Case 2:15-cv-02236-MHB Document 1-2 Filed 11/06/15 Page 1 of 52
Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/19/2015 8:00 AM

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2013-096393 03/18/2015

Docket Code 022 Form V000A Page 1

CLERK OF THE COURT

HON. DAVID K. UDALL K. Gilmet

Deputy

JESSIE THORNTON RICHARD ALBERT CRUZ

v.

CITY OF SURPRISE, et al. ELAN MIZRAHI

JESSICA OTTERMAN

NO ADDRESS ON RECORD

ORDER SIGNED

The Court is in receipt of the parties’ Stipulation to Extend Expert and Lay Witness 

Disclosure Deadlines, electronically filed on March 12, 2015.

IT IS ORDERED approving/granting the Amended Scheduling Order, all in accordance 

with the formal written Order signed by the Court on March 13, 2015, and filed (entered) by the 

Clerk on March 18, 2015.

Please note: The Court has signed a hard-copy version of the order provided with an 

electronically filed pleading. Therefore, copies of the order and self-addressed, stamped 

envelopes were not available for mailing to the parties. After the order has been scanned and 

docketed by the Clerk of Court, copies of this order may be available through ECR Online at 

clerkofcourt.maricopa.gov or through AZTurboCourt.gov and from the Public Access Terminals 

at the Clerk of Court’s offices located throughout Maricopa County.

Case 2:15-cv-02236-MHB Document 1-2 Filed 11/06/15 Page 2 of 52
Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/25/2015 8:00 AM

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

CV 2013-096393 03/20/2015

Docket Code 083 Form V000A Page 1

CLERK OF THE COURT

HON. DAVID K. UDALL K. Tiero

Deputy

JESSIE THORNTON RICHARD ALBERT CRUZ

v.

CITY OF SURPRISE, et al. ELAN MIZRAHI

JESSICA OTTERMAN

NO ADDRESS ON RECORD

TELEPHONIC TRIAL SCHEDULING CONFERENCE RESET

On the Court’s own Motion, due to a calendaring conflict, 

IT IS ORDERED vacating the telephonic Trial Scheduling Conference set on August 7, 

2015 at 10:30 a.m. and resetting same to August 18, 2015 at 9:30 a.m. (15 minutes allotted) 

before Judge David K. Udall, for the purpose of assigning a trial date if this case has not settled. 

Counsel shall have their trial calendars available. Counsel for the Plaintiff is to initiate the 

telephonic conference by first arranging the presence of all other counsel or self-represented 

parties on the conference call and by calling this Division at (602) 506-5514 promptly at the 

scheduled time.

Case 2:15-cv-02236-MHB Document 1-2 Filed 11/06/15 Page 3 of 52
4811748v1/26076-0001 

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Gallagher & Kennedy, P.A.

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

(602) 530-8000 

Kevin D. Neal (Bar No. 011640)

Lincoln Combs (Bar No. 025080) 

Liana J. Garcia (Bar No. 027452) 

GALLAGHER & KENNEDY, P.A. 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Telephone: (602) 530-8000 

Facsimile: (602) 530-8500 

kevin.neal@gknet.com 

lincoln.combs@gknet.com 

liana.garcia@gknet.com 

Marc J. Victor (Bar No. 016064) 

Marc J. Victor, P.C. 

3920 S. Alma School Road, Suite 5 

Chandler, Arizona 85248 

Telephone: (480) 455-5233 

Fax: (480) 857-0150 

marc@attorneyforfreedom.com 

Attorneys for Plaintiff Jessie Thornton 

SUPERIOR COURT OF THE STATE OF ARIZONA 

COUNTY OF MARICOPA 

JESSIE THORNTON,

Plaintiff, 

v. 

CITY OF SURPRISE, a jural entity; J.J. 

OTTERMAN and JANE DOE 

OTTERMAN, husband and wife; JOHN 

and JANE DOES I-X; BLACK and WHITE 

CORPORATIONS I-X, inclusive, 

Defendants. 

No. CV2013-096393

STIPULATION TO EXTEND 

DISCOVERY DEADLINES 

(Assigned to the Honorable David K. 

