Courthouse News Service v. Michael Planet
Filing
31
RESPONSE filed by Plaintiff Courthouse News Serviceto Objection/Opposition (Motion related) #26 (Matteo-Boehm, Rachel)
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Rachel Matteo-Boehm (SBN 195492)
rachel.matteo-boehm@hro.com
David Greene (SBN 160107)
david.greene@hro.com
Leila C. Knox (SBN 245999)
leila.knox@hro.com
HOLME ROBERTS & OWEN LLP
560 Mission Street, Suite 250
San Francisco, CA 94105-2994
Telephone: (415) 268-2000
Facsimile: (415) 268-1999
Attorneys for Plaintiff
COURTHOUSE NEWS SERVICE
11
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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13
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Courthouse News Service,
CASE NO. CV11-08083 R (MANx)
15
Plaintiff,
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17
18
19
v.
Michael D. Planet, in his official capacity
as Court Executive Officer/Clerk of the
Ventura County Superior Court.
COURTHOUSE NEWS SERVICE’S
RESPONSES TO DEFENDANT’S
EVIDENTIARY OBJECTIONS TO
THE DECLARATIONS OF
WILLIAM GIRDNER AND
CHRISTOPHER MARSHALL
20
Defendant.
21
22
23
Date:
Time:
Courtroom:
Judge:
Nov. 21, 2011
10:00 am
G-8 (2nd Floor)
The Hon. Manuel L. Real
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25
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COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
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Case No. CV11-08083R (MANx)
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Plaintiff Courthouse News Service (“Courthouse News”) hereby submits the
2
following responses to Defendant Michael Planet’s evidentiary objections to the
3
September 27, 2011, Declaration of William Girdner and September 28, 2011,
4
Declaration of Christopher Marshall, which Courthouse News submitted in support of
5
its motion for a preliminary injunction.
6
While Defendant’s objections are without merit, as described further below, it
7
should be noted that the Court has discretion to consider otherwise inadmissible
8
evidence for purposes of deciding whether to issue a preliminary injunction. See Flynt
9
Distrib. Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) (“The trial court may
10
give even inadmissible evidence some weight, when to do so serves the purpose of
11
preventing irreparable harm before trial.”); Puricle, Inc. v. Church & Dwight Co., 568
12
F. Supp. 2d 1144, 1147 (C.D. Cal. 2008) (“The exigencies of preliminary relief often
13
prevent the movant from procuring supporting evidence in a form that would meet
14
Rule 56(e)’s requirement of evidence admissible at trial.”) (citation omitted)).
15
Accordingly, even if the Court should find that any of the challenged evidence
16
in the Girdner and Marshall declarations is inadmissible, the Court should nonetheless
17
exercise its discretion to consider those declarations and all supporting exhibits in
18
their entirety to prevent the irreparable harm described in Courthouse News’ motion.
19
20
RESPONSES TO DEFENDANT’S OBJECTIONS TO THE DECLARATION
21
OF WILLIAM GIRDNER
22
Evidence
Objections
Response
23
Girdner
Hearsay (FRE
Not hearsay: Exhibit 3 is not hearsay
24
Decl., Exh. 3
802); Lacks
because it is not an out-of-court statement,
25
Foundation (FRE
but rather reflects Mr. Girdner’s own
26
104; FRE 1006);
understanding and observations regarding
27
Lacks Personal
media access procedures in state and federal
28
2
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
Knowledge (FRE
courts across the country, which was prepared
2
602).
at his direction and based on his knowledge
3
and experience. See, e.g., Girdner Decl., ¶¶
4
1-4, 13-22.
5
Foundation: Exhibit 3 has adequate
6
foundation because Mr. Girdner’s declaration
7
establishes both (1) the document is in fact
8
what it is represented to be, that is, a
9
summary of media access procedures
10
prepared at Mr. Girdner’s direction, and (2) it
11
reflects information within his personal
12
knowledge based on twenty-one years of
13
experience covering civil litigation, visiting
14
courts, conferring with court officials, and
15
supervising reporters and editors. See, e.g.,
16
Girdner Decl., ¶¶ 1-4, 13-22. FRE 1006 is
17
inapplicable because Exhibit 3 reflects Mr.
18
Girdner’s personal understanding of media
19
access procedures and it is not a summary of
20
other more voluminous writings.
21
Personal knowledge: As described above
22
and detailed in Mr. Girdner’s declaration (see
23
Girdner Decl., ¶¶ 1-4, 13-22), he has
24
extensive personal knowledge concerning
25
media access procedures in state and federal
26
courts across the country. He has reported on
27
civil litigation for the past twenty-one years
28
since he founded Courthouse News. He has
3
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
personally visited many state and federal
2
courts. He has engaged in discussions with
3
court officials about access policies and
4
procedures. He also supervises reporters and
5
editors around the country, who visit
6
courthouses to review new civil complaints
7
on a daily basis.
8
Girdner
Hearsay (FRE
Not hearsay: The challenged statement in
9
Decl., ¶ 13
802); Lacks
paragraph 13 is not hearsay because it is not
10
Foundation (FRE
an out-of-court statement, but rather reflects
11
104; FRE 1006);
Mr. Girdner’s own observations and
12
Lacks Personal
experiences regarding media access to
13
Knowledge (FRE
complaints based on his extensive experience
14
602).
and personal knowledge from covering civil
15
litigation, visiting courts, conferring with
16
court officials, and supervising other reporters
17
and editors. See, e.g., Girdner Decl., ¶¶ 1-4,
18
13-22.
19
Foundation: Mr. Girdner’s declaration
20
provides the foundation for the challenged
21
statement in paragraph 13, which is based on
22
his personal knowledge, experience, and
23
observations from his twenty-one years of
24
covering civil litigation, visiting courts,
25
conferring with court officials, and
26
supervising other reporters and editors. See,
27
e.g., Girdner Decl., ¶¶ 1-4, 13-22. FRE 1006
28
4
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
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Case No. CV11-08083R (MANx)
1
is inapplicable because paragraph 13 reflects
2
Mr. Girdner’s personal understanding of
3
media access procedures and it is not a
4
summary of other more voluminous writings.
5
Personal knowledge: As described above
6
and detailed in Mr. Girdner’s declaration (see
7
Girdner Decl., ¶¶ 1-4, 13-22), he has
8
extensive personal knowledge concerning
9
media access procedures in state and federal
10
courts across the country. He has reported on
11
civil litigation for the past twenty-one years
12
since he founded Courthouse News. He has
13
personally visited many state and federal
14
courts. He has engaged in discussions with
15
court officials about access policies and
16
procedures. He also supervises reporters and
17
editors around the country, who visit
18
courthouses to review new civil complaints
19
on a daily basis.
20
Girdner
Hearsay (FRE
Not hearsay: Paragraphs 14-16 are not
21
Decl., ¶¶ 14-
802); Lacks
hearsay because they are not out-of-court
22
16
Foundation (FRE
statements, but rather reflect Mr. Girdner’s
23
104; FRE 1006);
own observations and experiences regarding
24
Lacks Personal
media access to complaints based on his
25
Knowledge (FRE
extensive experience and personal knowledge
26
602).
from covering civil litigation, visiting courts,
conferring with court officials, and
27
28
5
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
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Case No. CV11-08083R (MANx)
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supervising other reporters and editors. See,
2
e.g., Girdner Decl., ¶¶ 1-4, 13-22.
