motion in limine to exclude dhh exhibits 5, 8, 15,...
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA
LUTHER SCOTT, JR., and LOUISIANA
STATE CONFERENCE OF THE
NAACP,
Plaintiffs,
v.
TOM SCHEDLER in his official capacity
as the Louisiana Secretary of State, RUTH
JOHNSON, in her official capacity as
Secretary of the Louisiana Department of
Children & Family Services, and BRUCE
D. GREENSTEIN, in his official capacity
as Secretary of the Louisiana Department of
Health & Hospitals,
Defendants.
Civil Action No. 2:11-cv-00926-JTM-JCW
Section “H”
MOTION IN LIMINE TO EXCLUDE
DHH EXHIBITS 5, 8, 15, AND 16,
AS UNDISCLOSED DOCUMENTS
NOW INTO COURT come Plaintiffs, LUTHER SCOTT, JR., and LOUISIANA STATE
CONFERENCE OF THE NAACP, and file the attached motion in limine to exclude from
evidence DHH Exhibits 5, 8, 15, 16, and any other exhibits or witnesses that were not disclosed
during discovery. For the reasons set forth in detail in the accompanying Memorandum, the
Plaintiffs respectfully request that the Court grant this Motion
Case 2:11-cv-00926-JTM-JCW Document 380 Filed 10/08/12 Page 1 of 3
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Respectfully submitted,
/s/ Dale E.Ho____________________
Dale E. Ho ([email protected])*
Natasha M. Korgaonkar
Debo P. Adegbile
Elise C. Boddie
Ryan P. Haygood ([email protected])*
NAACP Legal Defense & Educational Fund, Inc.
(New York)
99 Hudson Street, Suite 1600
New York, NY 10013
212-965-2200
*MOTION FOR ADMISSION PRO HAC VICE
GRANTED
Ronald Lawrence Wilson
Ronald L. Wilson, Attorney at Law
701 Poydras Street, Suite 4100
New Orleans, LA 70139
504-525-4361
Michael B. de Leeuw
Israel David ([email protected])*
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, NY 10004
*MOTION FOR ADMISSION PRO HAC VICE
GRANTED
Sarah Brannon ([email protected])*
Niyati Shah ([email protected])*
Michelle Rupp ([email protected])*
Project Vote
1350 Eye Street NW , Suite 1250
Washington, DC 20005
202-546-4173
*MOTION FOR ADMISSION PRO HAC VICE
GRANTED
Attorneys for Plaintiffs
Case 2:11-cv-00926-JTM-JCW Document 380 Filed 10/08/12 Page 2 of 3
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CERTIFICATE OF SERVICE
I hereby certify that on the 8 of October, 2012, I electronically filed the foregoing
Memorandum in Support of Motion to Strike Declarations and Documents Filed by Defendants
Johnson and Greenstein and for Sanctions with the Clerk of the Court using the CM/ECF system,
which will send a notice of electronic filing to persons electronically noticed. I further certify
that I mailed the foregoing document and the notice of electronic filing by first class mail to any
non-CM/ECF participant.
/s/ Dale E. Ho____________
8719512
Case 2:11-cv-00926-JTM-JCW Document 380 Filed 10/08/12 Page 3 of 3
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA
LUTHER SCOTT, JR., and LOUISIANA
STATE CONFERENCE OF THE
NAACP,
Plaintiffs,
v.
TOM SCHEDLER in his official capacity
as the Louisiana Secretary of State, RUTH
JOHNSON, in her official capacity as
Secretary of the Louisiana Department of
Children & Family Services, and BRUCE
D. GREENSTEIN, in his official capacity
as Secretary of the Louisiana Department of
Health & Hospitals,
Defendants.
Civil Action No. 2:11-cv-00926-JTM-JCW
Section “H”
PLAINTIFFS’ MEMORANDUM
IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE
DHH EXHIBITS 5, 8, 15, AND 16,
AS UNDISCLOSED DOCUMENTS
Plaintiffs file this motion in limine to exclude from evidence DHH Exhibits 5, 8, 15, 16,1
and any other exhibits or witnesses that were not disclosed during discovery. Because none of
these documents were produced during discovery—or at any time prior to when the parties
exchanged lists of exhibits for the purpose of preparing a Draft Pre-Trial Order—these exhibits
must be excluded from evidence pursuant to Fed. R. Civ. P. 37(c).
1 DHH Exhibit 5 is the Medicaid online change of address with a mail voter registration application
and voter registration declaration attached. DHH Exhibit 8 is the March 2012 Medicaid NVRA training
power point. DHH Exhibit 15 is Chapter 23 of the WIC manual. DHH Exhibit 16 is the January 2012
WIC training power point.
