1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JEAN POULARD, )

)

Plaintiff, )

)

vs. ) CASE NO. 2:16-cv-00115-PPS-JEM

)

THE TRUSTEES OF INDIANA )

UNIVERSITY, D/B/A INDIANA )

UNIVERSITY and INDIANA UNIVERSITY )

NORTHWEST; )

WILLIAM J. LOWE, individually )

and in his official capacity as Chancellor of )

Indiana University Northwest; MARK MCPHAIL, )

individually and in his official capacity as )

executive Vice Chancellor for Academic Affairs )

of Indiana University Northwest; IDA GILLIS, )

individually and in her official capacity as )

Director of Affirmative Action )

and Employment Practices and Title )

IX Deputy Coordinator of Indiana University )

Northwest; and GIANLUCA DI MUZIO )

individually and in his official capacity as )

associate professor and former Chair of the )

Department of History, Philosophy, Political )

Science, and Religious Studies at )

Indiana University Northwest, )

)

Defendants. )

PLAINTIFF’S MEMORANDUM OF LAW IN 

SUPPORT OF HIS MOTION TO STRIKE PLAINTIFF’S REPLY 

NOW COMES the Plaintiff, JEAN POULARD, by his attorneys, Johnson & Bell, P.C. 

and pursuant to Fed. R. Civ. P. 56(c), files this memorandum of law in support of Plaintiff’s 

motion to strike inadmissible evidence and other impermissible portions of Defendants Indiana 

University’s Board of Trustees, d/b/a IU Northwest (hereinafter “IU” or “IU Northwest”), 

Chancellor William Lowe, Vice Chancellor of Academic Affairs Mark McPhail, Title IX Deputy 

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Coordinator Ida Gillis, and Professor Gianluca Di Muzio (collectively “Defendants”), reply in 

support of their motion for summary judgment. In support thereof, Plaintiff states the following:1

ARGUMENT

A. Defendants impermissibly set forth several new arguments and cite to new evidence 

in support of those arguments that must be stricken from Defendants’ reply. 

The portions of Defendants’ reply brief that set forth new arguments and rely upon new 

evidence to support the new argument must be stricken, as Defendants waived these arguments 

for failing to raise them in their original motion for summary judgment. When reply briefs raise

new reasons for the entry of summary judgment and do not merely respond to matters placed in

issue by the opposition brief, the new arguments are waived. Beck v. University of Wisconsin Bd. 

of Regents, 75 F.3d 1130, 1134 & n.* (7th Cir. 1996); Rogers v. Fort Wayne Police Dep't, No. 

1:06-CV-371, 2008 U.S. Dist. LEXIS 24287, at *7 (N.D. Ind. Mar. 26, 2008). While the moving 

party may designate new affidavits in their reply if responsive to matters raised in the 

oppositional brief, the new evidence may not spring upon the opposing party new reasons for the 

entry of summary judgment. Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134 n.* (7th 

Cir. 1996). The moving party may not submit new evidence with a reply to support a new 

argument. Shurr v. A.R. Siegler, 70 F. Supp. 2d 900, 919 (E.D. Wis. 1999). “Where new 

evidence is presented in either a party’s reply brief or affidavit in further support of its summary 

judgment motion, the district court should permit the nonmoving party to respond to the new 

matters prior to disposition of the motion, id., or else strike that new evidence.” Baugh v. City of 

Milwaukee, 823 F. Supp. 1452, 1457 (E.D. Wis. 1993).

1. Defendants cite to Exhibits 3 and 3A in support of a new argument regarding IU’s 

tenure policies, and as such Defendants’ new argument and new supporting exhibits 

must be stricken from Defendants’ reply.

 

1 Rather than subject this Court to a another restatement of the facts in this case, Plaintiff fully incorporates his 

statements of fact as set forth in Dkt. Nos. 29, 30, 31, 36, and 37 as though fully set forth therein. [Dkt. No. # 30, p. 

2-6; Dkt. # 31, p. 1-11; Dkt. 36, p. 1-46; Dkt. # 37 p. 1-25].

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In the present case, Defendants have attached to their reply brief an affidavit from 

Victoria Roman-Lagunas attesting to University’s tenure process, stemming from her service as 

Executive Vice Chancellor for Academic Affairs at Indiana University Northwest from July 1, 

2017 onward. [Dkt. 46-3]. Roman-Lagunas’s affidavit states: 

The University does not enter into employment contracts with faculty members 

once they earn tenure. Rather, the University issues a letter to the candidate 

informing him/her that they successfully earned tenure and have received an 

appointment as an Associate professor. A true and accurate copy of the letter 

issued to Dr. Poulard when he earned tenure is attached to this Affidavit as 

Exhibit A. This letter is kept by IUN in archived records as part of Dr. Poulard’s 

dossier. [Id. at 1-2].

Defendants attached to the affidavit a letter dated April 6, 1991 that purports to be from Thomas 

Ehrlich to Jean Poulard congratulating him on receiving tenure (hereinafter “Exhibit 3A”). [Dkt. 

46-3, p. 5]. 

Defendants offer this new evidence in Exhibits 3 and 3A2in support of a new argument

in their reply brief, writing: “it is a regular practice of the University to simply issue a letter to 

faculty members who achieve tenure to inform them of the tenure decision...This letter does not 

incorporate any University policies and is not an employment contract.” [Dkt. 46, p. 14]. This is 

the first time that Defendants raised this argument. Prior to Defendants’ reply brief, Defendants 

never discussed IU’s current or historical tenure policies and procedures, and never even

produced the letter that allegedly bars Poulard’s breach of contract claim.3[Dkt. 33, p. 26]. 

