Log Cabin Republicans v. United States of America et al

Filing 164

Opposition Opposition re: MOTION for Summary Judgment as to Plaintiff's First Amended Complaint #136 Plaintiff's Response to Defendants' Evidentiary Objections filed by Plaintiff Log Cabin Republicans. (Hunnius, Patrick)

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WHITE & CASE LLP DAN WOODS (SBN 78638) PATRICK O. HUNNIUS (SBN 174633) PATRICK J. HAGAN (SBN 266237) 633 West Fifth Street, Suite 1900 Los Angeles, California 90071-2007 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email: [e-mail] Email: [e-mail] Attorneys for Plaintiff LOG CABIN REPUBLICANS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA LOG CABIN REPUBLICANS, Plaintiff, v. UNITED STATES OF AMERICA and ROBERT M. GATES, SECRETARY OF DEFENSE, in his official capacity, Defendants. No. CV 04-8425 VAP (Ex) PLAINTIFF'S RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS TO PLAINTIFF'S APPENDIX AND STATEMENT OF GENUINE ISSUES IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff Log Cabin Republicans ("Log Cabin") respectfully submits the following responses to Defendants' "Evidentiary Objections to Plaintiff's Appendix and Statement of Genuine Issues in Opposition to Defendants' Motion for Summary Judgment" ("Defendants' Evidentiary Objections"). Log Cabin responds to each of Defendants' objections document-bydocument, below. For each row of the chart below: the first column is Defendants' "Reasons the Document is Inadmissible," quoted verbatim from Defendants' Evidentiary Objections; the second column is the "Genuine Issues that Cite to this Document" (according to Defendants' Evidentiary Objections); and the third column is Log Cabin's response.
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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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Documents Included in Plaintiff's Appendix App. 0839-0887: PERSEREC Report Entitled: "Nonconforming Sexual Orientation and Military Suitability" This report constitutes an 8 out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. In addition, this document is a draft that was never adopted by the Department of Defense ("DoD") because Dod personnel found the report to be flawed and outside the scope of the approved research. See App. 1293-1294. Accordingly, this report is not an admission by a party-opponent. The PERSEREC Report is admissible as a party admission and therefore non-hearsay. Even if the PERSEREC Report were not a party admission, it would be admissible under several hearsay exceptions. First, the report is admissible pursuant to Federal Rule of Evidence ("FRE") 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the PERSEREC Report and have established that it is a reliable authority. In addition, the PERSEREC Report is admissible pursuant to FRE 803(16), the "ancient document" exception, as it is more than 20 years old. Finally, the PERSEREC Report should be admitted pursuant to FRE 807, the residual hearsay exception.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 1100-1128: Homosexuality and the Israel Defense Force This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 43, 46 The report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception. Indeed, Defendants' prior admissions confirm that the report has substantial circumstantial guarantees of trustworthiness. See, e.g., Admiral Mullen's statements before the Senate Armed Services Committee that his counterparts in countries that allow gays and lesbians to serve openly report "no impact on military effectiveness." Plaintiff's Statement of Genuine Issues, # 44.

App. 1129-1280: Gays in Foreign Militaries 2010: A Global Primer This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 40 The report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception. Indeed, Defendants' prior admissions confirm that the report has substantial circumstantial guarantees of trustworthiness. See, e.g., Admiral Mullen's statements before the Senate Armed Services Committee that his counterparts in countries that allow gays and lesbians to serve openly report "no impact on military effectiveness." Plaintiff's Statement of Genuine Issues, # 44.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App: 1281-1292: Attitudes of Iraq and Afghanistan Veterans Toward Gay and Lesbian Service Members This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 35 The report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception.

App: 1330-1359: Draft of PERSEREC report by Michael McDaniel This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. In addition, as this document is clearly marked as a draft, it is not a statement from a partyopponent. 8 The PERSEREC Report is admissible as a party admission and therefore non-hearsay. Even if the PERSEREC Report were not a party admission, it would be admissible under several hearsay exceptions. First, the report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the PERSEREC Report and have established that it is a reliable authority. In addition, the PERSEREC Report is admissible pursuant to FRE 803(16), the "ancient document" exception, as it is more than 20 years old. Finally, the PERSEREC Report should be admitted pursuant to FRE 807, the residual hearsay exception.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App: 1360-1405: PERSEREC report entitled "Homosexuality and Personnel Security" This document states explicitly that it does not address the military's homosexual conduct policy, and it is, therefore, not relevant to Plaintiffs' claims: "This work does not deal with the Department of Defense policy that excludes homosexuals from military service. The exclusion policy is separate from those policies that apply to a civilian being investigated for a clearance." App. 1366 The PERSEREC Report is admissible as a party admission and therefore non-hearsay. Even if the PERSEREC Report were not a party admission, it would be admissible under several hearsay exceptions. First, the report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the PERSEREC Report and have established that it is a reliable authority. Finally, the PERSEREC Report should be admitted pursuant to FRE 807, the residual hearsay exception.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 1406-1491: Successful Integration of Stigmatized Minorities Into The U.S. Army This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. The report is admissible. First, the report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception.

