COUNCIL ON AMERICAN-ISLAMIC RELATIONS ACTION NETWORK, INC., et al v. GAUBATZ et al

Filing 259

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART CSP Defendants' #248 Motion in Limine; and DENYING WITHOUT PREJUDICE Plaintiffs' #249 Motions in Limine, pending supplemental briefing by the parties. Defendants' supplemental briefing is due by 4/30/2018. Plaintiffs' response to Defendants' supplemental briefing is due by 5/22/2018. See Memorandum Opinion and Order for complete details regarding this Court's rulings on the various motions in limine and detailed instructions regarding the supplemental briefing. Signed by Judge Colleen Kollar-Kotelly on 03/29/2018. (DM) Modified event title on 3/29/2018 (zdot).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

COUNCIL ON AMERICAN-ISLAMIC
RELATIONS ACTION NETWORK, INC., et
al.,
Plaintiffs,
Civil Action No. 09-02030 (CKK)
v.
PAUL DAVID GAUBATZ, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
(March 29, 2018)
Pending before this Court are CSP Defendants’ [248] Motion-In-Limine (“CSP Mot.”),
which is broken down into four subparts addressing witnesses, exhibits, deposition transcripts and
damages; Plaintiffs’ [251] Responses to CSP Defendants’ Motion In Limine (“Pls’ Responses”);
and CSP Defendants’ [254] Reply in support of Motion-In-Limine (“CSP Reply”). Also pending
before this Court are Plaintiffs’ [249] Motions in Limine (“Pls.’ Mot.”), consisting of seven
motions in limine; CSP Defendants’ [250] Opposition to Plaintiffs’ Motions in Limine (“CSP
Opp’n”); and Gaubatz Defendants’ [253] Response to Plaintiff’s MILs (“Gaubatz Resp.”).
Plaintiffs did not file a Reply in support of their Motions in Limine. The Court will consider the
CSP Defendants’ Motion in Limine together with the Plaintiffs’ Motions in Limine for the sake of
judicial efficiency and because of the overlap of issues therein. 1 The Court will address the
Plaintiffs’ Motions first, discussing each of the seven motions contained therein, in the order

1

In connection with this Memorandum Opinion and Order, the Court also relied upon the Joint
Pretrial Statement, ECF No. 239.

presented to the Court, before addressing the four subparts of the CSP Defendants’ Motion in the
same manner.
As a preliminary matter, this Court notes that the two motions addressed in the opinion and
the oppositions thereto are presented in a summary manner, often without sufficient detail or
responsive argument to enable this Court to make a determination regarding the requested
exclusion (or admission) of evidence. Furthermore, in many instances the parties fail to specify
how their requests asking for the exclusion (or admission) of certain evidence relate to the elements
of the claims and defenses in this case, instead focusing on extraneous facts or engaging in
convoluted argument. Accordingly, under these circumstances, the Court has summarized the
arguments presented by each side and then indicated that such request or objection is denied
without prejudice pending supplemental briefing by the parties. The scope of this additional
briefing will be set forth in more detail in this opinion.
Plaintiffs’ Motion in Limine No. 1
Plaintiffs request that the Court preclude Defendants from referring to CAIR, CAIR-F
and/or CAIR-AN as a criminal organization and/or a Muslim Brotherhood front group, which
includes precluding: (1) evidence of CAIR as an unindicted co-conspirator in the HLF [Holy Land
Foundation] trial; (2) evidence of the “Morris Days fraud;” (3) evidence of financial contributions
and/or donations CAIR has made to any person or organization; and (4) solicitation of testimony
from CAIR employees, former or present about its status as a civil rights organization for the
purpose of impeaching that testimony with evidence of terrorism. Plaintiffs contend that the issue
of whether any of the CAIR organizations were engaged in “criminal conduct” at the time of the
alleged violations does not relieve Defendants of liability for their own misconduct for violations
of the D.C. Wiretap Act, the Federal Wiretap Act, the Stored Communications Act and trespass.
2

Plaintiffs assert that any “[a]llegations of criminal conduct and/or ties to terrorism, therefore, are
wholly and entirely irrelevant to this case and should be excluded at trial.” Pls.’ Mot. at 2.2
Plaintiff argue further that any alleged probative value of such evidence is far outweighed by the
danger of unfair prejudice pursuant to Fed. R. Evid. 403.
The CSP Defendants submit that the CAIR Muslim Brotherhood connection evidence is
relevant and directly probative of the Defendants’ defense to the Federal Wiretap Act because the
Act requires the CSP Defendants to know or have reason to know that Chris Gaubatz’s actions
violated the Act. See CSP’s Opp’n at 5. The CSP Defendants allege that Defendant Brim, who
received recordings from Chris Gaubatz, never even viewed or listened to the recordings, and thus
she had “no knowledge or reason to believe that Chris Gaubatz was not following the legal advice
provided by [David Yerushalmi] and obtaining the recordings legally.”

