Log Cabin Republicans v. United States of America et al

Filing 205

REPLY in support of MOTION IN LIMINE to Exclude Certain of Plaintiff's Proposed Exhibits #179 filed by Defendants Donald H Rumsfeld, United States of America. (Attachments: #1 Exhibit, #2 Exhibit)(Parker, Ryan)

Log Cabin Republicans v. United States of America et al

Doc. 205

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1 TONY WEST Assistant Attorney General 2 ANDRÉ BIROTTE, Jr. United States Attorney 3 JOSEPH H. HUNT VINCENT M. GARVEY 4 PAUL G. FREEBORNE W. SCOTT SIMPSON 5 JOSHUA E. GARDNER RYAN B. PARKER 6 U.S. Department of Justice Civil Division 7 Federal Programs Branch P.O. Box 883 8 Washington, D.C. 20044 Telephone: [phone] Facsimile: [phone] E-mail: paul.freeborne@ usdoj.gov 10 Attorneys for Defendants United States 11 of America and Secretary of Defense 12 13 15 16 v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV04-8425 VAP (Ex) DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS DATE: June 28, 2010 TIME: 2:30 p.m. BEFORE: Judge Phillips

14 LOG CABIN REPUBLICANS,

17 UNITED STATES OF AMERICA AND ROBERT M. GATES, Secretary of 18 Defense, 19 20 21 22 23 24 25 26 27 28
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS

Defendants.

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

Dockets.Justia.com

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DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS

TABLE OF CONTENTS I. II. III. Defendants' Motion Is Proper and Appropriate . . . . . . . . . . . . . . . . 1 LCR Has Identified No Reason for the Court to Delay Ruling on the Admissibility of LCR's Proposed Exhibits . . . . . . . . 2 LCR Has Not Met Its Burden of Establishing Admissibility . . . . . . 3 A. B. LCR Has Not Shown That Its Proposed Exhibits Are Relevant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 LCR Has Not Shown That Its Exhibits Fall Within Exceptions to the Hearsay Rule . . . . . . . . . . . . . . . . . . . . . . . 4 1. 2. 3. 4. The Advocacy Documents Are Inadmissible . . . . . . . . . 4 Proposed Exhibits Relating to Individuals Discharged Under DADT Were Not Properly Disclosed and Are Not Party Admission . . . . . . . . . . . 6 The Contractor Documents Are Inadmissible . . . . . . . . 8 The Media and Polling Documents Are Inadmissible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

15 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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TABLE OF AUTHORITIES CASES

3 Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996 (3d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4 Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 6 Burrows v. Orchid Island Trustees, LLC, 2010 WL 2179108 (S.D. Cal 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7 Candle Corp. V. Boole & Babbage, Inc., 1985 WL 1087794 (C.D. Cal 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 8 9 Chemtool, Inc. v. Lubrication Techs., Inc., 148 F.3d 742 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10 Costantino v. Herzog, 203 F.3d 164 (2d Cir.2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 11 12 Gable v. Patton, 142 F.3d 940 (6th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 13 General Offshore Corp. v. Farrelly, 743 F.Supp. 1177 (D.V.I 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 14 15 Gibson v. County of Riverside, 181 F.Supp.2d 1057 (C.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 16 Harris v. Itzhaki, 183 F.3d 1043 (9th Cir.1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 17 18 Lizotte v. Praxair, Inc., 640 F.Supp.2d 1335 (W.D. Wash. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 19 Lockheed Martin Corp. v. U.S., 50 Fed. Cl. 550 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 20 21 Los Angeles News Serv. v. CBS Broad., Inc., 305 F.3d 924 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 22 Metropolitan-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454 F. Supp. 2d 966 (C.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 23 24 Morgan v. Plano Independent School District, 2007 WL 397494 (E.D. Tex. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 25 O Bar Cattle Co. v. Owyhee Feeders, Inc., 2010 WL 2404306 (D. Idaho June 10, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 2 26 27 Pacific Gas & Electric Co. v. United States, 73 Fed. Cl. 333 (Fed. Cl. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 28
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 Palmerin v. City of Riverside, 794 F.2d 1409 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2 Rotec Industrial v. Mitsubishi Corp., 215 F.3d 1246 (Fed. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3 4 Sea-Land Service, Inc. v. Lozen Intern., LLC., 285 F.3d 808 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 5 Sugar Assoc. v. McNeil-PPC, Inc., 2008 WL 4755611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6 7 United States v. Connors, 825 F.2d 1384 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 United States v. Johnson Controls, Inc., 713 F.3d 1541 (Fed. Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 9 10 United States v. Lujan, 504 F.3d 1003 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 11 United States v. Martinez, 588 F.3d 301 (6th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 12 13 Via Waves Communications, LLC v. ARC Phone Canada, Inc., 2004 WL 5486633 (C.D. Cal 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 14 Whiteway v. Fedex Kinkos Office & Print Serv., Inc., 2010 WL 1980229 (N.D. Cal 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 15 16 Yankee Atomic Electric Co. v. United States, 2004 WL 2450874 (Fed. Cl. Sept. 17, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 17 FEDERAL RULES OF CIVIL PROCEDURE 18 Rule 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Rule 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 MISCELLANEOUS 21 Manual for Complex Litigation Second § 32.23 at 271-72 (1985) . . . . . . . . . . . . . 22 23 24 25 26 27 28
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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INTRODUCTION Defendants establish that certain of Log Cabin Republicans' ("LCR")

