Courthouse News Service v. Michael Planet

Filing 26

Objections to Evidence in opposition to re: MOTION for Preliminary Injunction #3 filed by Defendant Michael Planet. (Attachments: #1 Proposed Order)(Reilley, Erica)

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1 2 3 4 5 6 7 8 Robert A. Naeve (State Bar No. 106095) rnaeve@jonesday.com Erica L. Reilley (State Bar No. 211615) elreilley@jonesday.com JONES DAY 3161 Michelson Drive, Suite 800 Irvine, California 92612 Telephone: (949) 851-3939 Facsimile: (949) 553-7539 Attorneys for Defendant MICHAEL PLANET, IN HIS OFFICIAL CAPACITY AS COURT EXECUTIVE OFFICER/CLERK OF THE VENTURA COUNTY SUPERIOR COURT 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 13 COURTHOUSE NEWS SERVICE, Plaintiff, 14 15 16 17 18 19 20 21 22 23 24 v. MICHAEL PLANET, IN HIS OFFICIAL CAPACITY AS COURT EXECUTIVE OFFICER/CLERK OF THE VENTURA COUNTY SUPERIOR COURT, Defendant. Case No. CV11-08083 R (MANx) Assigned for all purposes to Hon. Manuel L. Real DEFENDANT’S OBJECTIONS TO EVIDENCE IN: (1) DECLARATION OF WILLIAM GIRDNER IN SUPPORT OF MOTION OF COURTHOUSE NEWS SERVICE FOR PRELIMINARY INJUNCTION; AND (2) DECLARATION CHRISTOPHER MARSHALL IN SUPPORT OF MOTION OF COURTHOUSE NEWS SERVICE FOR PRELIMINARY INJUNCTION Date: November 21, 2011 Time: 10:00 a.m. Courtroom: 8 25 26 27 28 Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 Defendant Michael D. Planet, in his official capacity as Executive Officer 2 and Clerk of the Superior Court of California, County of Ventura (the “Ventura 3 Superior Court”), hereby objects to the following evidence presented by Plaintiff 4 Courthouse News Service (“CNS”) in connection with CNS’s Motion for 5 Preliminary Injunction, which is set for hearing on November 21, 2011, at 6 10:00 a.m., before this Court. 7 I. 8 OBJECTIONS TO THE DECLARATION OF WILLIAM GIRDNER IN SUPPORT OF MOTION OF COURTHOUSE NEWS SERVICES FOR PRELIMINARY INJUNCTION 9 10 Evidence and Text/Description Ventura Superior Court’s 11 Of Material Objected To Objection(s) 12 13 14 15 16 17 18 Declaration of William Girdner in Support Objection(s): Hearsay (FRE 802); of Motion of Courthouse News Service for Lacks Foundation (FRE 104; FRE Preliminary Injunction (“Girdner Decl.”), 1006); Lacks Personal Knowledge Exhibit 3: Exhibit 3, prepared by CNS, (FRE 602). purports to be a summary of media access This evidence is objected to on the procedures used in state and federal courts grounds that it is inadmissible across the nation (the “Access Summary”). hearsay and CNS has not proved the 19 preliminary and foundational facts 20 sufficient to make the proffered 21 evidence admissible. See Paddack v. 22 Dave Christensen, Inc., 745 F.2d 23 1254, 1259 (9th Cir. 1984) (ruling 24 that a summary based on both 25 inadmissible and admissible hearsay 26 should not be admitted: “(Citation) 27 ‘Where summary proof is offered, 28 -2- Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) ordinarily it amounts to ‘evidence,’ 4 particularly where the underlying 5 material was not itself admitted or 6 was not as a practical matter 7 examinable by the jury. In such 8 cases, it is especially important to 9 insure that the summary rests 10 entirely upon admissible 11 12 13 14 15 16 17 18 evidence.’”). Girdner Decl. ¶ 13: “I have observed that Objection(s): Hearsay (FRE 802); when a reporter visits a court every day, it Lacks Foundation (FRE 104; FRE has been traditional for courts to provide 1006); Lacks Personal Knowledge that reporter with access to the large (FRE 602). majority of the complaints filed earlier that The evidence, offered to summarize same day. courts’ media access procedures, is objected to on the grounds that it is 19 inadmissible hearsay and CNS has 20 not proved preliminary and 21 foundational facts sufficient to make 22 23 24 25 26 27 the proffered evidence admissible. Girdner Decl. ¶¶ 14 – 16: Objection(s): Hearsay (FRE 802); Mr. Girdner summarizes the courts’ media Lacks Foundation (FRE 104; FRE access procedures as reflected in CNS’s 1006); Lacks Personal Knowledge Access Summary. (FRE 602). The evidence, offered to summarize 28 -3- Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) courts’ media access procedures, is 4 objected to on the grounds that it is 5 inadmissible hearsay and CNS has 6 not proved preliminary and 7 foundational facts sufficient to make 8 the proffered evidence admissible. 