3
Foundation: Mr. Girdner’s declaration
4
provides the foundation for paragraphs 14-16,
5
which are based on his personal knowledge,
6
experience, and observations from his twenty-
7
one years of covering civil litigation, visiting
8
courts, conferring with court officials, and
9
supervising other reporters and editors. See,
10
e.g., Girdner Decl., ¶¶ 1-4, 13-22. FRE 1006
11
is inapplicable because paragraphs 14-16
12
reflect Mr. Girdner’s personal understanding
13
of media access procedures and it is not a
14
summary of other more voluminous writings.
15
Personal knowledge: As described above
16
and detailed in Mr. Girdner’s declaration (see
17
Girdner Decl., ¶¶ 1-4, 13-22), he has
18
extensive personal knowledge concerning
19
media access procedures in state and federal
20
courts across the country. He has reported on
21
civil litigation for the past twenty-one years
22
since he founded Courthouse News. He has
23
personally visited many state and federal
24
courts. He has engaged in discussions with
25
court officials about access policies and
26
procedures. He also supervises reporters and
27
editors around the country, who visit
28
courthouses to review new civil complaints
6
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
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Case No. CV11-08083R (MANx)
on a daily basis.
1
2
Girdner
Best Evidence
Not within FRE 1002: FRE 1002 is
3
Decl., ¶ 17
Rule (FRE 1002).
inapplicable because Defendant is
4
challenging Mr. Girdner’s statements as to
5
the availability of complaints included in
6
Exhibit 4 (which are based on his personal
7
knowledge of the processes and procedures
8
used by Courthouse News to prepare its
9
reports) and not the contents of Exhibit 4
10
itself. See U.S. v. Gonzales-Benitez, 537 F.2d
11
1051, 1053-54 (9th Cir. 1976) (FRE 1002
12
“does not set up an order of preferred
13
admissibility, which must be followed to
14
prove any fact. It is, rather, a rule applicable
15
only when one seeks to prove the contents of
16
documents. ...”). Moreover, “FRE 1002 does
17
not prevent the parties from relying on other
18
evidence, such as declarations ... to describe
19
or characterize the document.” K&N Eng’g,
20
Inc. v. Spectre Performance, 2011 U.S. Dist.
21
LEXIS 107681, at *4-5 & n.3 (C.D. Cal.
22
Sept. 20, 2011).
23
Girdner
Hearsay (FRE
Not hearsay: Paragraph 18 is not hearsay
24
Decl., ¶ 18
802); Lacks
because it is not an out-of-court statement,
25
Foundation (FRE
but rather reflects Mr. Girdner’s own
26
104; FRE 1006);
observations and experiences regarding media
27
Lacks Personal
access to complaints based on his extensive
28
7
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
Knowledge (FRE
experience and personal knowledge from
2
602); Improper
covering civil litigation, visiting courts,
3
Opinion
conferring with court officials, and
4
Testimony (FRE
supervising other reporters and editors. See,
5
701).
e.g., Girdner Decl., ¶¶ 1-4, 13-22.
6
Foundation: Mr. Girdner’s declaration
7
provides the foundation for the statements in
8
paragraph 13, which is based on his personal
9
knowledge, experience, and observations
10
from his twenty-one years of covering civil
11
litigation, visiting courts, conferring with
12
court officials, and supervising other reporters
13
and editors. See, e.g., Girdner Decl., ¶¶ 1-4,
14
13-22. FRE 1006 is inapplicable because
15
paragraph 18 reflects Mr. Girdner’s personal
16
understanding of media access procedures
17
and it is not a summary of other more
18
voluminous writings.
19
Personal knowledge: As described above
20
and detailed in Mr. Girdner’s declaration (see
21
Girdner Decl., ¶¶ 1-4, 13-22), he has
22
extensive personal knowledge concerning
23
media access procedures in state and federal
24
courts across the country. He has reported on
25
civil litigation for the past twenty-one years
26
since he founded Courthouse News. He has
27
personally visited many state and federal
28
courts. He has engaged in discussions with
8
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
court officials about access policies and
2
procedures. He also supervises reporters and
3
editors around the country, who visit
4
courthouses to review new civil complaints
5
on a daily basis.
6
Not improper opinion: Paragraph 18 is not
7
improper opinion but rather reflects Mr.
8
Girdner’s perceptions and observations from
9
twenty-one years of experience covering civil
10
litigation, visiting courts, conferring with
11
court officials, and supervising other reporters
12
and editors. See, e.g., Girdner Decl., ¶¶ 1-4,
13
13-22. Alternatively, Mr. Girdner’s
14
statements are proper lay opinions under FRE
15
701 because his statements are rationally
16
based on his personal perceptions,
17
observations, experiences. See id. Mr.
18
Girdner’s statements also help provide a clear
19
understanding of how his prior experiences
20
with courts and media access procedures
21
relate to the issue of lack of timely media
22
access in the present case.
23
Girdner
Hearsay (FRE
Not hearsay: The challenged statements
24
Decl., ¶ 19
802); Lacks
regarding reasons for denying same-day
25
Foundation (FRE
access are not hearsay because they are not
26
104; FRE 1006);
being offered for the truth of the matters
27
Lacks Personal
stated but rather to show what Courthouse
28
9
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
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Case No. CV11-08083R (MANx)
1
Knowledge (FRE
News has been told by courts which, like
2
602); Irrelevant
Ventura County, refuse to provide timely
3
(FRE 402).
access to complaints. The remaining
4
statements in paragraph 19 are not hearsay
5
because they reflect Mr. Girdner’s own
6
observations and experiences regarding media
7
access to complaints based on his extensive
8
professional experience and personal
9
knowledge. See, e.g., Girdner Decl., ¶¶ 1-4,
10
13-22.
11
Foundation: Mr. Girdner’s declaration
12
provides the foundation for the statements in
13
paragraph 19, which is based on his personal
14
knowledge, experience, and observations
15
from his twenty-one years of covering civil
16
litigation, visiting courts, conferring with
17
court officials, and supervising other reporters
18
and editors. See, e.g., Girdner Decl., ¶¶ 1-4,
19
13-22. FRE 1006 is inapplicable because
20
paragraph 19 reflects Mr. Girdner’s personal
21
understanding of media access procedures
22
and it is not a summary of other more
23
voluminous writings.
24
Personal knowledge: As described above
25
and detailed in Mr. Girdner’s declaration (see
26
Girdner Decl., ¶¶ 1-4, 13-22), he has
27
extensive personal knowledge concerning
28
media access procedures in state and federal
10
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
courts across the country. Mr. Girdner has
2
reported on civil litigation for the past
3
twenty-one years since he founded
4
Courthouse News. He has personally visited
5
many state and federal courts. He has
6
engaged in discussions with court officials
7
about access policies and procedures. He also
8
supervises reporters and editors around the
9
country, who visit courthouses to review new
10
civil complaints on a daily basis.
11
Relevance: Paragraph 19 demonstrates that,
12
despite reasons identical to those proffered by
13
Defendant for not being able to provide same-
14
day access, courts have managed to provide
15
same-day access to new civil complaints.
16
This, in turn, goes to the fact that same-day
17
access in the present case is similarly
18
achievable notwithstanding Defendant’s
19
arguments against such access.