Udall) 

The parties hereby stipulate and agree that the following deadlines be extended as 

follows: 

1. Plaintiff shall disclose the identity and opinions of experts by July 29, 2015. 

Defendant shall disclose the identity and opinions of experts by August 27, 2015. The 

parties shall simultaneously disclose their rebuttal expert opinions by September 28, 2015. 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

T. Hays, Deputy

6/3/2015 1:48:00 PM

Filing ID 6642948

Case 2:15-cv-02236-MHB Document 1-2 Filed 11/06/15 Page 4 of 52
4811748v1/26076-0001 2 

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2. Lay (non-expert) witness disclosure: The parties shall disclose all lay 

witnesses by September 28, 2015. 

3. Final supplemental disclosure: Each party shall provide final supplemental 

disclosure by December 5, 2015. 

4. Discovery deadlines: The parties will propound all discovery undertaken 

pursuant to Rules 33 through 36 by October 15, 2015. The parties will complete the 

depositions of parties, lay witnesses and experts by November 9, 2015. The parties will 

complete all other discovery by October 15, 2015. 

5. Private mediation: The parties shall complete the mediation by September 

19, 2015. 

6. The parties shall file all dispositive motions by November 30, 2015. 

DATED this 3rd day of June, 2015. 

GALLAGHER & KENNEDY, P.A. 

By: /s/ Kevin D. Neal 

Kevin D. Neal 

Lincoln Combs 

Liana J. Garcia 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Attorneys for Plaintiff Jessie Thornton 

TITUS, BRUECKNER & LEVINE PLC

By: /s/ Elan S. Mizrahi 

Elan S. Mizrahi 

8355 East Hartford Drive, Suite 200 

Scottsdale, Arizona 85255 

Attorneys for Defendant 

Case 2:15-cv-02236-MHB Document 1-2 Filed 11/06/15 Page 5 of 52
4811748v1/26076-0001 3 

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COPY mailed same day to: 

Elan S. Mizrahi 

TITUS, BRUECKNER & LEVINE PLC 

8355 East Hartford Drive, Suite 200 

Scottsdale, Arizona 85255 

Attorneys for Defendants 

Sharlee Weaver 

Case 2:15-cv-02236-MHB Document 1-2 Filed 11/06/15 Page 6 of 52
4811738v1/26076-0001

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Gallagher &

Kennedy, P.A.

2575 East Camelback Road

Phoenix, Arizona 85016-9225

(602) 530-8000

Kevin D. Neal (Bar No. 011640)

Lincoln Combs (Bar No. 025080)

Liana J. Garcia (Bar No. 027452)

GALLAGHER & KENNEDY, P.A.

2575 East Camelback Road

Phoenix, Arizona 85016-9225

Telephone: (602) 530-8000

Facsimile: (602) 530-8500

kevin.neal@gknet.com

lincoln.combs@gknet.com

liana.garcia@gknet.com

Marc J. Victor (Bar No. 016064)

Marc J. Victor, P.C.

3920 S. Alma School Road, Suite 5

Chandler, Arizona 85248

Telephone: (480) 455-5233

Fax: (480) 857-0150

marc@attorneyforfreedom.com

Attorneys for Plaintiff Jessie Thornton

SUPERIOR COURT OF THE STATE OF ARIZONA

COUNTY OF MARICOPA

JESSIE THORNTON,

Plaintiff,

v.

CITY OF SURPRISE, a jural entity; J.J. 

OTTERMAN and JANE DOE 

OTTERMAN, husband and wife; JOHN 

and JANE DOES I-X; BLACK and WHITE 

CORPORATIONS I-X, inclusive,

Defendants.

No. CV2013-096393

SECOND AMENDED SCHEDULING 

ORDER

(Assigned to the Honorable David K. 

Udall)

Upon consideration of the parties' Stipulation to Extend Deadlines, the Court orders 

as follows:

1. Plaintiff shall disclose the identity and opinions of experts by July 29, 2015. 

Defendant shall disclose the identity and opinions of experts by August 27, 2015. The 

parties shall simultaneously disclose their rebuttal expert opinions by September 28, 2015.

