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Case 2:09-cv-02095-MMB Document 83 Filed 04/02/10 Page 1 of 6

IN THE 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. :
: CASE NO. 2:09-cv-02095-MMB
Plaintiffs, :
:
:
v. :
:
: ELECTRONICALLY FILED
Lower Merion School District, :
:
Defendant. :

LOWER MERION SCHOOL DISTRICT’S OPPOSITION TO PLAINTIFFS’


MOTION IN LIMINE TO PRECLUDE TESTIMONY

Lower Merion School District (“District” or “Defendant”), by and through its attorneys,

hereby submits its Memorandum of Law in Opposition to Plaintiffs’ Motion in Limine to

preclude Anthony Stevenson, Wanda Anderson, Dr. Robert Jarvis, and Dr. Claudia Lyles from

testifying at trial.

I. The District Has Appropriately Complied with the Requirements for


Identifying Its Witnesses

As a preliminary matter, Counsel for the District did not learn of Anthony Stevenson,

Wanda Anderson, Dr. Robert Jarvis, and Dr. Claudia Lyles until March 11, 2010, just one day

before it was required to file its Pretrial Memorandum, which listed these and other proposed

witnesses.

Nevertheless, even had the District been aware of these witnesses beforehand, it was not

required to disclose them in its Rule 26(a)(1) initial disclosures. Rule 26(a)(1) requires parties to

disclose the identities of individuals likely to have discoverable information concerning the

claims and defenses at issue in the lawsuit. Fed. R. Civ. P. 26(a)(1). These four witnesses have
Case 2:09-cv-02095-MMB Document 83 Filed 04/02/10 Page 2 of 6

no such personal knowledge regarding the subject matter of this litigation, i.e., the District’s

redistricting process and redistricting plan. Rather, each of these proposed witnesses is an

educator who has worked with Dr. Christopher McGinley, the District’s Superintendent, and

who has personal knowledge concerning his reputation as an educator, his work concerning

issues such as the “achievement gap,” his advocacy for children of color and children with

disabilities, and his commitment to ensuring greater access to challenging coursework for

minority students and students with disabilities. Notably, Counsel for Plaintiffs questioned Dr.

McGinley during his deposition regarding these areas of inquiry, and the jobs he has held and the

districts within which has worked since college. See Plaintiffs’ Trial Exhibit, P-185, Dr.

Christopher McGinley Deposition at 14-20. Plaintiffs’ hyperbolic contention that allowing these

witnesses to testify would amount to “trial by ambush” should therefore be rejected. Plaintiffs

could have sought the identities of individuals with whom Dr. McGinley has worked, but they

chose not to do so. Indeed, Plaintiffs never propounded interrogatories to the District which

would have called for information relating to the challenged witnesses.

Plaintiffs claim that the District— including its Superintendent and Board of School

Directors—intentionally discriminated against them on the basis of race “by mandating that they

attend Harriton High School because they are minorities.” See Compl., ¶¶ 70, 75, 82.

Consequently, the testimony to be elicited from these four witnesses goes to motive or intent

and, therefore, is properly characterized as rebuttal testimony. See, e.g., Ansell v. Green Acres

Contracting Co., Inc., 347 F.3d 515 (3d Cir. 2003) (affirming, in ADEA case, district court’s

decision denying motion in limine to exclude testimony concerning employer’s treatment of

employees over age of forty, where testimony was offered to rebut plaintiffs’ argument that

termination was motivated by overarching plan to eliminate older workers and to establish that

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Case 2:09-cv-02095-MMB Document 83 Filed 04/02/10 Page 3 of 6

employer did not have a discriminatory intent when it discharged plaintiff); Terrell v. Richter-

Rosin, Inc., 81 F.3d 161, 1996 WL 122639, at * 4 (6th Cir. Mar. 19, 1996) (ruling, in housing

discrimination case, that district court properly allowed African-American home buyers to testify

regarding their experiences with defendants for purpose of rebutting inference that defendants

discriminated against plaintiffs); Boykin v. Hamilton County Board of Educ., 869 F.2d 1488,

1989 WL 20570, at * 4 (6th Cir. Feb. 21, 1989) (unpublished) (affirming trial court’s admission,

in Title VII and Section 1983 action, of witness testimony regarding defendant’s favorable

treatment of black people because when issue is whether defendant possessed discriminatory

intent, such testimony goes to intent and is therefore admissible under Rule 404(b)).1

Counsel for Plaintiffs attempts to preclude the testimony of these witnesses by creating

the appearance of an inconsistency in the District’s position where there simply is none. The

District does not seek to elicit testimony from these witnesses to defend a “race-based

redistricting” plan. See Plaintiffs’ Brief In Support of Their Motion in Limine, Dkt. No. 71-2, at

3-4. Rather, the District proffers the testimony of Ms. Anderson, Mr. Stevenson, Dr. Jarvis, and

Dr. Lyles to rebut any inference that the District intentionally discriminated against Plaintiffs. In

general, rebuttal lay witnesses are not required to be disclosed. Moreover, courts in this Circuit

have allowed parties to call witnesses in rebuttal even when they were not disclosed in a pretrial

memorandum or order, as long as the witness and his testimony are within the scope of proper

rebuttal. See, e.g., Upshur v. Sheperd, 538 F. Supp. 1176, 1180 (3d Cir. 1982). The District

identified the challenged witnesses in its Pretrial Memorandum filed on March 12, 2010, in

accordance with this Court’s scheduling order and the Local Rules of Civil Procedure, and it

submits that it has appropriately complied with the notice requirements of this Court.

