Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 53

Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Doc. 53

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TERRY GODDARD Attorney General Firm Bar No. 14000 Mary O'Grady, No. 011434 Solicitor General Steven A. LaMar, No. 004140 Senior Litigation Counsel Carrie J. Brennan, No. 018250 Barbara A. Bailey, No. 018230 Assistant Attorneys General 1275 West Washington Street Phoenix, Arizona 85007-2926 Tel: [phone] Fax: [phone] Attorneys for State of Arizona and Arizona Secretary of State Janice Brewer IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MARIA M. GONZALEZ, et al., Plaintiffs, v. STATE OF ARIZONA, et al. Defendants. RESPONSE TO GONZALEZ PLAINTIFFS' MOTION FOR RECONSIDERATION OF PORTION OF ORDER EXCLUDING TRIAL WITNESSES No. CV06-01268 PHX ROS No. CV06-1362 PCT ROS (Cons) No. CV06-1575 PCT ROS (Cons)

(Assigned to the Honorable Roslyn O. Silver)

Dockets.Justia.com

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Pursuant to the Court's order dated July 9, 2008, dkt. 932, Defendants State of Arizona and Arizona Secretary of State ("State Defendants") hereby respond to Gonzalez Plaintiffs' Motion for Reconsideration of Portion of Order Excluding Trial Witnesses ("Motion for Reconsideration"). As explained below, permitting the

declarations and depositions of untimely disclosed witnesses would be highly prejudicial to Defendants, who have had no opportunity to take discovery on or depositions of those witnesses and who would have no opportunity to cross-examine them at trial. A motion for reconsideration should be granted only if (1) the Court has patently misunderstood a party; (2) the Court has made a decision outside the adversarial issues presented to it; (3) the Court has made an error not of reasoning but of apprehension; or (4) where there has been a controlling or significant change in the law or facts since the submission of the issue to the Court. Saini v. I.N.S., 64 F. Supp. 2d 923, 925 (D. Ariz. 1999). Luz Sarmina and Sal Martinez None of the above four factors weighs in favor of granting the Motion for Reconsideration. Although Defendants in their Motion in Limine Re Late Disclosure of Witnesses, dkt. 821, specifically named Luz Sarmina and Sal Martinez as persons who were disclosed late, Gonzalez Plaintiffs failed to address them in their Gonzalez Plaintiffs' Consolidated Response to Motions in Limine ("Consolidated Response"). (Dkt. 867) Thus, the Court did not misunderstand or make a decision outside the adversarial issues presented to it, because nothing regarding these witnesses was presented by Plaintiffs. Moreover, Gonzalez Plaintiffs have the burden to show why they did not timely disclose these witnesses by January 18, 2008. Gonzalez Plaintiffs admit that they knew of Sal Martinez and Luz Sarmina replacing Edmondo Hidalgo and Anita Luera by at least November 8, 2007 (Motion at 7). Gonzalez Plaintiffs do not explain why it was

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impossible for them to disclose these persons by the fact discovery deadline two months later. Defendants' decisions regarding which of Plaintiffs' witnesses to depose are substantially dependent on who Plaintiffs disclose. Gonzalez Plaintiffs did not disclose these witnesses in a timely manner, have given no justification for not timely disclosing them, and because they were disclosed in an untimely manner, Defendants did not have an opportunity to depose them. Those individuals should not be allowed to testify. Martha Higuera, Herta Weber, Barbara Corke, Steve and Donna Fulton, Karen Lewsader, and Brenda Rogers Gonzalez Plaintiffs propose to introduce testimony through the declarations of seven untimely disclosed individuals whom Defendants had, and will have, no opportunity to cross-examine. Neither Defendants nor the Court will have any

opportunity to learn all of the facts regarding the circumstances of their statements. Admission of such testimony would be patently unfair and unduly prejudicial to Defendants. Gonzalez Plaintiffs could have and should have disclosed these witnesses earlier. Plaintiffs do not dispute that they received the rejected voter registration forms by at least late 2007. They also acknowledge that they received all of the conditional

provisional ballot documents by March 2008. Plaintiffs were sending out letters to many individuals on May 28, 2008, and therefore cannot argue that they used diligence in attempting to locate witnesses. See Letters, attached as Exhibit A hereto. Notably, Plaintiffs do not inform the Court when they actually first contacted the seven individuals. Accordingly, Plaintiffs' argument regarding those witnesses (Martha Higuera, Herta Weber, and Barbara Corke) testifying about their voter registration experience is unsupported. Similarly, Plaintiffs have offered no justification for their failure to

disclose those witnesses offering statements about their voting experiences (Steve and