20
Girdner
Hearsay (FRE
Not hearsay: Paragraph 20 is not hearsay
21
Decl., ¶ 20
802); Lacks
because it is not an out-of-court statements,
22
Foundation (FRE
but rather reflects Mr. Girdner’s own
23
104); Lacks
observations and experiences regarding media
24
Personal
access to complaints based on his extensive
25
Knowledge (FRE
experience and personal knowledge from
26
602).
covering civil litigation, visiting courts,
conferring with court officials, and
27
28
11
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
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Case No. CV11-08083R (MANx)
1
supervising other reporters and editors. See,
2
e.g., Girdner Decl., ¶¶ 1-4, 13-22.
3
Foundation: Mr. Girdner’s declaration
4
provides the foundation for the statements in
5
paragraph 20, which is based on his personal
6
knowledge, experience, and observations
7
from his twenty-one years of covering civil
8
litigation, visiting courts, conferring with
9
court officials, and supervising other reporters
10
and editors. See, e.g., Girdner Decl., ¶¶ 1-4,
11
13-22.
12
Personal knowledge: As described above
13
and detailed in Mr. Girdner’s declaration (see
14
Girdner Decl., ¶¶ 1-4, 13-22), he has
15
extensive personal knowledge concerning
16
media access procedures in state and federal
17
courts across the country. He has reported on
18
civil litigation for the past twenty-one years
19
since he founded Courthouse News. He has
20
personally visited many state and federal
21
courts. He has engaged in discussions with
22
court officials about access policies and
23
procedures. He also supervises reporters and
24
editors around the country, who visit
25
courthouses to review new civil complaints
26
on a daily basis.
27
28
12
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
Girdner
Hearsay (FRE
Not hearsay: Paragraph 21 is not hearsay
2
Decl., ¶ 21
802); Lacks
because it is not an out-of-court statement,
3
Foundation (FRE
but rather reflects Mr. Girdner’s own
4
104, FRE 1006);
observations and experiences regarding media
5
Lacks Personal
access to complaints based on his extensive
6
Knowledge (FRE
experience and personal knowledge from
7
602); Improper
covering civil litigation, visiting courts,
8
Opinion
conferring with court officials, and
9
Testimony (FRE
supervising other reporters and editors. See,
701)
e.g., Girdner Decl., ¶¶ 1-4, 13-22.
10
11
Foundation: Mr. Girdner’s declaration
12
provides the foundation for the statements in
13
paragraph 21, which is based on his personal
14
knowledge, experience, and observations
15
from his twenty-one years of covering civil
16
litigation, visiting courts, conferring with
17
court officials, and supervising other reporters
18
and editors. See, e.g., Girdner Decl., ¶¶ 1-4,
19
13-22. FRE 1006 is inapplicable because
20
paragraph 21 reflects Mr. Girdner’s personal
21
understanding of media access procedures
22
and it is not a summary of other more
23
voluminous writings.
24
Personal knowledge: As described above
25
and detailed in Mr. Girdner’s declaration (see
26
Girdner Decl., ¶¶ 1-4, 13-22), he has
27
extensive personal knowledge concerning
28
media access procedures in state and federal
13
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
courts across the country. Mr. Girdner has
2
reported on civil litigation for the past
3
twenty-one years since he founded
4
Courthouse News. He has personally visited
5
many state and federal courts. He has
6
engaged in discussions with court officials
7
about access policies and procedures. He also
8
supervises reporters and editors around the
9
country, who visit courthouses to review new
10
civil complaints on a daily basis.
11
Not improper opinion: Paragraph 21 is not
12
improper opinion but rather reflects Mr.
13
Girdner’s perceptions and observations from
14
twenty-one years of covering civil litigation,
15
visiting courts, conferring with court officials,
16
and supervising other reporters and editors.
17
See, e.g., Girdner Decl., ¶¶ 1-4, 13-22.
18
Alternatively, Mr. Girdner’s statements are
19
proper lay opinions under FRE 701 because
20
his statements are rationally based on his
21
personal perceptions, observations,
22
experiences. See id. Mr. Girdner’s
23
statements also help provide a clear
24
understanding of how his prior experiences
25
with courts and media access procedures
26
relate to the issue of lack of timely media
27
access in the present case.
28
14
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
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Case No. CV11-08083R (MANx)
1
Girdner
Hearsay (FRE
Not hearsay: Paragraph 22 is not hearsay
2
Decl., ¶ 22
802); Lacks
because it is not an out-of-court statement,
3
Foundation (FRE
but rather reflects Mr. Girdner’s own
4
104); Lacks
observations and experiences regarding media
5
Personal
access to complaints based on his extensive
6
Knowledge (FRE
experience and personal knowledge from
7
602); Improper
covering civil litigation, visiting courts,
8
Opinion
conferring with court officials, and
9
Testimony (FRE
supervising other reporters and editors. See,
701).
e.g., Girdner Decl., ¶¶ 1-4, 13-22.
10
11
Foundation: Mr. Girdner’s declaration
12
provides the foundation for the statements in
13
paragraph 22, which is based on his personal
14
knowledge, experience, and observations
15
from his twenty-one years of covering civil
16
litigation, visiting courts, conferring with
17
court officials, and supervising other reporters
18
and editors. See, e.g., Girdner Decl., ¶¶ 1-4,
19
13-22.
20
Personal knowledge: As described above
21
and detailed in Mr. Girdner’s declaration (see
22
Girdner Decl., ¶¶ 1-4, 13-22), he has
23
extensive personal knowledge concerning
24
media access procedures in state and federal
25
courts across the country. He has reported on
26
civil litigation for the past twenty-one years
27
since he founded Courthouse News. He has
28
personally visited many state and federal
15
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
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Case No. CV11-08083R (MANx)
1
courts. He has engaged in discussions with
2
court officials about access policies and
3
procedures. He also supervises reporters and
4
editors around the country, who visit
5
courthouses to review new civil complaints
6
on a daily basis.
7
Not improper opinion: Paragraph 22 is not
8
improper opinion but rather reflects Mr.
9
Girdner’s perceptions and observations from
10
twenty-one years of experience covering civil
11
litigation, visiting courts, conferring with
12
court officials, and supervising other reporters
13
and editors. See, e.g., Girdner Decl., ¶¶ 1-4,
14
13-22. Alternatively, Mr. Girdner’s
15
statements are proper lay opinions under FRE
16
701 because his statements are rationally
17
based on his personal perceptions,
18
observations, experiences. See id. Mr.
19
Girdner’s statements also help provide a clear
20
understanding of how his prior experiences
21
with courts and media access procedures
22
relate to the issue of lack of timely media
23
access in the present case.
24
Girdner
Hearsay (FRE
Not hearsay: Paragraph 23 is not hearsay
25
Decl., ¶ 23
802); Lacks
because it is not an out-of-court statement,
26
Foundation (FRE
but rather reflects Mr. Girdner’s own
27
104; FRE 1006);
observations and experiences based on his
28
16
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
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1
Lacks Personal
personal involvement in and supervision of
2
Knowledge (FRE
efforts to obtain timely access to complaints
3
602).
at Ventura Superior. See, e.g., Girdner Decl.,
4
¶¶ 23-27.
5
Foundation: Mr. Girdner’s declaration
6
provides the foundation for the statements in
7
paragraph 23, which are based on his personal
8
knowledge, experience, and observations
9
from his twenty-one years of covering civil
10
litigation as well as his personal involvement
11
in and supervision of efforts to obtain timely
12
access to complaints at Ventura Superior.