Grant with New Order

***See eSignature page***

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

K. Tiero, Deputy

6/4/2015 8:00:00 AM

Filing ID 6643702

Case 2:15-cv-02236-MHB Document 1-2 Filed 11/06/15 Page 7 of 52
4811738v1/26076-0001 2

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2. Lay (non-expert) witness disclosure: The parties shall disclose all lay 

witnesses by September 28, 2015. 

3. Final supplemental disclosure: Each party shall provide final supplemental 

disclosure by December 5, 2015. 

4. Discovery deadlines: The parties will propound all discovery undertaken

pursuant to Rules 33 through 36 by October 15, 2015. The parties will complete the 

depositions of parties, lay witnesses and experts by November 9, 2015. The parties will 

complete all other discovery by October 15, 2015. 

5. Private mediation: The parties shall complete the mediation by September 

19, 2015.

6. The parties shall file all dispositive motions by November 30, 2015. 

7. Trial setting conference: On _October 23, 2015 at _10:30 a.m._ (15 

minutes), the court will conduct a telephonic trial setting conference. Attorneys and selfrepresented parties shall have their calendars available for the conference. Plaintiff will 

initiate the conference call by arranging the presence of all other counsel and selfrepresented parties, and by calling this division at 602-506-5514 at the scheduled time.

DATED this ___ day of __________________, 2015.

By: 

HONORABLE DAVID K. UDALL 

Case 2:15-cv-02236-MHB Document 1-2 Filed 11/06/15 Page 8 of 52
Grant with New Order

/S/ David Udall Date: 6/3/2015 _____________________________

Judicial Officer of Superior Court

eSignature Page 1 of 1

 Filing ID: 6643702 Case Number: CV2013-096393

 Original Filing ID: 6642988

_______________________________________________________________________________

Case 2:15-cv-02236-MHB Document 1-2 Filed 11/06/15 Page 9 of 52
ENDORSEMENT PAGE

CASE NUMBER: CV2013-096393 SIGNATURE DATE: 6/3/2015

E-FILING ID #: 6643702 FILED DATE: 6/4/2015 8:00:00 AM

ELAN MIZRAHI

RICHARD ALBERT CRUZ

JESSICA OTTERMAN

NO ADDRESS ON RECORD

Case 2:15-cv-02236-MHB Document 1-2 Filed 11/06/15 Page 10 of 52
4996612v1/26076-0001 

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Gallagher & Kennedy, P.A.

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

(602) 530-8000 

Kevin D. Neal (Bar No. 011640)

Lincoln Combs (Bar No. 025080) 

Liana J. Garcia (Bar No. 027452) 

GALLAGHER & KENNEDY, P.A. 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Telephone: (602) 530-8000 

Facsimile: (602) 530-8500 

kevin.neal@gknet.com 

lincoln.combs@gknet.com 

liana.garcia@gknet.com 

Marc J. Victor (Bar No. 016064) 

Marc J. Victor, P.C. 

3920 S. Alma School Road, Suite 5 

Chandler, Arizona 85248 

Telephone: (480) 455-5233 

Fax: (480) 857-0150 

marc@attorneyforfreedom.com 

Attorneys for Plaintiff Jessie Thornton 

SUPERIOR COURT OF THE STATE OF ARIZONA 

COUNTY OF MARICOPA 

JESSIE THORNTON,

Plaintiff, 

v. 

CITY OF SURPRISE, a jural entity; J.J. 

OTTERMAN and JANE DOE 

OTTERMAN, husband and wife; JOHN 

and JANE DOES I-X; BLACK and WHITE 

CORPORATIONS I-X, inclusive, 

Defendants. 

No. CV2013-096393

RULE 37(a)(2)(c) STATEMENT OF 

COUNSEL IN SUPPORT OF 

PLAINTIFF’S MOTION TO 

COMPEL 

(Assigned to the Honorable David K. 

