Markham Concepts, Inc. v. Hasbro, Inc.
MEMORANDUM AND ORDER denying 130 Motion in Limine to Exclude Bill Markham's 1989 Deposition Testimony. So Ordered by Chief Judge William E. Smith on 12/19/2012. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
MARKHAM CONCEPTS, INC.; SUSAN GARRETSON;)
and LORRAINE MARKHAM, individually and )
in her capacity as Trustee of the Bill )
and Lorraine Markham Exemption Trust
and the Lorraine Markham Family Trust, )
C.A. No. 15-419 WES
HASBRO, INC.; REUBEN KLAMER; DAWN
LINKLETTER GRIFFIN; SHARON LINKLETTER; )
MICHAEL LINKLETTER; LAURA LINKLETTER
RICH; DENNIS LINKLETTER; THOMAS FEIMAN, )
in his capacity as co-trustee of the
Irvin S. and Ida Mae Atkins Family
Trust; ROBERT MILLER, in his capacity
as co-trustee of the Irvin S. and Ida
Mae Atkins Family Trust; and MAX
CANDIOTTY, in his capacity as
co-trustee of the Irvin S. and Ida Mae )
Atkins Family Trust,
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
This case is before the Court on Defendant Hasbro, Inc.’s,
Testimony. Def.’s Mot., ECF No. 130. This testimony was given as
part of prior litigation (“1989 Litigation”) involving the Game of
Life (“Game”) initiated by Bill Markham against Reuben Klamer and
Hasbro’s predecessor-in-interest, Milton Bradley, among others.
Even though Mr. Markham is now deceased, Hasbro argues that his
prior deposition testimony is hearsay that does not fall under any
exception, and is therefore inadmissible. The Court disagrees,
finding that the testimony at issue is admissible, not under Rule
804(b)(1), but rather under Rule 807. See Fed. R. Evid. 804, 807.
Rule 804(b)(1) 1
Hasbro’s first contention is that Mr. Markham’s deposition
testimony is not covered by the former-testimony exception to the
rule against hearsay. Def.’s Mot. 6-10. This exception provides
that where a declarant is unavailable as a witness, testimony that:
(A) was given as a witness at a trial, hearing, or lawful
deposition, whether given during the current proceeding
or a different one; and
(B) is now offered against a party who had – or, in a
civil case, whose predecessor in interest had - an
opportunity and similar motive to develop it by direct,
cross-, or redirect examination
Litigation, and that Hasbro is a predecessor-in-interest to Milton
Bradley. Def.’ s Mot. at 6. Nevertheless, Hasbro argues, Milton
Bradley did not have a similar motive to examine Mr. Markham in
the 1989 Litigation. Id.
The parties agree that the deposition testimony is hearsay,
so the Court proceeds with an analysis of the relevant exceptions.
Hasbro points out that the 1989 Litigation was a contract
case that put at issue the implications of various agreements
between Mr. Markham and the then-existing successors-in-interest
to Link Research Corp. Id. at 2. Indeed, as Mr. Markham’s complaint
in that case states, he named Milton Bradley as a defendant “solely
because Milton Bradley is a necessary and indispensable party to
the resolution of this action,” not because of any “wrongdoing” on
the company’s part. Decl. of Courtney L. Batliner Ex. A, ¶ 28, ECF
Milton Bradley, whose participation in the 1989 Litigation
was little more than a formality, cannot then be said to have had
a similar motive as the one Hasbro has here to develop and test
property. See United States v. Bartelho, 129 F.3d 663, 672 (1st
Cir. 1997) (“[T]he similar-motive inquiry . . . requires scrutiny
determine both the issue in dispute and the intensity of interest
in developing the particular issue by the party against whom the
disputed testimony is offered.”).
There can be no doubt that the interest, if any, to probe Mr.
Markham in 1989 as to the events surrounding the creation of the
Game was not as intense as the interest the parties have in that
issue here. 2 Cf. Holmquist v. Farm Family Cas. Ins. Co., 800 F.
Supp. 2d 305, 310-11 (D. Me. 2011) (disallowing former-testimony
evidence where “there would have been little motivation to explore
[the] issues [at bar] . . . in the prior proceeding (save for
perhaps seeking to damage [the witness]'s credibility”).
admissible pursuant to the former-testimony exception. 3
deposition is not eligible for admission under Rule 804(b)(1), the
Court should admit it under Rule 807. Rule 807 is the “residual
exception” to the hearsay rule, by which a court may allow hearsay
statements “not specifically covered by a hearsay exception in
Rule 803 or 804” if:
guarantees of trustworthiness;
it is offered as evidence of a material fact;
On this point, the Court notes that Plaintiffs Markham
Concepts, Inc., and Lorraine Markham have already represented to
the Court that “the claims previously raised by the parties in the
1989 Litigation . . . relate to six very different main factual
disputes” than those in the instant case. Countercl. Defs.’ Mem.
of Law in Supp. of Mot. for J. on the Pleadings and/or to Dismiss
Certain of Klamer’s Countercls. and to Strike Certain Affirmative
Defenses 10, ECF No. 37-1.
This being the case even assuming Plaintiffs are not
judicially estopped from making an argument under Rule 804(b),
Hasbro’s argument on that score, see Def.’s Mot. 10-12, is of no
it is more probative on the point for which it is
offered than any other evidence that the proponent
can obtain through reasonable efforts; and
admitting it will best serve the purposes of these
rules and the interests of justice.
Fed. R. Evid. 807.
To the extent it touches on his recollection concerning the
events underlying the claims in the instant case, Mr. Markham’s
deposition testimony is evidence of at least one material fact,
namely, the extent and nature of Mr. Markham’s and Mr. Klamer’s
involvement in the Game’s creation. See United States v. Sposito,
106 F.3d 1042, 1047 (1st Cir. 1997) (Rule 807(1) “requires only
that the statement be offered as evidence of a material fact. It
need not itself be a material fact.”). The testimony would also be
the most probative evidence available regarding Mr. Markham’s
understanding of his relationship with Mr. Klamer vis-à-vis the
Game. See id. at 1046-47 (Rule 807(3) “requires only that the
statement be more probative on the point for which it is offered.”
Moreover, Mr. Markham’s deposition testimony was under oath
and pertaining to matters of which he had personal knowledge. See
United States v. Panzardi-Lespier, 918 F.2d 313, 316 (1st Cir.
1990) (“Courts have consistently provided that former testimony is
trustworthy when it is given under oath . . . [and when] the
witness testified about matters within his personal knowledge.”).
veracity. See id. (noting that an indicium of trustworthiness is
that testimony “is not implausible”).
Finally, the Court finds that allowing the admission of Mr.
Markham’s deposition testimony will serve the purposes of the
Federal Rules of Evidence and the interests of justice – not least
because the testimony is from one of the two most important
percipient witnesses in this case, the other being Mr. Klamer, who
has already provided live testimony. See Sposito, 106 F.3d at 1048
(The “[b]asic purpose of the Federal Rules of Evidence . . . [is]
truth ascertainment and fair adjudication of controversies.”).
Markham’s 1989 Deposition Testimony (ECF No. 130) is DENIED.
IT IS SO ORDERED.
William E. Smith
Date: December 19, 2017
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