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)
[e-mail]
David Greene (SBN 160107)
[e-mail]
Leila C. Knox (SBN 245999)
[e-mail]
HOLME ROBERTS & OWEN LLP
560 Mission Street, Suite 250
San Francisco, CA 94105-2994
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
COURTHOUSE NEWS SERVICE

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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Courthouse News Service,

CASE NO. CV11-08083 R (MANx)

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Plaintiff,

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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

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Defendant.

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Date:
Time:
Courtroom:
Judge:

Nov. 21, 2011
10:00 am
G-8 (2nd Floor)
The Hon. Manuel L. Real

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COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
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Case No. CV11-08083R (MANx)

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Plaintiff Courthouse News Service (“Courthouse News”) hereby submits the

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following responses to Defendant Michael Planet’s evidentiary objections to the

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September 27, 2011, Declaration of William Girdner and September 28, 2011,

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Declaration of Christopher Marshall, which Courthouse News submitted in support of

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its motion for a preliminary injunction.

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While Defendant’s objections are without merit, as described further below, it

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should be noted that the Court has discretion to consider otherwise inadmissible

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evidence for purposes of deciding whether to issue a preliminary injunction. See Flynt

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Distrib. Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) (“The trial court may

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give even inadmissible evidence some weight, when to do so serves the purpose of

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preventing irreparable harm before trial.”); Puricle, Inc. v. Church & Dwight Co., 568

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F. Supp. 2d 1144, 1147 (C.D. Cal. 2008) (“The exigencies of preliminary relief often

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prevent the movant from procuring supporting evidence in a form that would meet

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Rule 56(e)’s requirement of evidence admissible at trial.”) (citation omitted)).

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Accordingly, even if the Court should find that any of the challenged evidence

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in the Girdner and Marshall declarations is inadmissible, the Court should nonetheless

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exercise its discretion to consider those declarations and all supporting exhibits in

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their entirety to prevent the irreparable harm described in Courthouse News’ motion.

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RESPONSES TO DEFENDANT’S OBJECTIONS TO THE DECLARATION

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OF WILLIAM GIRDNER

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Evidence

Objections

Response

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Girdner

Hearsay (FRE

Not hearsay: Exhibit 3 is not hearsay

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Decl., Exh. 3

802); Lacks

because it is not an out-of-court statement,

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Foundation (FRE

but rather reflects Mr. Girdner’s own

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104; FRE 1006);

understanding and observations regarding

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Lacks Personal

media access procedures in state and federal

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Knowledge (FRE

courts across the country, which was prepared

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602).

at his direction and based on his knowledge

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and experience. See, e.g., Girdner Decl., ¶¶

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1-4, 13-22.

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Foundation: Exhibit 3 has adequate

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foundation because Mr. Girdner’s declaration

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establishes both (1) the document is in fact

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what it is represented to be, that is, a

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summary of media access procedures

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prepared at Mr. Girdner’s direction, and (2) it

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reflects information within his personal

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knowledge based on twenty-one years of

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experience covering civil litigation, visiting

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courts, conferring with court officials, and

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supervising reporters and editors. See, e.g.,

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Girdner Decl., ¶¶ 1-4, 13-22. FRE 1006 is

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inapplicable because Exhibit 3 reflects Mr.

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Girdner’s personal understanding of media

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access procedures and it is not a summary of

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other more voluminous writings.

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Personal knowledge: As described above

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and detailed in Mr. Girdner’s declaration (see

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Girdner Decl., ¶¶ 1-4, 13-22), he has

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extensive personal knowledge concerning

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media access procedures in state and federal

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courts across the country. He has reported on

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civil litigation for the past twenty-one years

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since he founded Courthouse News. He has
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personally visited many state and federal

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courts. He has engaged in discussions with

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court officials about access policies and

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procedures. He also supervises reporters and

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editors around the country, who visit

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courthouses to review new civil complaints

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on a daily basis.