Udall) 

I am one of the attorneys representing Plaintiff Jessie Thornton in the above-noted 

lawsuit. I and other attorneys and staff members at my firm have made several good faith 

efforts to resolve the discovery issues identified in Plaintiff’s Motion to Compel, as set 

forth in that Motion and its accompanying exhibits. After personal consultation and good 

faith efforts to resolve these matters, I have been unable to satisfactorily do so. 

Case 2:15-cv-02236-MHB Document 1-2 Filed 11/06/15 Page 11 of 52
4996612v1/26076-0001 

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DATED this 21st day of August, 2015. 

GALLAGHER & KENNEDY, P.A. 

By: /s/ Kevin D. Neal 

Kevin D. Neal 

Lincoln Combs 

Liana J. Garcia 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Attorneys for Plaintiff Jessie Thornton 

COPY mailed same day to: 

Larry J. Crown, Esq. 

Elan S. Mizrahi, Esq. 

TITUS, BRUECKNER & LEVINE PLC 

8355 East Hartford Drive, Suite 200 

Scottsdale, Arizona 85255 

E-mail: lcrown@tbl-law.com 

E-mail: elan@tbl-law.com 

Attorneys for Defendants 

Sharlee Weaver 

Case 2:15-cv-02236-MHB Document 1-2 Filed 11/06/15 Page 12 of 52
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Gallagher & Kennedy, P.A.

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

(602) 530-8000 

Kevin D. Neal (Bar No. 011640)

Lincoln Combs (Bar No. 025080) 

Liana J. Garcia (Bar No. 027452) 

GALLAGHER & KENNEDY, P.A. 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Telephone: (602) 530-8000 

Facsimile: (602) 530-8500 

kevin.neal@gknet.com 

lincoln.combs@gknet.com 

liana.garcia@gknet.com 

Marc J. Victor (Bar No. 016064) 

Marc J. Victor, P.C. 

3920 S. Alma School Road, Suite 5 

Chandler, Arizona 85248 

Telephone: (480) 455-5233 

Fax: (480) 857-0150 

marc@attorneyforfreedom.com 

Attorneys for Plaintiff Jessie Thornton 

SUPERIOR COURT OF THE STATE OF ARIZONA 

COUNTY OF MARICOPA 

JESSIE THORNTON,

Plaintiff, 

v. 

CITY OF SURPRISE, a jural entity; J.J. 

OTTERMAN and JANE DOE 

OTTERMAN, husband and wife; JOHN 

and JANE DOES I-X; BLACK and WHITE 

CORPORATIONS I-X, inclusive, 

Defendants. 

No. CV2013-096393

PLAINTIFF’S MOTION TO 

COMPEL PRODUCTION OF 

DOCUMENTS AND DISCLOSURE 

OF INFORMATION 

(Assigned to the Honorable David K. 

Udall) 

Plaintiff, through counsel, files this Motion to Compel disclosure and discovery 

responses pursuant to Rule 37(a), Ariz. R. Civ. P. Despite several requests (both written 

and verbal) from Plaintiff, Defendants have failed to disclose relevant documents and 

information as required by Arizona’s rules governing discovery and disclosure. Plaintiff’s 

counsel has personally consulted with defense counsel in a good faith effort to resolve 

Michael K Jeanes, Clerk of Court

*** Electronically Filed ***

D. Sandoval, Deputy

8/21/2015 12:34:00 PM

Filing ID 6814155

Case 2:15-cv-02236-MHB Document 1-2 Filed 11/06/15 Page 13 of 52
4422630v1/26076-0001 2 

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these issues, but has been unable to satisfactorily resolve the matters. Accordingly, 

Plaintiff requests an order compelling Defendants to produce the following documents 

and information: 

• All notes, memoranda, interview summaries, recorded statements, and 

reports related to the two separate internal investigations conducted by or at 

the request of the Surprise Police Department as a result of the incident 

which forms the basis of Plaintiff’s Complaint (the December 2012 DUI 

arrest and charge); 

• The names and badge numbers (if applicable) of all Surprise Police 

Department employees who have had official contacts with Plaintiff, as 

documented in Surprise Police Department records; 