See id. Defendants

explain that, in light of the fact that Plaintiffs questioned Defendant Brim’s knowledge, this Court
determined previously that the issue of knowledge (or imputed knowledge) is a factual dispute.
Defendants assert that in order to resolve such factual dispute, the jury needs to understand the
purpose of the Muslim Brotherhood/CAIR documentary to bolster its argument that the audiovideo clips were only intended as background and were not that important. See CSP Opp’n at 6.
Accordingly, the CSP Defendants argue that the jury has to be made aware of the Muslim
Brotherhood/CAIR connection through testimony and exhibits in this case. 3 The Court notes that
this multi-faceted argument by the CSP Defendants fails to cogently explain how the allegations

2

The page numbers referenced by this Court are the numbers assigned by the Electronic Case
Filing system.
3

The CSP Defendants reassure the Court that the exhibits showing CAIR’s connection to the
Muslim Brotherhood “are not meant to prove the truth of the matters asserted therein” but rather
to explain the substance of the documentary, which relied on such exhibits. See CSP Opp’n at 7.
3

that CAIR is somehow linked to the Muslim Brotherhood are relevant to any of claims and
defenses in this case, or the relevance of knowing the background of the documentary, and/or how
the probative value of such allegations outweighs any obvious prejudice.
The Gaubatz Defendants premise their argument in support of referring to CAIR as a
terrorist group upon the Court’s statement that, because CAIR-F has argued that Chris Gaubatz
had the intent of committing a breach of fiduciary duty, there are two unanswered questions: (1)
whether Chris Gaubatz had a fiduciary duty to CAIR-F, and (2) whether the breach of this fiduciary
duty was either a primary motivation or a determinative motivating factor for the interception. See
CAIR Action Network, Inc. v. Gaubatz, 31 F. Supp. 3d 237, 259 (D.D.C. 2014). The Gaubatz
Defendants allege generally that “the relationship between a genuine civil rights organization and
a person purporting to share its ideals is more likely to establish a fiduciary relationship than if
CAIR is a criminal organization which used its intern program as part of its fake civil rights
persona.” See Gaubatz Resp. at 4-5.

The Defendants’ “argument” in support of this general

statement consists of several disjointed propositions, first about general contract law, followed by
statements about Hamas and cites from an opinion relating to the HLF criminal trial in Texas. The
Gaubatz Defendants fail to coherently link their argument that the Defendants should be able to
refer to CAIR as a terrorist organization to any of the claims or defenses in this case.
The Gaubatz Defendants allege further that “those engaged in criminal conduct in a quasipublic location have less of an expectation of privacy than they would have if their conduct were
lawful” and they note, without further explanation, that Chris Gaubatz’s assessment of CAIR was
colored by CAIR’s status as an unindicted co-conspirator in the HLF trial. See Gaubatz Resp. at
9. The Gaubatz Defendants then proceed to cite extensively from the HLF Texas criminal case,
and they launch into a historical review of the formation of CAIR, none of which has any bearing
4

on the claims and defenses at issue in this case. Nor do the Gaubatz Defendants proffer any
relevant argument linked to the claims and defenses in this case to rebut Plaintiffs’ request to
preclude evidence of financial contributions made by CAIR.
With regard to CAIR’s request that evidence of the “Morris Days fraud” be barred, this
Court notes that the “Morris Days fraud” is the subject of one or more civil actions filed in this
court, in which Defendant David Yerushalmi is listed as counsel for Plaintiffs therein, namely:
Lopez v. CAIR Action Network, Inc., 657 F. Supp. 2d 104 (D.D.C. 2009), aff’d, 389 Fed. Appx. 1
(D.C. Cir. 2010) (where CAIR’s motion to dismiss RICO violations was granted by the District
Court and affirmed on appeal); Saiyed v. CAIR Action Network Inc., Civil Action No. 10-22 (PLF)
and Lopez v. CAIR Action Network, Inc., Civil Action No. 10-23 (PLF) (both set for trial in
November 2018).
The Gaubatz Defendants’ proffer no argument in support of allowing the “Morris Days
fraud” evidence, noting only that “[a]mong the documents that Chris Gaubatz stumbled upon and
among the documents he was asked to shred, were documents relating to this fraud.” See Gaubatz
Resp. at 14.
The CSP Defendants argue that evidence of the “Morris Days fraud” is relevant and
probative of a key element of the CSP defense to the Stored Communications Act charges, to wit,
that David Yerushalmi advised David Gaubatz that Chris Gaubatz could legally remove documents
as he had expressed, implied or constructive authority to do so.

