Republican Party of New Mexico et al v. King et al

Filing 272

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson DENYING 270 Opposed MOTION for Leave to File Plaintiffs Reply in Support of Objections to Defendants Additional Evidence for Trial on the Written Record, GRANTING 260 Opposed MOTION for Leave to File Supplemental Expert Report of Jeffrey Milyo, Ph.D.. (cmm)

Case 1:11-cv-00900-WJ-KBM Document 272 Filed 01/19/23 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
____________________
REPUBLICAN PARTY OF NEW MEXICO, et al.,
Plaintiffs,
vs.

No. 11-cv-900-WJ-KBM

HECTOR BALDERAS, in his official capacity, New
Mexico Attorney General; MAGGIE TOULOUSE
OLVER, in her official capacity, New Mexico
Secretary of State; and District Attorneys RAUL
TORREZ, GERALD BYERS, and DIANNA LUCE,
in their official capacities,
Defendants.
MEMORANDUM OPINION AND ORDER
ON PENDING MOTIONS AND OBJECTIONS
THIS MATTER is before the Court on Plaintiffs’ Motion for Leave to File Supplemental
Expert Report of Jeffrey Milyo, Ph.D. (Doc. 260), Plaintiffs’ Objections to Defendants’ Additional
Evidence for Trial on the Written Record (Doc. 266), Defendants’ Notice of Objections to ECF
No. 260-1 and 264-1 (Doc. 267), and Plaintiff’s Motion to Strike or, in the alternative, for Leave
to Reply in Support of Objection to Defendants’ Additional Evidence for Trial on the Written
Record (Doc. 270). The Court grants Plaintiff’s Motion for Leave to File Supplemental Expert
Report, overrules Plaintiffs’ Objections, overrules Defendants’ Notice of Objections, and denies
Plaintiff’s Motion to Strike or, in the alternative, for Leave to Reply, without prejudice to the
parties’ rights to make or renew any trial objections to specific documentary evidence in
accordance with the Court’s Scheduling Order for Trial on the Written Record.

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1. Plaintiff’s Motion for Leave to File Supplemental Expert Report of Jeffrey Milyo,
Ph.D.
Plaintiffs filed their Motion for Leave to File Supplemental Expert Report of Jeffrey Milyo,
Ph.D. on November 14, 2022 (Doc. 260). Plaintiffs’ attach the proposed Supplemental Report as
Exhibit 1 to the Motion. (Doc. 260-1). Plaintiffs argue that the Supplemental Report does not
express new theories or claims and submission at this stage of the proceedings will not be
prejudicial to Defendants. (Doc. 260). Defendants oppose filing of the Supplemental Report,
contending that it is untimely and is not tailored to meet the narrow criteria for supplementing
expert reports. (Doc. 263).
Because trial in this case will be conducted as a bench trial on the written record, the Court
determines that Plaintiffs should be permitted to file the Supplemental Expert Report of Jeffrey
Milyo. The Supplemental Expert Report may properly be treated as additional documentary
evidence and was timely filed under the Court’s September 15, 2022 Order (Doc. 258). However,
the Court’s decision to grant leave to file the Supplemental Expert Report is without prejudice to
Defendants’ right to renew any evidentiary objections they have to the Supplemental Expert Report
as provided in the Court’s Scheduling Order for Trial on the Written Record. The Court grants the
Motion for Leave to File Supplemental Expert Report of Jeffrey Milyo Ph.D. (Doc. 260) and the
Supplemental Report attached as Exhibit 1 to the Motion (Doc. 260-1) shall be deemed to be filed
as part of the record without the necessity of refiling by Plaintiffs.
2. Objections to Additional Evidence for Trial on the Written Record.
Plaintiffs have filed objections to all additional evidence identified by Defendants on
November 14, 2022. (Doc. 266). Plaintiffs make three blanket objections to all of the additional
evidence submitted by Defendants: (1) hearsay; (2) relevance; and (3) any probative value is
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outweighed by confusion of the issues, waste of time, and prejudice to Plaintiffs. (Doc. 266 at 29, 9-13 and 13-14). The Court overrules the objections without prejudice to renewal of a specific
objection made in accordance with the Court’s Scheduling Order for Trial on the Written Record.
Plaintiffs’ first objection is that all of the documents identified by Defendants as additional
evidence are inadmissible hearsay. (Doc. 266 at 2-4). It is true that any document other than a
transcript of court proceedings constitutes an out-of-court statement, and, therefore, all of the
written materials identified by both parties are out-of-court statements. However, to constitute
hearsay, the documents must also be offered for the truth of the matter asserted. Fed. R. Evid.
801(c). Moreover, even if an out-of-court statement is offered for the truth of the matter asserted,
it still may not constitute hearsay if it is a declarant-witness’s prior statement or a statement by a
party opponent. (Fed. R. Evid. 801(d)). Further, even if a statement is considered hearsay, it may
be removed from operation of the hearsay rule by a number of exceptions to the rule. Fed. R. Evid.
803-807. It is difficult, if not impossible, for the Court to make a generalized determination
whether evidence should be excluded as inadmissible hearsay.