App. 1492-1558: U.S. Army Research Institute (AIR) Research Report 1657 This report constitutes an 49 out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. In addition, this document states on its face that it does not represent the position of the Department of the Army: "Note, The findings in this report are not to be construed as an official Department of the Army position, unless so designated by other authorized documents." App. 1493 The report is admissible. First, the report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception. Indeed, Defendants' prior admissions confirm that the report has substantial circumstantial guarantees of trustworthiness. See, e.g., Admiral Mullen's statements before the Senate Armed Services Committee that his counterparts in countries that allow gays and lesbians to serve openly report "no impact on military effectiveness." Plaintiff's Statement of Genuine Issues, # 44.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 1730-1754: Comparative International Military Personnel Policies This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 53 The report is admissible. First, the report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception. Indeed, Defendants' prior admissions confirm that the report has substantial circumstantial guarantees of trustworthiness. See, e.g., Admiral Mullen's statements before the Senate Armed Services Committee that his counterparts in countries that allow gays and lesbians to serve openly report "no impact on military effectiveness." Plaintiff's Statement of Genuine Issues, # 44.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 1791-1806: February 2, 2010 transcript of Admiral Mike Mullen's and Secretary of Defense Robert Gates's testimony before the Senate Armed Services Committee In his testimony, Admiral 9, 44, 88 Mullen prefaced his comments with the following statement: "Mr. Chairman, speaking for myself and myself only ... ." App. 1795. Because he was not speaking on behalf of the Government, Admiral Mullen's testimony from that point forward is not an admission by a partyopponent and constitutes inadmissible hearsay. False. A full quote of Admiral Mullen's statement with the language quoted by defendants follows: "Mr. Chairman, speaking for myself and myself only, it is my personal belief that allowing gays and lesbians to serve openly would be the right thing to do. No matter how I look at this issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens. For me personally, it comes down to integrity ­ theirs as individuals and ours as an institution. I also believe that the great young men and women of our military can and would accommodate such a change. I never underestimate their ability to adapt." (emphasis added) None of Admiral Mullen's responses to the factual questions posed by the Committee regarding the policy, the lack of a factual record supporting the policy, or other countries' experiences regarding allowing military service by openly gay individuals were "prefaced" by any such limitation, nor were Secretary Gates' comments limited in any such manner. Therefore, the statements of Admiral Gates proffered by Log Cabin are admissions of Defendants and non-hearsay.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 1807-1876: November 2000 report by Aaron Belkin and R. L. Evans entitled "The Effects of Including Gay and Lesbian Soldiers in the British Armed Forces" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 41, 43, 46 The report is admissible. First, the report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception. Indeed, Defendants' prior admissions confirm that the report has substantial circumstantial guarantees of trustworthiness. See, e.g., Admiral Mullen's statements before the Senate Armed Services Committee that his counterparts in countries that allow gays and lesbians to serve openly report "no impact on military effectiveness." Plaintiff's Statement of Genuine Issues, # 44.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 1877-1888: 2003 Report by Aaron Belkin entitled "Don't Ask, Don't Tell: Is the Gay Ban Based on Military Necessity" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 41 The report is admissible. First, the report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception. Indeed, Defendants' prior admissions confirm that the report has substantial circumstantial guarantees of trustworthiness. See, e.g., Admiral Mullen's statements before the Senate Armed Services Committee that his counterparts in countries that allow gays and lesbians to serve openly report "no impact on military effectiveness." Plaintiff's Statement of Genuine Issues, # 44.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 1889-1928: September 2000 report by Aaron Belkin and R.L. Evans entitled "The Effects of Including Gay and Lesbian Soldiers in the Australian Armed Forces This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 43, 46 The report is admissible. First, the report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception. Indeed, Defendants' prior admissions confirm that the report has substantial circumstantial guarantees of trustworthiness. See, e.g. Admiral Mullen's statements before the Senate Armed Services Committee that his counterparts in countries that allow gays and lesbians to serve openly report "no impact on military effectiveness." Plaintiff's Statement of Genuine Issues, # 44.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 1929-1935: 2009 article by Col. Om Prakash entitled "The Efficacy of `Don't Ask, Don't Tell'" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 153 The fact that Colonel Prakash's report won the Secretary of Defense National Security Essay Competition for 2009 is not hearsay. Moreover, the report itself is admissible. First, the report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception. Indeed, Defendants' prior admissions confirm that the report has substantial circumstantial guarantees of trustworthiness. See, e.g., Admiral Mullen's statements before the Senate Armed Services Committee that there "just isn't any objective data out there" regarding the effects of the policy and its impact on military service members. Plaintiff's Statement of Genuine Issues, # 9.

