Case 2:09-cv-02095-MMB Document 71-2 Filed 03/19/10 Page 1 of 5

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Student Doe 1 by and through his

Parents/Guardians Does 1 and 2,
et.al.

Plaintiffs Civil Action No. 09-2095

V.
Lower Merion School District

Defendant

PLAINTIFFS' BRIEF IN SUPPORT

OF THEIR MOTION IN LIMINE

Plaintiffs, Students Doe 1 through 9, by and through their undersigned counsel, now file

the present Brief in order to comply with Ru1e 7.1 of the Rules of Civil Procedure of the United

States District Court for the Eastern District of Pennsylvania, and in order to further explain the

positions set forth in their pending Motion in Limine.

Factual Background

On May 14, 2009, Students Doe, by and through their Parents/Guardians, filed a Three

Count Complaint in the United States District Court for the Eastern District of Pennsylvania

seeking to enjoin, both preliminarily and permanently, defendant, Lower Merion School

District's school redistricting plan adopted on January 12, 2009. 1 Students Doe contend that

Lower Merion's redistricting actions violate the Fourteenth Amendment to the United States

Constitution, 42 U.S.C. Section 1981, and Title VI of the Civil Rights Act, and 42 U.S.C.

I Shortly after filing its Complaint, Students Doe filed a Motion for Preliminary Injunction. Said Motion was
scheduled to be heard in August of 2009. Students Doe later withdrew said Motion prior to the Preliminary
Injunction Hearing.
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Section 2000d et. seq. Students Doe now move to preclude the trial testimony of Anthony

Stevenson, Wanda Anderson, Dr. Robert Jarvis, and Dr. Claudia Lyles.

Argument

Discovery in the present has been governed by Case Management Order Number 1

which was entered by this Honorable Court on August 5, 2009. Under the terms of the case

Management Order, all expert witness discovery was to be completed by November 16, 2009,

and all fact discovery was to be completed by November 30,2009. With the exception of Former

School Board Member Ted Lorenz' deposition, all discovery was in fact completed by

November 30, 2009. Mr. Lorenz' deposition was taken in early December 2009 pursuant to an

agreement of counsel because the deposition could not be scheduled prior to November 30, 2009.

In accordance with a Pretrial Trial Order issued in conjunction with the denial of Lower

Merion's Motion for Summary Judgment, Lower Merion filed its Pre-Trial Memorandum on

March 12, 2010. In its Pre-Trial Memorandum, Lower Merion identified Anthony Stevenson,

Wanda Anderson, Dr. Robert Jarvis, and Dr. Claudia Lyles, as potential witnesses it wished to

call at trial.

A review of the discovery record in this case revealed that Lower Merion had never

identified these individuals to the undersigned counsel. In a letter dated March 15, 2010, the

undersigned counsel wrote to opposing counsel inquiring who the aforementioned individuals

were, what testimony Lower Merion sought to elicit from them, and where in the discovery

record Lower Merion had previously identified them. Lower Merion's counsel responded that

"The District intends to elicit testimony from these individuals concerning their knowledge of

the work and activities Dr. McGinley has conducted in connection with achievement gap and

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diversity issues in schools." Counsel's letter went to state, "These individuals were not

previously identified in the discovery record because Plaintiffs' discovery requests did not seek

information that included them." True and correct copies of the undersigned counsel's letter of

March 15, 2010, and opposing counsel's response thereto are appended hereto as Exhibits "A"

and "B" respectively.

While Lower Merion's creative defense at first blush may seem somewhat persuasive, it

is unavailing under the Federal Rules of Civil Procedure. Discovery is governed by Rule 26 of

the Federal Rules of Civil Procedure. Under Subsection (a) of the Rule a party must provide the

other parties, even if they are never asked, with "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 or defenses,

unless the use would be solely for impeachment." The Rule goes on to provide in Subsection (e)

that a party who has made a disclosure under Rule 26(a) must supplement its disclosure "in a

timely manner if the party learns that in some material respect the disclosure or response is

incomplete or incorrect, and if the additional or corrective information has not otherwise been

made known to the other parties during the discovery process or in writing."

Lower Merion's conduct is in direct violation of Rule 26 of the Federal Rules of Civil

Procedure. Lower Merion openly admits that it never disclosed the aforementioned individuals

during discovery. Moreover, Lower Merion's purported excuse for not disclosing such

individuals opens up an entirely different area of inquiry? Lower Merion has consistently stated

2 Other than to badger a witness, why would an attorney question a deponent about witnesses to activities that the
deponent denies engaging in when the deponent is under oath and supposed to be telling the truth?

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in pleadings and other documents filed pursuant to Rule 11 of the Federal Rules of Civil

Procedure that race was not a factor in its decision-making.

However, the testimony Lower Merion seeks to elicit from its newly found witnesses

would indicate that it seeks to defend a race based redistricting plan. While the Federal Rules of

Civil Procedure allow alternative pleading and defenses, there are some instances where defenses

become mutually exclusive, i.e. a party did not engage in race based redistricting, but in the

event that it is found that it did, it can somehow by happenstance meet the "strict scrutiny"

standard that typically proves fatal to legislation even when it is drafted specifically with the

standard in mind.

Allowing Lower Merion to call these witnesses and/or to change the focus of its case at

this late date is tantamount to allowing trial by ambush. Because the witnesses were never

disclosed, and thereby not subject to investigation and/or subject to deposition, they should not

be permitted to testify at trial.

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Conclusion

For all the foregoing reasons, Students Doe respectfully request that this Honorable Court

grant their pending Motion in Limine.

Respectfully submitted,

Pennsylvania Attorney Identification No. 49819

Suite 106, 920 Matsonford Road

West Conshohocken, Pennsylvania 19428

(610) 397-0722

Attorney for Plaintiffs

Dated: March 19, 2010