• Identification of any City of Surprise personnel who have received any type 

of disciplinary action as a result of his or her interactions with Plaintiff; 

• Identify all complaints, claims, lawsuits, letters, or other documentation 

related to allegations of racial profiling or racially-based police bias 

received by the Surprise Police Department from the time period of 

December 2011 to current; and 

• Produce recordings, transcripts, or any other data in the City’s possession 

(or the Surprise Police Department’s possession) documenting radio 

communications between Officer/Defendant J.J. Otterman and any other 

member of the Surprise Police Department from the time period of 

December 7, 2012 at 10:00 p.m. through December 8, 2012 at 5:00 a.m. 

Plaintiff’s Motion to Compel is based on the following Memorandum of Points and 

Authorities, the attached supporting exhibits, the accompanying Rule 37(a)(2)(c) 

statement of counsel, and the Court’s record herein. 

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MEMORANDUM OF POINTS AND AUTHORITIES 

I. BRIEF FACTUAL AND PROCEDURAL BACKGROUND 

This lawsuit arises out of Plaintiff Jessie Thornton’s interactions with Defendant 

City of Surprise; specifically the Surprise Police Department (“SPD”). Mr. Thornton, a 

retired firefighter and electrician, moved to the City of Surprise in 2008. Shortly after 

moving to Surprise, Mr. Thornton, an African American, has been stopped by SPD at least 

eight times, culminating in his arrest and charge for DUI on December 7, 2012. Even 

though he blew a .000 on the intoxilyzer, and was examined by SPD’s Drug Recognition 

Expert, who concluded Mr. Thornton showed no signs of impairment by drugs or alcohol, 

Defendant Otterman and the City of Surprise decided to press ahead with filing charges 

and prosecuting Mr. Thornton for driving while impaired by drugs or alcohol. 

Mr. Thornton brought this lawsuit for civil rights violations in December of 2013, 

after filing and serving his Notice of Claim against the Defendants. Plaintiff’s lawsuit was 

originally filed by Attorney Marc Victor. Attorney Victor sent discovery requests to 

Defendants in April, 2014. Specifically, Mr. Victor sent five non-uniform interrogatories, 

and five requests for production. Defendants objected to all but two interrogatories. They 

produced nothing in response to Plaintiff’s Requests for Production. See Exhibit A - 

Defendants’ Responses to Non-Uniform Interrogatories, and Exhibit B - Defendants’ 

Responses to Plaintiff’s Requests for Production of Documents. 

In October 2014, Gallagher & Kennedy filed its Notice of Association with Mr. 

Victor’s office and began working on the case. Defense attorney Elan Mizrahi represented 

to Attorney Kevin Neal of Gallagher & Kennedy that in addition to the objections sent to 

Plaintiff’s previous discovery requests, a large production of documents had been 

previously sent to Marc Victor’s office. Mr. Mizrahi alleged that Mr. Victor’s office must 

have failed to provide these documents to the newly associated lawyers at Gallagher & 

Kennedy. Subsequently, Mr. Neal and other lawyers and staff at his office attempted to 

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obtain those documents, but have since verified that no documents were in fact produced. 

Several emails and letters were sent to defense counsel in an attempt to obtain the 

mysterious “large volume of documents” that had allegedly been previously produced. See

Exhibit C, email dated May 8, 2015 from Sharlee Weaver to Elan Mizrahi, Exhibit D, 

email dated May 21, 2015 from Sharlee Weaver to Elan Mizrahi, Exhibit E, letter of May 

27, 2015 from Kevin Neal to Elan Mizrahi, Exhibit F, email of June 11, 2015 from Liana 

Garcia to Elan Mizrahi, Exhibit G, email of June 25, 2015 from Liana Garcia to Elan 

Mizrahi, and Exhibit H, email of May 7, 2015 from Kathy Clements to Sharlee Weaver. 