9 See Paddack v. Dave Christensen, 10 Inc., 745 F.2d 1254, 1259 (9th Cir. 11 12 13 14 15 16 17 1984). Girdner Decl. ¶ 17: “As reflected in both of Objection(s): Best Evidence Rule these reports, the large majority of new (FRE 1002). complaints filed in these courts were made Mr. Girdner’s testimony purports to available to Courthouse News’ reporter on describe the contents of writings, the same day of filing.” namely CNS’s litigation reports for both the United States District Court 18 for the Central District of California 19 and the Superior Court for the 20 County of Los Angeles, attached as 21 Exhibit 4 to the Girdner Declaration, 22 the terms of which speak for 23 themselves. Moreover, the 24 testimony mischaracterizes the 25 contents of the documents. 26 Specifically, the litigation reports 27 merely reflect the date of the 28 -4- Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) litigation reports and the dates of the 4 complaints’ filing. The litigation 5 reports do not reflect a comparison 6 of how many new complaints filed in 7 these courts were made available to 8 CNS on the same day of filing 9 because not all complaints are 10 reflected in the litigation reports. 11 (See Girdner Decl. ¶ 8 (“(N)ot all 12 complaints are significant enough to 13 merit coverage – decisions as to 14 which receive coverage are made by 15 the individual reporters and 16 editors.”).) Because it is unknown 17 how many complaints CNS has 18 decided to report on upon 19 unilaterally deeming such material 20 newsworthy, it is not possible to 21 ascertain from the litigation reports if 22 a majority of complaints filed in the 23 courts are made available to CNS the 24 25 26 27 28 same day of filing. Girdner Decl. ¶ 18: “The variety and Objection(s): Hearsay (FRE 802); effectiveness of the procedures for Lacks Foundation (FRE 104; FRE providing same-day access that have been 1006); Lacks Personal Knowledge -5- Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 8 9 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) implemented in so many state and federal (FRE 602); Improper Opinion courts has convinced me that access is Testimony (FRE 701). largely a matter of will, and any individual This evidence is objected to on the clerk’s office can provide prompt access to grounds that it is inadmissible newly filed complaints if those running the hearsay and CNS has not proved the clerk’s office have the will to do so.” preliminary and foundational facts sufficient to make the proffered 10 evidence admissible. See Paddack v. 11 Dave Christensen, Inc., 745 F.2d 12 1254, 1259 (9th Cir. 1984). 13 To the extent Mr. Girdner (who does 14 not appear to have any experience 15 processing complaints or even 16 working in a court) is offering his 17 opinion regarding the ability of state 18 and federal courts to provide same 19 day access to newly filed complaints, 20 this is improper opinion testimony of 21 22 23 24 25 26 27 28 a lay witness. Girdner Decl. ¶ 19: “Traditionally, and as Objection(s): Hearsay (FRE 802); demonstrated by the examples above, courts Lacks Foundation (FRE 104; FRE have provided same-day access after initial 1006); Lacks Personal Knowledge intake tasks, for example accepting the (FRE 602); Irrelevant (FRE 402). filing fee, assigning a case number, and/or This evidence is objected to on the noting the first-named plaintiffs and grounds that it is inadmissible -6- Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) defendants on an intake log, but well before hearsay and CNS has not proved the full processing. In most instances where we preliminary and foundational facts encounter resistance by clerk’s offices to sufficient to make the proffered providing same-day access, the reason given evidence admissible. See Paddack v. is as follows: First, we are told that the Dave Christensen, Inc., 745 F.2d court will not allow anyone to see the 1254, 1259 (9th Cir. 1984). complaint until after staffers in the clerks’ Mr. Girdner’s statements—which office have completed an array of appear to explain what other courts administrative procedures associated with have said to CNS about the the clerk’s office processing of a new procedures those courts use to complaint, which over the years has process complaints—are irrelevant to encompassed an ever-growing list of tasks. the issue in this case, which is Next, we are told that due to budget whether CNS has a constitutional constraints and accompanying staffing right to same-day access of newly shortages, these