Instead, Defendants elected to merely make the cursory argument that the Indiana University 

Handbook contains a disclaimer clause that completely bars Poulard’s breach of contract claim

in their motion for summary judgment. [Id.] Accordingly, Defendants’ argument that IU does not 

enter into employment contracts with their faculty once tenure is granted is a new argument that 

 

2 Defendants cite to Exhibits 3 and 3A on pages 14-15. [Dkt. 46, p. 14-15].

3 The letter in Exhibit 3A does not contradict Poulard’s evidence about executing an employment contract at the 

time that he obtained tenure. 

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must be stricken from Defendants’ reply brief, as it is a substantially different argument than 

Defendants’ earlier argument that the disclaimer clause acts as a complete bar to Poulard’s 

breach of contract claim. 

The evidence Defendants produced in Exhibits 3 and 3A to support this new argument is 

also entirely new evidence, as it is not attached to Defendants’ motion for summary judgment. 

[Dkt. 33, p. 26]. Defendants never produced affiant Jennifer Kincaid for a deposition earlier in 

this case, or attached the letter from Exhibit 3A as an exhibit to another motion at any point 

during this litigation. Certainly, Defendants’ new argument regarding IU’s tenure policies and 

the new evidence found in Exhibits 3 and 3A require a responsive argument from Poulard for 

these issues to fully and properly briefed, and by raising this argument in their reply brief 

Defendants have deprived Poulard of this opportunity. Accordingly, Defendants’ new argument 

in opposition to Poulard’s breach of contract claim and the contents of Exhibit 3 and 3A must be 

stricken.

Defendants may contend that they made this new argument regarding tenure and 

designated Exhibits 3 and 3A to reply to an unforeseeable argument in Poulard’s response about 

his employment contract. However, such a contention is unsupported by the evidence in this 

case, as Defendants had actual knowledge that Poulard would argue that he executed an

employment contract with IU that incorporated IU’s policies, as his complaint alleged: 

Plaintiff is a tenured faculty member at IU Northwest, and as such signed an 

employment contract with IU Northwest at the time he was granted tenure. IU 

Northwest’s Academic Handbook, Sexual Misconduct Policy and Code of 

Academic Ethics are incorporated into Poulard’s employment contract with IU 

Northwest. [Dkt. 4, p. 9, ¶ 68, 69]. 

Further, Poulard served the following discovery request on Defendants: “The Plaintiff’s 

employment contract with IU Northwest, signed at the time that Plaintiff obtained tenure.” [See 

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Defendants’ Responses to Requests for Production of Documents, attached as Exhibit A, p. 14, ¶ 

24]. Defendants answered Plaintiff’s complaint and responded to Plaintiff’s document request, 

and as such had actual knowledge of the factual basis of Plaintiff’s breach of contract claim. [Id.; 

Dkt. 7, p. 17-19]. Instead of specifically addressing the merits of Plaintiff’s claim in their 

dispositive motion, Defendants elected to make a general argument alleging that the disclaimer 

clause barred Plaintiff’s entire claim. By raising this argument in their reply, Defendants 

deprived Plaintiff of the ability to have the merits of his breach of contract claim adjudicated by 

this Court. 

In light of Defendants’ knowledge of the allegations of Poulard’s complaint, Defendants 

attempt to designate additional evidence in Exhibits 3 and 3A in their reply brief is nothing more 

than an impermissible effort to make their earlier general argument against Poulard’s breach of 

contract claim more specific. Generally, the movant is not entitled to provide specific evidence in 

support of a general argument in a reply, as doing so counts as raising a new matter in reply. 

Murphy v. Vill. of Hoffman Estates, 1999 U.S. Dist. LEXIS 3320, at *6 (N.D. Ill. Mar. 15, 

1999)(stating “this is not a situation where the plaintiff is citing to the record in reply to the 

defendant's response....[i]nstead, he is citing to sufficiently specific evidence for the first time in 

reply.”). “Raising an argument generally in a motion or objections does not give a litigant license 

to be vague in his original submissions and provide the necessary detail in his reply.” Murphy v. 

Vill. of Hoffman Estates, 1999 U.S. Dist. LEXIS 3320, at *6 (N.D. Ill. Mar. 15, 1999). 

Defendants’ initial argument was a general claim that the disclaimer clause barred Poulard’s 

claim. Defendants made this argument without regard to the actual merits of Poulard’s breach of 

contract claim as alleged in Poulard’s complaint, and now seek to make a more specific 

argument and designate more specific evidence to overcome Poulard’s claim in their reply brief. 

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In effect, Defendants’ argument and supporting evidence in Exhibits 3 and 3A is a new argument 

that must be stricken from Defendants’ reply brief. 

Further, though it appears that precedent may allow Defendants to designate new 

affidavits in their reply in select circumstances, there is absolutely no precedent allowing 

Defendants to designate new documentary evidence in support of their motion for summary 

judgment in their reply brief as they have in Exhibit 3A. Accordingly, Defendants could not 

designate new documentary evidence in the form of Exhibit 3A, even if they have the right to 

designate a new affidavit. Accordingly, Exhibit 3A must be stricken. 

2. Portions of Defendants’ reply brief must be stricken, as it sets forth a new 

argument as to the existence of the disclaimer clause in 1990, and rely upon new 

evidence in Exhibit 1.

Defendants also set forth a new argument regarding the date that that the alleged 

disclaimer clause went into effect, and designated new evidence in Exhibit 14in Jennifer 

Kincaid’s affidavit supporting this argument. Defendants allege in their reply that: “[h]e then 

makes the rather remarkable statement that ‘at the time that he accepted tenure, there was not a 

disclaimer clause in the Academic Handbook to prevent IU’s policies from becoming part of the 

contract.” [Dkt. 46, p. 15]. Defendants also cite to Exhibit 3 to support the contention that “the 

University’s Academic Handbook has included the same disclaimer clause since the early 

1990s,” but this statement is not supported by Exhibit 3. [Id; Dkt. 46-3, p. 3-4]. Rather, Kincaid’s 

affidavit in Exhibit 1 alleges that the disclaimer clause went into effect in 1990 in Exhibit 1, and 

also testifies to other facts about the Academic Handbook, including the fact that it was 

previously maintained in hardcopy until 2013. [Dkt. 46-1, p. 1-2]. Defendants have never before 

produced this evidence in this case. 