App. 1936-1973: 2010 report by Gary Gates entitled "Lesbian, Gay, and Bisexual Men and Women in the U.S. Military: Updated Estimates" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 115, 116, 121, 122 The report is admissible. First, the report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 1982-2013: March 24, 1995 report entitled "Conduct Unbecoming: The First Annual Report on `Don't Ask, Don't Pursue, Don't Harass'" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 20 The report should be admitted pursuant to FRE 807, the residual hearsay exception.

App. 2014-2049: 1996 report entitled "Conduct Unbecoming: The Second Annual Report on `Don't Ask, Don't Teel, Don't Pursue, Don't Harass'" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 21 The report should be admitted pursuant to FRE 807, the residual hearsay exception.

App. 2050-2089: 1997 report entitled "Conduct Unbecoming: The Third Annual Report on `Don't Ask, Don't Tell, Don't Pursue, Don't Harass'" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay 22 The report should be admitted pursuant to FRE 807, the residual hearsay exception

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 2090-2168: 1998 report entitled "Conduct Unbecoming: The Fourth Annual Report on `Don't Ask, Don't Tell, Don't Pursue, Don't Harass'" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay 23 The report should be admitted pursuant to FRE 807, the residual hearsay exception.

App. 2169-2253: 1999 report entitled "Conduct Unbecoming: The Fifth Annual Report on `Don't Ask, Don't Tell, Don't Pursue, Don't Harass'" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay 24 The report should be admitted pursuant to FRE 807, the residual hearsay exception.

App. 2254-2340: 2000 report entitled "Conduct Unbecoming: The Sixth Annual Report on `Don't Ask, Don't Tell, Don't Pursue, Don't Harass'" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 25 The report should be admitted pursuant to FRE 807, the residual hearsay exception.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 2341-2443: 2001 report entitled "Conduct Unbecoming: The Seventh Annual Report on `Don't Ask, Don't Tell, Don't Pursue, Don't Harass'" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 26 The report should be admitted pursuant to FRE 807, the residual hearsay exception.

App. 2444-2500: 2002 report entitled "Conduct Unbecoming: The Eighth Annual Report on `Don't Ask, Don't Tell, Don't Pursue, Don't Harass'" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 27 The report should be admitted pursuant to FRE 807, the residual hearsay exception.

App. 2501-2561: 2003 report entitled "Conduct Unbecoming: The Ninth Annual Report on `Don't Ask, Don't Tell, Don't Pursue, Don't Harass'" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 28 The report should be admitted pursuant to FRE 807, the residual hearsay exception.

App. 2562-2617: 2004 report entitled "Conduct Unbecoming: The Tenth Annual Report on `Don't Ask, Don't Tell, Don't Pursue, Don't Harass'" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 29 The report should be admitted pursuant to FRE 807, the residual hearsay exception.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App: 2618-2621: February 24, 2010 Los Angeles Times article entitled "Navy Moves to Allow Women on Submarines" This article constitutes 11 inadmissible double hearsay. See e.g., Green v. Baca, 226 F.R.D. 624, 637 (C.D. Cal 2005) ("Generally, newspaper articles and television programs are considered hearsay under Rule 801(c) when offered for the truth of the matter asserted. Even when the actual statements quote in a newspaper article constitute nonhearsay, or fall within a hearsay exception, their repetition in the newspaper creates a hearsay problem. Thus, statements in newspapers often constitute double hearsay.") The article is not "double hearsay." The statements quoted within the article from Secretary Gates are admissions and therefore non-hearsay. The article itself should be admitted pursuant to FRE 807, the residual hearsay exception. The Department of Defense has trumpeted this change in policy (including by virtue of reprinting news articles) on its own website. See, e.g., "Women to Serve on Subs, Gates Tell Congress," American Forces Press Service, www.defense.gov/news/newsarticle.aspx?i d=58066 (last visited April 20, 2010).

App. 2773-2775: August 28, 2000 New York Times article entitled "Military Reserves are Falling Short in Funding Recruits" This article constitutes inadmissible double hearsay. 72 The article should be admitted pursuant to FRE 807, the residual hearsay exception.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 2776-2777: March 31, 2010 Washington Post article entitled "A `Don't Ask, Don't Tell' Rules Complicate Survey of Troops on Policy Change" This article constitutes inadmissible double hearsay. 92 The article is not "double hearsay." The statements quoted within the article are admissions and therefore non-hearsay. The article itself should be admitted pursuant to FRE 807, the residual hearsay exception. The Department of Defense has posted a web page (http://www.defense.gov/home/features/2010/03 10_dadt/) regarding its current "policy review" of the policy that features videotaped statements by both General Carter F. Ham and the Department of Defense's General Counsel, Jeh C. Johnson, in which they comment on the legal difficulties the Department faces in soliciting feedback regarding the policy from gay service members subject to the policy.