tasks cannot always be filed unlimited civil complaints in completed quickly, with the end result that, Ventura Superior Court. as is the case in Ventura County, the press is not permitted to see new complaints until days or even weeks after they have been filed.” Girdner Decl. ¶ 20: “The tasks associated Objection(s): Hearsay (FRE 802); with the processing of a new complaint vary Lacks Foundation (FRE 104); Lacks from court to court, but can include, for Personal Knowledge (FRE 602). example, imputing information about the This evidence is objected to on the new complaint into the new California Case grounds that it is inadmissible -7- Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) Management System or another electronic hearsay and CNS has not proved the case management system, checking the preliminary and foundational facts complaint to make sure it complies with sufficient to make the proffered applicable court rules, ‘quality control,’ evidence admissible. and/or putting new complaints into file folders.” Girdner Decl. ¶ 21: “Based on my Objection(s): Hearsay (FRE 802); experience covering civil litigation during Lacks Foundation (FRE 104, FRE the past twenty-one years, including but not 1006); Lacks Personal Knowledge limited to my own in-person visits to many (FRE 602); Improper Opinion state and federal courts, telephone Testimony (FRE 701) discussions with officials from state and This evidence is objected to on the federal courts, and my activities in grounds that it is inadmissible supervising Courthouse News’ reporters and hearsay and CNS has not proved the editors, I have observed that it is entirely preliminary and foundational facts possible, where the clerk’s office has the sufficient to make the proffered will to do so, to provide prompt media evidence admissible. See Paddack v. access while still attending to processing in Dave Christensen, Inc., 745 F.2d a similarly prompt manner. New complaints 1254, 1259 (9th Cir. 1984). are not being actively worked on all the To the extent Mr. Girdner is offering time. Reporters can review the new his opinion regarding the ability of complaints not being actively worked on, state and federal courts to provide return them, and then review any remaining same day access to newly filed complaints that were being worked on at the complaints, this is improper opinion time of their initial request. As reflected -8- testimony of a lay witness. Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) elsewhere in this declaration and in the Access Summary, it is both common and traditional for courts to provide credentialed reporters with access in this manner, before the clerk’s office has completed all of the administrative tasks associated with the processing of new complaints. To make sure that new complaints are accounted for, clerk’s offices often couple such review with procedures such as requiring reporters to provide collateral such as a driver’s license or setting aside a secure area for the media to review the day’s new complaints.” Girdner Decl. ¶ 22: “Based on my Objection(s): Hearsay (FRE 802); experience on working with other courts, it Lacks Foundation (FRE 104); Lacks is apparent to me that providing same-day Personal Knowledge (FRE 602); media access to newly filed civil complaints Improper Opinion Testimony (FRE – fundamentally, the simple act of letting 701). reporters see the new complaints that, This evidence is objected to on the because they are newly-filed, are already grounds that it is inadmissible centrally located in the intake area – is as hearsay and CNS has not proved the simple as opening a door. It need not preliminary and foundational facts involve any extra expense or staff time sufficient to make the proffered beyond the de minimis effort of handing a evidence admissible. stack of complaints to a reporter, and even To the extent Mr. Girdner is offering -9- Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) that de minimis effort is eliminated if the his opinion regarding the ability of reporter is simply allowed to go behind the state and federal courts to provide counter to pick up a stack of complaints to same day access to newly filed review, as reporters do at the San Francisco complaints, this is improper opinion Division of the U.S. District Court for the testimony of a lay witness. Northern District of California and in several other courts.” Girdner Decl. ¶ 23: “Despite this traditional