3 proposed exhibits are not relevant to the issues before the Court, contain 4 inadmissible hearsay, were not properly disclosed, and lack foundation. Rather 5 than responding to these objections, LCR devotes a significant portion of its 6 Opposition urging the Court to defer ruling on the admissibility of its exhibits until 7 trial, an approach that would saddle the trial with evidentiary disputes and waste 8 valuable trial time. 9 Even when LCR finally turns to discussing the objections to its proposed 10 exhibits, it fails to meet its burden of showing admissibility. First, LCR has not 11 established that its proposed exhibits are relevant to the purely legal question 12 presented by its facial challenge. Second, LCR has not carried its burden of 13 demonstrating that the myriad hearsay statements in its proposed exhibits fall 14 within recognized exceptions to the hearsay rule. Finally, LCR has not shown that 15 its failure to timely disclose trial exhibits relating to individual service members 16 was substantially justified or is harmless. Because LCR has failed to meet its burden of showing the admissibility of 17 18 its proposed exhibits, the Court should grant Defendants' motion. Defendants' Motion Is Proper and Appropriate 19 I. 20 LCR accuses Defendants of violating the Court's June 3, 2010 Order by 21 challenging the admissibility of multiple exhibits and raising various grounds for 22 exclusion in a single motion in limine (Doc. 194 at 4). Those accusations are 23 unfounded and inconsistent with the language of the Court's order and common 24 practice in the Ninth Circuit and Central District of California. 25 In its June 3 Order, the Court limited the parties "to no more than three 26 motions in limine per side" ( Doc. 171 at 2). The Court did not direct the parties 27 as to how the motions should be organized or what they should address. On June 28
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 18, Defendants complied with the Court's order by filing motions in limine to 2 exclude LCR's proposed expert testimony, proposed lay witness testimony, and 3 certain of its proposed exhibits. Defendants motions are proper under the Court's 4 order and consistent with the case law in the Central District of California and
1 5 Ninth Circuit. See, e.g., Via Waves Communications, LLC v. ARC Phone Canada, 6 Inc., 2004 WL 5486633, *6 (C.D. Cal 2004); Burrows v. Orchid Island Trs, LLC,