 

4 Defendants cite to Exhibit 1 on pages 5-6. [Dkt. 46, p. 5-6].

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Defendants’ argument that IU’s disclaimer clause was in existence since the 1990s is 

another example of Defendants impermissibly making a new argument in their reply brief, as 

their original argument against Plaintiff’s breach of contract claim was nothing more than a 

general argument that was insufficiently supported by evidence. Now that Defendants’ general 

contentions are challenged by Poulard, Defendants are attempting to make a more specific 

argument in their reply brief based upon new evidence, and in doing so make an entirely new 

argument. Further, this is the very first time that Defendants have attached an exhibit that claims 

that a disclaimer clause actually applies to Poulard’s breach of contract claim, and as such, 

Defendants cannot escape the contention that they have presented new evidence in support of 

their summary judgment in their reply brief. Murphy v. Vill. of Hoffman Estates, 1999 U.S. Dist. 

LEXIS 3320, at *6 (N.D. Ill. Mar. 15, 1999). 

Defendants cannot contend that they were merely responding to an unforeseeable 

argument in Plaintiff’s response, as Defendants were aware that Poulard obtained tenure in 1991, 

and as such should have known that determining the effective date of such a disclaimer clause 

would be essential to adjudicating Poulard’s breach of contract claim. Defendants cannot

contend that they did not anticipate that it would be important for them to make an argument 

based upon the draft of the Academic Handbook in place at the time that Poulard obtained tenure 

in the early 1990s, and their failure to make a sufficient argument on this issue in their initial 

motion for summary judgment renders the more specific argument found in their reply brief a 

new argument. Further, this is the first time that Defendants introduced evidence about the

historical terms of the Academic Handbook itself, and about the effective date of the disclaimer 

clause. It is curious that Defendants did so without producing an actual copy of the Academic 

Handbook from 1990 and 1991, and Defendants’ failure to do so demonstrate the shortcomings 

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of Exhibit 1. Accordingly, Defendants’ argument regarding the disclaimer clause is a new 

argument that is supported by new evidence in Exhibit 1, and must be stricken from Defendants’ 

reply brief. 

3. Defendants’ reply brief also sets forth impermissible new arguments by relying 

upon new evidence in Exhibits 1 and 2 that must be stricken.

Defendants also impermissibly attach the affidavit of Jennifer Kincaid as Exhibit 1 and a 

current draft of IU’s Sexual Misconduct Policy in Exhibit 25to their reply brief in support of a 

new argument regarding the scope of the Sexual Misconduct Policy. For the first time, 

Defendants set forth the following argument in their reply:

The fundamental flaw in Dr. Poulard’s argument is that it erroneously posits that 

the University’s Sexual Misconduct policy must be identical to the standards 

applicable to Title VII and Title IX. The University’s Sexual Misconduct policy 

defines what conduct constitutes “sexual misconduct.” That definition does not, 

and is not required to, limit what the University regards to be sexual misconduct 

to conduct that would be the subject of an actionable Title VII or Title IX

claim...Rather, the University’s Sexual Misconduct Policy is designed to allow 

the University to take action before the law is actually violated. As a result, Dr. 

Poulard’s claim that the University violated his substantive due process rights 

because his conduct would not have violated Title VII or Title IX is without 

merit. [Dkt. 46, p. 5-6]. 

Defendants’ reply also goes on to cite directly to the new evidence in Exhibit 2 to prove 

the terms of IU’s Sexual Misconduct Policy, stating:

Here, and unlike the policy in DeJohn, the University’s Sexual Misconduct 

Policy has a section titled “Intellectual Inquiry and Debate,” which states: In 

determining whether sexual misconduct has occurred and what type of remedy, if 

any, might be appropriate in a given case, the University will also consider the 

fact that free intellectual inquiry, debate, and constructive dialogue are vital to 

the University’s academic mission and must be protected even when the views 

expressed are unpopular or controversial. Accordingly, any form of speech or 

conduct that is protected by state or federal law, including the First Amendment, 

is not subject to this policy.

The definition of sexual harassment in this policy is meant neither to proscribe 

nor to inhibit discussions, in or out of the classroom, of complex, controversial, 

 

5 Defendants cite to Exhibit 2 on pages 5-6, 7, 8, 13. [Dkt. 46, p. 5-8, 13].

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or sensitive matters...when in the judgment of a reasonable person they arise for 

legitimate pedagogical purposes.... The mere expression of views, words, 

symbols or thoughts that some people find offensive, does not create a hostile 

work environment. [Ex. 2 at 3]. [Dkt. 46, p. 8]. 

Defendants’ rely upon new evidence in support of this new argument in their reply in Exhibits 1 

and 2, as Defendants never before introduced evidence regarding the history of the Academic 

Handbook, the language of the alleged disclaimer clause, the location of the Sexual Misconduct 

Policy, or the language of the current draft of the Sexual Misconduct Policy itself prior to their 

reply brief. [Id; Dkt. 46-1, Dkt. 46-2].6

Defendants’ argument regarding the scope of IU’s Sexual Misconduct Policy and Title 

VII and IX is entirely new, as it did not appear anywhere in Defendants’ motion for summary 

judgment. [Dkt. 33, p. 19-24]. Further, the aforementioned new argument is actually contradicted

by statements made by Defendant in their own motion for summary judgment, as Defendants 

initially argued that IU used federal law as a guideline for their Sexual Misconduct Policy. [Dkt. 