See CSP Opp’n. at 8; Defs’

Answer to Third Am. Compl., ECF No. 130, at 16 ¶ 3. The CSP Defendants assert, without further
explanation, that the “Morris Days fraud evidence was the impetus for this legal instruction and
the basis in part for Chris Gaubatz’s decision to preserve certain of these documents.” See CSP
Opp’n at 9.
5

Because the Defendants have failed to adequately link their arguments to the claims and
defenses in this case, Plaintiffs’ Motion in Limine No. 1 shall be DENIED WITHOUT
PREJUDICE pending supplemental briefing by the parties.

More specifically, the Defendants

shall respond to Plaintiffs’ request to preclude Defendants from referring to CAIR as a terrorist
organization, and to preclude the introduction of evidence specified in four subparts of Plaintiffs’
Motion No. 1, which is based on Plaintiffs’ assertions that such evidence is not relevant and is
prejudicial. In their responses, Defendants shall: (1) indicate the relevance of such evidence, (2)
specify how the disputed evidence is related to and supports the elements of the claims and/or
affirmative defenses in this case, and (3) explain why the probative value of such evidence would
outweigh any prejudice. Defendants should abstain from making any unnecessary commentary
that does not directly respond to these three inquiries, and should cite to relevant case law, where
appropriate. In the event that Defendants agree that certain evidence may be precluded, they shall
so indicate. Defendants’ failure to respond to any aspect of Plaintiffs’ Motion may be deemed a
concession with regard to that part of the Motion. Plaintiffs will then have an opportunity to reply
to the Defendants’ responses.
Plaintiffs’ Motion in Limine No. 2
Plaintiffs seek to preclude Defendants from presenting evidence that the United States
Government “proved” or had knowledge that CAIR is founded by the Muslim Brotherhood,
Hamas, or any other terrorist organization. The CSP Defendants do not specifically address
Plaintiffs Motion in Limine No. 2 in their Opposition. 4 It is unclear whether the Gaubatz

4

The CSP Defendants indicate that they contest all of Plaintiffs’ motions in limine although they
present only one consolidated argument with regard to all motions they deem related to CAIR’s
alleged ties or relationship to terrorism, Hamas, or the Muslim Brotherhood. See CSP Opp’n at
4, 11.
6

Defendants’ one paragraph “response” to Motion in Limine No. 2 is a concession or is simply nonresponsive. Accordingly, Plaintiffs’ Motion in Limine No. 2 shall be DENIED WITHOUT
PREJUDICE pending supplemental briefing by the parties, as explained in this Court’s ruling on
Motion in Limine No. 1.
Plaintiffs’ Motion in Limine No. 3
Plaintiffs request that the Court bar any evidence that the Defendants were acting on behalf
of law enforcement, the United States, or any other government agencies. The CSP Defendants
do not specifically address Plaintiffs’ Motion in Limine No. 3 in their Opposition. The Gaubatz
Defendants “agree with CAIR that defendants were not ‘authorized law enforcement personnel, ’”
which might be a concession, but they also note that “this does not mean that defendants did not
obtain documents with the intention of preserving evidence or turning evidence over to the FBI,
Congress or other governmental entity.” See Gaubatz Resp. at 15. Accordingly, Plaintiffs’ Motion
in Limine No. 3 shall be DENIED WITHOUT PREJUDICE pending supplemental briefing by the
parties, as explained in this Court’s ruling on Motion in Limine No. 1.
Plaintiffs’ Motion in Limine No. 4
Plaintiffs seek to bar evidence of Defendant David Gaubatz’s training as an Arab linguist
and prior employment with the United States Air Force as a Special Investigations Special Agent,
on grounds that such evidence is not relevant to this case, and it “will solely be used to legitimize
the Defendants’’ violations of the law” even if David Gaubatz’s experience and credentials are not
a defense. See Pls.’ Mot. at 6. Plaintiffs assert further that even if such evidence is relevant, it is
misleading regarding Defendant Gaubatz’s authority to investigate.
The Gaubatz Defendants argue that a defendant’s background helps contextualize his
testimony as it can explain motive, knowledge and intent, and in this case, it also explains “the
7

relationship between P. David Gaubatz and the other defendants.” See Gaubatz Resp. at 16. The
Gaubatz Defendants contend that this evidence counters contentions that David Gaubatz is antiArab and is integral to David Gaubatz’s desire to accurately portray CAIR.
The CSP Defendants assert that David Gaubatz’s background is relevant to the issue of
respondeat superior liability and the question of whether David Gaubatz was an agent of any of
the CSP Defendants or an independent contractor. More specifically, the CSP Defendants argue
that because of David Gaubatz’s “experience, awards, and citations operating as a military law
enforcement officer and intelligence officer, in addition to his civilian duties for the military during
the Iraq war and, of course, his successful supervision of SANE’s “Mapping Sharia” project,” the
CSP Defendants treated David Gaubatz as an independent contractor.