13
See, e.g., Girdner Decl., ¶¶ 23-27. FRE 1006
14
is inapplicable because paragraph 23 reflects
15
Mr. Girdner’s personal understanding of
16
media access procedures as well as the
17
attempts that were made to obtain timely
18
access to complaints at Ventura Superior. It
19
is therefore not a summary of other more
20
voluminous writings within the scope of FRE
21
1006.
22
Personal knowledge: As described above
23
and detailed in Mr. Girdner’s declaration (see
24
Girdner Decl., ¶¶ 23-27), he was personally
25
involved in Courthouse News’ efforts to
26
obtain timely access to new civil complaints
27
at Ventura Superior. Mr. Girdner instructed
28
Mr. Marshall in his efforts to resolve the
17
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
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Case No. CV11-08083R (MANx)
1
dispute with the clerk’s office, to no avail.
2
Mr. Girdner directed Courthouse News’
3
counsel to raise Courthouse News’ concerns
4
with Defendant, which resulted in a
5
temporary improvement in access to
6
complaints. When access again deteriorated,
7
Mr. Girdner instructed Mr. Marshall to try
8
once again working with the clerk’s office,
9
which proved unsuccessful. Mr. Girdner
10
directed counsel to contact Defendant two
11
further times regarding Courthouse News’
12
concerns. Mr. Girdner therefore has
13
extensive personal knowledge of Courthouse
14
News’ attempts to work cooperatively with
15
Defendant.
16
Girdner
Hearsay (FRE
Not hearsay: The challenged statements in
17
Decl., ¶ 28
802); Lacks
paragraph 24 are not hearsay because they are
18
[sic]
Foundation (FRE
not out-of-court statements, but rather reflect
19
[Appears to
104; FRE 1006);
Mr. Girdner’s recollections of the efforts that
20
be Girdner
Lacks Personal
were made to work cooperatively with the
21
Decl., ¶ 24]
Knowledge (FRE
clerk’s office to obtain timely access to
22
602); Best
complaints, based on his personal
23
Evidence Rule
involvement in and supervision of same. See,
24
(FRE 1002).
e.g., Girdner Decl., ¶¶ 23-27.
25
Foundation: Mr. Girdner’s declaration
26
provides the foundation for the statements in
27
paragraph 24, which is based on his personal
28
18
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
involvement in and supervision of efforts to
2
obtain timely access to complaints at Ventura
3
Superior. See, e.g., Girdner Decl., ¶¶ 23-27.
4
FRE 1006 is inapplicable because paragraph
5
24 reflects Mr. Girdner’s personal
6
understanding of the attempts that were made
7
to obtain timely access to complaints at
8
Ventura Superior and it is not a summary of
9
other more voluminous writings.
10
Personal knowledge: As described above
11
and detailed in Mr. Girdner’s declaration (see
12
Girdner Decl., ¶¶ 23-27), he was personally
13
involved in Courthouse News’ efforts to
14
obtain timely access to new civil complaints
15
at Ventura Superior. Mr. Girdner instructed
16
Mr. Marshall in his efforts to resolve the
17
dispute with the clerk’s office, to no avail.
18
Mr. Girdner directed counsel to raise
19
Courthouse News’ concerns with Defendant,
20
which resulted in a temporary improvement
21
in access to complaints. When access again
22
deteriorated, Mr. Girdner instructed Mr.
23
Marshall to try once again working with the
24
clerk’s office, which proved unsuccessful.
25
Mr. Girdner directed counsel to contact
26
Defendant two further times regarding
27
Courthouse News’ concerns. Mr. Girdner
28
therefore has extensive personal knowledge
19
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
of Courthouse News’ attempts to work
2
cooperatively with the clerk’s office of
3
Ventura Superior.
4
Not within FRE 1002: FRE 1002 is
5
inapplicable because Defendant is not
6
challenging the contents of Exhibit 5 but only
7
Mr. Girdner’s statements regarding Exhibit 5.
8
See Gonzales-Benitez, 537 F.2d at 1053-54.
9
Moreover, “FRE 1002 does not prevent the
10
parties from relying on other evidence, such
11
as declarations ... to describe or characterize
12
the document.” K&N Eng’g, Inc., 2011 U.S.
13
Dist. LEXIS 107681, at *4-5 & n.3.
14
Girdner
Hearsay (FRE
Not hearsay: Paragraph 25 is not hearsay
15
Decl., ¶ 25
802); Lacks
because it does not contain out-of-court
16
Foundation (FRE
statements, but rather reflects Mr. Girdner’s
17
104; FRE 1006);
recollections of the efforts that were made to
18
Lacks Personal
work cooperatively with the clerk’s office to
19
Knowledge (FRE
obtain timely access to complaints, based on
20
602); Best
his personal involvement in and supervision
21
Evidence Rule
of the same. See, e.g., Girdner Decl., ¶¶ 23-
22
(FRE 1002).
27.
23
Foundation: Mr. Girdner’s declaration
24
provides the foundation for the statements in
25
paragraph 25, which is based on his personal
26
knowledge, experience, and observations
27
from his twenty-one years of covering civil
28
20
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
litigation as well as his personal involvement
2
in and supervision of efforts to obtain timely
3
access to complaints at Ventura Superior.
4
See, e.g., Girdner Decl., ¶¶ 23-27. FRE 1006
5
is inapplicable because paragraph 25 reflects
6
Mr. Girdner’s personal understanding of
7
media access procedures as well as the
8
attempts that were made to obtain timely
9
access to complaints at Ventura Superior. It
10
is therefore not a summary of other more
11
voluminous writings within the scope of FRE
12
1006.
13
Personal knowledge: As described above
14
and detailed in Mr. Girdner’s declaration (see
15
Girdner Decl., ¶¶ 23-27), he was personally
16
involved in Courthouse News’ efforts to
17
obtain timely access to new civil complaints
18
at Ventura Superior. Mr. Girdner instructed
19
Mr. Marshall in his efforts to resolve the
20
dispute with the clerk’s office, to no avail.
21
Mr. Girdner directed counsel to raise
22
Courthouse News’ concerns with Defendant,
23
which resulted in a temporary improvement
24
in access to complaints. When access again
25
deteriorated, Mr. Girdner instructed Mr.
26
Marshall to try once again working with the
27
clerk’s office, which proved unsuccessful.
28
Mr. Girdner directed counsel to contact
21
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
Defendant two further times regarding
2
Courthouse News’ concerns. Mr. Girdner
3
therefore has extensive personal knowledge
4
of Courthouse News’ attempts to work
5
cooperatively with the clerk’s office of
6
Ventura Superior.
7
Not within FRE 1002: FRE 1002 is
8
inapplicable because Defendant is not
9
challenging the contents of Exhibit 6 but only
10
Mr. Girdner’s statements regarding Exhibit 6.
11
See Gonzales-Benitez, 537 F.2d at 1053-54.
12
Moreover, “FRE 1002 does not prevent the
13
parties from relying on other evidence, such
14
as declarations ... to describe or characterize
15
the document.” K&N Eng’g, Inc., 2011 U.S.
16
Dist. LEXIS 107681, at *4-5 & n.3.
17
Girdner
Hearsay (FRE
Not hearsay: The challenged statements in
18
Decl., ¶ 27
802); Lacks
paragraph 27 are not hearsay because they are
19
Foundation (FRE
not out-of-court statements, but rather reflect
20
104; FRE 1006);
Mr. Girdner’s recollections of the efforts that
21
Lacks Personal
were made to work cooperatively with the
22
Knowledge (FRE
clerk’s office to obtain timely access to
23
602); Best
complaints, based on his personal
24
Evidence Rule
involvement in and supervision of same. See,
25
(FRE 1002).
e.g., Girdner Decl., ¶¶ 23-27.