33, p. 21]. Defendants now present this new argument regarding the scope of their Sexual 

Misconduct Policy and Title VII and IX, and in doing so deprive Plaintiff of a meaningful 

opportunity to respond to their argument and to refute the new evidence designated by 

Defendants. 

Defendants may argue that they were merely responding to an unforeseeable argument 

made by Plaintiff in support of his substantive due process claim in his response brief, but again 

this argument is disingenuous. While Plaintiff did make the argument that IU’s Sexual 

Misconduct Policy incorporates Title VII and Title IX in his response brief, Poulard first made 

 

6 The text of Exhibits 1 and 2 do not actually support Defendants’ factual assertions in their reply, and for that 

reason alone Defendants’ argument should be stricken. Prince v. Chi. Pub. Sch., No. 09-CV-2010, 2011 U.S. Dist. 

LEXIS 95188, at *10 (N.D. Ill. Aug. 25, 2011).

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this argument in his motion for summary judgment. [Dkt. 30, p. 12-15].7 However, Defendants 

did not respond to Poulard’s argument regarding the scope of IU’s Sexual Misconduct Policy and 

Title VII and Title IX in their response to his motion for summary judgment, or designate new 

evidence to contradict Plaintiff’s argument. [Dkt. 35, p. 1-23]. Instead, Defendants chose to wait 

until the reply brief of their own motion for summary judgment to designate new evidence and to 

make a new argument regarding the scope of IU’s polices in light of Title VII and Title IX, even 

though they certainly had the opportunity to make a responsive argument before they filed their

reply brief. 

Waiting until their reply brief to respond to Poulard’s argument in his motion for 

summary judgment deprived him of the ability to adequately respond to Defendants’ argument 

and rebut Defendants’ evidence. Defendants cannot now claim that they raised this new 

argument in reply to an unexpected responsive argument in Poulard’s response brief, as they had 

the opportunity to address this argument in their response to his motion for summary judgment

and elected to remain silent. Further, Defendants’ new argument does not even truly address the 

merits of Plaintiff’s argument regarding the scope of IU’s policy and Title VII and IX, and as 

such depriving Plaintiff of the opportunity to respond is particularly harmful. Defendants have 

deprived Plaintiff of the right to respond to their new argument, and as such Defendants’ new 

argument and supporting evidence in Exhibits1 and 2 must be stricken. 

Again, while it appears that precedent may allow Defendants to designate new affidavits 

in their reply in select circumstances, there is absolutely no precedent allowing Defendants to 

designate new documentary evidence in support of the new arguments found in their motion for 

summary judgment in their reply brief. Exhibit 2 is new evidence in this case, as it is a current 

 

7

Plaintiff’s motion for summary judgment and memorandum in support of their motion for summary judgment was 

filed on October 10, 2017. [Dkt. 30]. Plaintiff’s response in opposition to Defendants’ motion for summary 

judgment was filed on October 7, 2017. [Dkt. 37, p. 14].

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draft of IU’s Sexual Misconduct Policy that explicitly states that it was created on August 28, 

2017. [Dkt. 46-2, p. 24]. Accordingly, Exhibit 2 is not the same Sexual Misconduct Policy that 

was applied against Poulard in 2015, as it has been revised numerous times since Poulard’s

suspension on November 2, 2015, as noted on the face of the Policy itself. [Dkt. 46-2, p. 24]. IU 

is introducing new evidence into this case by citing to this new draft of the Sexual Misconduct 

Policy in Exhibit 2 in support of its representations as to the terms of the policy, and in arguing

that IU’s Sexual Misconduct Policy is more narrowly drafted than the policy in DeJohn.

Accordingly, Defendants should not be permitted to designate an irrelevant draft of their 

Sexual Misconduct Policy in their reply brief as Exhibit 2, even if they could designate Kincaid’s 

affidavit in their reply. Further, it is unclear why Defendants feel that designating Exhibit 2 is 

particularly important now, but unimportant to support their response to Poulard’s dispositive 

motion, or their initial motion for summary judgment, or why Defendants chose not to cite to the 

draft of the Sexual Misconduct Policy designated by Poulard in his dispositive motion or 

responsive brief to support their argument. As Defendants had repeated opportunities to 

designate this evidence and failed to do so, Exhibit 2 should be stricken.

B. Defendants failed to disclose Roman-Lagunas and Kincaid as witnesses in this case 

in their initial disclosures and failed to produce the letter in Exhibit 3A in response 

to Poulard’s discovery requests, and as such this evidence must be stricken from 

Defendants’ reply brief. 

In the present case, Defendants’ reply cites to previously undisclosed evidence in 

Exhibits 1, 2, 3 and 3A, and for that reason these exhibits must be stricken from Defendants’ 

reply brief. If a party fails to provide information or identify a witness as required by Rule 26(a) 

or (e), the party is not allowed to use that information or witness to supply evidence on a motion. 

Fed R. Civ. P. 37. Rule 26(a) requires the parties to disclose to other parties the names of all 

known witnesses without awaiting a discovery request. Fed R. Civ. P. 26(a). Fed R. Civ. P. 26(e) 

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requires the parties to supplement answers to interrogatories and responses to request for 

production once additional evidence is discovered. Fed R. Civ. P. 26(e). The exclusion of nondisclosed evidence is automatic and mandatory under Rule 37(c)(1), unless harmless. Musser v. 

Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004); D.O.H. v. Lake Cent. Sch. Corp., No. 

2:11-cv-430, 2015 U.S. Dist. LEXIS 45157, at *10 (N.D. Ind. Apr. 7, 2015). The possibility of 

making future supplemental disclosures as required by Rule 26(e) does not excuse a party from 

making full initial disclosures as required by Rule 26(a)(1)(E). Logan v. Gary Cmty. Sch. Corp.,

No. 2:07-CV-431-JVB-PRC, 2008 U.S. Dist. LEXIS 95761, at *11 (N.D. Ind. Nov. 21, 2008).

