Don Henley et al v. Charles S Devore et al

Filing 95

NOTICE OF MOTION AND MOTION IN LIMINE (#1) to Preclude DEFENDANTS FROM TESTIFYING ON SUBJECTS AS TO WHICH THEY LACK PERSONAL KNOWLEDGDE filed by Plaintiffs Mike Campbell, Don Henley, Danny Kortchmar. Motion set for hearing on 7/19/2010 at 11:00 AM before Judge James V. Selna. (Attachments: # 1 Proposed Order)(Charlesworth, Jacqueline)

Don Henley et al v. Charles S Devore et al

Doc. 95

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MORRISON & FOERSTER LLP JACQUELINE C. CHARLESWORTH (pro hac vice) [e-mail] CRAIG B. WHITNEY (CA SBN 217673) [e-mail] TANIA MAGOON (pro hac vice) [e-mail] 1290 Avenue of the Americas New York, New York 10104 Telephone: [phone] Facsimile: 212.468.7900 PAUL GOLDSTEIN (CA SBN 79613) [e-mail] 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: [phone] Facsimile: 650.327.0811 Attorneys for Plaintiffs DON HENLEY, MIKE CAMPBELL and DANNY KORTCHMAR

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DON HENLEY, MIKE CAMPBELL and DANNY KORTCHMAR, Plaintiffs, v. CHARLES S. DEVORE and JUSTIN HART, Defendants. Case No. SACV09-0481 JVS (RNBx) PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NO. 1 TO PRECLUDE DEFENDANTS FROM TESTIFYING ON SUBJECTS AS TO WHICH THEY LACK PERSONAL KNOWLEDGE Pretrial Conference Date: July 19, 2010 Time: 11:00 a.m. Ctrm: Hon. James V. Selna Trial Date: August 3, 2010

PLAINTIFFS' MOTION IN LIMINE NO. 1 (SACV09-0481 JVS (RNBx))

ny-929927
Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated:

NOTICE OF MOTION AND MOTION TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT, on July 19, 2010 at 11:00 a.m., in accordance with the Court's August 11, 2009 Order Setting Dates for Jury Trial and May 25, 2010 Order Regarding Continuation of Settlement Conference, Pretrial Conference and Trial Dates, Plaintiffs Don Henley, Mike Campbell, and Danny Kortchmar will and hereby do submit this motion in limine for an order, pursuant to Federal Rules of Evidence 403 and 602, precluding Defendants from offering testimony on matters as to which they lack personal knowledge. This motion is made following the conference of counsel pursuant to L.R. 7-3, which took place on June 28, 2010. This motion is be based on this Notice of Motion and Motion and the Memorandum of Points and Authorities contained herein, the pleadings and papers on file in this action, and the argument of counsel presented at the hearing on the motion. June 28, 2010 MORRISON & FOERSTER LLP Jacqueline C. Charlesworth Craig B. Whitney Tania Magoon Paul Goldstein

By:

/s/ Jacqueline C. Charlesworth Jacqueline C. Charlesworth

Attorneys for Plaintiffs

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Pursuant to Federal Rules of Evidence 403 and 602, Plaintiffs Don Henley, Mike Campbell and Danny Kortchmar hereby submit this motion in limine to preclude Defendants Charles S. DeVore and Justin Hart from testifying on matters as to which they lack personal knowledge. As reviewed in more detail below, DeVore has previously offered sworn testimony in this action concerning various matters outside his personal knowledge, in particular, purported activities and beliefs that DeVore attributes, without foundation, to Henley. Such speculative and unfounded testimony is improper and violates the basic tenet reflected in Federal Rule of Evidence 602. Moreover, any such testimony would be confusing and misleading to the jury, as well as prejudicial to Plaintiffs. Because Defendants have demonstrated a proclivity to offer such testimony, it is appropriate for this Court to enter an order excluding it from trial. II. RELEVANT BACKGROUND In this action, Defendants have purported to offer testimony regarding Henley's alleged political beliefs and activities, as well as the general public's perception of Henley, without any evidence that Defendants have personal knowledge as to any of these issues. DeVore, in particular, has made unsupported, unsubstantiated statements concerning Henley in a sworn declaration submitted in support of Defendants' motion for summary judgment, including the following: "Don Henley, while not the only entertainment celebrity to vocally support Ms. Boxer and other liberal politicians and causes, is one of the more prominent." (Declaration of Charles S. DeVore in Support of Defendants' Motion for Summary Judgment, dated April 9, 2010, ¶ 3.) "[A]n Orange County audience booed Henley for making liberal political statements during a concert." (Id. ¶ 3.)