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Girdner

Hearsay (FRE

Not hearsay: The challenged statement in

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Decl., ¶ 13

802); Lacks

paragraph 13 is not hearsay because it is not

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Foundation (FRE

an out-of-court statement, but rather reflects

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104; FRE 1006);

Mr. Girdner’s own observations and

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Lacks Personal

experiences regarding media access to

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Knowledge (FRE

complaints based on his extensive experience

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602).

and personal knowledge from covering civil

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litigation, visiting courts, conferring with

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court officials, and supervising other reporters

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and editors. See, e.g., Girdner Decl., ¶¶ 1-4,

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13-22.

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Foundation: Mr. Girdner’s declaration

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provides the foundation for the challenged

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statement in paragraph 13, which is based on

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his personal knowledge, experience, and

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observations from his twenty-one years of

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covering civil litigation, visiting courts,

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conferring with court officials, and

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supervising other reporters and editors. See,

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e.g., Girdner Decl., ¶¶ 1-4, 13-22. FRE 1006

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is inapplicable because paragraph 13 reflects

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Mr. Girdner’s personal understanding of

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media access procedures and it is not a

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summary of other more voluminous writings.

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Personal knowledge: As described above

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and detailed in Mr. Girdner’s declaration (see

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Girdner Decl., ¶¶ 1-4, 13-22), he has

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extensive personal knowledge concerning

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media access procedures in state and federal

10

courts across the country. He has reported on

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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

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courthouses to review new civil complaints

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on a daily basis.

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Girdner

Hearsay (FRE

Not hearsay: Paragraphs 14-16 are not

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Decl., ¶¶ 14-

802); Lacks

hearsay because they are not out-of-court

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Foundation (FRE

statements, but rather reflect Mr. Girdner’s

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104; FRE 1006);

own observations and experiences regarding

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Lacks Personal

media access to complaints based on his

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Knowledge (FRE

extensive experience and personal knowledge

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602).

from covering civil litigation, visiting courts,
conferring with court officials, and

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supervising other reporters and editors. See,

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e.g., Girdner Decl., ¶¶ 1-4, 13-22.

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Foundation: Mr. Girdner’s declaration

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provides the foundation for paragraphs 14-16,

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which are based on his personal knowledge,

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experience, and observations from his twenty-

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one years of covering civil litigation, visiting

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courts, conferring with court officials, and

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supervising other reporters and editors. See,

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e.g., Girdner Decl., ¶¶ 1-4, 13-22. FRE 1006

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is inapplicable because paragraphs 14-16

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reflect Mr. Girdner’s personal understanding

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of media access procedures and it is not a

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summary of other more voluminous writings.

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Personal knowledge: As described above

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and detailed in Mr. Girdner’s declaration (see

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Girdner Decl., ¶¶ 1-4, 13-22), he has

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extensive personal knowledge concerning

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media access procedures in state and federal

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courts across the country. He has reported on

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civil litigation for the past twenty-one years

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since he founded Courthouse News. He has

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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

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editors around the country, who visit

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courthouses to review new civil complaints
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on a daily basis.

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Girdner

Best Evidence

Not within FRE 1002: FRE 1002 is

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Decl., ¶ 17

Rule (FRE 1002).

inapplicable because Defendant is

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challenging Mr. Girdner’s statements as to

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the availability of complaints included in

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Exhibit 4 (which are based on his personal

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knowledge of the processes and procedures

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used by Courthouse News to prepare its

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reports) and not the contents of Exhibit 4

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itself. See U.S. v. Gonzales-Benitez, 537 F.2d

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1051, 1053-54 (9th Cir. 1976) (FRE 1002

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“does not set up an order of preferred

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admissibility, which must be followed to

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prove any fact. It is, rather, a rule applicable

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only when one seeks to prove the contents of

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documents. ...”). Moreover, “FRE 1002 does

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not prevent the parties from relying on other

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evidence, such as declarations ... to describe

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or characterize the document.” K&N Eng’g,

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Inc. v. Spectre Performance, 2011 U.S. Dist.

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LEXIS 107681, at *4-5 & n.3 (C.D. Cal.

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Sept. 20, 2011).

