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IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

JACQUES RIVERA, ) 

) No. 12 CV 004428 

 Plaintiff, ) 

) 

 v. ) The Honorable Joan B. Gottschall 

) 

REYNALDO GUEVARA, et al., ) 

 ) 

 Defendants. ) 

DEFENDANTS’ MOTION IN LIMINE NO. 4 TO BAR WITNESSES WHO WERE NOT 

DISCLOSED OR IMPROPERLY DISCLOSED PURSUANT TO RULE 26(a) OR WERE 

WITHDRAWN 

Defendants Reynaldo Guevara, Steve Gawrys, Daniel Noon, Joseph Fallon, Joseph 

Sparks, Paul Zacharias, John Guzman, Gillian McLaughlin, the Estate of John Leonard, Edward 

Mingey, Russell Weingart and Rocco Rinaldi (“Defendant Officers”), by their respective 

attorneys, move this Honorable Court to bar undisclosed witnesses (John DeLeon and Elizabeth 

Ekl); improperly disclosed witness (Jose Rodriguez) and withdrawn witnesses (Evelyn Diaz) 

pursuant to Federal Rules of Civil Procedure 26(a) and 37(c). 

1. No party has disclosed the following witnesses pursuant to Rule 26(a): 

a. John DeLeon, or 

b. Elizabeth Ekl. 

2. Jose Rodriguez was disclosed but no contact information for him was ever 

disclosed.1

3. Plaintiff disclosed Evelyn Diaz, pursuant to Rule 26(a) as potential Rule 404(b) 

witnesses. However she was effectively withdrawn by Plaintiff. 

 

1 Despite the Parties’ efforts, Jose Rodriguez was never located. 
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4. None of the above witnesses have been deposed in this case. 

5. Plaintiff has disclosed these witnesses on his “may call” trial witness list. 

Violation of Rule 26(a) 

6. Rule 26(a)(1) requires that parties disclose the name, contact information, and 

subjects of discoverable information that a party may use to support its case at trial. FED. R. CIV.

PRO., 26; Gonzalez v. Olson, 2015 WL 3671641, at *8 (N.D. Ill. June 12, 2015). Rule 26(e) 

requires a party to supplement its Rule 26(a) disclosures “in a timely manner if the party learns that 

in some material respect the disclosure or response is incomplete or incorrect....” FED.R.CIV. PRO. 

26(e). 

7. Rule 37(c) provides that if a party fails to identify a witness as required by Rule 

26(a) or (e), the party cannot call that witness at trial unless the failure to disclose was harmless 

or substantially justified. FED. R. CIV. PRO., 37; Gonzalez v. Olson, 2015 WL 3671641, at *8 

(N.D. Ill. June 12, 2015)(citing Wilson v. AM General Corp., 167 F.3d 1114, 1122 (7th Cir. 

1999); see also David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003) (stating that “the 

sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its 

violation of Rule 26(a) was either justified or harmless”). 

8. The failure to disclose these witnesses was not a harmless error or substantially 

justified because the defendants were precluded from deposing them by not knowing that they 

were potential witnesses. See Rice v. Corr. Med. Servs., 675 F.3d 650, 669-670 (7th Cir. 2012). 

The disclosure rules are designed to avoid indirection or gamesmanship in preparing for trial by 

requiring all potential trial witnesses be disclosed. Id. 
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9. In addition to the non-disclosure of DeLeon and Ekl, Plaintiff’s disclosure of Jose 

Rodriguez was insufficient because it failed to provide any contact information and has never 

been supplemented. The failure to disclose any contact information for Jose Rodriguez violates 

Rule 26(a) especially if Plaintiff intends to call him at trial, because that would necessarily 

suggest that Plaintiff has contact information that has never been made known to Defendants in 

violation of Rules 26(a) and 26(e). 

10. Accordingly, Federal Rule of Civil Procedure 37(c) provides that Plaintiff cannot 

call John DeLeon Elizabeth Ekl or Jose Rodriguez and their testimony should be barred. 

Other Bases to Bar Witness Elizabeth Ekl 

11. Elizabeth Ekl is an attorney who represented the Defendant Officers in this case 

from September 4, 2012 (Dkt. # 24) until February 1, 2018 (Dkt. # 350). Accordingly, there is no 

good faith basis to list her as a trial witness because her only knowledge of the case was gained 

through her representation of the Defendant Officers and is protected by the attorney-client 

and/or work product privileges. 

12. Plaintiff’s only possible argument for disclosing Ms. Ekl as a trial witness is to 

attempt to have her testify about document production during early discovery in this case. Ms. 

Ekl had received documents from the Police Department’s Office of Legal Affairs that had been 

collected by OLA from several different divisions of the Police Department; mistakenly, Ms. Ekl 

produced all those documents together and referred to them collectively as an “area file,” 

inadvertently suggesting they all had been kept by the Police Department together in a single file 

when in fact they had not. Ms Ekl subsequently cleared up the confusion via correspondence to 

Plaintiff’s counsel in May 2014, specifically answering his questions about how the mistake had 
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occurred and explaining the sources of each set of separate documents that had been produced 

together. See May 14, 2014 Ekl Correspondence, Ex. A. Subsequently, Plaintiff’s counsel made 

no attempt to question or challenge Ms. Ekl’s innocent explanation, and did not follow through 

on his threats to depose her. Thus Plaintiff’s only potential argument for listing Ms. Ekl as a 

witness is without evidentiary merit and instead appears to be a bad faith attempt to harass Ms. 