With respect to Exhibit 3A, Defendants were aware of the existence of Poulard’s 

employment file, as Defendants disclosed the fact that they retained Poulard’s personnel file in 

their Rule 26(a) disclosures. [Exhibit B, p. 3]. Further, Poulard’s discovery requests sought “all 

documents, communications, and internal memorandum found in Plaintiff’s employment file at 

IU Northwest.” [Exhibit A, p. 14, ¶ 23]. Poulard also wrote to Defendants on two separate 

occasions to request that Defendants supplement their document production with additional 

items in his employment file. In the first letter, dated September 8, 2016, Plaintiff writes: “We 

ask that you produce Dr. Poulard’s employment contract in the next document production. 

Alternatively, if you contend that Dr. Poulard does not have an employment contract with IU, we 

ask that you produce any documents that were signed by representatives of IU and Dr. Poulard at 

the time that he was granted tenure.” [Letter from Edward Hearn to Michael Terrell, dated 

September 8, 2016, attached as Exhibit C, p. 2]. Poulard also asked Defendants to provide a 

privilege log, and though Defendants complied with Poulard’s request, the privilege log does not 

identify Exhibit 3A as a privileged communication. [Privilege Log of Defendants the Trustees of 

Indiana University, dated November 29, 2016, attached as Exhibit D, p. 1-8].

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Poulard again wrote to Defendants on June 9, 2017 to request the documents in Plaintiff’s 

employment file, stating: “it is evident that your office has failed to produce any of the 

documents in Dr. Poulard’s employment file, including the contract that he executed when he 

obtained tenure. We demand that you produce these documents, Dr. Poulard’s employment 

contract...” [Letter from Edward Hearn to Michael Terrell, dated June 9, 2017, attached as 

Exhibit E, p. 2]. Defendants responded with: “This is incorrect. Defendants produced the 

entirety of Dr. Poulard’s employment file as it is maintained at Indiana University. With respect 

to the documents executed at the time Dr. Poulard obtained tenure, Indiana University is 

currently searching for any documents that have not yet been produced and will provide those to 

you if any exist.” [Letter from Michael Terrell to Edward Hearn, dated July 14, 2017, attached as 

Exhibit F, p. 2].

Despite claiming that they produced Poulard’s employment file as maintained at IU, 

Defendants never produced the letter in Exhibit 3A, as evidenced by the lack of a Bates stamp on 

the document. [Dkt. 46-3, p. 5]. Defendants now seek to rely upon this previously undisclosed 

document to prove that Poulard did not have an employment contract with IU in violation of the 

mandatory bar imposed by Rule 37(c)(1). Not only does this letter not explicitly stand for the 

proposition that Poulard never executed an employment contract with IU, it also suggests that 

other documents are in Poulard’s employment file within IU’s possession that were never 

produced – even documents that may be favorable to Poulard’s breach of contract claim.

Defendants also failed to disclose the identity of affiants Jennifer Kincaid and Victoria 

Roman-Lagunas, in their Rule 26(a) initial disclosures prior to attaching their affidavits to their 

reply brief. [Exhibit B, p. 2-3]. This is particularly damaging to Poulard, because both Kincaid 

and Roman-Lagunas testify to substantive evidence in their affidavits: Kincaid testifies to the 

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history of the Academic Handbook, the effective date of the alleged disclaimer clause, the 

language found in the alleged disclaimer clause, and where the Sexual Misconduct Policy can be 

found, while Roman-Lagunas testifies to the University tenure procedures, claims that the 

University does not enter into employment contracts with faculty members when they earn 

tenure, and states that the University simply issues a letter to the tenure candidate confirming 

they received tenure. [Dkt. 46-1, p. 1-2; Dkt. 46-3, p. 1-2].

Defendants also seek to authenticate Exhibit 2 and 3A in Kincaid’s and RomanLagunas’s affidavits. [Dkt. 46-1, p. 1-2; Dkt. 46-3, p. 1-2]. This is not the first time that 

Defendants have failed to identify witnesses needed to authenticate documents in their initial 

disclosures, as Defendants also failed to identify Victoria Roman-Lagunas, Tim Goth, and 

Aneesha Ali8as witnesses before producing their affidavits in Dkt # 34-2, Dkt. 34-6, Dkt. # 34-

18. [Exhibit B, p. 2-3]. As Defendants failed to disclose Goth, Roman-Lagunas, Ali, and 

Kincaid in their initial disclosures, and failed to supplement their initial disclosures before 

introducing evidence from these witnesses at summary judgment, Defendants should be barred 

from relying on this evidence in all of their dispositive motions, and especially in this reply brief. 

Accordingly, the entirety of Exhibits 1 and 3 should be stricken on the basis that Defendants 

failed to disclose these affiants pursuant to Rule 26(a) and Rule 26(e). Further, as the 

authenticating affidavits in Exhibits 1 and 3 must be stricken, the entirety of Exhibits 2 and 3A 

must be stricken on the basis that they were not properly authenticated. Fed. R. Evid. 901.

Likewise, Exhibit 2 is the current IU Sexual Misconduct Policy from September 2017. 

Defendants produced an earlier draft of the Sexual Misconduct Policy, but did not produce this 

 

8

Plaintiff objects to Defendants’ failure to disclose Goth, Roman-Lagunas, and Ali in their mandatory disclosures 

under Rule 26(a) and (e), asks that those witnesses be barred from testifying at trial, and asks that this Court strike 

Exhibits that rely upon these affidavits for authentication - Exhibits 5, 9, 10, 13, 15, 17, 21, 24, 25, and 27 to their 

motion for summary judgment– as unauthenticated. 