7 2010 WL 2179108, 1 (S.D. Cal 2010); O Bar Cattle Co. v. Owyhee Feeders, Inc., 8 2010 WL 2404306, at *4-10 (D. Idaho June 10, 2010). 9 LCR also argues that Defendants' motion does not provide the Court or the 10 parties with an adequate opportunity to consider and respond to Defendants' 11 evidentiary objections (Doc. 194 at 6). This argument miscasts Defendants' 12 motion. In their motion, Defendants grouped documents that raise similar legal 13 issues for ease of discussion and the convenience of the Court and parties. For 14 example, LCR's experts' reports are similar in nature, and Defendants' objection to 15 their admissibility raises similar issues. In addition, Defendants' motion included a 16 table that set forth specific objections to each exhibit. Contrary to LCR assertion, 17 Defendants' motion has provided a clear opportunity for both the parties and the 18 Court to address the admissibility of LCR's proposed exhibits. LCR Has Identified No Reason for the Court to Delay Ruling on the 19 II. 20 21 Admissibility of LCR's Proposed Exhibits LCR also devotes a significant portion of its Opposition to urging the Court

22 to wait until trial to rule on the admissibility of more than 300 proposed exhibits. 23 LCR's suggestion is unnecessary, impracticable, and contrary to the purpose of 24 motions in limine. 25 26 27 28 Tellingly, LCR does not cite to even one case in the two pages it devotes to claiming that Defendants' motions in limine are inappropriate.
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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LCR would have the Court expend substantial trial time deciding issues

2 that are properly before the Court now. Ruling on the admissibility of over 300 3 proposed exhibits as they are introduced would waste valuable trial time and 4 "clutter up" the trial of this case. See Palmerin v. City of Riverside, 794 F.2d 1409, 5 1413 (9th Cir. 1986) (motions in limine "are useful tools to resolve issues which 6 would otherwise `clutter up' the trial."). Waiting until trial to determine 7 admissibility will also leave the Court with less time to consider the important 8 evidentiary issues raised by Defendants' motion. See id. at 1413 ("`By addressing 9 these [evidentiary issues] before trial [through motions in limine ], judge and the 10 attorneys may be able to give them more deliberate and careful consideration than 11 if the issues were raised for the first time during trial.'") (quoting Manual for 12 Complex Litigation Second § 32.23 at 271-72 (1985)). Motions in limine provide the Court with the opportunity to streamline trials 13 14 by "ruling in advance on the admissibility of evidence." FRCP 16(c)(2)(C). The 15 Court should take that opportunity here and rule now on Defendants' motion. 16 III. 17 18 LCR Has Not Met Its Burden of Establishing Admissibility A. LCR Has Not Shown That Its Proposed Exhibits Are Relevant LCR has the burden of establishing by a preponderance of the evidence that

19 each of its proposed exhibits is relevant, U.S. v. Connors, 825 F.2d 1384, 1390 20 (9th Cir. 1987); Sugar Assoc., 2008 WL 4755611, at *1 (citing Bourjaily v. U.S., 21 483 U.S. 171, 175 (1987)), and it has not met that burden here. As Defendants 22 established in their motion, the question of whether DADT is facially constitutional 23 is a pure question of law, and the consideration of evidence outside of the statute 24 and legislative history is thus inappropriate. See U.S. v. Lujan, 504 F.3d 1003, 25 1006 (9th Cir. 2007); Gable v. Patton, 142 F.3d 940, 944 (6th Cir. 1998); Gen. 26 Offshore Corp. v. Farrelly, 743 F.Supp. 1177, 1187 (D.V.I 1990). LCR does not 27 address these cases, much less explain why it is entitled to introduce evidence in 28
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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2 1 support of its facial constitutional challenge. As there are no questions of fact 2 before the Court, LCR cannot establish that its exhibits are relevant or otherwise

3 admissible. FRE 401, 402. B. LCR Has Not Shown That Its Exhibits Fall Within Exceptions to 4 5 6 the Hearsay Rule LCR has the burden of establishing that a particular hearsay exception

