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Jason D. Lamm (018454)

Law Office of Jason Lamm

2501 North Seventh Street

Phoenix, AZ 85006-1047

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

David J. Don (016462)

LAW OFFICE OF DAVID J. DON, PLLC

301 E. Bethany Home Rd., Suite B-100

Phoenix, Arizona 85012

Tel: 480-948-1212

Fax: 480-696-7756

Email: david@azcivilrights.com

Attorneys for Plaintiff Leslie A. Merritt, Jr.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Leslie A Merritt, Jr., a single man, 

Plaintiff,

vs.

State of Arizona, et al.

Defendants.

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Case No.: CV17-4540-PHX-DGC

PLAINTIFF’S FOURTH MOTION 

TO AMEND JOINT PRETRIAL 

STATEMENT (DOC 334)

Plaintiff, through undersigned counsel, hereby moves to amend the Joint 

Final Pretrial Statement (Doc 334 at Exhibit 1) filed on February 28, 2020 so as to 

permit the Plaintiff to designate portions of the deposition of Defendants’ firearms 

policy and procedures expert, Stephen Deady, for the reasons set forth herein. 

On February 21, 2020, the Plaintiff sent defense counsel proposed 

designations of Mr. Deady’s deposition testimony to be read to the jury at trial. 

(Exhibit 1). On February 23, 2020, defense counsel objected to the designations as 
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Deady “will be present at trial to testify live”. (Exhibit 2). Plaintiff acknowledged, in 

response, that if the Defendant was calling Deady as a live witness in trial, then “the 

designations are no longer necessary”. Id.

In preparing for trial, Plaintiff’s counsel sought to confirm whether or not 

Deady would, in fact, be called as a live witness given recent communications with 

defense counsel which suggested to the contrary. Defense counsel would not 

commit as to whether or not Deady would be called as a witness at trial and stated

that it is “not obligated to say more, nor are we obligated to make [him] available to 

you.” (Exhibit 3). The Joint Pretrial Statement, however, makes clear that Deady 

will be called by the Defendant at trial (see Doc 334 at 21 (¶ E(2)(a)(14)). 

The Plaintiff has reasonably relied on the Defendant’s representations that 

Deady would be called as a witness at trial. It is unconscionable for Defendant to 

aver that Deady would be called as a witness at trial, such that Plaintiff detrimentally 

relied upon this representation in withdrawing his designations, and for the 

Defendant to then be able to vacillate as to whether or not Deady would or would 

not be called as a witness. Such gamesmanship represents an attempt to hide the 

ball and prejudices the Plaintiff from eliciting meaningful testimony from Deady, be 

it through the reading of relevant portions of his designations, or from crossexamining him before the jury. 

The Court should therefore exercise its discretion and either grant leave to the 

Plaintiff to submit Deady’s deposition designations before the Pretrial Conference, 

or it should enter an Order compelling the Defendant to make Deady available at 

trial because it has made commitments to this effect both in Doc 334, as well as in 

communications with the Plaintiff’s counsel.

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DATED this 5th day of October, 2020.

LAW OFFICE OF JASON LAMM

By: /s/ Jason D. Lamm

Jason D. Lamm

Attorney for Plaintiff Leslie Merritt, Jr.

LAW OFFICES OF DAVID J. DON, P.L.L.C.

By: /s/ David J. Don

David J. Don

Attorney for Plaintiff Leslie Merritt, Jr.

CERTIFICATE OF SERVICE 

I certify that on this 5

th day of October, 2020, I electronically transmitted 

the attached document to the Clerk’s Office using the CM/ECF system for filing 

and transmittal of a Notice of Electronic Filing to the following CM/ECF 

registrants:

Clerk of the Court

United States District Court, District of Arizona

Sandra Day O’Connor Courthouse

401 W. Washington St.

Phoenix, AZ 85003

Edward F. Novak, Esq.

Melissa Ho, Esq.

Jonathan G. Brinson, Esq.

Andrew Fox, Esq.

Polsinelli PC

One East Washington Street, Suite 1200

Phoenix, AZ 85004

enovak@polsinelli.com; mho@polsinelli.com, jbrinson@polsinelli.com

Attorneys for Defendant State of Arizona, Heston Silbert, Christopher Kalkowski, 

Frank Milstead, Ken Hunter, Kelly M. Heape, Jennifer Pinnow, Anthony Falcone

By: /s/ Kathryn Miller

Kathryn Miller