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draft of the policy during discovery or disclose it during their initial disclosures as required by 

Rule 26, as evidenced by a lack of a Bates stamp. Accordingly, Exhibit 2 must be stricken on the 

basis that it was never produced to Poulard during discovery.

Defendants may contend that their failure to disclose the evidence in Exhibits 1, 2, 3, and 

3A is harmless or otherwise substantially justified. The rule looks to whether the non-conforming 

party had “substantial justification” for the failure to comply with discovery rules and whether 

the failure to comply is “harmless.” Musser v. Gentiva Health Servs., 356 F.3d 751, 755 (7th Cir. 

2004). See also Salgado by Salgado v. GMC, 150 F.3d 735, 742 (7th Cir. 1998)(holding “GM 

had a right to know the conclusions of these particular expert witnesses with respect to this 

particular accident.”). The test considers: “(1) the prejudice or surprise to the party against whom 

the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of 

disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence 

at an earlier date.” D.O.H. v. Lake Cent. Sch. Corp., No. 2:11-cv-430, 2015 U.S. Dist. LEXIS 

45157, at *10 (N.D. Ind. Apr. 7, 2015); Gonzalez v. Rodgers, No. 2:09-CV-225-JTM-PRC, 2011 

U.S. Dist. LEXIS 123331, at *15 (N.D. Ind. Oct. 24, 2011).

Here, Poulard was surprised by the evidence produced by Defendants in Exhibits 1, 2 3, 

and 3A, as he was never notified prior to summary judgment of the existence of affiants Kincaid 

and Roman-Lagunas, their knowledge of matters relevant to his claims, and the potential that 

their testimony may be damaging to his case. As the affidavits of Kincaid and Roman-Lagunas 

are offered as substantive evidence proving the contents of IU’s policies and the manner in 

which IU’s policies operate, and not just to authenticate documentary exhibits, these affidavits 

are particularly damaging to Poulard’s claims as Poulard is unable to depose these witnesses or 

discover evidence contradicting their statements at this stage in the litigation. The existence of 

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the disclaimer clause to which Kincaid’s affidavit attests by itself is particularly significant, as 

Defendants seek to establish that there was a disclaimer clause in place at the time IU granted 

Poulard tenure without allowing Poulard to conduct any discovery into this issue at all. Poulard 

had the right to depose these witnesses in preparation for trial to ensure that they have actual 

knowledge of the matters that they describe, and was deprived of doing so by Defendants when 

they failed to identify them in their initial disclosures, or supplement those initial disclosures.

The prejudice to Poulard resulting from Defendants’ bad faith suppression of this evidence is 

substantial, as Poulard now must find some way to rebut Defendants’ evidence at this stage in 

the litigation, after Defendants’ motion for summary judgment has been fully briefed. 

Likewise, Defendants’ conduct is suggestive of bad faith, as Poulard repeatedly and 

explicitly requested documents similar to Exhibit 3A by requesting Poulard’s personnel file and 

documents related to his tenure grant. Defendants repeatedly responded by telling Plaintiff that 

they produced everything in their possession, though Defendants never produced Exhibit 3A for 

Poulard during discovery. Instead, Defendants waited until the eleventh hour – their reply brief at 

summary judgment – to produce evidence that Poulard explicitly asked for during discovery on 

more than one occasion. The question now becomes whether Defendants suppressed other 

evidence within their possession that would aid Poulard’s claims.

Poulard cannot cure Defendants’ breach in failing to disclose Kincaid and RomanLagunas (and Goth, and Ali), and the unproduced documents in Poulard’s employment file 

without imposing substantial delay on the resolution of the issues set forth in Plaintiff and 

Defendants’ dispositive motions, and without substantially delaying trial. If Plaintiff were 

allowed to continue with discovery at this point in the litigation, Defendants would need at least 

one month from the date this Court orders discovery to continue to gather the remaining 

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undisclosed documents that Defendants previously failed to produce. Further, after Poulard 

receives the documents in question, Poulard would need to verify that document production is 

complete, and to schedule the depositions of Kincaid, Roman-Lagunas, Goth, and Ali, which 

could take months to accomplish. Finally, Plaintiff and Defendant would then need to file 

supplemental dispositive motions that take into account the new evidence discovered during this 

ancillary discovery proceeding, all because Defendants never disclosed all of the evidence they 

had in their possession as required by Rules 26(a) and (e). There is also the risk that during the 

course of these ancillary discovery proceedings Poulard discovers that Defendants have 

suppressed far more evidence than previously suspected, which would delay this case even 

further. At best, resolution of these dispositive motions and trial would be delayed by eight 

months, and at worst, resolution of these issues could be delayed by two years. Rather than 

imposing such delay, this Court should just bar all of the previously undisclosed evidence 

introduced by Defendants in Exhibits 1, 2, 3, and 3A.9 As it is within this Court’s discretion to 

also strike the affidavits of Roman-Lagunas, Goth, and Ali in Dkt # 34-2, Dkt. 34-6, Dkt. # 34-

18, Poulard also asks this Court to bar those exhibits as well for the same reasons.

C. Defendants cite to inadmissible hearsay evidence to which no exception applies in 

their reply brief in Exhibits 2 and 3A that must be stricken.

1. Exhibits 2 and 3A are inadmissible hearsay evidence when cited by Defendants.

Exhibits 2 and 3A also run afoul of the rule against hearsay, as these are out of Court 

statements made by IU’s employees, and are offered by Defendants for proof of the truth of the 

matters asserted within these exhibits. “Hearsay is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the 

matter asserted.” United States v. Harris, 281 F.3d 667, 671 (7th Cir. 2002). “This principle is 

 

9

It is within this Court’s discretion to also bar the affidavits of Roman-Lagunas, Goth, and Ali in Dkt # 34-2, Dkt. 