In response to four emails and one letter to defense counsel regarding this alleged 

document production, defense counsel responded only twice. Both times, the response 

was “I will get back to you.” See Exhibit I - email of June 2, 2015 from Elan Mizrahi to 

Sharlee Weaver, and Exhibit J - email of June 11, 2015 from Elan Mizrahi to Liana 

Garcia. Those two responses, promising to “look into it and get back to you,” were sent in 

June, 2015. Plaintiff is still waiting to hear back from defense counsel. 

Plaintiff has sought production of the documents and information – information 

which is relevant and crucial to Plaintiff’s case – at least six times over the last year and a 

half. Defendants have responded with baseless objections, inaccurate assertions that the 

information had already been produced, and many empty promises to “look into it, and get 

back to you,” but have never actually produced the information requested. The 

information and documents sought by Plaintiff are well within the scope of Arizona’s 

disclosure and discovery rules. The information is relevant, discoverable, and should be 

produced without further delay. 

II. DISCOVERY/ DISCLOSURES REQUESTED 

A. The internal investigation documents. 

Defendant Officer J.J. Otterman testified at his deposition that two separate 

investigations were conducted concerning Mr. Thornton’s DUI arrest and allegations of 

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racially-biased policing: one by SPD itself, and one by an independent investigator, Jim 

Humphreys Consulting. Plaintiff requested copies of the materials related to the 

Humphreys investigation in his Requests for Production of April 2014, but was not aware 

of the SPD internal investigation until Defendant Otterman’s deposition on April 15, 

2015. Copies of documents related to both internal investigations were requested as soon 

as Plaintiff discovered they existed. See Exhibits E, F, and G. 

In response to the Request for Production of the Humphreys investigative 

materials, Defendants simply responded “Objection. Work Product Privilege.” This 

objection is not sufficient to comply with Arizona’s discovery rules. The rules require that 

if information is not disclosed because of a claim of privilege, the claim must be made 

expressly and supported by a non-privileged description of the materials withheld that is 

sufficient to enable other parties to contest whether the privilege was properly claimed. 

See Ariz. R. Civ. P. 26.1(f)1. Defendants have not complied with this requirement, despite 

Plaintiff’s written request. See Exhibit E: “If you are relying on the objections, or a 

privilege, then a log will need to be sent identifying what is being withheld and the basis 

for doing so.” 

 Plaintiff doubts that the information requested is protected by work product 

privilege. However, whether the privilege applies is determined by a number of factspecific inquiries. Brown v. Superior Court, 137 Ariz. 327, 670 P.2d 725 (1983). Because 

Defendants have failed to provide Plaintiff with any information at all regarding the 

documents, Plaintiff cannot determine whether the material is in fact privileged. The 

documents requested are certainly relevant, and Plaintiff believes Defendants have an 

obligation to produce them pursuant to the requirements of Rule 26.1. 

B. Identification of Surprise Police Department Personnel. 

Plaintiff requested the identities of SPD personnel who have interacted with 

Plaintiff, as documented in the department’s records. This information is easily accessible 

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to Defendants, and is calculated to lead to the discovery of admissible evidence. Plaintiff’s 

lawsuit concerns a pattern and practice of racially-biased policing. His Complaint and 

Notice of Claim make no secret that his case is based on a pattern of several stops which 

culminated in the December 2012 DUI charge. Defendants objected to providing this 

information because the interrogatory was “vague, overbroad, compound, not reasonably 

calculated to lead to the discovery of admissible evidence,” and sought information that 

Defendants believed was already in Plaintiff’s possession. These objections are baseless. 

First, the interrogatory is not vague. It seeks the identities and badge or employee ID 

numbers of all SPD personnel who have had official contacts with Plaintiff from January 

2009 to present, and a description of the nature of the contact. A reasonable person 

reading the request could understand the nature of the information sought with relative 

ease. The interrogatory is not overbroad. It seeks information related only to Defendants’ 

interactions with one person – the Plaintiff – and is limited in time. Defendants could 

provide the information sought by running a simple check of its computer system. 