Instead, the Court needs both

factual and legal context in order to make a determination of whether the evidence is excluded by
the hearsay rule. Therefore, the Court overrules the hearsay objection without prejudice to the
parties’ right to renew the hearsay objection as provided in the Scheduling Order for Trial on the
Written Record.
Second, Plaintiffs object that the additional documentary evidence submitted by
Defendants is not relevant or admissible. (Doc. 266 at 9). Under Fed. R. Evid. 401, evidence is
relevant (1) if it has a tendency to make a fact more or less probable than it would be without the
evidence and (2) the fact is of consequence to determining the action. The Court, again, cannot
decide issues of relevancy in a vacuum. Instead, the Court must have notice of the fact a party is

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attempting to prove with the challenged evidence and the legal materiality of that fact. Fed. R.
Evid. 401. Therefore, again, the Court overrules the hearsay objection without prejudice to the
parties’ right to renew relevancy objections as provided in the Scheduling Order for Trial on the
Written Record.
Last, Plaintiffs contend that, even if relevant, all of the additional evidence should be
excluded under Fed. R. Evid. 403. Rule 403 provides that a court may exclude evidence if the
probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. The
trial in this case is a bench trial to the Court, not a jury trial. Fed. R. Civ. P. 52. It has long been
recognized that the Rules of Evidence apply differently, and some do not apply at all, in the context
of a bench trial. See, e.g., U.S. v. Kienlen, 349 Fed. App’x. 349 (10th Cir. 2009). The concerns of
Rule 403 apply differently in a trial where a jury has no role in the decision-making process.
Specifically, the Tenth Circuit has stated: “[o]ther circuits have held, and we agree, that excluding
evidence in a bench trial under ‘Rule 403’s weighing of probative value against prejudice [is]
improper.’” U.S. v. Kienlen, 349 Fed. App’x. at 351 (unpublished) (quoting Gulf States Utils. Co.
v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir.1981)). The Court also overrules Plaintiffs’ Rule
403 objection without prejudice. The Court notes, however, that it will apply the Federal Rules of
Evidence as appropriate in the context of a bench trial and will only entertain Rule 403 objections
to the extent they are not directed to jury decision-making concerns.
Also pending before the Court is Defendants’ Notice of Objections to ECF No. 260-1 and
264-1. (Doc. 267). The Court also overrules Defendants’ objections at this time, without prejudice
to Defendants’ right to renew the objections as provided in the Court’s Scheduling Order for Trial
on the Written Record.

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3. Plaintiffs’ Motion to Strike or, in the alternative, for Leave to Reply in Support of
Objection to Defendants’ Additional Evidence for Trial on the Written Record
On January 11, 2023, Plaintiffs filed their Motion to Strike or, in the alternative, for Leave
to Reply in Support of Objection to Defendants’ Additional Evidence for Trial on the Written
Record (Doc. 270). For the reasons stated overruling Plaintiffs’ Objections to Defendants’
Additional Evidence, above, the Court denies Plaintiffs’ Motion to Strike or for Leave to Reply.
The denial of Plaintiff’s Motion is also without prejudice to Plaintiffs’ right to renew specific
objections to Defendants’ evidence as provided in the Court’s Scheduling Order for Trial on the
Written Record.
IT IS SO ORDERED.

______________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

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