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Plaintiff's Witness?


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In the Disclosure filed by the defendant, they dont name a witness.....they only state an employee of the plaintiff will testify. With that, they list "Arizona Rule 30b(6) employee of plaintiff", which states this:

 

"A party may in the party's notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which that person will testify. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (B)(6) does not preclude taking a deposition by any other procedure authorized in these rules."

 

To me, that seems in reference to depositions and doesn't really seem written for an un-named "employee of the plaintiff". The way I read the Disclosure statement, they have to provide a name....not just have a surprise witness show up at the trial. I thought I had also read something about witness having to be named no later than 10 days before trial, but I cant seem to re-find that rule. :-/ So, are they in violation by not providing a name? Can a name be provided as late as the trial? Should I be filing a motion to strike (preclude) the un-named witness? I would think the person in my Affidavit would be their witness, but they didn't name her.

 

Alternatively, can I object when the witness phones in at the trial?

 

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There are new rules in arizona for the Justice of the peace courts rules of procedure effective Jan. 1st, 2013 by order of the AZ Supreme Court.

 

http://www.azcourts.gov/Portals/20/2012Rules/R120006.pdf

 

It is important to read these rules and understand everything as the courts are using these rules.

 

as for the witnesses name you push for that in discovery using interrogatories.

 

the statute they list is not correct so check the new JCRCP and see what is says under disclosures.

 

ok here it is:

Part VI: Disclosure statements and discovery.

Rule 121: Disclosure statements.

a. Disclosure of information.

Within forty (40) days after the defendant has filed an answer, or

at a time set by the court, each party must provide to the other parties a written disclosure

statement. Every party’s disclosure statement must include the following information:

(1)

A list of trial witnesses.

This list must include the names, addresses, and telephone

numbers of the witnesses the party will call if the lawsuit goes to trial, and a brief

description of what the party expects the witness will say. “Witness” is defined in Rule

137(a) as “a person, including a party, who provides sworn testimony during a lawsuit.”

If a witness is going to offer expert testimony, the list must include the expert’s

qualifications, and a summary of the opinions of the expert.

(2)

A list of other people with knowledge.

This list must include the names,

addresses, and telephone numbers of persons who will not be called as trial witnesses, but

who have information that may be favorable or unfavorable concerning the event or

transaction that is the subject of the lawsuit.

(3)

Copies of exhibits and information.

(A) A party must provide copies of any documents or exhibits the party will use to

support a claim or defense, including copies of electronically stored documents;

(B) In a contested case based upon the collection of a consumer debt (a debt entered

into for personal, family, or household purposes), the plaintiff must disclose all

available evidence related to the allegations contained in the complaint. These

include:

(i) The agreement between the creditor and consumer, if available, upon which

the complaint is based;

(ii) Any available billing statement to the consumer;

(iii) If the debt has been assigned, evidence that the plaintiff is the owner of the

debt;

(iv) Information concerning the date of the last payment made by the consumer, if

available;

© If the party intends to use at trial any document, object, or exhibit that cannot be

easily copied, the party must make the item reasonably available for inspection by the

other parties at the pretrial conference or as otherwise agreed to by the parties.

(4)

Statements.

A party must provide a copy of any written or recorded statements

that are within the party’s possession or control and that were given by any person. If a

party is aware of such a statement that is not within the party’s possession or control, the

party must identify the name and address of the person who gave the statement and the

custodian of the copy of the statement, if known.

(5)

A list of other documents.

This list must include all other relevant documents that

are known to exist, whether these other documents are favorable or not and whether they

exist in paper or electronic formats, and their location, if known. The list must include

any insurance agreements that may satisfy all or part of a judgment that may be entered in

the lawsuit. A party may provide copies of these documents rather than a list of

documents.

The disclosure statement must be signed by the party who prepared it, and by the party’s attorney

if represented, and it must be provided to (“served on”) the other parties as provided in Rule 120.

A party is not required to disclose information that is legally privileged or that has been prepared

specifically for litigation, except as stated in Rule 122(f)(3) of these rules. However, the party

withholding this information must provide a general description of the documents or matters not

disclosed that is sufficient for another party to challenge the non-disclosure.

[ARCP 26.1(a), (B), (d), (f)]

 

 

So there you go you got them by the shorthairs.

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Have they filed a motion for telephonic appearance yet? I don't believe they can do that the day of trial.

Yeah.....I objected to it, but the judge still approved. Ive filed Rogs and a Request for Docs already, but didn't ask for a name. The earliest I can file anything else is Monday, which is about 15 days before my trial date. What can I do at this point?

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Motion to preclude or motion in limine sounds appropriate based on what Seadragon posted.

I agree something is needed.....I just need to verify Im not going to be past a deadline where it's useless. By the time I can file something (Monday), Ill be about 15/16 days out from trial. ;o)

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Take a look at this thread: http://www.creditinfocenter.com/community/topic/315563-mottion-to-preclude-or-in-limine-az/

 

I believe it has the answers you seek.

Yep, and this is pretty much what screws me...

(B) Unless a different schedule is ordered by the court, no later than 30 days before either a final pretrial conference or, if no final pretrial conference is set, then the date of the trial, the parties shall file all motions in limine for which pretrial rulings are desired.

 

So, since Im within 30 days, what can I do? Do it anyways? I guess per this: "(f) The failure to file a motion in limine in compliance with this rule shall not operate as a waiver of the right to object to evidence at trial." I can object at the trial?

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Objections are always a option. Just make sure you actually say it, "Objection, your honor" and then have a way to back it up which in this case would be to pull out and recite the Disclosure rule regarding witnesses and how the Plaintiff's disclosure failed to properly name the witness. 

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