CSP Opp’n at 11.

Furthermore, the CSP Defendants contend that evidence regarding David Gaubatz’s training and
employment “provides an important element in the CSP Defendants’ ‘lack-of-knowledge” defense
under the Federal Wiretap Act” because the CSP Defendants relied on David Gaubatz’s
“assurances that all matters in the filed were being conducted legally,” and they were confident to
let David Gaubatz “conduct the logistics of the Muslim Brotherhood/CAIR documentary.” Id.
Because the Defendants have failed to adequately link their argument to the claims and
defenses in this case, Plaintiffs’ Motion in Limine No. 4 shall be DENIED WITHOUT
PREJUDICE pending supplemental briefing by the parties, as explained in this Court’s ruling on
Motion in Limine No. 1.
Plaintiffs’ Motion in Limine No. 5
Plaintiffs seek to preclude Ms. Haddadi or any other former or current CAIR employee
from testifying about alleged discrimination and/or mistreatment within CAIR.

The CSP

Defendants do not specifically address Plaintiffs’ Motion in Limine No. 5 in their Opposition. The
8

Gaubatz Defendants assert, without further explanation, that this type of evidence is “relevant to
the degree of trust, if any, placed by CAIR in Chris Gaubatz.” See Gaubatz Resp. at 16.
Accordingly, Plaintiffs’ Motion in Limine No. 5 shall be DENIED WITHOUT PREJUDICE
pending supplemental briefing by the parties, as explained in this Court’s ruling on Motion in
Limine No. 1.
Plaintiffs’ Motion in Limine No. 6
Plaintiffs seek to bar any evidence that attempts to exploit and attack Islam.

The CSP

Defendants do not specifically address Plaintiffs’ Motion in Limine No. 6 in their Opposition. The
Gaubatz Defendants state that this issue has been “addressed in full in to the introductory
paragraphs.” See Gaubatz Resp. at 17. Defendant then launch into a discussion about women’s
rights in the Islamic community and the film the Honor Diaries without indicating the relevance
of this discussion to the issues in this case, instead castigating CAIR for alleged internal problems
with discrimination against women. Accordingly, Plaintiffs’ Motion in Limine No. 6 shall be
DENIED WITHOUT PREJUDICE pending supplemental briefing by the parties, as explained in
this Court’s ruling on Motion in Limine No. 1.
Plaintiffs’ Motion in Limine No. 7
Plaintiffs move to preclude any affirmative defense that was not pled in Defendants’
Answer or a dispositive motion. “[I]t is well-settled that [a] party’s failure to plead an affirmative
defense . . . generally results in the waiver of that defense and its exclusion from the case.” Kapche
v. Holder, 677 F.3d 454, 465 (2012) (citing Harris v Sec’y , U.S. Dep’t of Veterans Affairs, 126
F.3d 339, 343 (D.C. Cir. 1997) (internal quotation marks and emphasis removed)). Therefore, in
the event that Defendants are now attempting to introduce affirmative defenses that were not raised
earlier, they will not be permitted to do so.
9

Plaintiffs’ argument is as follows:
The Gaubatz Defendants, for the first time in the Joint Pretrial Statement, have asserted the
following defenses to each of the allegations against them: (a) “There is no expectation of
privacy in criminal conduct or for a criminal organization and its agents,” (b) “The
reporting and preserving of evidence of criminal conduct is required by 18 U.S. Code § 4,”
and (c) as to Plaintiffs’ trespass claim, “The entry was permitted under the common law
doctrine of public and private necessity (Rest of Torts secs 196 & 197).” 5

Pls.’ Mot. at 7. Plaintiffs indicate that the defense that Defendants had a legal obligation to preserve
paper and electronic documents is not a proper defense to violations of the Federal and D.C.
Wiretap Acts, the Stored Communications Act, or trespass. Plaintiffs further object to the
introduction of evidence of any criminal conduct by CAIR insofar this issue will create a trial
within a trial.
The CSP Defendants do not specifically address Plaintiffs’ Motion in Limine No. 7 in their
Opposition, except in the context of their discussion of the “Morris Days fraud” evidence. The
Gaubatz Defendants incorporate into their Response the CSP discussion regarding the affirmative
defense of implied, constructive or legal authority to preserve evidence, noting that this is an
important defense relating to the Stored Communication Act allegations, but the Gaubatz
Defendants do not add anything to that discussion. Accordingly, because Defendants have not
provided an adequate response to Plaintiffs’ Motion in Limine No. 7, this Court has no way of
determining if Defendants construe these defenses as new affirmative defenses, and if not, the
source of any such defenses, and whether or not such defenses relate to the claims at issue in this
case. Accordingly, Plaintiffs’ Motion in Limine No. 7 shall be DENIED WITHOUT PREJUDICE