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Girdner

Hearsay (FRE

Not hearsay: Paragraph 18 is not hearsay

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Decl., ¶ 18

802); Lacks

because it is not an out-of-court statement,

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Foundation (FRE

but rather reflects Mr. Girdner’s own

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104; FRE 1006);

observations and experiences regarding media

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Lacks Personal

access to complaints based on his extensive

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Knowledge (FRE

experience and personal knowledge from

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602); Improper

covering civil litigation, visiting courts,

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Opinion

conferring with court officials, and

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Testimony (FRE

supervising other reporters and editors. See,

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701).

e.g., Girdner Decl., ¶¶ 1-4, 13-22.

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Foundation: Mr. Girdner’s declaration

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provides the foundation for the statements in

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paragraph 13, which is based on his personal

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knowledge, experience, and observations

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from his twenty-one years of covering civil

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litigation, visiting courts, conferring with

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court officials, and supervising other reporters

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and editors. See, e.g., Girdner Decl., ¶¶ 1-4,

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13-22. FRE 1006 is inapplicable because

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paragraph 18 reflects Mr. Girdner’s personal

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understanding of media access procedures

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and it is not a summary of other more

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voluminous writings.

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Personal knowledge: As described above

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and detailed in Mr. Girdner’s declaration (see

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Girdner Decl., ¶¶ 1-4, 13-22), he has

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extensive personal knowledge concerning

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media access procedures in state and federal

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courts across the country. He has reported on

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civil litigation for the past twenty-one years

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since he founded Courthouse News. He has

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personally visited many state and federal

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courts. He has engaged in discussions with
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COURTHOUSE NEWS’ RESPONSES TO DEF.’S EVIDENTIARY
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court officials about access policies and

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procedures. He also supervises reporters and

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editors around the country, who visit

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courthouses to review new civil complaints

5

on a daily basis.

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Not improper opinion: Paragraph 18 is not

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improper opinion but rather reflects Mr.

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Girdner’s perceptions and observations from

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twenty-one years of experience covering civil

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litigation, visiting courts, conferring with

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court officials, and supervising other reporters

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and editors. See, e.g., Girdner Decl., ¶¶ 1-4,

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13-22. Alternatively, Mr. Girdner’s

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statements are proper lay opinions under FRE

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701 because his statements are rationally

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based on his personal perceptions,

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observations, experiences. See id. Mr.

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Girdner’s statements also help provide a clear

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understanding of how his prior experiences

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with courts and media access procedures

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relate to the issue of lack of timely media

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access in the present case.

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Girdner

Hearsay (FRE

Not hearsay: The challenged statements

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Decl., ¶ 19

802); Lacks

regarding reasons for denying same-day

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Foundation (FRE

access are not hearsay because they are not

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104; FRE 1006);

being offered for the truth of the matters

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Lacks Personal

stated but rather to show what Courthouse

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Knowledge (FRE

News has been told by courts which, like

2

602); Irrelevant

Ventura County, refuse to provide timely

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(FRE 402).

access to complaints. The remaining

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statements in paragraph 19 are not hearsay

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because they reflect Mr. Girdner’s own

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observations and experiences regarding media

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access to complaints based on his extensive

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professional experience and personal

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knowledge. See, e.g., Girdner Decl., ¶¶ 1-4,

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13-22.

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Foundation: Mr. Girdner’s declaration

12

provides the foundation for the statements in

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paragraph 19, which is based on his personal

14

knowledge, experience, and observations

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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,

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13-22. FRE 1006 is inapplicable because

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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
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courts across the country. Mr. Girdner has

2

reported on civil litigation for the past

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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

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supervises reporters and editors around the

9

country, who visit courthouses to review new

10

civil complaints on a daily basis.

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Relevance: Paragraph 19 demonstrates that,

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despite reasons identical to those proffered by

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Defendant for not being able to provide same-

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day access, courts have managed to provide

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same-day access to new civil complaints.

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This, in turn, goes to the fact that same-day

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access in the present case is similarly

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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

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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

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supervising other reporters and editors. See,

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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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Case No. CV11-08083R (MANx)

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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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

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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
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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
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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
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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
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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
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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
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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
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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
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Case No. CV11-08083R (MANx)

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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
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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
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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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By:

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6

/s/ Rachel Matteo-Boehm
Rachel Matteo-Boehm
Attorneys for Plaintiff
COURTHOUSE NEWS SERVICE

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