Objection(s): Hearsay (FRE 802); practice of providing reporters who visit the Lacks Foundation (FRE 104; FRE court every day with same-day access to 1006); Lacks Personal Knowledge new complaints, and despite Courthouse (FRE 602). News’ efforts to work cooperatively with This evidence is objected to on the the clerk’s office of the Ventura County grounds that it is inadmissible Superior Court to come up with mutually- hearsay and CNS has not proved the agreeable procedures to allow its reporter to preliminary and foundational facts obtain the same timely access to new sufficient to make the proffered complaints at Ventura Superior, the clerk’s evidence admissible. office of the Ventura County Superior Court has refused to do so.” Girdner Decl. ¶ 28: “Accordingly, at my Objection(s): Hearsay (FRE 802); direction, by letter dated April 29, 2009, Lacks Foundation (FRE 104; FRE Courthouse News’ counsel wrote to Court 1006); Lacks Personal Knowledge Executive Officer Michael Planet to bring to (FRE 602); Best Evidence Rule his attention Courthouse News’ concerns (FRE 1002). about access to new complaints at the This evidence is objected to on the - 10 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) Ventura County Superior Court, including grounds that it is inadmissible problems with the timeliness of that access, hearsay and CNS has not proved the and to suggest an in-person meeting to preliminary and foundational facts discuss the matter further. A true and sufficient to make the proffered correct copy of that letter is attached as evidence admissible. Exhibit 5. This letter led to procedures Mr. Girdner’s testimony purports to being implemented by the clerk’s office describe the contents of writings, that, at least temporarily, provided namely a letter attached as Exhibit 5 Courthouse News with reasonably timely to the Girdner Declaration, the terms access to that court’s new civil unlimited of which speak for themselves. complaints.” Girdner Decl. ¶ 25: “In November 2010, Objection(s): Hearsay (FRE 802); Courthouse News moved from twice a week Lacks Foundation (FRE 104; FRE to daily coverage of the Ventura County 1006); Lacks Personal Knowledge Superior Court. At about the same time, I (FRE 602); Best Evidence Rule instructed Mr. Marshall to once again try to (FRE 1002). work with the court to resolve the access This evidence is objected to on the delays. After those efforts proved grounds that it is inadmissible unsuccessful, at my direction, Courthouse hearsay and CNS has not proved the News’ counsel once again wrote to Mr. preliminary and foundational facts Planet to request that its reporter have same- sufficient to make the proffered day access to new civil complaints as is evidence admissible. common and traditional in other courts Mr. Girdner’s testimony purports to where a reporter visits on a daily basis, and describe the contents of writings, provide information as to the procedures namely a letter attached as Exhibit 6 - 11 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) used by other courts to provide such access. to the Girdner Declaration, the terms A true and correct copy of that letter is of which speak for themselves. attached as Exhibit 6” 7 8 9 10 11 12 13 14 15 16 17 18 19 Girdner Decl. ¶ 27: “At my direction, Objection(s): Hearsay (FRE 802); Courthouse News’ counsel responded by Lacks Foundation (FRE 104; FRE letter to Mr. Planet dated August 2, 2011, a 1006); Lacks Personal Knowledge true and correct copy of which is attached as (FRE 602); Best Evidence Rule Exhibit 8. That letter noted that other courts (FRE 1002). provide same-day access to new complaints This evidence is objected to on the before those complaints have been fully grounds that it is inadmissible processed, and that press access only results hearsay and CNS has not proved the in increased costs where the court imposes preliminary and foundational facts the requirement of complete processing sufficient to make the proffered before providing access.” evidence admissible. Mr. Girdner’s testimony purports to 20 describe the contents of writings, 21 namely a letter attached as Exhibit 8 22 to the Girdner Declaration, the terms 23 of which speak for themselves. 