26
Foundation: Mr. Girdner’s declaration
27
provides the foundation for the statements in
28
22
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
paragraph 27, which is based on his personal
2
knowledge, experience, and observations
3
from his twenty-one years of covering civil
4
litigation as well as his personal involvement
5
in and supervision of efforts to obtain timely
6
access to complaints at Ventura Superior.
7
See, e.g., Girdner Decl., ¶¶ 23-27. FRE 1006
8
is inapplicable because paragraph 27 reflects
9
Mr. Girdner’s personal understanding of
10
media access procedures as well as the
11
attempts that were made to obtain timely
12
access to complaints at Ventura Superior. It
13
is therefore not a summary of other more
14
voluminous writings within the scope of FRE
15
1006.
16
Personal knowledge: As described above
17
and detailed in Mr. Girdner’s declaration (see
18
Girdner Decl., ¶¶ 23-27), he was personally
19
involved in Courthouse News’ efforts to
20
obtain timely access to new civil complaints
21
at Ventura Superior. Mr. Girdner instructed
22
Mr. Marshall in his efforts to resolve the
23
dispute with the clerk’s office, to no avail.
24
Mr. Girdner directed counsel to raise
25
Courthouse News’ concerns with Defendant,
26
which resulted in a temporary improvement
27
in access to complaints. When access again
28
deteriorated, Mr. Girdner instructed Mr.
23
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
Marshall to try once again working with the
2
clerk’s office, which proved unsuccessful.
3
Mr. Girdner directed counsel to contact
4
Defendant two further times regarding
5
Courthouse News’ concerns. Mr. Girdner
6
therefore has extensive personal knowledge
7
of Courthouse News’ attempts to work
8
cooperatively with the clerk’s office of
9
Ventura Superior.
10
Not within FRE 1002: FRE 1002 is
11
inapplicable because Defendant is not
12
challenging the contents of Exhibit 8 but only
13
Mr. Girdner’s statements regarding Exhibit 8.
14
See Gonzales-Benitez, 537 F.2d at 1053-54.
15
Moreover, “FRE 1002 does not prevent the
16
parties from relying on other evidence, such
17
as declarations ... to describe or characterize
18
the document.” K&N Eng’g, Inc., 2011 U.S.
19
Dist. LEXIS 107681, at *4-5 & n.3.
20
Girdner
Hearsay (FRE
Not hearsay: Paragraph 28 is not hearsay
21
Decl., ¶ 28
802); Lacks
because it does not contain an out-of-court
22
Foundation (FRE
statement, but rather reflects Mr. Girdner’s
23
104); Lacks
personal knowledge and perceptions based on
24
Personal
twenty-one years of experience both as a
25
Knowledge (FRE
reporter and running a nationwide legal news
26
602); Irrelevant
service. See, e.g., Girdner Decl., ¶¶ 1-12, 28-
27
(FRE 402);
32.
28
24
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
Improper Opinion
Foundation: Mr. Girdner’s declaration
2
Testimony (FRE
provides the foundation for the statements in
3
701).
paragraph 28, which are based on his personal
4
knowledge, experience, and observations
5
from his twenty-one years of both covering
6
civil litigation as a reporter and running a
7
nationwide legal news service with thousands
8
of subscribers, including lawyers, law firms,
9
media organizations, academic institutions,
10
and libraries. See, e.g., Girdner Decl., ¶¶ 1-
11
12.
12
Personal knowledge: As described above
13
and detailed in Mr. Girdner’s declaration (see
14
Girdner Decl., ¶¶ 1-12, 28-32), he founded
15
Courthouse News, served as a reporter,
16
expanded its coverage, and built the
17
publication into a nationwide legal news
18
service with 3,000 subscribers and a heavily
19
trafficked website. He therefore has personal
20
knowledge regarding the harmful
21
implications from delays in accessing
22
complaints, both from the perspective of a
23
journalist trying to provide timely coverage of
24
news and from the perspective of an editor
25
trying to provide his subscribers with current
26
information.
27
Relevance: Paragraph 28 conveys facts,
28
based on Mr. Girdner’s personal knowledge
25
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
and experience, that bear directly upon the
2
irreparable harm that Courthouse News is
3
experiencing due to Defendant’s [practice of
4
not allowing Courthouse News’ reporter to
5
access new complaints until after they have
6
been fully processed, thus resulting in a
7
denial of same-day access.
8
Not improper opinion: Paragraph 28 is not
9
improper opinion but rather reflects Mr.
10
Girdner’s personal knowledge, experience,
11
and observations from his twenty-one years
12
of both covering civil litigation as a reporter
13
and running a nationwide legal news service
14
with thousands of subscribers. See, e.g.,
15
Girdner Decl., ¶¶ 1-12, 28-32. Alternatively,
16
Mr. Girdner’s statements are proper lay
17
opinions under FRE 701 because his
18
statements are rationally based on his
19
personal perceptions, observations,
20
experiences. See id. Mr. Girdner’s
21
statements also help to illustrate, based on his
22
experience, the harms resulting from a lack of
23
timely media access, as in the present case.
24
Girdner
Irrelevant (FRE
Relevance: Paragraph 29 conveys facts,
25
Decl., ¶ 29
402).
based on Mr. Girdner’s personal knowledge
26
and experience, that bear directly upon the
27
harms arising from Defendant’s practice of
28
26
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
not allowing Courthouse News’ reporter to
2
access new complaints until after they have
3
been fully processed, thus resulting in a
4
denial of same-day access. In addition to
5
preventing members of the news media from
6
covering new civil complaints, impeding the
7
timely dissemination of news, and preventing
8
Courthouse News from providing its
9
subscribers with current information,
10
Defendant’s delays are harming the public’s
11
ability to obtain timely access to court
12
proceedings.
13
Girdner
Irrelevant (FRE
Relevance: Paragraph 30 conveys facts,
14
Decl., ¶ 30
402); Improper
based on Mr. Girdner’s personal knowledge
15
Opinion
and experience, that bear directly upon the
16
Testimony (FRE
harms arising from Defendant’s practice of
17
701).
not allowing Courthouse News’ reporter to
18
access new complaints until after they have
19
been fully processed, thus resulting in a
20
denial of same-day access. In addition to
21
preventing journalists from covering new
22
complaints, impeding the timely
23
dissemination of news, and preventing
24
Courthouse News from providing its
25
subscribers with current information,
26
Defendant’s delays are harming the public’s
27
ability to obtain timely information on
28
27
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
important current events.
2
Not improper opinion: Paragraph 30 is not
3
improper opinion but rather reflects Mr.
4
Girdner’s personal knowledge, experience,
5
and observations from his twenty-one years
6
of both covering civil litigation as a reporter
7
and running a nationwide legal news service
8
with thousands of subscribers. See, e.g.,
9
Girdner Decl., ¶¶ 1-12, 28-32. Alternatively,
10
Mr. Girdner’s statements are proper lay
11
opinions under FRE 701 because his
12
statements are rationally based on his
13
personal perceptions, observations,
14
experiences. See id. Mr. Girdner’s
15
statements also help to illustrate, based on his
16
experience, the harms resulting from a lack of
17
timely media access, as in the present case.
