Oct 14 2011 Marco Glisson
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Government says, now wait just a minute! Darn it!
JOHN B. BULGOZDY, Cal Bar No. 219897
E-mail: bulgozdyj@sec.gov
DAVID J. VAN HAVERMAAT, Cal. Bar No. 175761
E-mail: vanhavermaatd@sec.gov
Attorney for Plaintiff
Securities and Exchange Commission
Rosalind R. Tyson, Regional Director
Michele Wein Layne, Associate Regional Director
5670 Wilshire Boulevard, 11th Floor
Los Angeles, California 90036
Telephone: (323) 965-3998
Facsimile: (323) 965-3908
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
vs.
MARCO GLISSON,
Defendant
Case No. 2:09-cv-00104-LDG-GWF
PLAINTIFF SECURITIES AND
EXCHANGE COMMISSION’S
MOTION IN LIMINE TO
EXCLUDE AT TRIAL
TESTIMONY OF CERTAIN
WITNESSES THAT WERE NOT
DISCLOSED BY DEFENDANT
DURING DISCOVERY
Case 2:09-cv-00104-LDG-GWF Document 79 Filed 10/14/11 Page 1 of 8
I. INTRODUCTION
In this matter that is set for trial on November 14, 2011, Plaintiff Securities
and Exchange Commission (“Commission”) moves in limine for an order
excluding testimony from six defense witnesses: Al Hodges, William Percy,
Joseph Ray Overman, Shelia Morris, Jack Miyler, and Connie Miyler. In the Joint
Pretrial Order, defendant Marco Glisson (“Glisson”) listed these individuals as
witnesses he may call at trial in his defense. However, Glisson failed to disclose
these witnesses in his initial disclosures, during discovery, to supplement his
disclosures or discovery, or to offer to make these witnesses available for
deposition by agreement – even though the discovery cut-off has passed. Indeed,
while defendant listed the names in the Joint Pretrial Order, defendant has not
provided even rudimentary contact information for these witnesses.
The Commission first learned the identity of these witnesses as defense
witnesses long after the close of discovery, and has had no opportunity to take the
depositions of, seek documents from, or otherwise investigate the expected
testimonies of any of these witnesses. Consequently, pursuant to Federal Rules of
Civil Procedure 26(a)(1)(A) and 37(c)(1), the Commission requests that the Court
issue an in limine order precluding defendant from calling these six witnesses to
testify at trial.
II. LEGAL ARGUMENT
A. The Court Should Preclude Defendant From Calling These Six
Witnesses at Trial
Federal Rule of Civil Procedure 26(a)(1) requires all parties in a civil action
to disclose to the other parties “the name and, if known, the address and telephone
number of each individual likely to have discoverable information, along with the
subjects of that information, that the disclosing party may use to support its claims
Case 2:09-cv-00104-LDG-GWF Document 79 Filed 10/14/11 Page 2 of 8
or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P.
26(a)(1)(A). Rule 26(e) requires that initial disclosures be supplemented or
corrected in a timely manner if a party learns that its disclosure is incomplete or
incorrect and the additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in writing. Fed. R. Civ.
P. 26(e)(1). The Rules mandating such disclosures were promulgated primarily to
help parties focus the discovery that is needed and facilitate preparation for trial or
settlement and, specifically with respect to the requirement that the identities of
potential witnesses and the subject areas of their likely testimonies be disclosed, to
assist parties in deciding which depositions should be taken. See Fed. R. Civ. P.
26, Advisory Committee’s Notes to 1993 Amendments.
Rule 37(c)(1) “gives teeth to these requirements by forbidding the use at
trial” of any information or witnesses required to be disclosed by Rule 26(a) that
are not properly disclosed. Yeti by Molly Ltd. v. Decker Outdoor Corp., 259 F.3d
1101, 1106 (9th Cir. 2001). Rule 37(c)(1) provides that a party that fails to make
the required initial disclosure of witnesses “is not allowed to use that information
or witness to supply evidence on a motion, at a hearing, or at trial.” Fed. R. Civ. P.