App. 2778-2820: Balancing Your Strengths Against Your Felonies: Consideration for Military Recruitment of Ex-Offenders This report 114, 117, constitutes an out- 119, 120 of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. The report is admissible. First, the report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 2821-2836: Report entitled "A Review of the Armed Forces Policy on Homosexuality" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 42 The report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception. Indeed, Defendants' prior admissions confirm that the report has substantial circumstantial guarantees of trustworthiness. See, e.g., Admiral Mullen's statements before the Senate Armed Services Committee that his counterparts in countries that allow gays and lesbians to serve openly report "no impact on military effectiveness." Plaintiff's Statement of Genuine Issues, # 44.

App. 2837-2878: "Effects of the 1992 Lifting of Restrictions on Gay and Lesbian Service in the Canadian Forces: Appraising the Evidence" This report constitutes an out-of-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 47 The report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception. Indeed, Defendants' prior admissions confirm that the report has substantial circumstantial guarantees of trustworthiness. See, e.g., Admiral Mullen's statements before the Senate Armed Services Committee that his counterparts in countries that allow gays and lesbians to serve openly report "no impact on military effectiveness." Plaintiff's Statement of Genuine Issues, # 44.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 2879-2881: March 14, 2007 Washington Post article "Bigotry That Hurts Our Military" This article constitutes inadmissible double hearsay. 156 The fact that former Senator Simpson has changed his view regarding the Policy is not hearsay. Moreover, the article should be admitted pursuant to FRE 807, the residual hearsay exception.

App. 2937-2945: January 30, 2010 transcript of CNN Interview with William Cohen This transcript of a CNN interview constitutes inadmissible double hearsay. 157 The fact that former Secretary Cohen has changed his view regarding the Policy is not hearsay. Moreover, the article should be admitted pursuant to FRE 807, the residual hearsay exception.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 2946-2993: September 15, 2004 report by Nathaniel Frank, Ph. D. "Gays and Lesbians at War: Military Service in Iraq and Afghanistan under `Don't Ask, Don't Tell'" This article constitutes inadmissible double hearsay. 113 The report is admissible pursuant to FRE 803(18), the "learned treatise" exception. One or more of Log Cabin's expert witnesses, whose opinions Defendants have not objected to, rely upon the report and have established that it is a reliable authority. Finally, the report should be admitted pursuant to FRE 807, the residual hearsay exception. Indeed, Defendants' prior admissions confirm that the report has substantial circumstantial guarantees of trustworthiness. See, e.g. LCR App. at 1790a1790b (characterized by the Department of Defense as a "thoughtful study" in an untitled memorandum produced by Defendants at pages Bates stamped OSD P&R Plans 058910-11).

App. 2994: March 29, 2010 article in Roll Call entitled "Wesley Clark Backs Cunningham in North Carolina" This article constitutes inadmissible double hearsay. 158 The fact that General Clark has changed his view regarding the Policy is not hearsay. Moreover, the article should be admitted pursuant to FRE 807, the residual hearsay exception.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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App. 2995-3093: August 1992, Update of the U.S. Army Research Institute's Longitudinal Research Data Base of Enlisted Personnel This report constitutes an outof-court statement offered in evidence to prove the truth of the matter asserted and is, therefore, inadmissible hearsay. 135 The report should be admitted pursuant to FRE 807, the residual hearsay exception.

App. 3094: February 3, 1020 New York Times article entitled "Powell Favors Repeal of `Don't Ask, Don't Tell'" This article constitutes inadmissible double hearsay. 152 The report should be admitted pursuant to FRE 807, the residual hearsay exception. In any event, Defendants now admit the fact Plaintiff's cited the article to establish.

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)

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LOSANGELES 860614 (2K)

Documents Cited in Plaintiff's Genuine Issues But Not Included in Its Appendix Log Cabin Military Survey of Membership, produced by Plaintiff as Bates Nos. LCR 001-017 and included as Exhibit B to the Declaration of Terry Hamilton This "survey" is a 137 The report should be admitted pursuant to compilation of FRE 807, the residual hearsay exception. out-of-court statements introducing as evidence to prove the truth of the matters asserted and is, therefore, inadmissible Dated: April 26, 2010 WHITE & CASE LLP By: /S/Patrick Hunnius Patrick Hunnius Counsel for Plaintiff Log Cabin Republicans

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RESPONSE TO DEFENDANTS' EVIDENTIARY OBJECTIONS Case No. CV 04-8425 VAP (Ex)