18
Girdner
Irrelevant (FRE
Relevance: Paragraph 31 conveys facts,
19
Decl., ¶ 31
402); Improper
based on Mr. Girdner’s personal knowledge
20
Opinion
and experience, that illustrate the nature of
21
Testimony (FRE
the harms that arise from Defendant’s
22
701).
practice of not allowing Courthouse News’
23
reporter to access new complaints until after
24
they have been fully processed, thus resulting
25
in a denial of same-day access. In addition to
26
preventing journalists from covering new
27
complaints, impeding the timely
28
28
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
dissemination of news, and preventing
2
Courthouse News from providing its
3
subscribers with current information,
4
Defendant’s delays are harming the public’s
5
ability to obtain timely information on
6
important current events.
7
Not improper opinion: Paragraph 31 is not
8
improper opinion but rather reflects Mr.
9
Girdner’s personal knowledge, experience,
10
and observations from his twenty-one years
11
of both covering civil litigation as a reporter
12
and running a nationwide legal news service
13
with thousands of subscribers. See, e.g.,
14
Girdner Decl., ¶¶ 1-12, 28-32. Alternatively,
15
Mr. Girdner’s statements are proper lay
16
opinions under FRE 701 because his
17
statements are rationally based on his
18
personal perceptions, observations and
19
experiences. See id. Mr. Girdner’s
20
statements also help to illustrate, based on his
21
experience, the harms resulting from a lack of
22
timely media access, as in the present case.
23
Girdner
Irrelevant (FRE
Relevance: Paragraph 32 conveys facts,
24
Decl., ¶ 32
402); Improper
based on Mr. Girdner’s personal knowledge
25
Opinion
and experience, that illustrate the nature of
26
Testimony (FRE
the harms that arise from Defendant’s
27
701).
practice of not allowing Courthouse News’
28
29
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
reporter to access new complaints until after
2
they have been fully processed, thus resulting
3
in a denial of same-day access. In addition to
4
preventing journalists from covering new
5
complaints, impeding the timely
6
dissemination of news, and preventing
7
Courthouse News from providing its
8
subscribers with current information,
9
Defendant’s delays are harming the public’s
10
ability to obtain timely information on
11
important current events.
12
Not improper opinion: Paragraph 32 is not
13
improper opinion but rather reflects Mr.
14
Girdner’s personal knowledge, experience,
15
and observations from his twenty-one years
16
of both covering civil litigation as a reporter
17
and running a nationwide legal news service
18
with thousands of subscribers. See, e.g.,
19
Girdner Decl., ¶¶ 1-12, 28-32. Alternatively,
20
Mr. Girdner’s statements are proper lay
21
opinions under FRE 701 because his
22
statements are rationally based on his
23
personal perceptions, observations,
24
experiences. See id. Mr. Girdner’s
25
statements also help to illustrate, based on his
26
experience, the harms resulting from a lack of
27
timely media access, as in the present case.
28
30
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
RESPONSES TO DEFENDANT’S OBJECTIONS TO THE DECLARATION
2
OF CHRISTOPHER MARSHALL
3
4
Evidence
Objections
Response
5
Marshall
Lacks Foundation
Foundation and Personal knowledge: Mr.
6
Decl., ¶ 3
(FRE 104); Lacks
Marshall’s declaration provides the
7
Personal
foundation for the challenged statements in
8
Knowledge (FRE
paragraph 3, which are based on his personal
9
602); Improper
knowledge, experience, and observations
10
Opinion
from working as a reporter covering state and
11
Testimony (FRE
federal courts since 2006 and as bureau chief
12
701).
supervising reporters in California and
13
Nevada since 2007. See Marshall Decl., ¶¶ 2-
14
6. In addition to reporting on new complaints
15
filed in the U.S. District Court for the
16
Northern District of California, Mr. Marshall
17
routinely visits many other state and federal
18
courts that are under his supervision and has
19
kept apprised of the courts’ respective access
20
policies and procedures. Id. As a long-time
21
employee and current bureau chief for
22
Courthouse News, he has personal knowledge
23
of how the term “same-day access” is used
24
within the company. See id.
25
Not improper opinion: The challenged
26
statements in paragraph 3 are not improper
27
opinions but rather reflect Mr. Marshall’s
28
31
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
personal knowledge and observations as a
2
reporter covering state and federal courts and
3
as a bureau chief supervising reporters in
4
California and Nevada. See, e.g., Marshall
5
Decl., ¶¶ 2-6. Alternatively, Mr. Marshall’s
6
statements are proper lay opinions under FRE
7
701 because his statements are rationally
8
based on his perceptions, observations and
9
experiences. See id. Mr. Marshall’s
10
statements also help demonstrate that same-
11
day access is a routine, traditional and
12
common practice among the many courts
13
with which he has experience. In that respect,
14
Mr. Marshall is not providing legal
15
conclusions but simply relating his personal
16
experiences.
17
Marshall
Hearsay (FRE
Not hearsay: The challenged statements in
18
Decl., ¶ 4
802); Lacks
paragraph 4 are not hearsay because they do
19
Foundation (FRE
not contain out-of-court statements, but rather
20
104); Lacks
reflect Mr. Marshall’s own observations and
21
Personal
experiences regarding media access to
22
Knowledge (FRE
complaints based on his extensive experience
23
602).
and personal knowledge from reporting on
24
civil litigation and from visiting courts in
25
connection with his role supervising other
26
reporters. See, e.g., Marshall Decl., ¶¶ 2-7.
27
Foundation and Personal knowledge: Mr.
28
32
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
Marshall’s declaration provides the
2
foundation for the challenged statements in
3
paragraph 4, which are based on his personal
4
knowledge, experience, and observations
5
from working as a reporter covering state and
6
federal courts since 2006 and as bureau chief
7
supervising reporters in California and
8
Nevada since 2007. See Marshall Decl., ¶¶ 2-
9
6. In addition to reporting on new complaints
10
filed in the U.S. District Court for the
11
Northern District of California, he routinely
12
visits many state and federal courts that are
13
under his supervision, which include the
14
District Courts for the U.S. District Court for
15
the Northern District of California, and has
16
kept apprised of the courts’ respective access
17
policies and procedures. Id.
18
Marshall
Hearsay (FRE
Not hearsay: Paragraphs 5-7 are not hearsay
19
Decl., ¶¶ 5-7
802); Lacks
because they do not contain out-of-court
20
Foundation (FRE
statements, but rather reflect Mr. Marshall’s
21
104); Lacks
own observations and experiences regarding
22
Personal
media access to complaints based on his
23
Knowledge (FRE
extensive experience and personal knowledge
24
602).
from reporting on civil litigation and from
25
visiting courts in connection with his role
26
supervising other reporters. See, e.g.,
27
Marshall Decl., ¶¶ 2-7.
28
33
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
Foundation and Personal knowledge: Mr.
2
Marshall’s declaration provides the
3
foundation for the challenged statements in
4
paragraphs 5-7, which are based on his
5
personal knowledge, experience, and
6
observations from working as a reporter
7
covering state and federal courts since 2006
8
and as bureau chief supervising reporters in
9
California and Nevada since 2007. Id. He
10
routinely visits many state and federal courts
11
that are under his supervision, which include
12
courts in California and Nevada, and has kept
13
apprised of the courts’ respective access
14
policies and procedures. Id. With respect to
15
Ms. Krolak’s work in particular, Mr. Marshall
16
has been her supervisor since 2007 and
17
therefore has personal knowledge of her role,
18
her responsibilities, her job performance, and
19
her new litigation reports. Id. ¶¶ 7-8.