37(c)(1). The sanction against a party that fails to disclose a potential witness “is
meant to prevent unfair play between parties, i.e., litigation by surprise.” Igbinovia
v. Catholic Healthcare West, 2010 U.S. Dist. Lexis 129316 (D. Nev. Dec. 7, 2010).
Unless the failure to disclose is “harmless” or excused by “substantial
justification,” the sanction is mandatory; the Court must impose the sanction of
precluding the undisclosed evidence or witnesses.1 Yeti, 259 F. 3d at 1106 (“The
1 Courts generally limit finding that a nondisclosure of potential witnesses
was “harmless” to situations where the witness’ identity and subject areas of
potential testimony are already known to the opposing party or they have already
Case 2:09-cv-00104-LDG-GWF Document 79 Filed 10/14/11 Page 3 of 8
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Advisory Committee Notes describe [Rule 37(c)(1)] as a ‘self-executing,’
‘automatic’ sanction to ‘provide[] a strong inducement for disclosure of
material….’”). The burden is on the party facing the sanction to demonstrate that
the failure to comply with Rule 26(a) was substantially justified or harmless.
Torres v. City of Los Angeles, 548 F.3d 1197, 1213 (9th Cir. 2008). It is not
necessary that the Court find that the nondisclosure was done willfully or in bad
faith. Hoffman v. Construction Protective Services, Inc., 541 F.3d 1175 (9th Cir.
2008). Courts have upheld the use of the preclusion sanction even when a
litigant’s entire cause of action or defense is effectively precluded. See, e.g., Yeti,
259 F.3d at 1106.
Here, defendant never disclosed the identities of six defense witnesses as
part of a Rule 26 disclosure or supplemental disclosure, or in discovery. Defendant
did not identify these six persons as witnesses until the final drafts of the Joint
Pretrial Order were being completed, when defendant provided the names of his
proposed witnesses, and these six individuals were included on the list. This
despite the fact that at the Rule 26 conference, the parties agreed to make all
required initial disclosures on or before April 27, 2009. (Docket No. 12, p. 2.)
The initial discovery cutoff was September 9, 2009. (Docket No. 13.) Even after
discovery was reopened for three months in late 2010 and early 2011, defendant
did not disclose the identities of these six witnesses. (Docket No. 40.) Defendant
has never provided a supplemental Rule 26 disclosure identifying these witnesses
and providing current contact information. Defendant has never disclosed the
subject areas on which these potential witnesses might testify. Defendant has not
offered to agree to make these witnesses available for deposition during the
been disclosed by other parties. See, e.g., Igbinovia, 2010 U.S. Dist. Lexis 129316
at *13.
Case 2:09-cv-00104-LDG-GWF Document 79 Filed 10/14/11 Page 4 of 8
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intervening period between the filing of the Joint Pretrial Order in April 2011 and
the present, and despite the discovery cut-off.
The defendant’s failure to disclose the identities of, and other information
about, these six proposed defense witnesses, other than to list their names in the
Joint Pretrial Order, has prejudiced the Commission in the preparation of its case
for trial. The Commission has been prevented from taking the depositions of these
witnesses, from subpoenaing documents from these witnesses, and from otherwise
investigating the nature of their expected testimony through discovery propounded
on defendant or other witnesses. The Commission does not even know the subject
areas about which defendant will have these witnesses testify, so that the
Commission is effectively precluded from preparing an effective crossexamination
of these witnesses.
Defendant’s failure to make any disclosure of these witnesses, other than to
list their names in the Joint Pretrial Order as defense witnesses, is exactly the type
of conduct and “litigation by surprise” that Rule 37(c)(1) was designed to deter and
prevent. Accordingly, plaintiff requests that the Court issue an order in limine
under Rule 37(c)(1) precluding defendant from calling any of these six witnesses at
trial.