5

The Gaubatz Defendants note that they “withdraw any request to argue that the initial entry was
prompted by necessity.” See Gaubatz Resp. at 21.
10

pending supplemental briefing by the parties, as explained in this Court’s ruling on Motion in
Limine No. 1.
CSP Motion Subpart I: Objections to Witnesses
Availability of Witnesses
The CSP Defendants indicate that the parties agreed to provide the other parties with a list
of witnesses who will be available for trial without a subpoena. The CSP Defendants have stated
that all of the witnesses identified by them as “Intend to Call” witnesses will be available for trial
except those witnesses associated with Plaintiffs, but they are uncertain if witnesses listed as “If
the Need Arises” will be available. See CSP Objections to Joint Pretrial Statement, ECF No. 240,
at 6.
Plaintiffs respond that it is premature to address the availability of witnesses when the trial
date has not yet been set, and further, that they have no control over the availability or nonavailability of witnesses who are not under the direct control of CAIR.
All parties are instructed to provide this information to the other parties in a timely manner
once a trial date has been set. If the Plaintiffs are unable to ascertain whether witnesses that are
not under their direct control will be available without subpoena, they should so indicate.
Accordingly, Defendants’ request for identification of witnesses who will be available without
subpoena shall be GRANTED.
References to Conspiracy
The CSP Defendants request that this Court preclude any evidence relating to or
referencing a “conspiracy” or using similar terms such as “aiding and abetting,” “scheme,” or
“plot,” on grounds that there are no allegations or record facts supporting a conspiracy, and such
evidence or inquiry relating to a conspiracy or related terms would be irrelevant and inadmissible.
11

See CSP Mot. at 2-3 (referencing Fed. R. Evid. 401, 402). Plaintiffs argue that the CSP
Defendants’ request is overly broad because while there is no civil cause of action for conspiracy,
“[t]his does not mean, however, that there are no facts to support those allegations.” See Pls.’
Responses at 2. Plaintiff rely further on the dictionary definition of conspiracy.
The Court shall prohibit the use of the following words: “conspiracy,” “scheme,” “plot,”
and “aid and abet,” because this type of terminology implies a legal conclusion and its use is
prejudicial to the Defendants. Accordingly, Defendants’ request to preclude the use of the term
“conspiracy” and related terms shall be GRANTED.
Muslim Mafia
Defendants seek to preclude the introduction of any or all of the book Muslim Mafia on
grounds that it was written by Paul Sperry, and it is hearsay unless the author might provide
testimony that would allow some portions of the book to be introduced. See generally Fed. R.
Evid. 401-02, 602, 802, 901. Plaintiffs argue that there are exceptions to the hearsay rules insofar
as Dave Graubatz has already testified that he provided documents for the book to Mr. Sperry, and
Mr. Sperry may testify as to the contents of the book. Plaintiffs assert however that they do not
intend to introduce the book for the truth of the matters asserted but merely to rebut any
“misprision-type defenses raised by Chris Gaubatz and/or to prove Defendants’ state of mind
should the need arise.” See Pls.’ Responses at 4. The Court finds that Defendants’ request to
preclude introduction of the book Muslim Mafia shall be DENIED WITHOUT PREJUDICE
pending supplemental briefing by the parties. 6

6

The supplemental briefing ordered in connection with the issues presented in the CSP Motion
will be detailed by the Court after the issues presented in the Plaintiffs’ motions in limine are
resolved because resolution of the Plaintiff’s motions in liimine may affect and/or moot issues in
the CSP Motion.
12

Sarah Pavlis and Adam Savit
Defendants request that Sarah Pavlis and Adam Savit should be precluded from being
witnesses on grounds that they were dismissed as defendants after the Court found no evidence of
their involvement in matters related to this lawsuit. Council on American-Islamic Relations Action
Network, Inc. v. Gaubatz, 82 F. Supp. 3d 344, 362 (D.D.C. 2015). Plaintiffs contend generally
that even if these witnesses were dismissed as defendants, they could have knowledge relevant to
the case.
The Court notes that Plaintiffs’ description of the proffered testimony of both witnesses is
basically the same – both are to testify about information relating to a conspiracy between
Defendants to steal documents and information from Plaintiffs, and such description is insufficient
for this Court to make a ruling. The Court finds that Defendants’ request to preclude Sarah Pavlis
and Adam Savit from testifying shall be DENIED WITHOUT PREJUDICE pending supplemental
briefing by the parties.
Corey Saylor
The CSP Defendants raise two issues regarding Corey Saylor’s proposed testimony. First,
they assert that Mr. Saylor should not be permitted to testify as to any documents that were
removed from Plaintiffs’ offices by Chris Gaubatz “other than the specific documents at issues in
the allegations relating to the Stored Communication Act” because there is no extant conversion
claim relating to other documents that were removed and thus, any testimony about other
documents would be irrelevant. See CSP Mot. at 4 (relying on Fed. R. Evid. 401-02). Second,
the CSP Defendants argue Mr. Saylor should not be permitted to opine as to what documents were
stored on the network server and from where Chris Gaubatz obtained any digital documents unless