7 applies to each level of hearsay contained within the exhibits it seeks to introduce 8 at trial. See Los Angeles News Serv. v. CBS Broad., Inc., 305 F.3d 924 (9th Cir. 9 2002), as amended by 313 F.3d 1093 (9th Cir. 2002). In its Opposition, LCR 10 addresses only a limited number of Defendants' hearsay objections, and fails to 11 show that its exhibits are subject to any recognized hearsay exceptions. 1. The Advocacy Documents Are Inadmissible 12 13 The Advocacy Documents contain hearsay and hearsay within hearsay and 14 can neither be admitted into evidence as exhibits nor read into evidence as learned 15 treatises. See FRE 803(18). LCR acknowledges that many of the Advocacy 16 Documents "may not ultimately be admissible as exhibits." (Doc. 194 at 14). 17 18 19 20 21 22 23 24 25 26 27 28 LCR's reliance on Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460 (7th Cir. 2009), for the proposition that evidence is appropriate in this case is misplaced. Because Annex involved a First Amendment challenge subject to intermediate scrutiny, the test applied in Annex is irrelevant to LCR's substantive due process claim. LCR's citation to Morgan v. Plano Independent School District, 2007 WL 397494 (E.D. Tex. 2007), is equally unavailing. In Plano, a court faced with a facial challenge to school district policies allowed the school district to submit a transcript from a school board meeting at which the board heard testimony concerning the challenged policies. Id. at 3. As the transcript was equivalent to the legislative history of the challenged policies, Plano does not support LCR's claim that evidence outside of the statute and legislative history is appropriate in facial challenges.
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 LCR argues instead that it intends to have its seven expert witnesses read the 2 Advocacy Documents into the record under the guise of learned treatises (Doc. 3 194 at 14). As set forth in Defendants' Motion, however, the Advocacy 4 Documents do not qualify as learned treatises (Doc. 179 at 17,18). The 5 Committee Notes to FRE 803(18) explain that a learned "treatise is written 6 primarily and impartially for professionals, subject to scrutiny and exposure for 7 inaccuracy, with the reputation [of the writer] at stake." See, e.g., Costantino v. 8 Herzog, 203 F.3d 164, 173 (2d Cir.2000); U.S. v. Martinez, 588 F.3d 301, 312 9 (6th Cir. 2009). The Advocacy Exhibits clearly do not fit this description. Although LCR takes issue with Defendants' use of the term "Advocacy 10 11 Documents" to describe documents created by its experts, that is exactly what they 3 12 are. Five of LCR's seven expert witnesses are affiliated with the Palm Center, an 13 advocacy organization seeking the repeal of DADT. As Dr. Korb explained at his 1 4 deposition: 15 16 17 18 19 20 21 Q. The Palm Center is another organization that is seeking to repeal Don't Ask, Don't Tell? A. That's correct. Q. They're an advocacy group in favor of the repeal of Don't Ask, Don't Tell? A. That's correct. Deposition of Lawrence Korb, 130: 7-12 (Exhibit 1).4 Another of LCR's experts,

22 Palm Center Director Aaron Belkin, provided further evidence that the Palm 23 Center is an advocacy group when he described who funds the Center: 24 25 27 28 LCR expert witnesses Belkin, Frank, Hillman, Embser-Herbert, and Korb 26 are all affiliated with the Palm Center. See www.palmcenter.org. Dr. Korb also admitted that he is a "strong advocate for the repeal of Don't Ask, Don't Tell." Deposition of Lawrence Korb, 39:5-8 (Exhibit 1).
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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Q. Who funds the Palm Center? A. We get probably 97, 98 percent of our money from ten, plus or minus, sources that are basically stable from year to year. These include gay rights foundations and private donors, most of whom are wealthy gay men.

6 Deposition of Aaron Belkin, 117:6-11 (Exhibit 2). Thus LCR's own witnesses 7 have acknowledged that the Palm Center is an advocacy organization funded by 8 advocates for the repeal of DADT and that it has an interest in the outcome of this 5 9 litigation. As such, the documents it produces are not impartial within the 10 meaning of FRE 803(18) and thus do not constitute learned treaties. 2. Proposed Exhibits Relating to Individuals Discharged 11 12 13 14 Under DADT Were Not Properly Disclosed and Are Not Party Admission On June 12, 2010, nearly three months after the discovery cutoff and only

