregon, 2000), recognized that the Federal Rules of Civil Procedure do not require impeachment evidence to be disclosed and that such evidence is not subject to automatic exclusion. The court in that case concluded that testimony offered for impeachment purposes was properly allowed even though the witness was not disclosed and the evidence could be characterized as relevant to substantive issues in the case. Id. at 650. In conclusion, because the Federal Rules of Civil Procedure do not require disclosure of impeachment information, Tempe respectfully requests that this Court permit Tempe to offer non-disclosed witnesses and information for impeachment purposes at trial. RESPECTFULLY SUBMITTED this 22nd day of November, 2005. TEMPE CITY ATTORNEY'S OFFICE

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/s/ Marlene A. Pontrelli Marlene A. Pontrelli Janis L. Bladine Kara L. Stanek 21 E. Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280 Attorneys for Defendant

3
Case 2:03-cv-01425-DGC Document 36 Filed 11/22/2005 Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13
Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

CERTIFICATE OF SERVICE I hereby certify that on November 22, 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: Stephen G. Montoya MONTOYA JIMENEZ, P.A. 3200 N. Central Avenue, Suite 2550 Phoenix, AZ 85012 Attorney for Plaintiff I further certify that on November 22, 2005, the attached document was hand delivered to: HONORABLE DAVID G. CAMPBELL United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 623 401 W. Washington Street, SPC 58 Phoenix, AZ 85003

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/s/ Cindy Clore

4
Case 2:03-cv-01425-DGC Document 36 Filed 11/22/2005 Page 4 of 4