13

Mr. Saylor has personal knowledge of these facts, or his testimony will “amount[ ] to unqualified
and improper expert testimony.” See CSP Mot. at 4 (relying on Fed. R. Evid. 602, 701-02).
Plaintiffs argue that, if Defendants are permitted to rely on their “legal obligation to
preserve those documents as evidence of criminal conduct” as justification for Chris Gaubatz’s
actions with regard to the taking of documents, then “Plaintiffs must be permitted to introduce
evidence that the documents stolen were not criminal in nature in order to rebut that alleged intent.”
See Pls.’ Responses at 5. Addressing the CSP Defendants’ contention that Mr. Saylor needs
personal knowledge or his testimony will be impermissible expert testimony, the Plaintiffs explain
that “[Corey] Saylor’s knowledge regarding the documents taken from the server arises from his
knowledge of the system and server[,]” and he need not have physically seen Chris Gaubatz take
the documents. See Pls.’ Responses at 6.
The Court finds that Defendants’ request to limit or preclude Corey Saylor’s testimony
shall be DENIED WITHOUT PREJUDICE pending supplemental briefing by the parties.
Paul Don Vito and Paul Sperry and Joseph Farah
The CSP Defendants request preclusion of these three witnesses on grounds that they lack
personal knowledge and therefore, testimony proffered by them will likely be objectionable based
on allegations of hearsay and lack of foundation. In their Reply, the CSP Defendants withdraw
their “lack of personal knowledge” objection to the testimony of Paul Don Vito and Paul Sperry,
but they reserve the right to make specific objections at such time when CAIR makes clear what
testimony it intends to elicit, such as during trial. The CSP Defendants do not reply to Plaintiffs’
Response regarding Joseph Farah, either because of oversight or concession. The Court finds that
because the CSP Defendants’ objections to these three witnesses were all based on lack of personal
knowledge, those objections shall be DENIED AS MOOT with regard to all three witnesses, with
14

the CSP Defendants reserving their right to make specific objections before trial, if appropriate, or
during trial.
David Zimmerman and Harold C. Weatherman III
The CSP Defendants maintain that these two witnesses are being proffered to show that
Dave Gaubatz used and disclosed information obtained from CAIR and intentionally ignored the
court’s preliminary injunction in this case.

The CSP Defendants request that the testimony of

these two witnesses be limited in scope to testimony that relates to the use and disclosure of audio
clips relevant to the Federal and D.C. Wiretap Acts allegations, if any.
Plaintiffs contend that if Defendants claim that Chris Gaubatz’s actions were justified
because of a legal obligation to preserve documents, all documents and information received by
these individuals is relevant as it goes to the Defendants’ state of mind. Plaintiffs allege that these
two witnesses should be able to corroborate any claim that Chris Gaubatz intended to give
documents to law enforcement despite the Court’s order to the contrary.
The Court finds that Defendants’ request to limit the testimony of David Zimmerman and
Harold C. Weatherman III shall be DENIED WITHOUT PREJUDICE pending supplemental
briefing by the parties.

CSP Motion Subpart II: Objections to Exhibits
Plaintiffs’ List of Exhibits- Evidentiary Proffer
The CSP defendants submit that the parties agreed to submit evidentiary proffers with their
list of exhibits so as to facilitate the narrowing of objections to the exhibits, but Plaintiffs did not
follow through on this. The Court notes that such evidentiary proffer is neither required nor have
any of the parties provided such a proffer in the context of their Joint Pretrial Statement, and
15

accordingly, the CSP Defendants’ request for an evidentiary proffer shall be DENIED WITHOUT
PREJUDICE. 7

