ROBERT C. BROOMFIELD, Senior District Judge.
After the denial of defendants' motion for summary judgment, plaintiff pro se James Jackson Ellsworth filed a host of pre-trial motions. More specifically, the following motions are currently pending before the court: (1) a motion in limine regarding his criminal history (Doc. 138); (2) a motion to appoint an expert witness (Doc. 139); (3) a renewed motion for sanctions (Doc. 144); (4) an "Objection to Defendant's [sic] Notice of Appearance/Request to Remove Defendants['] Counsel" (Doc. 148). In addition, the plaintiff filed a motion for a court order as to the affidavit of Stephen D. Brown (Doc. 155), and a motion to obtain a court transcript (Doc. 157). Although the Honorable Mark E. Aspey, United States Magistrate Judge recently issued an order denying those two motions (Doc. 162), as more fully explained herein, this court is vacating that order.
The court may quickly dispatch with plaintiff Ellsworth's motion for sanctions because it is moot. The plaintiff's other motions warrant closer examination, however.
I. "Renewed Motion for Sanctions"
The plaintiff is requesting that the court issue an order to show cause and find the defendants in contempt for allegedly failing to cooperate with him in preparing and filing the joint proposed pre-trial order ("JPPTO"). As a sanction, the plaintiff is also seeking a court order requiring the defendants to pay him $65.00 for the costs he allegedly incurred in filing this motion.
Granting the plaintiff's motion to extend the time in which to file the JPPTO, the parties had until May 20, 2013, by which to file that document. See Ord. (Doc. 133) at 6:12-16, ¶ (2). Tellingly, the plaintiff brought this motion ten days prior to that court ordered deadline. The plaintiff's motion was, thus, premature.
More significantly, however, the plaintiff's motion is moot because he has already received the primary relief which he is seeking therein. Accepting plaintiff's claim that he did not receive a copy of the JPPTO, which the court sent to his last known address (Doc. 145 Notice of Electronic Filing), the defendants provided the plaintiff with another copy on August 29, 2013. See Ord. (Doc. 160) at 1:27-2:1 (citation omitted). The foregoing also renders moot the plaintiff's "supplemental motion for sanctions[, ]" which includes a request for an extension of time in which to file the JPPTO. See Pl.'s Supp. Mot. (Doc. 150) at 3. Accordingly, the court denies in its entirety plaintiff's motion for sanctions (Doc. 144).
II. Brown Affidavit
The plaintiff's motion as to the Brown affidavit has its origins in the inadvertent disclosure to him of "sensitive and confidential information... produced in error by Lexington Insurance Company ("Lexington"), a non-party[.]" See Mot. (Doc. 93) at 1:22-23. That disclosure resulted in motion practice before this court including a hearing on September 11, 2012. Doc. 109. Understandably, the Magistrate Judge was not as familiar as is this court with the many nuances surrounding that inadvertent disclosure, especially the representations during that hearing made to this court by defense counsel Mary A. Palma and fully discussed below. In light of the foregoing, the court is vacating the Magistrate Judge's order (Doc. 162) denying the plaintiff's "Motion for District Court Order Re: Stephen D. Brown Affidavit" and his "Motion for Transcripts" (Doc. 157), and considers those two motions next.
Lexington is the insurer for the parent company of the defendant Prison Health Services, Inc. ("PHS"). Sept. 11, 2012 Audio Transcript ("Tr.") at 9:45:52 a.m. - 9:45:55 a.m. PHS is an additional insured on that policy. Id. at 9:45:56 a.m. - 9:46:00 a.m. The court assumes familiarity with Lexington's inadvertent disclosure to the plaintiff of certain documents ("the Lexington documents"). Some of that background bears repeating though, as it directly relates to the plaintiff's current motion to obtain the affidavit of Stephen D. Brown, PHS' Senior Director of Professional Liability Claims, and the appendices attached thereto. Those three appendices outline the categories of Lexington documents which PHS deems to be protected: (1) Protected Health Information; (2) Work Product; and (3) Commercially Sensitive Documents. Id. at 9:51:22 a.m. - 9:53:57 a.m. Mr. Brown's affidavit was exhibit "C" to PHS' motion to strike the Lexington documents from the record and require the plaintiff to return those documents ("the motion to strike"). Defs.' Mot. (Doc. 93) at 12-14 (emphasis omitted). After granting that motion to strike, the court also granted PHS' separate motion to, among other things, seal the Brown affidavit and the Lexington documents ("the sealing order"). See Ord. (Doc. 111).