Defendants’ last objection – that Plaintiff probably already has this information – is 

frankly ridiculous. First, if Plaintiff had this information in his possession, he wouldn’t 

request it from Defendants. Second, whether Defendants believe Plaintiff may have 

evidence in his possession is completely irrelevant to their legal obligations to disclose 

any and all information that appears reasonably calculated to lead to the discovery of 

admissible evidence, and to respond to discovery requests in good faith. 

C. Disciplinary Information. 

Plaintiff’s Non-Uniform Interrogatory No. 3 asks Defendants for a simple response 

to a simple inquiry. It asks whether any Surprise Police Department employees have been 

subjected to discipline as a result of his or her interactions with Plaintiff. If the answer is 

“no,” Defendants should just say no. If the answer is “yes,” Defendants certainly have a 

legal obligation to disclose this fact, and identify the circumstances related to such 

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discipline. Instead, Defendants’ response is “See Response to Interrogatory No. 1.” 

Defendants’ Response to Interrogatory No. 1 is a string of objections including “vague,” 

“overbroad,” “not reasonably calculated to lead to the discovery of admissible evidence,” 

and my personal favorite: “[t]o the extent this interrogatory seeks information concerning 

contacts that resulted in SPD’s generation of written reports, upon information and belief, 

Plaintiff obtained these reports through a public records request and as such, this 

interrogatory seeks information within Plaintiff’s possession and control.” To paraphrase: 

“you probably already have it, so we’re not going to give it to you.” 

 None of these objections are actually responsive to Plaintiff’s interrogatory. Asking 

whether any of Defendants’ employees were disciplined as a result of his or her 

interactions with Plaintiff is not vague. It is information easily accessible to Defendants, 

easily producible to Plaintiff, and it is 100% relevant to this lawsuit. As to Defendants’ 

objection that “you probably already have it, so we’re not going to give it to you,” well, 

that doesn’t even merit a response. In fact, Plaintiff does not have the information, and 

this objection does not relieve Defendants of their obligations to comply with Arizona’s 

rules on disclosure and discovery. 

D. SPD’s records concerning allegations of similar conduct. 

Plaintiff has requested information and documents related to complaints of racial 

profiling or bias made against SPD. Defendants objected, indicating that the interrogatory 

was vague, overbroad, and not reasonably calculated to lead to the discovery of 

admissible evidence. Certainly, this evidence is admissible – or if not admissible, at least 

reasonably calculated to lead to the discovery of admissible evidence, given the gravitas 

of Plaintiff’s Complaint. As to whether the interrogatory is overbroad, Plaintiff notes that, 

according to the SPD’s annual report for 2014, it has received four (4) complaints of 

discriminatory police practices between the years of 2010-2014. See Exhibit K, relevant 

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section of SPD’s Annual Report. Surely, producing information related to these four 

complaints would not be overbroad or burdensome. 

E. Records of communications relevant to the incident forming the basis of 

Plaintiff’s Complaint. 

Plaintiff’s Request for Production No. 5 seeks recordings or transcripts related to 

all radio communications from Defendant Officer Otterman for the time period of 10:00 

p.m. on December 7, 2012 through 5:00 a.m. on December 8, 2012, which is the time 

period during which Defendant Otterman was following, stopping, arresting, processing, 

and charging Plaintiff for DUI. Defendant responded with an objection that the request 

was “vague and overbroad.” The request is not vague. It seeks a very specific type of 

information which is solely in the possession of Defendants. The request is not overbroad. 

It is limited to a very specific time period relevant to Plaintiff’s lawsuit, and it concerns 

the radio communications of only one officer. The purpose of Arizona’s discovery rules is 

to permit a party to become apprised of an opponent’s case and be prepared to meet it. 

Kott v. City of Phoenix, 158 Ariz. 415, 763 P.2d 235 (1988). Here, Defendants seem 

insistent on “hiding the ball” to prevent Plaintiff from accessing information which is 

solely in their possession, and which prejudices Plaintiff’s ability to fairly prosecute his 

claim. Defendants’ objections to this request for very specific, limited, and relevant 

information are emblematic of the way they have handled discovery in this case, and are 

contrary to the letter and the spirit of Arizona’s disclosure and discovery rules. 