24 25 26 27 28 - 12 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) Girdner Decl. ¶ 28: “In the course of Objection(s): Hearsay (FRE 802); running Courthouse News for the last Lacks Foundation (FRE 104); Lacks twenty-one years, I have observed that Personal Knowledge (FRE 602); delays in access to new civil complaints Irrelevant (FRE 402); Improper present a range of problems. Delay means Opinion Testimony (FRE 701). that the public does not know and cannot This evidence is objected to on the know who and why a person or entity is grounds that it is inadmissible being hailed into the courts, a powerful hearsay and CNS has not proved the institution of government, because the preliminary and foundational facts action is hidden from view. In purely sufficient to make the proffered practical terms, delay makes it extremely evidence admissible. difficult for journalists to cover new civil Mr. Girdner’s statements are also complaints because with each passing day, improper opinion testimony of a lay those complaints begin to move from the witness and contain inadmissible intake area to different parts of the legal conclusions. See DePinto v. courthouse and a reporter must chase down Providen Sec. Life Ins. Co., 374 F.2d complaints one by one just to find out what 50, 55 (9th Cir. 1967) (ruling is alleged in those complaints. Delay also inadmissible statements in affidavits means that information about new consisting of opinion by non-experts complaints comes out only in bits and on the ultimate issue of fact the trial pieces, through a court posting limited court must resolve). docket information, messengers who recognize an important action, or plaintiffs who, because of the delay, are given the power to manipulate the news because a - 13 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) public filing has not been made public. And delay causes subscribers to question why we are reporting on stale events, thus damaging the worth of our publications.” Girdner Decl. ¶ 29: “When I started out in Objection(s): Irrelevant (FRE 402). journalism, I was taught to write a ‘second Mr. Girdner’s statements are day lead’ on stories that were not from that irrelevant to the issue in this case, day, generally by emphasizing reaction to which is whether CNS has a the original news. More than anything, it constitutional right to same-day was a device to cover the fact that we were a access of newly filed unlimited civil day late.” complaints in Ventura Superior Court. Girdner Decl. ¶ 30: “Articulating to state Objection(s): Irrelevant (FRE 402); court officials what it is that makes timely Improper Opinion Testimony (FRE access so important is difficult because it 701). seems to me so obvious, so innate, that Mr. Girdner’s statements are information is interesting and grabs the irrelevant to the issue in this case, public’s attention while it is fresh. The which is whether CNS has a power and personal impact of information is constitutional right to same-day at its highest point in the actual moment that access of newly filed unlimited civil it is happening. Every day, every week that complaints in Ventura Superior passes, events fade further into the shades of Court. the past. Time takes away the vibrancy and Mr. Girdner’s statements are also immediacy of events as they move, hour by improper opinion testimony of a lay - 14 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) hour, day by day, into the realm of what witness and contain inadmissible was, soon to be recent history and then legal conclusions. See DePinto v. history.” Providen Sec. Life Ins. Co., 374 F.2d 50, 55 (9th Cir. 1967). 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Girdner Decl. ¶ 31: “To illustrate, a reader Objection(s): Irrelevant (FRE 402); of news looks for the most recent football Improper Opinion Testimony (FRE scores, the latest swing in the stock market, 701). or, on the political front, the fate of the most Mr. Girdner’s statements are recent dictator to be toppled. Even a day’s irrelevant to the issue in this case, delay diminishes the power and relevance of which is whether CNS has a the news. In the case of a new civil legal constitutional right to same-day action, I call it the gong of war. Recent access of newly filed unlimited civil actions such as Apple’s battle against complaints in Ventura Superior Samsung over iPhones, or the U.S. Justice Court. Department’s challenge to the merger of Mr. Girdner’s statements are AT&T and T-Mobile signal enormous legal improper opinion testimony of a lay contests. While not all new civil cases have witness and contain inadmissible such broad significance, they are often of legal