Video Software Dealers Association et al v. Schwarzenegger et al

Filing 47

Video Software Dealers Association et al v. Schwarzenegger et al

Doc. 47

Case 5:05-cv-04188-RMW

Document 47

Filed 12/01/2005

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 On November 23, 2005, Plaintiffs' filed a Request for Judicial Notice concurrently with IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION VIDEO SOFTWARE DEALERS and ENTERTAINMENT SOFTWARE ASSOCIATION, Plaintiffs, v. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of the State of California; BILL LOCKYER, in his official capacity as Attorney General of the State of California; GEORGE KENNEDY, in his official capacity as Santa Clara County District Attorney, RICHARD DOYLE, in his official capacity as City Attorney for the City of San Jose, and ANN MILLER RAVEL, in her official capacity as County Counsel for the County of Santa Clara, Defendants. CASE NO. C 05 4188 RMW RS [PROPOSED] ORDER DENYING IN PART PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE

24 their filing of a reply brief to defendants' oppositions to the Motion for Preliminary Injunction. 25 Plaintiffs ask this Court to judicially notice, pursuant to Rule 201 of the Federal Rules of 26 Evidence, among other things, certain materials purportedly contained in the files of the 27 Northern District of Illinois federal court concerning a lawsuit in which the neither the State of 28 California, nor any other defendants, were parties or privy to the action.
[PROPOSED] ORDER VSDA V. Schwarzenegger, et al. Case No. C 05 4188 RMW RS

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Dockets.Justia.com

Case 5:05-cv-04188-RMW

Document 47

Filed 12/01/2005

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On November 29, 2005, plaintiffs Governor Arnold Schwarzenegger and Attorney General

2 Bill Lockyer (collectively, the "State") timely filed objections to Plaintiffs' request as to Exhibits 3 3 through 8. The State argues that these materials, consisting of portions of transcripts from a 4 hearing before the Northern District of Illinois federal court and certain declarations submitted to 5 the Northern District of Illinois federal court, do not constitute "adjudicative facts" subject to 6 judicial notice pursuant to Rule 201. The State further argues that these materials each constitute 7 hearsay and are therefore inadmissible pursuant to Rule 801 of the Federal Rules of Evidence. 8 Having reviewed the Request for Judicial Notice, the objections filed by the State, the

9 memoranda, declarations, and exhibits submitted by the parties, and having considered the 10 arguments of counsel, the Court hereby ORDERS as follows: 11 1. Plaintiffs' Exhibit 3 to their Request is not properly subject to judicial notice under

12 Rule 201 of the Federal Rules of Evidence. Exhibit 3 purports to be an incomplete portion of a 13 transcript of court proceedings held on November 14, 2005, in a Northern District of Illinois 14 lawsuit in which the State was not a party. Plaintiffs do not merely ask this Court to 15 acknowledge the existence of this incomplete portion of the transcript of a different court, but 16 cite the contents thereof for the truth of the matter asserted therein as providing evidentiary 17 support for Plaintiffs' present motion for preliminary injunction. (Pltfs.' Reply, 6:12-16.) 18 Because Exhibit 3 does not constitute an "adjudicative fact" it is not properly subject to judicial 19 notice. The contents of Exhibit 3 further constitute inadmissible hearsay. The State's objection 20 to Exhibit 3 is therefore sustained; 21 2. Plaintiffs' Exhibit 4 to their Request is not properly subject to judicial notice under

22 Rule 201 of the Federal Rules of Evidence. Exhibit 4 purports to be an incomplete portion of a 23 transcript of court proceedings held on November 15, 2005, in a Northern District of Illinois 24 lawsuit in which the State was not a party. Plaintiffs do not merely ask this Court to 25 acknowledge the existence of an incomplete portion of the transcript of a different court, but cite 26 the contents thereof for the truth of the matter asserted therein as providing evidentiary support 27 for Plaintiffs' present motion for preliminary injunction. (Pltfs.' Reply, 6:12-20; n. 6; 8:9-28; 28 10:1-8.) Because Exhibit 4 does not constitute an "adjudicative fact" it is not properly subject to
[PROPOSED] ORDER VSDA V. Schwarzenegger, et al. Case No. C 05 4188 RMW RS