15 six days before the deadline for motions in limine, LCR disclosed for the first time 16 to Defendants approximately 50 documents regarding individuals who were 17 discharged under DADT that it now seeks to introduce as trial exhibits. FRCP 18 37(c)(1) provides that "If a party fails to provide information . . . as required by 19 Rule 26(a) or (e), the party is not allowed to use that information . . . to supply 20 evidence . . . at a trial unless the failure was substantially justified or is harmless." 21 LCR has not and cannot make that showing here. In an attempt to justify its untimely disclosure, LCR characterizes the 22 23 individual service member documents as "government documents" and argues that 24 Defendants have not been prejudiced because the documents have "always been in 25 the possession of the Defendants" (Doc. 194 at 14). Yet Rules 26(a) and (e) do 26 27 28 Unsurprisingly, five of LCR's seven expert witness ­Belkin, Frank, Korb, Hillman and Embser-Herbert­ are affiliated with the Palm Center.
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 not exempt from the disclosure requirement documents that are in the possession of 2 other parties. See Whiteway v. Fedex Kinkos Office & Print Serv., Inc., 2010 WL 3 1980229, *6 (N.D. Cal 2010) (excluding exhibits that plaintiff failed to disclose 4 during discovery and rejecting the justification that the defendant already had the 5 documents). The existence of such an exemption would be particularly prejudicial 6 to the federal government because of its size and the sheer number of documents in 7 its possession. As LCR has not provided a substantial justification for its last 8 minute disclosure and cannot show that there is no prejudice to Defendants, the 9 service member documents should be excluded under Rule 37(c)(1). Yet even if the Court were inclined to excuse LCR's untimely disclosure, the 10 11 service member documents contain hearsay statements and are inadmissible. 12 In its Opposition, LCR appears to argue that the service member statements are not 13 hearsay because they are party admissions under FRE 801(d)(2)(D) (Doc. 194 at 14 8). Under that Rule, a statement is not hearsay if it is offered against a party and is 15 "a statement by the party's agent or servant concerning a matter within the scope of 16 the agency or employment, made during the existence of the relationship." FRE 17 801(d)(2)(D). Rule 801(d)(2)(D), however, "`requires the proffering party to lay a 18 foundation to show that an otherwise excludable statement relates to a matter 19 within the scope of the agent's employment.'" Sea-Land Service, Inc. v. Lozen 20 Intern., LLC., 285 F.3d 808, 821 (9th Cir. 2002) (quoting Harris v. Itzhaki, 183 21 F.3d 1043, 1054 (9th Cir.1999)). "When a court is evaluating whether such a 22 foundation has been established, `[t]he contents of the statement shall be 23 considered but are not alone sufficient to establish . . . the agency or employment 24 relationship and scope thereof.'" Id. (quoting FRE 801(d)(2)). 25 LCR argues that the service member statements it seeks to introduce as 26 exhibits are party admissions because they were written by service members on 27 government letter head (Doc. 194 at 8-9). LCR does not, however, provide any 28
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 evidence, outside of the statements themselves, that the service members who 2 created the documents did so within the scope of their employment. Without more 3 than the statements themselves, LCR has not met its burden of showing that the 4 service member documents are party admissions. 5 6 3. The Contractor Documents Are Inadmissible LCR also contends that the Contractor Documents are party admissions

7 because they contain the name of the government agencies that commissioned the 6 8 creation of the documents (Doc. 194 at 9-13). Yet that is not sufficient to show 9 that the contractor documents are party admissions. Under FRE 801(d)(2)(D), 10 LCR must establish by a preponderance of the evidence that the contractors had 11 authority to make statements on behalf of the government. See Lizotte v. Praxair, 12 Inc., 640 F.Supp.2d 1335, 1338 (W.D. Wash. 2009). Because LCR has and cannot
7 13 make this showing, the Contractor Documents do not qualify as party admissions. LCR's reliance upon the Court of Federal Claims' decision in Pacific Gas & 14