conclusions. See DePinto v. great importance to the parties and their Providen Sec. Life Ins. Co., 374 F.2d lawyers, as well as to other businesses and 50, 55 (9th Cir. 1967). individuals who business operations or matters of a personal nature may be affected by the lawsuit. Delay of the kind we are seeing in Ventura County is contrary to - 15 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) basic principles of open government and contrary to the interest of the public, in all its variations and subsets, in knowing that a legal battle has begun.” Girdner Decl. ¶ 32: “Working as a Objection(s): Irrelevant (FRE 402). journalist, I have observed courts where Improper Opinion Testimony (FRE newspapers sent reporters to review and 701). report on new civil complaints but then Mr. Girdner’s statements are abandoned the coverage when new filings irrelevant to the issue in this case, were no longer available on a same-day which is whether CNS has a basis. In other words, where access to a constitutional right to same-day new complaint is delayed, it is far less likely access of newly filed unlimited civil that the existence of that lawsuit will ever complaints in Ventura Superior come to the attention of interested members Court. of the public. The converse is also true. Mr. Girdner’s statements are also Where a court provides prompt and open improper opinion testimony of a lay access to new actions, at the Los Angeles witness and contain inadmissible Superior Court, for example, reporters flock legal conclusions. See DePinto v. to the source of news.” Providen Sec. Life Ins. Co., 374 F.2d 50, 55 (9th Cir. 1967). 24 25 26 27 28 - 16 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 II. OBJECTIONS TO THE DECLARATION OF CHRISTOPHER MARSHALL IN SUPPORT OF MOTION OF COURTHOUSE NEWS SERVICES FOR PRELIMINARY INJUNCTION 3 4 Evidence and Text/Description Ventura Superior Court’s 5 Of Material Objected To Objection(s) 6 Declaration of Christopher Marshall in Objection(s): Lacks Foundation (FRE 7 Support of Motion of Courthouse News 104); Lacks Personal Knowledge 8 Service for Preliminary Injunction (FRE 602); Improper Opinion 9 (“Marshall Decl.”), ¶ 3: Testimony (FRE 701). 10 “In both state and federal courts, it is both This evidence is objected to on the 11 traditional and common to provide grounds that it is inadmissible hearsay 12 reporters who visit every day with access and CNS has not proved the 13 to the civil complaints filed earlier that preliminary and foundational facts 14 day. Courthouse News frequently refers to sufficient to make the proffered 15 this traditional and timely access as ‘same- evidence admissible. 16 day access.’ This access has traditionally Moreover, Mr. Marshall’s statements 17 and continues to be provided regardless of are improper opinion testimony of a 18 whether the day’s new complaints have lay witness and contain inadmissible 19 been fully processed at the time of the legal conclusions. See DePinto v. 20 reporter’s visit to the court.” Providen Sec. Life Ins. Co., 374 F.2d 21 50, 55 (9th Cir. 1967). 22 Marshall Decl. ¶ 4: “At the San Jose Objection(s): Hearsay (FRE 802); 23 Division of the U.S. District Court for the Lacks Foundation (FRE 104); Lacks 24 Northern District of California, which is Personal Knowledge (FRE 602). 25 one of the courts under my supervision, This evidence is objected to on the 26 reporters go behind the court to review a grounds that it is inadmissible hearsay 27 list of all new civil complaints filed earlier and CNS has not proved the 28 that day, and then obtain complaints preliminary and foundational facts - 17 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) directly from individual clerks’ desks. sufficient to make the proffered Reporters can then review and scan any evidence admissible. newsworthy complaints before returning them to the clerks’ desks.” 