Courthouse News Service v. Michael Planet
Filing
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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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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
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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COURTHOUSE NEWS SERVICE,
Plaintiff,
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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
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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Defendant Michael D. Planet, in his official capacity as Executive Officer
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and Clerk of the Superior Court of California, County of Ventura (the “Ventura
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Superior Court”), hereby objects to the following evidence presented by Plaintiff
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Courthouse News Service (“CNS”) in connection with CNS’s Motion for
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Preliminary Injunction, which is set for hearing on November 21, 2011, at
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10:00 a.m., before this Court.
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I.
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OBJECTIONS TO THE DECLARATION OF WILLIAM GIRDNER
IN SUPPORT OF MOTION OF COURTHOUSE NEWS SERVICES
FOR PRELIMINARY INJUNCTION
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Evidence and Text/Description
Ventura Superior Court’s
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Of Material Objected To
Objection(s)
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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
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preliminary and foundational facts
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sufficient to make the proffered
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evidence admissible. See Paddack v.
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Dave Christensen, Inc., 745 F.2d
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1254, 1259 (9th Cir. 1984) (ruling
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that a summary based on both
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inadmissible and admissible hearsay
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should not be admitted: “(Citation)
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‘Where summary proof is offered,
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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Evidence and Text/Description
Ventura Superior Court’s
Of Material Objected To
Objection(s)
ordinarily it amounts to ‘evidence,’
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particularly where the underlying
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material was not itself admitted or
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was not as a practical matter
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examinable by the jury. In such
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cases, it is especially important to
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insure that the summary rests
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entirely upon admissible
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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
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inadmissible hearsay and CNS has
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not proved preliminary and
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foundational facts sufficient to make
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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
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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Evidence and Text/Description
Ventura Superior Court’s
Of Material Objected To
Objection(s)
courts’ media access procedures, is
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objected to on the grounds that it is
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inadmissible hearsay and CNS has
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not proved preliminary and
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foundational facts sufficient to make
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the proffered evidence admissible.
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See Paddack v. Dave Christensen,
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Inc., 745 F.2d 1254, 1259 (9th Cir.
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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
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for the Central District of California
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and the Superior Court for the
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County of Los Angeles, attached as
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Exhibit 4 to the Girdner Declaration,
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the terms of which speak for
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themselves. Moreover, the
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testimony mischaracterizes the
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contents of the documents.
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Specifically, the litigation reports
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merely reflect the date of the
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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Evidence and Text/Description
Ventura Superior Court’s
Of Material Objected To
Objection(s)
litigation reports and the dates of the
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complaints’ filing. The litigation
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reports do not reflect a comparison
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of how many new complaints filed in
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these courts were made available to
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CNS on the same day of filing
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because not all complaints are
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reflected in the litigation reports.
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(See Girdner Decl. ¶ 8 (“(N)ot all
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complaints are significant enough to
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merit coverage – decisions as to
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which receive coverage are made by
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the individual reporters and
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editors.”).) Because it is unknown
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how many complaints CNS has
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decided to report on upon
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unilaterally deeming such material
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newsworthy, it is not possible to
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ascertain from the litigation reports if
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a majority of complaints filed in the
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courts are made available to CNS the
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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
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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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
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evidence admissible. See Paddack v.
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Dave Christensen, Inc., 745 F.2d
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1254, 1259 (9th Cir. 1984).
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To the extent Mr. Girdner (who does
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not appear to have any experience
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processing complaints or even
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working in a court) is offering his
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opinion regarding the ability of state
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and federal courts to provide same
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day access to newly filed complaints,
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this is improper opinion testimony of
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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)
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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
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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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
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testimony of a lay witness.
Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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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
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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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
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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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
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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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”
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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
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describe the contents of writings,
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namely a letter attached as Exhibit 8
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to the Girdner Declaration, the terms
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of which speak for themselves.
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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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
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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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
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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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).
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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
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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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).
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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II.
OBJECTIONS TO THE DECLARATION OF CHRISTOPHER
MARSHALL IN SUPPORT OF MOTION OF COURTHOUSE NEWS
SERVICES FOR PRELIMINARY INJUNCTION
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Evidence and Text/Description
Ventura Superior Court’s
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Of Material Objected To
Objection(s)
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Declaration of Christopher Marshall in
Objection(s): Lacks Foundation (FRE
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Support of Motion of Courthouse News
104); Lacks Personal Knowledge
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Service for Preliminary Injunction
(FRE 602); Improper Opinion
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(“Marshall Decl.”), ¶ 3:
Testimony (FRE 701).
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“In both state and federal courts, it is both
This evidence is objected to on the
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traditional and common to provide
grounds that it is inadmissible hearsay
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reporters who visit every day with access
and CNS has not proved the
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to the civil complaints filed earlier that
preliminary and foundational facts
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day. Courthouse News frequently refers to sufficient to make the proffered
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this traditional and timely access as ‘same- evidence admissible.
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day access.’ This access has traditionally
Moreover, Mr. Marshall’s statements
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and continues to be provided regardless of
are improper opinion testimony of a
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whether the day’s new complaints have
lay witness and contain inadmissible
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been fully processed at the time of the
legal conclusions. See DePinto v.
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reporter’s visit to the court.”
Providen Sec. Life Ins. Co., 374 F.2d
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50, 55 (9th Cir. 1967).
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Marshall Decl. ¶ 4: “At the San Jose
Objection(s): Hearsay (FRE 802);
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Division of the U.S. District Court for the
Lacks Foundation (FRE 104); Lacks
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Northern District of California, which is
Personal Knowledge (FRE 602).
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one of the courts under my supervision,
This evidence is objected to on the
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reporters go behind the court to review a
grounds that it is inadmissible hearsay
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list of all new civil complaints filed earlier
and CNS has not proved the
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that day, and then obtain complaints
preliminary and foundational facts
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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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.”
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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
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grounds that it is inadmissible hearsay
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and CNS has not proved the
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preliminary and foundational facts
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sufficient to make the proffered
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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
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preliminary and foundational facts
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sufficient to make the proffered
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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)
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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
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attached as Exhibit 1 to the Marshall
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Declaration, the terms of which speak
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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
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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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
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and CNS has not proved the
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preliminary and foundational facts
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sufficient to make the proffered
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evidence admissible.
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The statement is also irrelevant to the
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issue in this case, which is whether
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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Evidence and Text/Description
Ventura Superior Court’s
Of Material Objected To
Objection(s)
CNS has a constitutional right to
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same-day access of newly filed
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complaints in the Ventura Superior
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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
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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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
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and CNS has not proved the
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preliminary and foundational facts
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sufficient to make the proffered
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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.
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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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
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evidence admissible.
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Moreover, Mr. Marshall’s testimony
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purports to describe the contents of
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writings, namely a letter attached as
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Exhibit 5 to the Marshall Declaration,
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the terms of which speak for
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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)
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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
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writings, namely a letter attached as
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Exhibit 7 to the Marshall Declaration,
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the terms of which speak for
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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
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By: /s/ Robert A. Naeve
Robert A. Naeve
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Attorneys for Defendants
MICHAEL PLANET, IN HIS
OFFICIAL CAPACITY AS COURT
EXECUTIVE OFFICER/CLERK OF
THE VENTURA COUNTY
SUPERIOR COURT
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LAI-3152518
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Defendant’s Objections to Evidence
re Pltf’s Mot. for Prelim. Inj.
Case No CV 11-08083 R (MANx)
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