15 16 17 18 19 20 21 22 23 24 25 26 27 28 The two cases relied on by LCR are inapposite to the admissibility of contractor documents. (Doc. 194 at10). In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454 F. Supp. 2d 966, 974 (C.D. Cal. 2006), the court admitted power point presentations and business plans that bore a company's name and logo as party admissions. Neither party claimed that the documents were created by contractors, and the court did not analyze them as contractor documents. Id. Likewise in Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996, 1005 n.6 (3d Cir. 1994), the court explicitly concluded that the articles in question had been written by party employees and did not analyze them as contractor documents. Two of the Contractor Documents LCR seeks to introduce are drafts of the RAND Report (Exhibits 193 and 199). While Defendants have not lodged objections to the admissibility of the final RAND Report (LCR proposed exhibit 8), which LCR has acknowledged was submitted to Congress (Doc. 198 at 7), the draft reports contain hearsay (as set forth above), are irrelevant, and lack guarantees of trustworthiness. See Candle Corp. V. Boole & Babbage, Inc., 1985 WL 1087794, *6 (C.D. Cal 1985) ("... [T]he trustworthiness of an unsigned draft [document] which was not approved is especially troublesome.").
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 Electric Co. v. U.S., 73 Fed. Cl. 333, 438 (Fed. Cl. 2006), is misplaced, and 2 actually supports Defendants' position that LCR has failed to meet its burden of 3 establishing the admissibility of the contractor exhibits in this case. In PG&E, the 4 Court adopted the reasoning of a previous decision from the Court of Federal 5 Claims, Yankee Atomic Elec. Co. v. U.S., No. 98-126C, 2004 WL 2450874 (Fed. 6 Cl. Sept. 17, 2004), which concluded that documents created by the Department of 7 Energy's Management and Operations ("M&O") contractor constituted "public 8 records" under FRE 803(8). The Court's conclusion turned upon the unique 9 relationship between the M&O contractor and the government in the context of the 10 development of a national repository for the nation's spent nuclear fuel, and noted 11 that the contractor, in many respects, acted as the alter ego of the government: [t]hese contractors were retained under unique 12 13 14 15 16 17 18 circumstances to perform DOE's function, provided critical and essential data and input to DOE, and operate and manage the national laboratories for and on behalf of DOE. In a very real sense, these contractors performed DOE's statutory mission, or at a minimum provided the technical input to perform the same.

19 PG&E, 73 Fed. Cl. at 438-39 (noting that "the contractor documents `indicate that 20 the contractor personnel who operate DOE facilities are functionally 21 indistinguishable from the DOE employees who request and use their research or 22 drafting input. They are more akin to contract employees of DOE.'"). In this case, 23 LCR does not assert ­and, indeed, there is no evidence­ to establish that the 24 Department of Defense's contractors who drafted the Contractor Documents either 25 operate and manage the agency, or that they perform the agency's statutory 26 27 28
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 mission. Accordingly, there is no factual basis upon which LCR may establish the 8 2 public records exception concerning the Contractor Documents. 3 Furthermore, to the extent it could be asserted that the Court in PG&E found 4 that the mere fact of a contractor relationship is sufficient to establish that 5 statements by the contractor constitute party-admissions under FRE 801(d), that 6 decision would not be in accord with precedent from the United States Court of 7 Appeals for the Federal Circuit. Although the Federal Circuit has found that "an 8 agency relationship can be created by contract," it has determined that "not all 9 contracts create agency relationships and not all conduct creates agency 10 relationships." Rotec Indus. v. Mitsubishi Corp., 215 F.3d 1246, 1256 (Fed. Cir. 11 2000) (quoting Chemtool, Inc. v. Lubrication Techs., Inc., 148 F.3d 742, 745 (7th 12 Cir. 1998)). The focus in determining whether the relationship between 13 contracting parties creates an agency relationship "focuse[s] on contract provisions 14 [and] not day-to-day Government involvement in the performance of the 15 subcontract." Lockheed Martin Corp. v. U.S., 50 Fed. Cl. 550, 558-59 (2001) 16 (citing U.S. v. Johnson Controls, Inc., 713 F.3d 1541, 1551 (Fed. Cir. 1983)), aff'd, 17 48 Fed. Appx. 752 (Fed. Cir. 2002). Specifically, the test for determining agency 18 "requires an interpretation of the contract" and findings that "(1) the prime 19 contractor was acting as a purchasing agent for the Government; (2) the agency 20 relationship between the Government and the prime contractor was established by 21 clear contractual consent; and (3) the contract stated that the Government would be 22 directly liable to the vendors for the purchase price." Lockheed, 50 Fed. Cl. at 562. 23 In short, barring evidence that the Department of Defense contractors were subject 24 25 LCR is not calling any Department of Defense witnesses in this case live, 26 and the testimony LCR seeks to designate from Defendants Rule 30(b)(6) 27 witnesses do not establish the public records exception, or any other exception, to the hearsay rule. 28
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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1 to the control of the Government, or "authorized to speak" on behalf of the agency 2 under FRE 801(d)(2)(C), the contractor exhibits at issue are inadmissible. 3 4 4. The Media and Polling Documents Are Inadmissible LCR contends that the Media and Polling Documents, including the Zogby