20
Marshall
Hearsay (FRE
21
Decl., ¶¶ 8-10 802); Lacks
Not hearsay: Paragraph 8 is not hearsay
because it does not contain any out-of-court
22
Foundation (FRE
statement, but rather reflects Mr. Marshall’s
23
104); Lacks
own understanding of media access policies
24
Personal
and procedures at Ventura Superior during
25
Knowledge (FRE
the time period indicated. Paragraphs 9-10
26
602).
are also not hearsay because the statements
are not being offered for the truth of the
27
28
34
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
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Case No. CV11-08083R (MANx)
1
matters asserted but rather to show that Mr.
2
Marshall received the information and
3
followed up on it with personnel in the clerk’s
4
office, to no avail, which necessitated further
5
follow up by Courthouse News with
6
Defendant. See Marshall Decl., ¶¶ 8-11.
7
Foundation and Personal knowledge: Mr.
8
Marshall’s declaration provides the
9
foundation for the challenged statements,
10
which are based on his personal knowledge,
11
experience, and observations from working as
12
a reporter covering state and federal courts
13
since 2006 and as bureau chief supervising
14
reporters in California and Nevada since
15
2007. Id. He routinely visits many state and
16
federal courts that are under his supervision,
17
which include courts in California and
18
Nevada, and has kept apprised of the courts’
19
respective access policies and procedures. Id.
20
With respect to Ms. Krolak’s work in
21
particular, Mr. Marshall has been her
22
supervisor since 2007 and therefore has
23
personal knowledge of her role, her
24
responsibilities, her job performance, and her
25
new litigation reports.
26
Marshall
Hearsay (FRE
Not hearsay: Paragraph 11 is not hearsay
27
Decl., ¶ 11
802); Lacks
because it does not contain any out-of-court
28
35
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
Foundation (FRE
statement that is being offered for its truth but
2
104; FRE 1006);
rather reflects Mr. Marshall’s personal
3
Lacks Personal
knowledge of Courthouse News’ attempts to
4
Knowledge (FRE
work cooperatively with the clerk’s office of
5
602); Best
Ventura Superior.
6
Evidence Rule
Foundation and Personal knowledge: As
7
(FRE 1002).
bureau chief, Mr. Marshall had hands-on,
8
personal involvement in Courthouse News’
9
efforts to obtain timely access to new civil
10
complaints at Ventura Superior. He
11
attempted at various times to resolve access
12
issues with personnel in the clerk’s office,
13
and participated in meetings to discuss
14
potential solutions. Marshall Decl., ¶¶ 9-14.
15
Mr. Marshall also received and/or authored
16
copies of correspondence on this issue,
17
including Exhibits1-7 to his declaration. Mr.
18
Marshall therefore has extensive personal
19
knowledge – and was kept apprised – of
20
Courthouse News’ attempts to work
21
cooperatively with the clerk’s office of
22
Ventura Superior. Id. FRE 1006 is
23
inapplicable because paragraph 11 reflects
24
Mr. Marshall’s personal knowledge regarding
25
efforts to resolve access issues. It is therefore
26
not a summary of other more voluminous
27
writings within the scope of FRE 1006.
28
Not within FRE 1002: FRE 1002 is
36
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
inapplicable because Defendant is not
2
challenging the contents of Exhibit 1 but only
3
Mr. Marshall’s statements regarding Exhibit
4
1. See Gonzales-Benitez, 537 F.2d at 1053-
5
54. Moreover, “FRE 1002 does not prevent
6
the parties from relying on other evidence,
7
such as declarations ... to describe or
8
characterize the document.” K&N Eng’g,
9
Inc., 2011 U.S. Dist. LEXIS 107681, at *4-5
& n.3.
10
11
Marshall
Best Evidence
Not within FRE 1002: FRE 1002 is
12
Decl., ¶ 12
Rule (FRE 1002).
inapplicable because Defendant is not
13
challenging the contents of Exhibit 2 but only
14
Mr. Marshall’s statements regarding Exhibit
15
2. See Gonzales-Benitez, 537 F.2d at 1053-
16
54. Moreover, “FRE 1002 does not prevent
17
the parties from relying on other evidence,
18
such as declarations ... to describe or
19
characterize the document.” K&N Eng’g,
20
Inc., 2011 U.S. Dist. LEXIS 107681, at *4-5
21
& n.3.
22
Marshall
Hearsay (FRE
Not hearsay: The challenged statement in
23
Decl., ¶ 13
802); Lacks
paragraph 13 is not hearsay because it does
24
Foundation (FRE
not reflect an out-of-court statement but
25
104); Lacks
rather Mr. Marshall’s personal knowledge of
26
Personal
Ms. Krolak’s schedule based on his role as
27
Knowledge (FRE
her supervisor. See Marshall Decl., ¶¶ 7-8.
28
37
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
602); Irrelevant
Foundation and Personal knowledge: Mr.
2
(FRE 402).
Marshall has been Ms. Krolak’s supervisor
3
since 2007 and has personal knowledge of her
4
role, responsibilities, and job performance.
5
He receives regular reports from Ms. Krolak
6
regarding her visits to Ventura Superior, and
7
is therefore knowledgeable as to her schedule.
8
Id.
9
Relevance: The challenged statement in
10
paragraph 13 should be considered in the
11
context of the remainder of the paragraph,
12
which Defendant has not challenged. The
13
paragraph in its entirety is relevant to
14
Courthouse News’ unsuccessful efforts to
15
obtain timely access to new civil complaints
16
at Ventura Superior, including Mr. Marshall’s
17
attempts to resolve access issues by meeting
18
with relevant personnel and the alteration of
19
Ms. Krolak’s schedule to try working around
20
the limitations imposed by the clerk’s office.
21
Marshall
Hearsay (FRE
Not hearsay: The challenged statements in
22
Decl., ¶ 15
802); Lacks
paragraph 15 are not hearsay because they do
23
Foundation (FRE
not reflect out-of-court statements but rather
24
104; FRE 1006);
show Mr. Marshall’s understanding of how
25
Lacks Personal
media access policies and procedures at
26
Knowledge (FRE
Ventura Superior were being implemented
27
602).
during this time period. These statements are
28
38
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
also not hearsay because they are not being
2
offered for their truth but rather to show that
3
Mr. Marshall received the information, which
4
prompted him to change Ms. Krolak’s
5
schedule and to follow up again with
6
personnel in the clerk’s office, to no avail.
7
See Marshall Decl., ¶¶ 15-16.
8
Foundation and Personal knowledge: Mr.
9
Marshall has been Ms. Krolak’s supervisor
10
since 2007 and has personal knowledge of her
11
role, responsibilities, and job performance.
12
He receives regular reports from Ms. Krolak
13
regarding her visits to Ventura Superior, and
14
is therefore knowledgeable of her efforts to
15
obtain same-day access to new civil
16
complaints. See id. ¶¶ 7-8, 15. FRE 1006 is
17
inapplicable because paragraph 15 reflects
18
Mr. Marshall’s personal understanding of
19
how media access policies and procedures at
20
Ventura Superior were being implemented. It
21
is therefore not a summary of other more
22
voluminous writings within the scope of FRE
23
1006.
24
Marshall
Hearsay (FRE
Not hearsay: The challenged statement in
25
Decl., ¶ 17
802); Lacks
paragraph 17 is not hearsay because it is not
26
Foundation (FRE
an out-of-court statement but rather Mr.
