MOTION IN LIMINE TO EXCLUDE DHH EXHIBITS 5, 8, 15, …moritzlaw.osu.edu/electionlaw/litigation/documents/Plaintiffs... · MOTION IN LIMINE TO EXCLUDE ... that information or witness

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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

([email protected])*

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

([email protected])

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


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


GRANTED

Attorneys for Plaintiffs


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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


1





NAACP,

Plaintiffs,

v.








Health & Hospitals,

Defendants.


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


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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.


/s/ Dale E.Ho____________________




Debo P. Adegbile

Elise C. Boddie



(New York)


New York, NY 10013

212-965-2200


GRANTED


([email protected])

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.


4




504-525-4361

Michael B. de Leeuw




One New York Plaza

New York, NY 10004


GRANTED




Project Vote



202-546-4173


GRANTED



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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




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


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.


Dated: October 8, 2012


/s/ Dale E.Ho____________________




Debo P. Adegbile

Elise C. Boddie



(New York)


New York, NY 10013

212-965-2200


GRANTED


([email protected])




504-525-4361

Michael B. de Leeuw




One New York Plaza

New York, NY 10004


GRANTED




Project Vote



202-546-4173


GRANTED




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____________________




Debo P. Adegbile

Elise C. Boddie

Ryan P. Haygood


NAACP Legal Defense & Educational

Fund, Inc. (New York)


New York, NY 10013

212-965-2200

*MOTION FOR ADMISSION PRO HAC

VICE GRANTED

Counsel for Plaintiffs






NAACP,

Plaintiffs,

v.








Health & Hospitals,

Defendants.


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