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1 judicial notice. The contents of Exhibit 4 further constitute inadmissible hearsay. The State's 2 objection to Exhibit 4 is therefore sustained; 3 3. Plaintiffs' Exhibit 5 to their Request is not properly subject to judicial notice under

4 Rule 201 of the Federal Rules of Evidence. Exhibit 5 purports to be a declaration and attached 5 exhibit from an individual not a party to the present action, filed in a Northern District of Illinois 6 lawsuit in which the State was not a party. Plaintiffs do not merely ask this Court to 7 acknowledge the filing of the declaration in the Illinois court, but cite the contents thereof for the 8 truth of the matter asserted therein as providing evidentiary support for Plaintiffs' present motion 9 for preliminary injunction. (Pltfs.' Reply, 7:17-22.) Because Exhibit 5 does not constitute an 10 "adjudicative fact" it is not properly subject to judicial notice. The contents of Exhibit 5 further 11 constitute inadmissible hearsay. The State's objection to Exhibit 5 is therefore sustained; 12 4. Plaintiffs' Exhibit 6 to their Request is not properly subject to judicial notice under

13 Rule 201 of the Federal Rules of Evidence. Exhibit 6 purports to be a declaration and attached 14 exhibit from an individual not a party to the present action, filed in a Northern District of Illinois 15 lawsuit in which the State was not a party. Plaintiffs do not merely ask this Court to 16 acknowledge the filing of the declaration in the Illinois court, but cite the contents thereof for the 17 truth of the matter asserted therein as providing evidentiary support for Plaintiffs' present motion 18 for preliminary injunction. (Pltfs.' Reply, 7:17-22.) Because Exhibit 6 does not constitute an 19 "adjudicative fact" it is not properly subject to judicial notice. The contents of Exhibit 6 further 20 constitute inadmissible hearsay. The State's objection to Exhibit 6 is therefore sustained; 21 5. Plaintiffs' Exhibit 7 to their Request is not properly subject to judicial notice under

22 Rule 201 of the Federal Rules of Evidence. Exhibit 7 purports to be an incomplete portion of a 23 transcript of court proceedings held on November 14, 2005, in a Northern District of Illinois 24 lawsuit in which the State was not a party. Plaintiffs do not merely ask this Court to 25 acknowledge the existence of an incomplete portion of the transcript of a different court, but cite 26 the contents thereof for the truth of the matter asserted therein as providing evidentiary support 27 for Plaintiffs' present motion for preliminary injunction. (Pltfs.' Reply, 9:6-12.) Because 28 Exhibit 7 does not constitute an "adjudicative fact" it is not properly subject to judicial notice.
[PROPOSED] ORDER VSDA V. Schwarzenegger, et al. Case No. C 05 4188 RMW RS

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1 The contents of Exhibit 7 further constitute inadmissible hearsay. The State's objection to 2 Exhibit 7 is therefore sustained; 3 6. Plaintiffs' Exhibit 8 to their Request is not properly subject to judicial notice under

4 Rule 201 of the Federal Rules of Evidence. Exhibit 8 purports to be a declaration and attached 5 exhibit from an individual not a party to the present action, filed in a Northern District of Illinois 6 lawsuit in which the State was not a party. Plaintiffs do not merely ask this Court to 7 acknowledge the filing of the declaration in the Illinois court, but cite the contents thereof for the 8 truth of the matter asserted therein as providing evidentiary support for Plaintiffs' present motion 9 for preliminary injunction. (Pltfs.' Reply, 7:17-22.) Because Exhibit 8 does not constitute an 10 "adjudicative fact" it is not properly subject to judicial notice. The contents of Exhibit 8 further 11 constitute inadmissible hearsay. The State's objection to Exhibit 8 is therefore sustained; 12 7. Because Exhibits 3 through 8 are not properly subject to judicial notice and further

13 constitute inadmissible hearsay, Plaintiffs' references to Exhibits 3 through 8 are hereby stricken 14 from the record. 15 16 DATED: ________________ 17 18 19 20 21 22 23 24 25 26 27 28
[PROPOSED] ORDER VSDA V. Schwarzenegger, et al. Case No. C 05 4188 RMW RS

______________________________________ RONALD M. WHYTE United States District Judge

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