Plaintiffs' reply in support of their motion for partial summary judgment

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Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 50 of 54 “Pls.’ Mot. to Compel”). Twenty-two of the exhibits consist of excerpts from termination hearing transcripts and lack signed certification pages. 5 a. The Federal Rules Of Civil Procedure Preclude Freshwater From Relying On Documents That He Failed To Disclose To Plaintiffs During Discovery. Among the exhibits attached to Defendant’s January 7, 2010 motion are 15 affidavits signed by Freshwater that, despite being directly responsive to Plaintiffs’ discovery requests, Mr. Hamilton never produced to Plaintiffs until attaching them to his memorandum in opposition. (See Exs. B, E, H, I, J, K, L, M, N, O, P, Q, R, S, T to Def.’s Mot. for Permission to File Out of Time to Amend/Correct; see also Hamilton Mem. in Opp. at 3 (erroneously claiming that “[a]ll information, evidence and exhibits from the administrative hearing have been made available to Plaintiff’s [sic] counsel”).) Because Freshwater failed to provide the Dennises with these responsive materials, he should not be allowed to rely on them in opposing the Dennises’ motion for summary judgment. Federal Rule of Civil Procedure 37(c)(1) prohibits a party who “fails to provide information . . . as required by Rule 26(a) or 26(e)” from “using that information . . . to supply evidence on a motion . . . unless the failure was substantially justified or is harmless.” Mr. Hamilton has provided no justification for his failure to produce these affidavits, nor can he. All of the affidavits were drafted in May 2008, more than five months before the Dennises served their First Set of Requests for Production of Documents on Freshwater’s counsel and more than seven months before the Dennises served defense counsel with their Second Set of Requests for Production of Documents. (See Exs. B, E, H, I, J, K, L, M, N, O, P, Q, R, T to Def.’s Mot. for Permission to File Out of Time to Amend/Correct (dated May 25, 5 The Dennises object to a remaining exhibit—Exhibit A—as untimely, but do not object to this exhibit on any additional grounds. The Dennises also object to Exhibit LL on the grounds that it cannot be authenticated. Because Freshwater provided only four pages of the document contained in this exhibit, the document’s source cannot be verified. 43
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 51 of 54 2008); Ex. S (dated May 23, 2008); see also Exs. 2, 3 to Pls.’ Mot. to Compel (containing copies of first and second set of document requests).) Freshwater cannot argue that these affidavits were unavailable at the time that the Dennises propounded their document requests and he has not offered any legitimate justification for refusing to produce them. Similarly, Freshwater cannot credibly claim that his failure to produce the affidavits caused the Dennises no harm. Because these affidavits were not produced, the Dennises had no opportunity to ask Freshwater about these documents during his deposition—documents upon which Freshwater relies heavily in mounting his defense in pre-trial pleadings and likely will rely on heavily at trial. The Dennises therefore have been, and will continue to be, unfairly prejudiced by Mr. Hamilton’s refusal to produce these affidavits until his January 7, 2010 filing. Accordingly, Freshwater should be barred under Rule 37 from relying on these affidavits in opposing the Dennises’ motion for summary judgment. b. The Exhibits Containing Transcript Excerpts Also Should Be Stricken Because Defense Counsel Has Failed To Supply Signed Certification Pages To Authenticate Them. Twenty-two of the exhibits that defense counsel untimely filed on January 7, 2010 are transcript excerpts from the Mount Vernon School Board’s administrative proceedings to terminate Freshwater. (See Exs. C, D, F, G, U, V, W, X, Y, Z, AA, BB, CC, DD, EE, FF, GG, HH, II, JJ, KK, MM to Def.’s Mot. for Permission to File Out of Time to Amend/Correct.) Because defense counsel has failed to furnish the Court with signed certification pages for any of these excerpts, the excerpts are not proper summary-judgment evidence. Cf. Fed. R. Civ. P. 80 (“If stenographically reported testimony at a hearing or trial is admissible in evidence at a later trial, the testimony may be proved by a transcript certified by the person who reported it.”). This Court has recognized the importance of providing signed certification pages when relying on transcripts as summary-judgment evidence. See, e.g., Weimer v. Honda of Am. Mfg., Inc., No. 44
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Plaintiffs' reply in support of their motion for partial summary judgment

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