Case 2:11-cv-00926-JTM-JCW Document 380-1 Filed 10/08/12 Page 1 of 5
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ARGUMENT
Rule 37(c)(1) provides that, “[i]f a party fails to provide information . . . the party is not
allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “A
failure to disclose under Rule 37 includes . . . a party’s untimely production of documents and
information required to be produced.” Morin v. Chevron U.S.A. Inc., No. 11-45, 2012 WL
2116368, at *7 (E.D. La. June 11, 2012). These rules preserve the Federal Rules of Civil
Procedure’s crucial role in “mak[ing] a trial less a game of blind man’s bluff and more a fair
contest with the basic issues and facts disclosed to the fullest practicable extent.” Rozier v. Ford
Motor Co., 573 F.2d 1332, 1346 (5th Cir. 1978) (quoting United States v. Procter & Gamble,
356 U.S. 677, 682 (1958)).
The Fifth Circuit applies a four-factor test to determine whether late-produced material is
substantially justified or harmless: “(1) the explanation for the party’s failure to disclose; (2) the
importance of the evidence; (3) the potential prejudice to the opposing party from including the
evidence; and (4) the availability of a continuance.” Gonzales v. State Farm Mut. Auto Ins. Co.,
No. 10-3041, 2011 WL 2607096, at *4 (E.D. La. July 1, 2011) (citing CQ, Inc. v. TXU Min. Co.,
L.P., 565 F.3d 268, 280 (5th Cir. 2009)).
Each of these factors favors the Plaintiffs. These documents were neither produced to
Plaintiffs during discovery, nor listed in any of Defendants’ discovery responses. Indeed,
Plaintiffs were not even made aware of the existence of these documents until just a few weeks
before trial, when Defendants sent to Plaintiffs an initial draft of their inserts for the parties’
proposed joint pretrial order, which listed these documents as among Defendants’ exhibits.2 No
2 This stands in stark contrast to DCFS Exhibit 7 / SOS Exhibit 4 (Luther Scott, Jr.’s December
2011 benefits application). That document, which is also subject to a motion in limine to exclude based on
Case 2:11-cv-00926-JTM-JCW Document 380-1 Filed 10/08/12 Page 2 of 5
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explanation has been offered for the failure to disclose any of the aforementioned documents
prior to the eve of trial, nor has there been any indication that they are essential to any
Defendant’s defense—or even particularly important to the case. See CQ, Inc. v. TXU Min. Co.,
L.P., 565 F.3d 268, 280 (5th Cir. 2009). In contrast, because Plaintiffs have not had the
opportunity to depose any witnesses with respect to these documents, there will be prejudice to
Plaintiffs. This prejudice could not be cured by a continuance, as this Court recognized by
denying such a continuance at the Pre-Trial Conference. Doc. 361, Minute Entry.
CONCLUSION
For the aforementioned reasons, Plaintiffs respectfully request this Court enter an order
providing that DHH Exhibits 5, 8, 15, 16, and any other exhibits or witnesses that were not
disclosed during discovery, be inadmissible at trial.
Respectfully submitted,
/s/ Dale E.Ho____________________
Dale E. Ho ([email protected])*
Natasha M. Korgaonkar
Debo P. Adegbile
Elise C. Boddie
Ryan P. Haygood ([email protected])*
NAACP Legal Defense & Educational Fund, Inc.
(New York)
99 Hudson Street, Suite 1600
New York, NY 10013
212-965-2200
*MOTION FOR ADMISSION PRO HAC VICE
GRANTED
Ronald Lawrence Wilson
Defendants’ failure to produce that document during discovery, was produced to Plaintiffs in August,
when Defendants purportedly became aware of its existence. The documents that are the subject of this
motion, however, were never produced to Plaintiffs at all, and Defendants have not offered any
explanation for their failure to comply with their discovery obligations.
Case 2:11-cv-00926-JTM-JCW Document 380-1 Filed 10/08/12 Page 3 of 5
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Ronald L. Wilson, Attorney at Law
701 Poydras Street, Suite 4100
New Orleans, LA 70139
504-525-4361
Michael B. de Leeuw
Israel David ([email protected])*
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, NY 10004
*MOTION FOR ADMISSION PRO HAC VICE
GRANTED
Sarah Brannon ([email protected])*
Niyati Shah ([email protected])*
Michelle Rupp ([email protected])*
Project Vote
1350 Eye Street NW , Suite 1250
Washington, DC 20005
202-546-4173
*MOTION FOR ADMISSION PRO HAC VICE
GRANTED
Attorneys for Plaintiffs
Case 2:11-cv-00926-JTM-JCW Document 380-1 Filed 10/08/12 Page 4 of 5
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CERTIFICATE OF SERVICE
I hereby certify that on the 8 of October, 2012, I electronically filed the foregoing
Memorandum in Support of Motion to Strike Declarations and Documents Filed by Defendants
Johnson and Greenstein and for Sanctions with the Clerk of the Court using the CM/ECF system,
which will send a notice of electronic filing to persons electronically noticed. I further certify
that I mailed the foregoing document and the notice of electronic filing by first class mail to any
non-CM/ECF participant.