8 9 10 11 12 Marshall Decl. ¶¶ 5-7: Mr. Marshall Objection(s): Hearsay (FRE 802); purports to summarize other courts’ media Lacks Foundation (FRE 104); Lacks access procedures. Personal Knowledge (FRE 602). This evidence is objected to on the 13 grounds that it is inadmissible hearsay 14 and CNS has not proved the 15 preliminary and foundational facts 16 sufficient to make the proffered 17 18 19 20 21 22 23 evidence admissible. Marshall Decl. ¶¶ 8-10: Mr. Marshall Objection(s): Hearsay (FRE 802); purports to summarize Ventura Superior Lacks Foundation (FRE 104); Lacks Court’s media access procedures based Personal Knowledge (FRE 602). Mr. Marshall’s conversations with This evidence is objected to on the Julianna Krolak, a CNS reporter. grounds that it is inadmissible hearsay and CNS has not proved the 24 preliminary and foundational facts 25 sufficient to make the proffered 26 27 28 evidence admissible. Marshall Decl. ¶ 11: “By letter dated April Objection(s): Hearsay (FRE 802); - 18 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) 29, 2009, Courthouse News’ counsel Lacks Foundation (FRE 104; FRE wrote to Court Executive Officer Michael 1006); Lacks Personal Knowledge Planet to bring these concerns to his (FRE 602); Best Evidence Rule (FRE attention, outline some possible solutions 1002). and suggest an in-person meeting to This evidence is objected to on the discuss the matter further. . . . It is my grounds that it is inadmissible hearsay understanding that after this letter was and CNS has not proved the sent, Mr. Planet and Cheryl Kanatzar, the preliminary and foundational facts Deputy Executive Officer, had a telephone sufficient to make the proffered conversation with Courthouse News’ evidence admissible. counsel in which they discussed the matter Furthermore, Mr. Marshall’s further.” testimony also purports to describe the contents of writings, namely a letter 16 attached as Exhibit 1 to the Marshall 17 Declaration, the terms of which speak 18 19 20 21 22 23 24 25 26 27 28 for themselves. Marshall Decl. ¶ 12: “By letter dated May Objection(s): Best Evidence Rule 13, 2009, the court sent a written response (FRE 1002). to our counsel’s letter. In that letter, Ms. Mr. Marshall’s testimony purports to Kanatzar explained that the court had describe the contents of writings, implemented a new electronic case namely a letter attached as Exhibit 2 to management system . . . and that it had the Marshall Declaration, the terms of since changed the numbering system of the which speak for themselves. court’s files. Instead of each case type having a separately sequentially numbered - 19 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) system, a single sequential numbering system now covered many case types, including limited civil, unlimited civil, small claims, mental health, and probate. Thus, Ms. Kanatzar wrote, it would no longer be possible for the court to simply provide reporters with a block of sequentially numbered cases without first verifying the case types. However, Ms. Kanatzar suggested that certain other changes might be possible that would facilitate Ms. Krolak’s review of unlimited civil filings.” Marshall Decl. ¶ 13: “. . . Around this Objection(s): Hearsay (FRE 802); same time, Ms. Krolak began visiting the Lacks Foundation (FRE 104); Lacks clerk’s office twice each week, instead of Personal Knowledge (FRE 602); only once a week as she had previously Irrelevant (FRE 402). been doing.” This evidence is objected to on the grounds that it is inadmissible hearsay 22 and CNS has not proved the 23 preliminary and foundational facts 24 sufficient to make the proffered 25 evidence admissible. 26 The statement is also irrelevant to the 27 issue in this case, which is whether 28 - 20 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) CNS has a constitutional right to 4 same-day access of newly filed 5 complaints in the Ventura Superior 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court. Marshall Decl. ¶ 15: “Based on my Objection(s): Hearsay (FRE 802); discussions with Ms. Krolak, my Lacks Foundation (FRE 104; FRE conclusion was that staffers in the clerk’s 1006); Lacks Personal Knowledge office were waiting until newly filed (FRE 602). complaints were fully processed before This evidence is objected to on the placing them in the media bin . . . . The grounds that it is inadmissible hearsay deterioration of the media bin procedure and CNS has not proved the also led to a backlog of newly filed preliminary and foundational facts unlimited civil jurisdiction complaints that sufficient to make the proffered Ms. Krolak needed to review, and she evidence admissible. therefore had to request numerous individual complaints as part of her daily reporting activities. On many of her visits, she found that she had to request up to twenty-five complaints (her limit for cases that were not contained in the media bin) in order to see the entire flow of newly filed unlimited civil jurisdiction complaints, standing in a new and lengthy