1
A copy of this decision is attached hereto as Exhibit A.

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II. The Court Should Exercise Its Discretion to Admit This Testimony

The preclusion of witness testimony is an extreme sanction that should be employed only

in rare circumstances. See Meyers v. Pennypack Woods, 559 F.2d 894, 904-905 (3d Cir. 1977)

(reversing, in racial discrimination case under Civil Rights Act of 1866 and Fair Housing Act of

1968, district court’s refusal to admit testimony of witnesses not named in pre-trial memoranda);

DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1202 (3d Cir. 1978) (holding that

exclusion of expert testimony was reversible error, even though subject of testimony was not

included in expert report in accordance with court order, where testimony did not disrupt trial,

and there was no assertion that defendant exercised bad faith). Consequently, even if the

identities of Ms. Anderson, Mr. Stevenson, Dr. Jarvis, and Dr. Lyles were subject to disclosure

under Rule 26(a)(1), this Court may, in its discretion, admit their testimony in the absence of

such disclosure, as courts routinely do. See, e.g., Cunningham v. Town of Ellicott, No.

04CV301, 2007 WL 1040013, at *3 (W.D.N.Y. April 3, 2007) (permitting defendant in

discrimination case to call character witnesses not disclosed pursuant to Rule 26(a)(1) or (e));

The Globe Savings Bank, F.S.B. v. U.S., 61 Fed. Cl. 91, 100-101 (2004) (denying motion in

limine to preclude government from calling witnesses who were not disclosed under Rule

26(a)(1) or (e) in case brought by thrift alleging that government breached promises of regulatory

forbearance, where witnesses were not considered to have “discoverable information” because

anticipated testimony was not directly related to their regulation of plaintiff specifically, but

rather their regulation of other particular thrifts); Cary Oil Co., Inc. v. MG Ref. & Mktg., Inc.,

No. 99 Civ. 1725, 2003 WL 1878246, at * 4-5 (S.D.N.Y. April 11, 2003) (denying motion to

strike expert opinion testimony even though it was not contained in initial report in accordance

with Fed. R. Civ. P. 26(a)(2)(B), as defendants had ample time to prepare effective cross

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examination and consider possible witnesses to counter supplemental expert opinions that

defendants were only on notice of one month before trial).

In sum, the District disclosed the identities of the challenged witnesses in its Pretrial

Memorandum, just one day after it learned of them, and one month before trial.2 The testimony

the District intends to elicit from these witnesses is limited to a narrow and focused area of

inquiry and will not disrupt trial of the case. Under these circumstances, the District respectfully

submits that it should be allowed to present testimony from these witnesses, and that Plaintiffs’

Motion in Limine should be denied.

Respectfully submitted,

/s/ Judith E. Harris __________


Judith E. Harris (PA I.D. No. 02358)
Christina Joy F. Grese (PA I.D. No. 200727)
Allison N. Suflas (PA I.D. No. 204448)
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
215-963-5028/5085/5762

Kenneth A. Roos, Esquire


Megan E. Shafer, Esquire
Wisler Pearlstine, LLP
484 Norristown Road
Blue Bell, PA 19422
610-825-8400

Attorneys for Defendant


Lower Merion School District
Dated: April 2, 2010

2
The District identified these witnesses in its Pretrial Memorandum filed on March 12, 2010. Three days later,
Counsel for Plaintiffs sent a letter inquiring as to the subject matter of the witnesses’ testimony, to which the
District responded on March 17, 2010. See Exhibit B to Plaintiffs’ Brief in Support of Their Motion in Limine
(Dkt. No. 71-4). Therefore, Plaintiffs have had notice of the anticipated subject matter of the challenged
witnesses’ testimony since March 17, 2010.

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CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of April, 2010, a true and correct copy of the

foregoing Lower Merion School District’s Opposition to Plaintiffs’ Motion in Limine to

Preclude Testimony was filed electronically and is available for viewing and downloading from

the ECF system of the U.S. District Court for the Eastern District of Pennsylvania, and that I

served the same via electronic filing upon the following:

David G. C. Arnold
Suite 106, 920 Matsonford Road
West Conshohocken, PA 19428

Attorney for Plaintiff

/s/ Judith E. Harris

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