Case 2:11-cv JTM-JCW Document 380 Filed 10/08/12 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

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1 Case 2:11-cv JTM-JCW Document 380 Filed 10/08/12 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, Plaintiffs, Civil Action No. 2:11-cv JTM-JCW Section H 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. 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 1

2 Case 2:11-cv JTM-JCW Document 380 Filed 10/08/12 Page 2 of 3 Respectfully submitted, /s/ Dale E.Ho Dale E. Ho (dho@naacpldf.org)* Natasha M. Korgaonkar (nkorgaonkar@naacpldf.org)* Debo P. Adegbile Elise C. Boddie Ryan P. Haygood (rhaygood@naacpldf.org)* NAACP Legal Defense & Educational Fund, Inc. (New York) 99 Hudson Street, Suite 1600 New York, NY Ronald Lawrence Wilson (cabral2@aol.com) Ronald L. Wilson, Attorney at Law 701 Poydras Street, Suite 4100 New Orleans, LA Michael B. de Leeuw (michael.deleeuw@friedfrank.com)* Israel David (israel.david@friedfrank.com)* Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY Sarah Brannon (sbrannon@projectvote.org)* Niyati Shah (nshah@projectvote.org)* Michelle Rupp (mrupp@projectvote.org)* Project Vote 1350 Eye Street NW, Suite 1250 Washington, DC Attorneys for Plaintiffs 2

3 Case 2:11-cv JTM-JCW Document 380 Filed 10/08/12 Page 3 of 3 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

4 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, Plaintiffs, Civil Action No. 2:11-cv JTM-JCW Section H 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. 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. 1

5 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 2 of 5 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 , 2012 WL , 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 , 2011 WL , 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 2

6 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 3 of 5 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 (dho@naacpldf.org)* Natasha M. Korgaonkar (nkorgaonkar@naacpldf.org)* Debo P. Adegbile Elise C. Boddie Ryan P. Haygood (rhaygood@naacpldf.org)* NAACP Legal Defense & Educational Fund, Inc. (New York) 99 Hudson Street, Suite 1600 New York, NY Ronald Lawrence Wilson (cabral2@aol.com) 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. 3

7 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 4 of 5 Ronald L. Wilson, Attorney at Law 701 Poydras Street, Suite 4100 New Orleans, LA Michael B. de Leeuw (michael.deleeuw@friedfrank.com)* Israel David (israel.david@friedfrank.com)* Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY Sarah Brannon (sbrannon@projectvote.org)* Niyati Shah (nshah@projectvote.org)* Michelle Rupp (mrupp@projectvote.org)* Project Vote 1350 Eye Street NW, Suite 1250 Washington, DC Attorneys for Plaintiffs 4

8 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 5 of 5 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

9 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR. and the LOUISIANA STATE CONFERENCE OF THE NAACP, Civ. No. 2:11-cv JTM-JCW Section H 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. 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.

10 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 2 of 3 Dated: October 8, 2012 Respectfully submitted, /s/ Dale E.Ho Dale E. Ho (dho@naacpldf.org)* Natasha M. Korgaonkar (nkorgaonkar@naacpldf.org)* Debo P. Adegbile Elise C. Boddie Ryan P. Haygood (rhaygood@naacpldf.org)* NAACP Legal Defense & Educational Fund, Inc. (New York) 99 Hudson Street, Suite 1600 New York, NY Ronald Lawrence Wilson (cabral2@aol.com) Ronald L. Wilson, Attorney at Law 701 Poydras Street, Suite 4100 New Orleans, LA Michael B. de Leeuw (michael.deleeuw@friedfrank.com)* Israel David (israel.david@friedfrank.com)* Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY Michelle Rupp (mrupp@projectvote.org)* Niyati Shah (nshah@projectvote.org)* Sarah Brannon (sbrannon@projectvote.org)* Project Vote 1350 Eye Street NW, Suite 1250 Washington, DC Attorneys for Plaintiffs

11 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 3 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 (dho@naacpldf.org)* Natasha M. Korgaonkar (nkorgaonkar@naacpldf.org)* Debo P. Adegbile Elise C. Boddie Ryan P. Haygood (rhaygood@naacpldf.org)* NAACP Legal Defense & Educational Fund, Inc. (New York) 99 Hudson Street, Suite 1600 New York, NY *MOTION FOR ADMISSION PRO HAC VICE Counsel for Plaintiffs

12 Case 2:11-cv JTM-JCW Document Filed 10/08/12 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, Plaintiffs, Civil Action No. 2:11-cv JTM-JCW Section H 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. 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, HONORABLE JANE TRICHE MILAZZO