line for each group of five complaints she wished to review. Even with respect to - 21 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 8 9 10 11 12 13 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) those twenty-five additional complaints she requested, many were not available. Delays in access ranged for the most part from one to three calendar days, but were sometimes significantly longer.” Marshall Decl. ¶ 17: “It is my Objection(s): Hearsay (FRE 802); understanding from Ms. Krolak that Lacks Foundation (FRE 104; FRE approximately fifteen new unlimited 1006); Lacks Personal Knowledge complaints are filed with the court each (FRE 602). day . . . .” This evidence is objected to on the grounds that it is inadmissible hearsay 14 and CNS has not proved the 15 preliminary and foundational facts 16 sufficient to make the proffered 17 18 19 20 21 22 23 24 25 26 27 28 evidence admissible. Marshall Decl. ¶ 18: “Working with Objection(s): Hearsay (FRE 802); Ms. Krolak, for the next three months, I Lacks Foundation (FRE 104; FRE monitored the availability of new 1006); Lacks Personal Knowledge unlimited civil complaints to determine (FRE 602). what effect, if any, the new procedures This evidence is objected to on the would have in terms of delays in access. grounds that it is inadmissible hearsay Unfortunately, things went from bad to and CNS has not proved the worse, with same-day access to new preliminary and foundational facts complaints a rare occurrence and delays in sufficient to make the proffered access ranging from between one day and evidence admissible. - 22 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 8 9 10 11 12 13 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) several weeks after filing.” Marshall Decl. ¶ 19: “Having gotten Objection(s): Hearsay (FRE 802); nowhere in my attempts to resolve these Lacks Foundation (FRE 104; FRE delays in access on my own, Courthouse 1006); Lacks Personal Knowledge News’ counsel wrote to Mr. Planet on June (FRE 602); Best Evidence Rule (FRE 20, 2011, once again requesting that 1002). Courthouse News’ report be given timely This evidence is objected to on the access to new unlimited civil filings and grounds that it is inadmissible hearsay suggesting possible ways in which this and CNS has not proved the could be accomplished.” preliminary and foundational facts sufficient to make the proffered 14 evidence admissible. 15 Moreover, Mr. Marshall’s testimony 16 purports to describe the contents of 17 writings, namely a letter attached as 18 Exhibit 5 to the Marshall Declaration, 19 the terms of which speak for 20 21 22 23 24 25 26 27 28 themselves. Marshall Decl. ¶ 20: “By letter dated Objection(s): Hearsay (FRE 802); August 2, 2011, Courthouse News’ Lacks Foundation (FRE 104; FRE counsel respectfully registered its 1006); Lacks Personal Knowledge disagreement with Mr. Planet’s assertion (FRE 602); Best Evidence Rule (FRE that public access to new complaints could 1002). not be provided until after the complaints This evidence is objected to on the had been processed and that delaying grounds that it is inadmissible hearsay - 23 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx) 1 2 3 4 5 6 7 8 Evidence and Text/Description Ventura Superior Court’s Of Material Objected To Objection(s) public access to new unlimited civil and CNS has not proved the complaints was thus necessitated by preliminary and foundational facts budget difficulties that were delaying sufficient to make the proffered processing. . . . In the meantime, the evidence admissible. delays in access are continuing.” Moreover, Mr. Marshall’s testimony purports to describe the contents of 9 writings, namely a letter attached as 10 Exhibit 7 to the Marshall Declaration, 11 the terms of which speak for 12 13 14 15 16 17 themselves. At the hearing on CNS’s Motion for Preliminary Injunction, Ventura Superior Court will respectfully request the Court to sustain the foregoing objections and to strike the evidence referred to above. Dated: October 31, 2011 Respectfully submitted, JONES DAY 18 19 By: /s/ Robert A. Naeve Robert A. Naeve 20 21 Attorneys for Defendants MICHAEL PLANET, IN HIS OFFICIAL CAPACITY AS COURT EXECUTIVE OFFICER/CLERK OF THE VENTURA COUNTY SUPERIOR COURT 22 23 24 25 26 LAI-3152518 27 28 - 24 - Defendant’s Objections to Evidence re Pltf’s Mot. for Prelim. Inj. Case No CV 11-08083 R (MANx)

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