Exhibit 2
Plaintiffs’ Exhibit 2 consists of a series of contractual agreements and e-mailed
amendments to these agreements. In their Reply, the CSP Defendants withdraw their prior
objections, based on repetitiveness and vague identification, to Plaintiffs’ Exhibit 2, items c, f, g
and j, but they preserve their right to specifically object on grounds of foundation, relevance and
hearsay, if CAIR does not provide the requisite foundation and testimony. Accordingly,
Defendants’ objections to Exhibit 2, based on repetitiveness and vague identification, shall be
DENIED AS MOOT, but the objections relating to foundation, relevance and hearsay will need to
be resolved prior to trial is this exhibit is to be used.
Exhibit 3
The CSP Defendants object to Plaintiffs’ Exhibit 3 which is described as follows: “Stolen
documents re Plaintiff’s Properties (i.e., the documents subject to the court’s injunction)
(possible summary of documents not yet created).” See Joint Pretrial Statement, ECF No. 239, at
50. Plaintiff contends that these documents (as yet to be compiled) are necessary evidence in this
case to “demonstrate the scope of Chris Gaubatz’s trespass” and speak to his “state of mind,
knowledge, and/or culpable intent.”

7

The CSP Defendants indicate that they provided an evidentiary proffer of 100 plus pages in
connection with a draft of the Pretrial Statement, but the Plaintiffs refused to provide any similar
proffer and so they withdrew their proffer. See CSP Mot. at 1-2, n.1; Joint Pretrial Statement,
ECF No. 239, at 52.
16

Defendants’ objections to Plaintiffs’ Exhibit 3 shall be DENIED WITHOUT PREJUDICE
pending supplemental briefing by the parties.
Exhibit 5
Plaintiffs’ Exhibit 5 consists of excerpts from the Muslim Mafia book that was previously
addressed in this Memorandum Opinion.

Accordingly, for the same reasons, Defendants’

objections to Plaintiffs’ Exhibit 5 shall be DENIED WITHOUT PREJUDICE pending
supplemental briefing by the parties.
Exhibit 6
Plaintiffs’ Exhibit 6 consists of two subparts: (1) a transcript of Chris Gaubatz’s telephone
call, identified as Ex. 37 to Pls.’ Mot. for Summ. J, and (2) a transcript of Chris Gaubatz’s video,
identified as Ex. 38 to Pls.’ Mot. for Summ. J. In their Reply, the CSP Defendants withdraw their
objections to the first subpart of Plaintiffs’ Exhibit 6, and accordingly Defendants’ objections to
Plaintiffs’ Exhibit 6 (Ex. 37 to Pls’ Mot. for Summ. J.) may be DENIED AS MOOT. With regard
to the transcript identified as Ex. 38 to Pls.’ Mot. for Summ. J., the CSP Defendants request that
the Court preclude it on grounds that it is “not authenticated, lacks foundation, is not the best
evidence, includes inaccurate transcriptions and editorial notes regarding audibility, and is
inadmissible hearsay.” See CSP Mot. at 8 (relying on Fed. R. Evid. 602, 901, 802, 1002).
Defendants’ objections to Plaintiffs’ Exhibit 6 (Ex. 38 to Pls.’ Mot. for Summ. J.) are
DENIED WITHOUT PREJUDICE pending supplemental briefing by the parties.
Exhibit 8
The CSP Defendants request that the Court preclude admission of items c through e of
Plaintiffs’ Exhibit 8 — namely, a screenshot of SANE’s War Manifesto, an ADL Report regarding
David Yerushalmi, and a screenshot of the SPLC’s Anti-Muslim Inner Circle— on grounds of
17

authentication, foundation, materiality and relevancy, pursuant to Fed. R. Evid. 401-02, 602 and
901. Defendants question Plaintiffs’ ability to cure defects in these exhibits because “they have
not listed any witnesses who could even conceivably be the creators of these documents.” See
CSP Motion at 9.
Plaintiffs respond that with regard to the screenshot of SANE’s War Manifesto, David
Yerushalmi would of course be the witness to discuss this exhibit. Plaintiffs indicate additionally
that such exhibits are listed as “if the need arises” and will only be used if the Defendants are
permitted to introduce evidence of Plaintiffs’ alleged ties to terrorism and/or other alleged criminal
conduct.
Defendants’ objections to Plaintiffs’ Exhibit 8 shall be DENIED WITHOUT PREJUDICE
pending supplemental briefing by the parties.

CSP Motion Subpart III: Plaintiffs’ Failure to Designate Deposition Transcripts
The CSP Defendants contend that because Plaintiffs’ designation of deposition transcripts
fail to set out the page and line numbers, they should thus be precluded for use at trial. Plaintiffs
indicate that deposition testimony will “only be used to refresh a witnesses’ recollection or as
impeachment, but not in lieu of live testimony (except that deposition might be used de bene esse
for an unavailable witness with court approval . . . .”) See Joint Pretrial Statement, ECF No. 230,
at 62. Plaintiffs designate entire deposition transcripts for these purposes, stating that they are
“unable to identify specific portions of the deposition transcripts without advance knowledge of
the testimony of each of these witnesses.” Id.