/s/ Dale E. Ho____________
8719512 8753960
Case 2:11-cv-00926-JTM-JCW Document 380-1 Filed 10/08/12 Page 5 of 5
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA
LUTHER SCOTT, JR. and the LOUISIANA
STATE CONFERENCE OF THE NAACP,
Plaintiffs,
v.
TOM SCHEDLER in his official capacity as the
Louisiana Secretary of State; RUTH
JOHNSON, in her official capacity as Secretary
of the Louisiana Department of Children &
Family Services; and BRUCE D.
GREENSTEIN in his official capacity as
Secretary of the Louisiana Department of
Health & Hospitals,
Defendants.
Civ. No. 2:11-cv-00926-JTM-JCW
Section “H”
NOTICE OF SUBMISSION
PLEASE TAKE NOTICE that Plaintiffs Luther Scott, Jr. and the Louisiana State
Conference of the NAACP will bring the attached Motion In Limine to Exclude DHH Exhibits 5,
8, 15, and 16, as Undisclosed Documents for submission before the Honorable Judge Jane Triche
Milazzo on the 15th day of October, 2012 at 8:15 a.m.
Case 2:11-cv-00926-JTM-JCW Document 380-2 Filed 10/08/12 Page 1 of 3
Dated: October 8, 2012
Respectfully submitted,
/s/ Dale E.Ho____________________
Dale E. Ho ([email protected])*
Natasha M. Korgaonkar
Debo P. Adegbile
Elise C. Boddie
Ryan P. Haygood ([email protected])*
NAACP Legal Defense & Educational Fund, Inc.
(New York)
99 Hudson Street, Suite 1600
New York, NY 10013
212-965-2200
*MOTION FOR ADMISSION PRO HAC VICE
GRANTED
Ronald Lawrence Wilson
Ronald L. Wilson, Attorney at Law
701 Poydras Street, Suite 4100
New Orleans, LA 70139
504-525-4361
Michael B. de Leeuw
Israel David ([email protected])*
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, NY 10004
*MOTION FOR ADMISSION PRO HAC VICE
GRANTED
Michelle Rupp ([email protected])*
Niyati Shah ([email protected])*
Sarah Brannon ([email protected])*
Project Vote
1350 Eye Street NW , Suite 1250
Washington, DC 20005
202-546-4173
*MOTION FOR ADMISSION PRO HAC VICE
GRANTED
Attorneys for Plaintiffs
Case 2:11-cv-00926-JTM-JCW Document 380-2 Filed 10/08/12 Page 2 of 3
CERTIFICATE OF SERVICE
I hereby certify that on October 8, 2012, I electronically filed the foregoing with
the Clerk of Court by using the CM/ECF system, which will send a notice of electronic
filing to counsel of record who are registered participants of the Court’s CM/ECF system.
I further certify that I mailed the foregoing document by first-class mail to counsel of
record who are not CM/ECF participants as indicated in the notice of electronic filing.
/s/ Dale E.Ho____________________
Dale E. Ho ([email protected])*
Natasha M. Korgaonkar
Debo P. Adegbile
Elise C. Boddie
Ryan P. Haygood
NAACP Legal Defense & Educational
Fund, Inc. (New York)
99 Hudson Street, Suite 1600
New York, NY 10013
212-965-2200
*MOTION FOR ADMISSION PRO HAC
VICE GRANTED
Counsel for Plaintiffs
Case 2:11-cv-00926-JTM-JCW Document 380-2 Filed 10/08/12 Page 3 of 3
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA
LUTHER SCOTT, JR., and LOUISIANA
STATE CONFERENCE OF THE
NAACP,
Plaintiffs,
v.
TOM SCHEDLER in his official capacity
as the Louisiana Secretary of State, RUTH
JOHNSON, in her official capacity as
Secretary of the Louisiana Department of
Children & Family Services, and BRUCE
D. GREENSTEIN, in his official capacity
as Secretary of the Louisiana Department of
Health & Hospitals,
Defendants.
Civil Action No. 2:11-cv-00926-JTM-JCW
Section “H”
ORDER
On Motion In Limine to exclude from evidence DHH Exhibits 5, 8, 15, 16, and any other
exhibits or witnesses that were not disclosed during discovery, or at any time prior to when the
parties exchanged lists of exhibits for the purpose of preparing a Draft Pre-Trial Order, IT IS
HEREBY ORDERED that DHH Exhibits 5, 8, 15, 16, and any other exhibits or witnesses that
were not disclosed during discovery, are inadmissible at trial.
This ___ day of October, 2012.
____________________________________
HONORABLE JANE TRICHE MILAZZO
Case 2:11-cv-00926-JTM-JCW Document 380-3 Filed 10/08/12 Page 1 of 1