34-6, Dkt. # 34-18. Plaintiff also asks this Court to consider barring these exhibits for these reasons. 

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reflected by the standard but often unanalyzed objection that such testimony by a party constitutes 

a ‘self-serving declaration.’” United States v. Phelps, 572 F. Supp. 262, 265 (E.D. Ky. 

1983)(citing 6 J. Wigmore, Evidence § 1732 (1976)).

Exhibit 2 is the Sexual Misconduct Policy currently in place at IU in 2017, and was, 

presumably, written by IU employees. The only purpose for Defendants to cite to Exhibit 2 is as

proof of the truth of the language within the Policy itself. As Exhibit 2 is an out of court 

statement made by an unidentified employee of IU, and is offered by Defendants as proof of the 

truth of the statements contained within Exhibit 2, it is inadmissible hearsay evidence and must 

be stricken from Defendants’ reply.

Exhibit 3A is a letter sent from an IU employee, Thomas Ehrlich, to Poulard. Defendants’ 

only purpose in attaching this letter is to prove the truth of Ehrlich’s statements to Poulard within 

the letter. Likewise, Exhibit 3A is an out of court statement made by a then-employee of IU, and 

is offered by Defendants as proof of the truth of the statements contained within Exhibit 3A. 

Accordingly, Exhibit 3A is inadmissible hearsay evidence and must be stricken from 

Defendants’ reply. As the out of court statements in both Exhibit 2 and Exhibit 3A come from 

employees of the Defendants that are not parties or witnesses to this case, and were offered to 

prove the truth of the matters asserted within these documents, these exhibits are inadmissible 

hearsay and must be stricken. 

Defendants may contend that Exhibit 2 and Exhibit 3A are business records and therefore 

fall within the business record exception under rule 803(6), but this argument must fail. Fed. R. 

Ev. 803(6) provides that the business record exception only applies to admit a “record of an act, 

event, condition, opinion, or diagnosis,” if the record was “kept in the course of a regularly 

conducted activity of a business,” and “making the record was a regular practice of that activity.” 

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Fed. R. Evid. 803(6). Business records are presumed reliable because “businesses depend on 

them to conduct their own affairs, so there is little if any incentive to be deceitful, and because 

the regularity of creating such records leads to habits of accuracy.” Jordan v. Binns, 712 F.3d 

1123, 1135 (7th Cir. 2013). If “the supplier of the information does not act in the regular course, 

an essential link is broken; the assurance of accuracy does not extend to the information itself, 

and the fact that it may be recorded with scrupulous accuracy is of no avail.” Rowland v. Am. 

Gen. Fin., Inc., 340 F.3d 187, 194-95 (4th Cir. 2003). “[D]ocuments prepared in anticipation of 

litigation are not admissible” as they are not records created within the regular course of 

business. Jordan, 712 F.3d at 1135;

Exhibit 2 is a university policy, not a business record, as it was not created to record IU’s 

internal business operations. Arguably, IU’s Sexual Misconduct Policy was created in 

anticipation of litigation over sexual harassment and Section 1983 claims, and as such is not a 

business record by definition. Exhibit 3A is not a business record because it was not created for 

the purpose of recording IU’s business operations by an individual acting in the ordinary course 

of business, it was written by an employee for the express purpose of informing Poulard that he 

obtained tenure. By definition, this is not a business record. Accordingly, neither Exhibit 2 or 3A 

do not fall within the business records exception under Rule 803(6), and must be stricken on the 

basis that these documents contain inadmissible hearsay to which no hearsay exception applies.

2. Defendants attempts to authenticate Exhibits 2 and 3A as business records do not 

bring Exhibits 2 and 3A within the business records exception to the hearsay rule.

Though Defendants seek to authenticate Exhibit 2 and Exhibit 3A as business records, the 

mere authentication of these records does not make these records business records within the 

meaning of Rule 803. Hearsay within hearsay must be excluded unless each part of the combined 

statement conforms to an exception of the rule against hearsay. Fed. R. Evid. 805; United States 

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v. Borrasi, 639 F.3d 774, 780 (7th Cir. 2011). Under the Federal Rules of Evidence, authenticity 

of a particular piece of evidence and its admissibility under a hearsay exception are separate 

issues. United States v. Tirouda, Nos. 03-50433, 03-50434, 03-50446, 2005 U.S. App. LEXIS 

364, at *4 (9th Cir. Jan. 10, 2005). The Notes of Advisory Committee for Fed. R. Evid. 901 state: 

“[i]t should be observed that compliance with requirements of authentication or identification by 

no means assures admission of an item into evidence, as other bars, hearsay for example, may 

remain.” Fed. R. Evid 901, Committee notes. Thus, Defendants efforts to authenticate Exhibit 2 

and 3A do not render the inadmissible hearsay statements contained within these exhibits 

admissible under any hearsay exceptions, even if Defendants did store these documents as part of

a larger business record.

D. Defendants introduce irrelevant evidence in Exhibits 1, 2, and 3A in an effort to 

prove that they are entitled to summary judgment that must be stricken from their 

reply. 

Exhibits 1, 2, and 3A must be excluded on the basis of irrelevance. “Evidence which is 

not relevant is not admissible.” United States v. Quinto, 582 F.2d 224, 233 (2d Cir. 1978).

“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it 

would be without the evidence; and (b) the fact is of consequence in determining the action.” 

Fed. R. Evid. 401. The question is whether a reasonable person “might believe the probability of 

the truth of the consequential fact to be different if he knew of the proffered evidence.” United 

States v. Brashier, 548 F.2d 1315, 1325 (9th Cir. 1976).