27
104; FRE 1006);
Marshall’s understanding as to the number of
28
39
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
Lacks Personal
new unlimited complaints filed each day. See
2
Knowledge (FRE
Marshall Decl., ¶ 17.
3
602).
Foundation and Personal knowledge: Mr.
4
Marshall has been Ms. Krolak’s supervisor
5
since 2007 and receives regular reports from
6
her regarding her visits to Ventura Superior.
7
See id. ¶¶ 7-8. Mr. Marshall also has been
8
involved in Courthouse News’ efforts to
9
obtain timely access to new civil complaints
10
at Ventura Superior and has personally
11
discussed issues concerning access to new
12
civil complaints with personnel in the clerk’s
13
office. See id. ¶¶ 13, 16, 17. FRE 1006 is
14
inapplicable because paragraph 17 reflects
15
Mr. Marshall’s personal understanding of
16
how media access policies and procedures at
17
Ventura Superior were being implemented. It
18
is therefore not a summary of other more
19
voluminous writings within the scope of FRE
20
1006.
21
Marshall
Hearsay (FRE
Not hearsay: Paragraph 18 is not hearsay
22
Decl., ¶ 18
802); Lacks
because it does not contain any out-of-court
23
Foundation (FRE
statements but rather describes Mr.
24
104; FRE 1006);
Marshall’s actions and his personal
25
Lacks Personal
observations regarding Courthouse News’
26
Knowledge (FRE
inability to obtain timely access to new civil
27
602).
complaints.
28
40
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
Foundation and Personal knowledge: As
2
bureau chief, Mr. Marshall had hands-on,
3
personal involvement in Courthouse News’
4
efforts to obtain timely access to new civil
5
complaints at Ventura Superior. He
6
attempted at various times to resolve access
7
issues with personnel in the clerk’s office,
8
and participated in meetings to discuss
9
potential solutions. Marshall Decl., ¶¶ 9-14,
10
16-17. Paragraph 18 describes additional
11
actions taken by Mr. Marshall to determine if
12
efforts to resolve the access problems were
13
having any success, and reflects his personal
14
views that those efforts were not in fact
15
improving access but rather worsening the
16
delays. Id. ¶ 18. FRE 1006 is inapplicable
17
because paragraph 18 reflects Mr. Marshall’s
18
personal knowledge regarding efforts to
19
resolve access issues. It is therefore not a
20
summary of other more voluminous writings
21
within the scope of FRE 1006.
22
Marshall
Hearsay (FRE
Not hearsay: The challenged statements in
23
Decl., ¶ 19
802); Lacks
paragraph 19 are not hearsay because they do
24
Foundation (FRE
not reflect out-of-court statements that are
25
104; FRE 1006);
being offered for their truth but rather Mr.
26
Lacks Personal
Marshall’s personal knowledge of Courthouse
27
Knowledge (FRE
News’ attempts to work cooperatively with
28
41
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
602); Best
the clerk’s office of Ventura Superior.
2
Evidence Rule
Foundation and Personal knowledge: As
3
(FRE 1002).
bureau chief, Mr. Marshall had hands-on,
4
personal involvement in Courthouse News’
5
efforts to obtain timely access to new civil
6
complaints at Ventura Superior. He
7
attempted at various times to resolve access
8
issues with personnel in the clerk’s office,
9
and participated in meetings to discuss
10
potential solutions. Marshall Decl., ¶¶ 9-14.
11
Mr. Marshall also received and/or authored
12
copies of correspondence on this issue,
13
including Exhibits 1-7 to his declaration. Mr.
14
Marshall therefore has extensive personal
15
knowledge – and was kept apprised – of
16
Courthouse News’ attempts to work
17
cooperatively with the clerk’s office of
18
Ventura Superior. Id. FRE 1006 is
19
inapplicable because paragraph 19 reflects
20
Mr. Marshall’s personal knowledge regarding
21
efforts to resolve access issues. It is therefore
22
not a summary of other more voluminous
23
writings within the scope of FRE 1006.
24
Not within FRE 1002: FRE 1002 is
25
inapplicable because Defendant is not
26
challenging the contents of Exhibit 5 but only
27
Mr. Marshall’s statements regarding Exhibit
28
5. See Gonzales-Benitez, 537 F.2d at 105342
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
54. Moreover, “FRE 1002 does not prevent
2
the parties from relying on other evidence,
3
such as declarations ... to describe or
4
characterize the document.” K&N Eng’g,
5
Inc., 2011 U.S. Dist. LEXIS 107681, at *4-5
6
& n.3.
7
Marshall
Hearsay (FRE
Not hearsay: Paragraph 20 is not hearsay
8
Decl., ¶ 20
802); Lacks
because it does not contain any out-of-court
9
Foundation (FRE
statements that are being offered for their
10
104; FRE 1006);
truth but rather reflects Mr. Marshall’s
11
Lacks Personal
personal knowledge of Courthouse News’
12
Knowledge (FRE
attempts to work cooperatively with the
13
602); Best
clerk’s office of Ventura Superior. To the
14
Evidence Rule
extent paragraph 20 references a statement
15
(FRE 1002).
made by Defendant, it is a party admission
16
and not hearsay.
17
Foundation and Personal knowledge: As
18
bureau chief, Mr. Marshall had hands-on,
19
personal involvement in Courthouse News’
20
efforts to obtain timely access to new civil
21
complaints at Ventura Superior. He
22
attempted at various times to resolve access
23
issues with personnel in the clerk’s office,
24
and participated in meetings to discuss
25
potential solutions. Marshall Decl., ¶¶ 9-14.
26
Mr. Marshall also received and/or authored
27
copies of correspondence on this issue,
28
43
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
including Exhibits 1-7 to his declaration. Mr.
2
Marshall therefore has extensive personal
3
knowledge – and was kept apprised – of
4
Courthouse News’ attempts to work
5
cooperatively with the clerk’s office of
6
Ventura Superior. Id. Because he currently
7
serves as bureau chief with responsibility for
8
courts that include Ventura Superior, he has
9
personal knowledge and experience with
10
Courthouse News’ ongoing inability to obtain
11
same-day access to new civil complaints filed
12
there. FRE 1006 is inapplicable because
13
paragraph 20 reflects Mr. Marshall’s personal
14
knowledge regarding efforts to resolve access
15
issues. It is therefore not a summary of other
16
more voluminous writings within the scope of
17
FRE 1006.
18
Not within FRE 1002: FRE 1002 is
19
inapplicable because Defendant is not
20
challenging the contents of Exhibit 7 but only
21
Mr. Marshall’s statements regarding Exhibit
22
7. See Gonzales-Benitez, 537 F.2d at 1053-
23
54. Moreover, “FRE 1002 does not prevent
24
the parties from relying on other evidence,
25
such as declarations ... to describe or
26
characterize the document.” K&N Eng’g,
27
Inc., 2011 U.S. Dist. LEXIS 107681, at *4-5
28
& n.3.
44
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
1
Date: November 7, 2011
HOLME ROBERTS & OWEN LLP
RACHEL MATTEO-BOEHM
DAVID GREENE
LEILA KNOX
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3
4
By:
5
6
/s/ Rachel Matteo-Boehm
Rachel Matteo-Boehm
Attorneys for Plaintiff
COURTHOUSE NEWS SERVICE
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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45
COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
OBJECTIONS TO GIRDNER AND MARSHALL DECLARATIONS
#75592 v1 saf
Case No. CV11-08083R (MANx)
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