Ekl, Defendant Officers, and their counsel. 

13. Accordingly, Elizabeth Ekl should be barred as a witness for reasons in addition 

to Plaintiff’s violation of Rule 26(a). 

Plaintiff’s Withdrawal of 404(b) Witnesses 

14. Plaintiff’s 404b witness Evelyn Diaz was effectively withdrawn based on 

Plaintiff’s actions and omissions. 

15. The Court ordered Plaintiff to identify no more than ten 404(b) witnesses he 

intended to call at trial. Dkt. #76. Plaintiff complied and sent Defendants a letter containing his 

ten 404(b) trial witnesses, but Evelyn Diaz was not on that list. Plaintiff 1.30.14 letter. Ex. B. 

Thus Ms. Diaz was effectively withdrawn as a trial witness. 

16. Allowing Ms. Diaz to testify is prejudicial to Defendant Officers. Defendant 

Officers’ counsel reasonably relied on the representations made to them by Plaintiff’s counsel 

regarding this Rule 404(b) witnesses and accordingly made no discovery efforts regarding her. 

17. Prior to filing this motion and in compliance with the Court’s standing orders on 

Motions in limine, counsel for Defendant Officers conferred with counsel for Plaintiff on May 14, 

2018. In that discussion counsel for Plaintiff did not agree to this motion in limine. 
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WHEREFORE, Defendant Officers request that the Court enter an Order in limine to bar 

John DeLeon, Elizabeth Ekl, Evelyn Diaz, and Jose Rodriguez, from testifying at trial. 

Dated: May 14, 2018 Respectfully submitted, 

/s/Thomas M. Leinenweber /s/ Jeffrey N. Given 

THOMAS M. LEINENWEBER JEFFREY N. GIVEN 

One of the Attorneys for Reynaldo Guevara One of the Attorneys for Individual 

 Defendants 

Thomas M. Leinenweber James G. Sotos

James V. Daffada Jeffrey N. Given

Kevin E. Zibolski Caroline P. Golden 

Leinenweber Baroni & Daffada, LLC Jeffrey R. Kivetz 

120 N. LaSalle Street, Suite 2000 Joseph M. Polick 

Chicago, IL 60602 David A. Brueggen 

Tel:(312)663-3003 The Sotos Law Firm, P.C. 

thomas@ilesq.com 550 E. Devon Avenue, Suite 150 

jim@ilesq.com Itasca, IL 60143 

kevin@ilesq.com Tel: (630)735-3300 

 jgiven@jsotoslaw.com
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CERTIFICATE OF SERVICE 

 I hereby certify under penalty of perjury pursuant to 28 U.S.C.A. § 1746 that on May 14, 

2018, I electronically filed the foregoing City Defendants’ Motion in Limine No. 4 to Bar 

Witnesses Who Were Not Disclosed or Improperly Disclosed Pursuant to Rule 26(a) or 

Were Withdrawn with the Clerk of the Court using the CM/ECF system which will send 

notification of such filing to the following CM/ECF participants below. 

Attorneys for Plaintiff Attorneys for City of Chicago 

Arthur R. Loevy Eileen E. Rosen

Jonathan I. Loevy Stacy A. Benjamin 

Elizabeth N. Mazur Catherine M. Barber 

Russel Ainsworth Theresa B. Carney 

Michael I. Kanovitz Rock Fusco & Connelly, LLC 

Steven E. Art 321 N. Clark Street, Suite 2200 

Anad Swaminathan Chicago, IL 60654 

Rachel Brady (312)494-1000 

Sean C. Starr (312)494-1001(Fax) 

311 N. Aberdeen erosen@rfclaw.com

Chicago, IL 60607 sbenjamin@rfclaw.com

(312)243-5900 cbarber@rfclaw.com

(312)243-5902(Fax) tcarney@rfclaw.com

loevylaw@loevy.com 

jon@loevy.com 

Elizabethm@loevy.com

russell@loevy.com Attorneys for Reynaldo Guevara 

mike@loevy.com Thomas M. Leinenweber 

steve@loevy.com James V. Daffada 

annad@loevy.com Kevin E. Zibolski 

Brady@loevy.com Leinenweber Baroni & Daffada, LLC 

sean@loevy.com 120 N. LaSalle Street, Suite 200 

 (312)663-3003 

J. Samuel Tenenbaum thomas@ilesq.com

Bluhm Legal Clinic jim@ilesq.com

375 East Chicago Avenue kevin@ilesq.com

Bluhm Legal Clinic 

375 East Chicago Avenue 

Chicago, IL 60611 

(312)503-4808 

s-tenenbaul@law.northwestern.edu 

Locke E. Bowman, III 

Alexa Van Brunt 

Roderick MacArthur Justice Center 

Northwestern University School of Law 

375 East Chicago Aveneu 

Chicago, IL 60611 

(312)503-0844 

(312)503-1272 (fax) 

l-bowman@law.northwestern.edu

a-vanbrunt@law.northwestern.edu /s/ Jeffrey N. Given 

 JEFFREY N. GIVEN, Attorney No. 6184989 

 One of the Attorneys for Individual Defendant