Here, Defendants offer a draft of the Sexual Misconduct Policy from 2017 in Exhibit 2 as 

proof of the terms in the Sexual Misconduct Policy in place in 2015 when Poulard was 

sanctioned. [Dkt. 46-2, p. 1](stating “this PDF created on: 08/28/2017.”). A copy of the Sexual 

Misconduct Policy from 2017 is not evidence of the terms of the Policy in place in 2015 because 

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the Policy has undergone substantive revisions since its enactment in 2015, as noted on the face 

of the Policy itself. [Dkt. 46-2, p. 24]. The terms of the Sexual Misconduct Policy in 2017 is not 

relevant or necessary to determine what the Policy said in 2015 when Poulard was sanctioned. A 

reasonable person would not believe that Poulard violated the Policy that was in place in 2015 if 

he learned of the terms of the Policy as it exists now, in 2017. 

Victoria Roman-Lagunas’s testimony as to the current tenure procedures in place at IU in 

Exhibit 3 is not relevant to the question of whether IU did not engage in a practice of having its 

tenured employees execute an employment contract in 1991. It is noteworthy that RomanLagunas does not swear in her affidavit that the tenure process she describes existed in 1991; she 

is only attesting to how tenure is awarded at IU in 2017. Accordingly, a reasonable person would 

not conclude that it was unlikely that Poulard executed an employment contract 27 years ago 

when he obtained tenure in 1991 merely because IU’s tenure policy in 2017 does not provide for 

such a practice. Accordingly, Exhibit 3 must be stricken on the basis that it is not relevant to the 

question of whether Poulard executed an employment contract with IU.

Finally, Exhibit 3A is likewise irrelevant to the question of whether Poulard executed an 

employment contract with IU, as nowhere in the letter does Ehrlich make any statements that 

refute the contention that Poulard and IU did not execute an employment contract at the time that 

Poulard obtained tenure. A reasonable person would not conclude that it was unlikely that 

Poulard executed an employment contract with IU merely because the letter in Exhibit 3A exists. 

Accordingly, Exhibits 2, 3, and 3A must be stricken on the basis that they are irrelevant to the 

questions before this Court.

E. Exhibits 1 and 3 must be stricken because Defendants violated the best evidence rule 

by having Kincaid and Roman-Lagunas testify to matters that must be proven by 

producing original copies of IU’s Academic Handbook.

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Finally, the affidavits of Kincaid and Roman-Lagunas in Exhibits 1 and 3 run afoul of the 

best evidence rule because they attest to the terms of IU’s Academic Handbook. “An original 

writing, recording, or photograph is required in order to prove its content unless these rules or a 

federal statute provides otherwise.” Fed. R, Evid.1002. A production of the original document is 

required to prove the contents of a writing. Waterloo Furniture Components v. Haworth, 467 

F.3d 641, 648-49 (7th Cir. 2006). 

Here, Kincaid’s affidavit attests to the language allegedly found in a disclaimer clause 

that was supposedly part of the Academic Handbook at the time Poulard obtained tenure in 1991, 

and claims that the disclaimer clause was allegedly part of IU’s Academic Handbook in 1990. 

[Dkt. 46-1, p. 1-2]. Likewise, Defendants attempt to prove the terms of IU’s current tenure 

policies, and IU’s tenure policies in 1991 when Poulard obtained tenure in an effort to prove that 

Poulard did not execute an employment contract with IU. [Dkt. 46-3, p. 1-2]. 

Proof of these facts cannot be established by an affidavit; Defendants must produce an 

original copy of their Academic Handbook from 1990 and 1991 to prove these facts under Fed. 

R. Evid. 1001. The mere fact that IU has someone testifying to the terms of its historical 

Academic Handbooks implies that IU retained these historical copies of their Academic 

Handbook within their records, and the question is why IU failed to produce the documents 

themselves if this is the case. IU’s failure to produce these documents is inexcusable. Further, as 

Kincaid became an IU employee in 2009, and Roman-Lagunas in 2017, neither has first-hand 

knowledge of Poulard’s tenure grant in 1991, and as such neither can attest to their first-hand 

knowledge of Poulard’s tenure grant, as Poulard can.10 Waterloo Furniture Components v. 

Haworth, 467 F.3d 641, 648-49 (7th Cir. 2006). Further, the argument also can be made that 

 

10 If IU contends that they did not retain these historical copies of IU’s Academic Handbook, then Kincaid and 

Roman-Languas are not competent to testify as to the terms of IU’s Academic Handbook in place in 1990 and 1991, 

and Exhibits 1 and 3 must be stricken on that basis. 

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Kinaid and Roman-Lagunas do not have personal knowledge of whether Poulard’s employment 

contract was subject to a disclaimer clause, and therefore violate Fed. R. Evid. 602.11

Accordingly, Exhibits 1 and 3 must be stricken to the extent that they seek to attest to evidence 

that can only be established through the production of an original document in violation of the 

best evidence rule.

WHEREFORE, the Plaintiff, Dr. Jean Poulard, respectfully prays and moves this Court 

to grant his motion and accordingly strike all inadmissible evidence, impermissible new 

arguments and impermissible new evidence, and all otherwise unsupported factual assertions

from Defendants’ reply in support of their motion for summary judgment, as set forth above. 

Plaintiff also requests all other just and proper relief.

Respectfully submitted,

JOHNSON & BELL, P. C.

By: /s/ Edward W. Hearn

Edward W. Hearn, #18691-64

11051 Broadway, Ste. B

Crown Point, IN 46307

219/791-1900

CERTIFICATE OF SERVICE

I certify that on the 5th day of December, 2017, I electronically filed the foregoing with 

the Clerk of the Court by using the CM/ECF system. Notice of this filing will be sent to the 

parties by operation of the Court’s electronic filing system. Parties may access this filing through 

the Court’s system. 

s/ Edward W. Hearn f

 

11 Fed. R. Evid. 602 provides: “[a] witness may testify to a matter only if evidence is introduced sufficient to support 

a finding that the witness has personal knowledge of the matter.”

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