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Defendants’ objections to the manner in which Plaintiffs have designated depositions
transcripts shall be DENIED WITHOUT PREJUDICE pending supplemental briefing by the
parties.

CSP Motion Subpart IV: Itemization of Damages
The CSP Defendants object to the Plaintiffs’ itemization of damages, which is to be
updated “at some undisclosed time” and “does not set out the specific amounts of the damages’
components.”

8

See CSP Mot. at 9. The CSP Defendant suggest that any evidence of damages

should be precluded because of these deficiencies.
This Court’s Pretrial Scheduling and Procedures Order indicates that the Pretrial Statement
shall include “[a]n itemization of damages by the party seeking to recover, setting forth separately
each element of damages, and the monetary amount thereof, including prejudgment interest,
punitive damages, and attorneys’ fees.” See Pretrial Scheduling and Procedures Order, ECF No.
231, at 3. Plaintiffs assert that they have set forth the categories of damages they seek to recover
— wages earned by Chris Gaubatz via his father for recording at CAIR, wages earned by Chris
Gaubatz vis CSP for 2 months after leaving CAIR, $103,865 paid to SANE by CSP in 2008, profits
from the sale of the book Muslim Mafia, statutory damages, nominal damages for trespass,
attorney’s fees and costs, and punitive damages — but “the exact amounts of many of these items
of damages will depend entirely on certain Defendants’ testimony at trial and will be up to the jury
to determine.” See Pls.’ Responses at 14. Plaintiffs offer to amend their itemization of damages,
if so required by the Court, once a trial date has been set. Defendants’ objections to Plaintiffs’

8

The itemization of damages includes only one monetary calculation – the $103,865 paid to
SANE by CSP in 2008. See Joint Pretrial Statement, ECF No. 239, at 70.
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itemization of damages shall be DENIED WITHOUT PREJUDICE pending supplemental briefing
by the parties.
Accordingly, it is this 29th day of March, 2018, hereby
ORDERED that Plaintiffs’ [249] Motions in Limine are DENIED WITHOUT
PREJUDICE pending supplemental briefing by the parties, as detailed herein, and it is further
ORDERED that the CSP Defendants’ [248] Motion-In-Limine is GRANTED IN PART
and DENIED IN PART. More specifically, the Motion is GRANTED with regard to the indication
of availability of witnesses by Plaintiffs, once a trial date has been set, and the exclusion of
references to “conspiracy” and related terms; the Motion is DENIED WITHOUT PREJUDICE
with regard to introduction of the Muslim Mafia, witnesses Sarah Pavlis, Adam Savit, Corey
Saylor, David Zimmerman and Harold C. Weatherman III, the request for an evidentiary proffer,
Defendants’ objections to Plaintiffs’ Exhibits 3, 5, 6 (subpart identified as Ex. 38 to Pls.’ Mot. for
Summ. J.) and 8, and the requests for Plaintiffs’ designation of deposition transcripts and
itemization of damages; and it is DENIED AS MOOT with regard to the CSP Defendants’ “lack
of personal knowledge” objections to witnesses Paul Don Vito, Paul Sperry and Joseph Farah (with
the CSP Defendants reserving their right to make specific objections before trial, if appropriate, or
at trial), Plaintiffs’ Exhibit 2 (preserving the CSP Defendants’ objections relating to foundation,
relevance and hearsay), and Plaintiffs’ Exhibit 6 (subpart identified as Ex. 37 to Pls.’ Mot. for
Summ. J), and it is further
ORDERED that the Defendants’ supplemental briefing responsive to Plaintiffs’ [249]
Motions in Limine shall with specificity set out a factual proffer, and shall precisely address the
manner in which the evidence sought to be precluded by Plaintiffs is relevant to the particular
elements of the specific claims and/or any recognized affirmative defenses in this case, citing
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cases, statutes and/or other authority in support of their arguments, and including references,
among other evidence, to describe the actual knowledge, intent and consent of Chris Gaubatz; as
well as the relevance of knowing the background of the Muslim Brotherhood/CAIR documentary;
and any alleged specific instance of criminal conduct by CAIR.

While the Court has set out

Plaintiffs’ objections to the evidence that Plaintiffs seek to preclude, the Court anticipates that the
Defendants’ response will be more comprehensive in scope than Plaintiffs’ objections.
Defendants’ Supplemental Briefing is due by April 30, 2018.

Plaintiffs’ Response to the

Supplemental Briefing is due by May 22, 2018.

___________/s/_________________
COLLEEN KOLLAR-KOTELLY
United States District Judge

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