5 Poll, are not hearsay because they are not offered for their truth (Doc. 194 at 15). 6 Yet in the next sentence, LCR states that the Media and Polling Documents are 7 being offered to show, among other things, "that attitudes towards homosexuals 8 have changed from when Congress enacted DADT." (Id). The Zogby Poll is only 9 evidence that attitudes have changed if it truly depicts current attitudes toward 10 homosexuals. The same is true of the other Media and Polling Documents. 11 Because the Media and Polling Documents, including the Zogby Poll, contain out12 of-court statements offered for their truth, they should be excluded pursuant to the 13 hearsay rule. LCR also asserts that even if the Zogby Poll is hearsay, it is sufficiently 14 15 reliable to be admitted under the residual exception as applied in Gibson v. County 16 of Riverside, 181 F.Supp.2d 1057 (C.D. Cal. 2006) (Doc. 194 at 15-16). The 17 Zogby Poll, however, suffers from some of the same deficiencies found in the 18 survey that was excluded in Gibson. In Gibson, the Court noted that the survey 19 lacked hallmarks of reliability because, among other things, the questions on the 20 survey were written by an attorney for the County. Id. at 1068. Similarly, the 21 Zogby Poll was commissioned by the Palm Center, which, as discussed above, is 22 an advocacy group for repeal of DADT, and the Palm Center's Director Aaron 23 Belkin played a role in drafting the poll questions. Belkin Deposition, 140:8-9; 24 141:15-16 (Exhibit 2). As an advocates for repeal of DADT both commissioned 25 the Zogby Poll and helped draft its questions, the poll fails to meet the 26 27 28
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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9 1 requirements to fall within the residual exception. See Gibson, 181 F. Supp.2d at 2 167-168 (excluding survey designed and executed by defendant county and its

3 attorneys). 4 5 CONCLUSION Defendants have established that LCR's proposed exhibits are inadmissible.

6 LCR has failed to rebut Defendants' objections. Accordingly, the Court should 7 grant Defendants' Motion to Exclude Certain of LCR's proposed exhibits. 8 Dated: June 24, 2010 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 While the custodial authentication of the Zogby Poll may be relevant to 27 laying a foundation for the document, it does not cure the deficiencies that prevent the poll from being admissible under the residual exception. (Doc. No. 194, 15). 28
DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO EXCLUDE CERTAIN OF PLAINTIFF'S PROPOSED EXHIBITS

Respectfully submitted, TONY WEST Assistant Attorney General ANDRÉ BIROTTE, JR United States Attorney JOSEPH H. HUNT Director VINCENT M. GARVEY Deputy Branch Director /s/Ryan B. Parker PAUL G. FREEBORNE W. SCOTT SIMPSON JOSHUA E. GARDNER RYAN B. PARKER Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, D.C. 20044 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants United State of America and Secretary of Defense
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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]