During the hearing on PHS' motion to strike, the plaintiff maintains that the court "ordered" PHS' counsel, Mary A. Palma,  to provide the Brown affidavit to him. Pl.'s Mot. (Doc. 155) at 2. Attempting to obtain that affidavit, the plaintiff claims that he made repeated telephone requests of J. Scott Conlon, PHS' Phoenix based counsel. But, despite repeated assurances by Mr. Conlon, plaintiff claims that he has yet to receive the Brown affidavit. The plaintiff asserts that Mr. Brown is his witness and that unspecified documents "potential[ly]" could be used at trial. Id. at 3. Thus, the plaintiff is seeking a court order requiring PHS to provide him with the Brown affidavit.
Through attorney Conlon, the defendants retort that the plaintiff is "either misrepresenting or... misread[ing]" the court's sealing order. Resp. (Doc. 156) at 2:17. The defendants point out that that order mandates, among other things, that the Brown affidavit "be placed under seal and not incorporated into the regular record of this case[.]" Ord. (Doc. 111) at 1:21-22. The defendants further note that the sealing order requires the Brown affidavit to "remain under seal un[til] further order of this Court." Id. at 1:22. Based upon the foregoing, the defendants urge denial of plaintiff's motion to obtain the Brown affidavit.
In his reply, the plaintiff clarifies that the sealing order is not the basis for this motion. Rather, plaintiff Ellsworth is relying upon his recollection of what transpired during the September 11, 2012, hearing on PHS' motion to strike. As the plaintiff recalls it, during that hearing the court "ordered defense counsel, Mary Ann Palmer [sic] to provide a copy" of the Brown affidavit to him. See Pl.'s Mot. (Doc. 155) at 2. In part because attorney Conlon was not present at that hearing, the plaintiff is requesting that the court order a written transcript to resolve this motion. See Pl.'s Reply & Mot. (Doc. 157).
There is no need for a written transcript. As with all proceedings in this court, an electronic court recorder was present, which means that this court has electronic access to the entire September 11, 2012 hearing. Accordingly, the court denies the plaintiff's motion to obtain a written transcript of that hearing (Doc. 157).
During that September 11th hearing, attorney Palma expressly stated that it was her "intent" to provide the plaintiff with a copy of the Brown affidavit, and that she could not explain why he did not receive it prior to the hearing. Tr. at 9:42:00 a.m. - 9:42:10 a.m. Opting to proceed with the hearing, the court instructed attorney Palma that if during her argument she alluded to the Brown affidavit, for the plaintiff's benefit, she was to outline to what she was referring. Id. at 9:42:19 a.m. - 9:42:42 a.m. Attorney Palma advised that the appendices to the Brown affidavit identified and described the documents at issue. Id. at 9:55:03 a.m. - 9:55:11 a.m.
After apologizing to the plaintiff for not having provided him with a copy of that affidavit, attorney Palma stated that she did not anticipate that they would be going through each and every document during the hearing. Id. at 9:55:12 a.m. - 9:55:21 a.m. Attorney Palma hastened to add, however, "We'll certainly make sure that the plaintiff is given a copy of Steve Brown's affidavit and the documents that we are talking about." Id . 9:55:22 a.m. - 9:55:28 a.m. She then opined that those "documents probably compromise not more than 30% of the total documents that were produced by Lexington." Id. at 9:55:31 a.m. - 9:55:40 a.m.