III. CONCLUSION 

 All that is required to trigger a duty to disclose under Rule 26.1 is a determination 

that a person “may” have relevant knowledge or a document “may” have relevant content. 

Norwest Bank (Minnesota), N.A., v. Symington, 197 Ariz. 181, 3 P.3d 1101 (Ct. App. Div. 

1 2000). Here, Defendants have failed to disclose two internal investigation reports that 

solely concern Mr. Thornton and the incident that forms the basis of his lawsuit, despite 

several requests and their obligations under the rules. An evasive or incomplete 

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disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond. 

See Ariz. R. Civ. P. 37(a) (3). These Defendants have only provided evasive and 

incomplete disclosures and discovery responses. Accordingly, Plaintiff requests the Court 

compel the production of requested documents and information, and award him sanctions 

consistent with Rule 37(a) (4). 

DATED this 21st day of August, 2015. 

GALLAGHER & KENNEDY, P.A. 

By: /s/ Kevin D. Neal 

Kevin D. Neal 

Lincoln Combs 

Liana J. Garcia 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Attorneys for Plaintiff Jessie Thornton 

COPY mailed same day to: 

Larry J. Crown, Esq. 

Elan S. Mizrahi, Esq. 

TITUS, BRUECKNER & LEVINE PLC 

8355 East Hartford Drive, Suite 200 

Scottsdale, Arizona 85255 

Attorneys for Defendants 

Sharlee Weaver 

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4996612v1/26076-0001 

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Gallagher & Kennedy, P.A.

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

(602) 530-8000 

Kevin D. Neal (Bar No. 011640)

Lincoln Combs (Bar No. 025080) 

Liana J. Garcia (Bar No. 027452) 

GALLAGHER & KENNEDY, P.A. 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Telephone: (602) 530-8000 

Facsimile: (602) 530-8500 

kevin.neal@gknet.com 

lincoln.combs@gknet.com 

liana.garcia@gknet.com 

Marc J. Victor (Bar No. 016064) 

Marc J. Victor, P.C. 

3920 S. Alma School Road, Suite 5 

Chandler, Arizona 85248 

Telephone: (480) 455-5233 

Fax: (480) 857-0150 

marc@attorneyforfreedom.com 

Attorneys for Plaintiff Jessie Thornton 

SUPERIOR COURT OF THE STATE OF ARIZONA 

COUNTY OF MARICOPA 

JESSIE THORNTON,

Plaintiff, 

v. 

CITY OF SURPRISE, a jural entity; J.J. 

OTTERMAN and JANE DOE 

OTTERMAN, husband and wife; JOHN 

and JANE DOES I-X; BLACK and WHITE 

CORPORATIONS I-X, inclusive, 

Defendants. 

No. CV2013-096393

RULE 37(a)(2)(c) STATEMENT OF 

COUNSEL IN SUPPORT OF 

PLAINTIFF’S MOTION TO 

COMPEL 

(Assigned to the Honorable David K. 

Udall) 

I am one of the attorneys representing Plaintiff Jessie Thornton in the above-noted 

lawsuit. I and other attorneys and staff members at my firm have made several good faith 

efforts to resolve the discovery issues identified in Plaintiff’s Motion to Compel, as set 

forth in that Motion and its accompanying exhibits. After personal consultation and good 

faith efforts to resolve these matters, I have been unable to satisfactorily do so. 

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DATED this 21st day of August, 2015. 

GALLAGHER & KENNEDY, P.A. 

By: /s/ Kevin D. Neal 

Kevin D. Neal 

Lincoln Combs 

Liana J. Garcia 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

Attorneys for Plaintiff Jessie Thornton 

COPY mailed same day to: 

Larry J. Crown, Esq. 

Elan S. Mizrahi, Esq. 

TITUS, BRUECKNER & LEVINE PLC 

8355 East Hartford Drive, Suite 200 

Scottsdale, Arizona 85255 

E-mail: lcrown@tbl-law.com 

E-mail: elan@tbl-law.com 

Attorneys for Defendants 

Sharlee Weaver 

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