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Donna Fulton, Karen Lewsader and Brenda Rogers). In addition, Gonzalez Plaintiffs' argument on these witnesses in their Motion for Reconsideration is virtually a word-by-word rehash of their argument in their Consolidated Response, and is therefore improper under the motion for reconsideration standard set forth above. Michael Quinn and Gerri Ratliff Once again, Gonzalez Plaintiffs' Motion for Reconsideration offers nothing new on these witnesses. It is merely a reiteration of their argument in their Consolidated Response. Gonzalez Plaintiffs do not dispute that the depositions of these witnesses were taken months after the close of fact discovery and that they made no attempt to reopen discovery for those depositions. Defendants should be entitled to rely on the Court's orders regarding discovery deadlines, and in declining to attend the depositions of Quinn and Ratliff, they were doing just that. Defendants will be prejudiced by the introduction of the deposition testimony of these witnesses. RESPECTFULLY SUBMITTED this 9th day of July, 2008. TERRY GODDARD Arizona Attorney General s/ Carrie J. Brennan Mary O'Grady, Solicitor General Steven A. LaMar, Senior Litigation Counsel Carrie J. Brennan, Assistant Attorney General Barbara A. Bailey, Assistant Attorney General Attorneys for Defendants State of Arizona and Arizona Secretary of State Janice Brewer WILENCHIK AND BARTNESS, P.C. s/ Carrie J. Brennan for Kathleen Rapp Dennis I. Wilenchik Kathleen Rapp Attorneys for the Twelve County Recorders and Twelve County Elections Directors
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CERTIFICATE OF SERVICE I hereby certify that on this 9th day of July, 2008, I electronically transmitted the attached document to the Clerk's Office using the ECF System for filing, and transmittal of a Notice of Electronic Filing to the following ECF registrants: David J. Bodney Karen J. Hartman-Tellez Steptoe & Johnson LLP 201 East Washington St., Ste. 1600 Phoenix, Arizona 85004-2382 [e-mail] [e-mail] David B. Rosenbaum Thomas L. Hudson Sara S. Greene Osborn Maledon, P.A. 2929 N. Central, 21st Floor Phoenix, Arizona 85012-2793 [e-mail] [e-mail] [e-mail] Jon Greenbaum Benjamin Blustein Lawyers' Committee For Civil Rights Under Law 1401 New York Avenue, Ste. 400 Washington, D.C. 20005 [e-mail] Neil Bradley ACLU Southern Regional Office 2600 Marquis One Tower 245 Peachtree Center Avenue Atlanta, Georgia 30303 [e-mail]

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Elliot M. Mincberg People for the American Way Foundation 2600 M Street, NW, Ste. 400 Washington, DC 20036 [e-mail] Daniel B. Kohrman AARP Foundation Litigation 601 E Street, N.W., Ste. A4-240 Washington, DC 20049 [e-mail] Joe P. Sparks Susan B. Montgomery Sparks, Tehan & Ryley PC The Inter Tribal Council of Arizona, Inc. 7503 First Street Scottsdale, Arizona 85251 [e-mail] David J. Becker People for the American Way Foundation 2000 M Street, NW, Suite 400 Washington, D.C. 20036 [e-mail] Daniel R. Ortega, Jr. Roush McCracken Guerrero Miller & Ortega 650 N. 3rd Avenue Phoenix, Arizona 85003 [e-mail] Nina Perales Mexican American Legal Defense and Education Fund 110 Broadway, Ste. 300 San Antonio, Texas 78205 [e-mail]

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M. Colleen Connor MCAO Division of County Counsel 222 N. Central Avenue, Ste. 1100 Phoenix, Arizona 85003 [e-mail] Dennis I. Wilenchik Kathleen Rapp Wilenchik and Bartness, P.C. 2810 N. Third Street Phoenix, Arizona 85004 [e-mail] [e-mail] Judith M. Dworkin Marvin S. Cohen Patricia Ferguson-Bohnee SACKS TIERNEY P.A. 4250 N. Drinkwater Blvd. 4th Scottsdale, Arizona 85251-3693 [e-mail] Criss E. Candelaria Bradley Carlyon Apache County Attorneys Office PO Box 637 St. Johns, Arizona 86025 [e-mail] Melvin R. Bowers, Jr. Lance B. Payette Navajo County Attorneys Office PO Box 668 Holbrook, Arizona 86025 [e-mail] Brenna L. Clani Navajo County Department of Justice PO Box 2010 Window Rock, Arizona 86515 [e-mail]

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Jean E. Wilcox Coconino County Attorney's Office 110 East Cherry Ave. Flagstaff, Arizona 86001 [e-mail] COPY served the 9th day of July, 2008, via U.S. mail, with Notice of Electronic Filing, on: The Honorable Roslyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, AZ 85003-2158 /s Elizabeth Stark

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