III. CONCLUSION
For the foregoing reasons, the Court should grant the Commission’s motion
and preclude defendant from calling as witnesses at trial in this action the
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Case 2:09-cv-00104-LDG-GWF Document 79 Filed 10/14/11 Page 5 of 8
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following: Al Hodges, William Percy, Joseph Ray Overman, Shelia Morris, Jack
Miyler, and Connie Miyler.
Date: October 14, 2011 Respectfully submitted,
/s/ John B. Bulgozdy
John B. Bulgozdy
Attorney for Plaintiff
Securities and Exchange Commission
Case 2:09-cv-00104-LDG-GWF Document 79 Filed 10/14/11 Page 6 of 8
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PROOF OF SERVICE
I am over the age of 18 years and not a party to this action. My business address is:
[X] U.S. SECURITIES AND EXCHANGE COMMISSION, 5670 Wilshire
Boulevard, 11th Floor, Los Angeles, California 90036-3648
Telephone No. (323) 965-3998; Facsimile No. (323) 965-3908.
On October 14, 2011, I caused to be served the document entitled PLAINTIFF
SECURITIES AND EXCHANGE COMMISSION’S MOTION IN LIMINE
TO EXCLUDE AT TRIAL TESTIMONY OF CERTAIN WITNESSES
THATWERE NOT DISCLOSED BY DEFENDANT DURING DISCOVERY
on all the parties to this action addressed as stated on the attached service list:
[ ] OFFICE MAIL: By placing in sealed envelope(s), which I placed for
collection and mailing today following ordinary business practices. I am
readily familiar with this agency’s practice for collection and processing of
correspondence for mailing; such correspondence would be deposited with
the U.S. Postal Service on the same day in the ordinary course of business.
[ ] PERSONAL DEPOSIT IN MAIL: By placing in sealed
envelope(s), which I personally deposited with the U.S. Postal Service.
Each such envelope was deposited with the U.S. Postal Service at Los
Angeles, California, with first class postage thereon fully prepaid.
[ ] EXPRESS U.S. MAIL: Each such envelope was deposited in a
facility regularly maintained at the U.S. Postal Service for receipt of
Express Mail at Los Angeles, California, with Express Mail postage
paid.
[ ] HAND DELIVERY: I caused to be hand delivered each such envelope to
the office of the addressee as stated on the attached service list.
[ ] UNITED PARCEL SERVICE: By placing in sealed envelope(s)
designated by United Parcel Service (“UPS”) with delivery fees paid or
provided for, which I deposited in a facility regularly maintained by UPS or
delivered to a UPS courier, at Los Angeles, California.
[ ] ELECTRONIC MAIL: By transmitting the document by electronic mail
to the electronic mail address as stated on the attached service list.
[X] E-FILING: By causing the document to be electronically filed via the
Court’s CM/ECF system, which effects electronic service on counsel who
are registered with the CM/ECF system.
[ ] FAX: By transmitting the document by facsimile transmission. The
transmission was reported as complete and without error.
I declare under penalty of perjury that the foregoing is true and correct.
Date: October 14, 2011 /s/ John B. Bulgozdy
John B. Bulgozdy
Case 2:09-cv-00104-LDG-GWF Document 79 Filed 10/14/11 Page 7 of 8
SEC v. MARCO GLISSON
United States District Court - District of Nevada
Case No. 2:09-cv-00104-LDG-GWF
(LA-3028)
SERVICE LIST
Frederick A. Santacroce, Esq.
706 South Eighth Street
Las Vegas, NV 89101
Email: fasatty@yahoo.com
Attorney for Marco Glisson
Robert H. Bretz, Esq.
578 Washington Boulevard, Suite 843
Marina del Rey, CA 90292
Email: Rhbretzpc@aol.com
Attorney for Marco Glisson
Case 2:09-cv-00104-LDG-GWF Document 79 Filed 10/14/11 Page 8 of 8
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