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"Henley and the other celebrities . . . fought so hard to get Mr. Obama elected." (Id. ¶ 6.) "It is not unusual to hear complaints by liberal politicians and commentators that the American government is enmeshing the country in foreign conflicts for illegitimate reasons . . . . Our parody turns this line of attack on its head and directly targets Don Henley's particular brand of politics." (Id. ¶ 9.) ". . . the liberal, entertainment elite (of which Henley is proudly a member) . . ." (Id.) "[A]ttacking the very politicians and policies that Mr. Henley is publicly identified with and has so vocally supported . . . ." (Id. ¶ 10.) "Henley is of a group of celebrities who are associated in the public eye with Ms. Boxer, Mr. Obama and other prominent liberal politicians." (Id.) DeVore has presented the above claims about Henley as statements of fact, based on his personal knowledge. But neither DeVore, nor Hart, has demonstrated any such personal knowledge. They have never met nor spoken with Henley, and have produced no evidence from which they could conclude that Henley has campaigned for, or provided "vocal support" to, Boxer or Obama (which Henley did not), let alone any evidence to demonstrate how Henley is perceived by the public, or with whom he is "associated in the public eye." Such testimony is, at best, baseless conjecture, and at worst, knowingly false. In either case, it is plainly improper. III. DEFENDANTS SHOULD BE PRECLUDED FROM INTRODUCING ARGUMENT OR EVIDENCE REGARDING SUBJECTS ON WHICH THEY LACK PERSONAL KNOWLEDGE This Court should preclude Defendants' testimony regarding subjects as to which Defendants have no basis in fact or personal knowledge. It is fundamental that "[a] witness may not testify to a matter unless evidence is introduced sufficient to
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support a finding that the witness has personal knowledge of the matter." Fed. R. Evid. 602. Here, the risk is very real that Defendants may testify to matters beyond their personal knowledge at trial, because they have done so previously in this litigation. As noted above, a substantial portion of DeVore's declaration in support of Defendants' motion for summary judgment consisted of testimony on matters concerning which he lacks personal knowledge. Courts routinely exclude testimony that is purely speculative and has no foundation in the personal knowledge of the witness. See Sarantis v. ADP, Inc., No. CV-06-2153, 2006 U.S. Dist. LEXIS 67902, at *25-27 (D. Ariz. Aug. 28, 2008) (granting motion in limine to preclude witness's testimony as to matters of which she had no personal knowledge and were purely speculative); United States v. Fabel, No. CR06-041L, 2007 U.S. Dist. LEXIS 12030, at *3 (W.D. Wash. Feb. 16, 2007) (granting motion in limine to preclude witnesses from speculating on matters beyond their personal knowledge); see also Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir. 2001) (finding it an abuse of discretion to consider testimony not made on personal knowledge); Davis v. United States, No. 07-0481-VAP (OPx), 2010 U.S. Dist. LEXIS 7036, at *9-10 (C.D. Cal. Jan. 28, 2010) (testimony based on thoughts of others, without foundation, is inappropriate). Moreover, to permit DeVore or Hart to offer unfounded, speculative testimony about Henley or the other Plaintiffs would be misleading and confusing to the jury, and prejudicial to Plaintiffs. Federal Rule of Evidence 403 excludes evidence on grounds of prejudice, confusion or waste of time. See Fed. R. Evid. 403. In addition to causing confusion, Defendants' attempts to offer nonprobative, speculative evidence at trial would be wasteful of the Court's and jury's time if Plaintiffs were required to object repeatedly thereto.

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IV.

CONCLUSION For the foregoing reasons, the Court should preclude Defendants from testifying

on matters as to which they lack personal knowledge, including those matters described above. Dated: June 28, 2010 MORRISON & FOERSTER LLP Jacqueline C. Charlesworth Craig B. Whitney Tania Magoon Paul Goldstein

By:

/s/ Jacqueline C. Charlesworth Jacqueline C. Charlesworth

Attorneys for Plaintiffs

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