The plaintiff is under the mistaken impression that this court ordered PHS to provide him with a copy of the Brown affidavit. As the electronic transcript reveals, however, it was defense counsel who volunteered not once, but twice, to provide the plaintiff with that affidavit. So, despite the plaintiff's characterization, PHS has not acted "contrary to this court's order" by not providing him with the Brown affidavit. See Pl.'s Mot. (Doc. 155) at 2. Nonetheless, as an officer of the court, attorney Palma is bound by her representations during the hearing.
The sealing order still remains in effect though, as the defendants are quick to point out. The defendants strongly imply that the effect of that order is to prohibit the plaintiff from obtaining the Brown affidavit, despite the fact that during the hearing attorney Palma explicitly agreed to provide that affidavit to the plaintiff.
In any event, LRCiv 5.6(f) is clear. "If the Court orders the sealing of any document" thereunder, "the Clerk shall file the order to seal and secure the sealed document from public access. " LRCiv 5.6(f) (emphasis added). That Rule does not preclude access of sealed documents to a party, such as plaintiff Ellsworth. Accordingly, the court hereby grants the plaintiff's motion (Doc. 155) to obtain the Brown affidavit and the three appendices thereto (Doc. 95).
III. Felony Conviction Evidence
Plaintiff Ellsworth is seeking to preclude the defendants from introducing evidence of the felony conviction for which he is currently incarcerated. As the plaintiff describes it, that conviction "is sexual in nature." Pl.'s Mot. (Doc. 138) at 2. The plaintiff thus argues that not only will he be "unfair[ly] prejudiced" by the introduction of that evidence, but it is "not highly probative of [his] credibility." Id . (citation omitted). If the court will not exclude this evidence, the plaintiff is willing to make a limited admission. He will "admit" that he has a felony conviction, but not that "it was for a sexual offense." Id. at 3.
The defendants respond, based upon Fed.R.Evid. 609, that if the plaintiff testifies, then they "are permitted to attack his character for truthfulness by using [that] criminal conviction." Defs.' Resp. (Doc. 142) at 2:18-19. To impeach the plaintiff on cross-examination, the defendants want to introduce evidence that he is currently serving a ten-year sentence "for attempted molestation of a child and dangerous crimes against children, a class 3 felony." Id. at 2:4-5 (citing exh. A thereto, Inmate Data Sheet for James Ellsworth). The defendants want to cross-examine the plaintiff about the fact and date of that conviction, as well as "the nature of the crime charged[.]" Id. at 4:14. The defendants do not elaborate as to the latter; so, it is unclear as to exactly what they mean by "the nature of the crime charged[.]" See id.
At the same time, however, the defendants explicitly "concede that they are not permitted to make inquiry into the details of the underlying facts supporting Plaintiff's conviction." Id. at 4:15-16. Given that concession, presumably the defendants are equating "the nature of the crime charged" with "attempted molestation of a child and dangerous crimes against children, a class 3 felony." Id. at 4:14; and at 2:4-5. In any event, based upon Rule 609 and the federal cases construing it, the defendants maintain that they have the "right to impeach Plaintiff with his criminal conviction including the nature of the offense. " Id. at 5:23-24 (emphasis added). Such evidence is necessary, from the defendants' standpoint, for the jury to fairly evaluate the plaintiff's credibility.
In rejoinder, the plaintiff points out that during the majority of the time that he was housed at the Mohave County Jail ("MCJ"), where his claims arose, he was a pre-trial detainee - not a convicted felon. The plaintiff did not become a convicted felon until after his guilty plea, for which he was sentenced on July 6, 2010. Based upon this sequence of events, the plaintiff contends that his "truthfulness cannot be attacked" because he was innocent until he pled guilty. Pl.'s ...