2:04-cv-08425 #179

Case 2:04-cv-08425-VAP -E Document 179
Filed 06/18/10 Page 1 of 30
1 TONY WEST Assistant Attorney General 2 ANDR BIROTTE, Jr. United States Attorney 3 JOSEPH H. HUNT VINCENT M. GARVEY 4 PAUL G. FREEBORNE W. SCOTT SIMPSON 5 JOSHUA E. GARDNER RYAN B. PARKER 6 U.S. Department of Justice Civil Division 7 Federal Programs Branch P.O. Box 883 8 Washington, D.C. 20044 Telephone: (202) 353-0543 9 Facsimile: (202) 616-8460 E-mail: paul.freeborne@ usdoj.gov 10 Attorneys for Defendants United States 11 of America and Secretary of Defense 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DEFENDANTS MOTION IN LIMINE TO EXCLUDE CERTAIN OF PLAINTIFFS PROPOSED EXHIBITS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA AND) ROBERT M. GATES, Secretary of Defense,) ) Defendants. ) ) ) ) ) ) Filed herewith: 1. 2. 3. 4. Notice of Motion and Motion in Limine to Exclude Certain of Plaintiffs Exhibits Memorandum of Points and Authorities Exhibit 1: Defendants Objections to Plaintiffs Exhibit List Proposed Order No. CV04-8425 VAP (Ex) DEFENDANTS MOTION IN LIMINE TO EXCLUDE CERTAIN OF PLAINTIFFS PROPOSED EXHIBITS DATE: June 28, 2010 TIME: 2:30 p.m. BEFORE: Judge Phillips
14 LOG CABIN REPUBLICANS,
1 2 3 4
NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE CERTAIN OF PLAINTIFFS PROPOSED EXHIBITS NOTICE IS HEREBY GIVEN that on June 28, 2010, at 2:30 p.m. in the
5 Courtroom of the Honorable Virginia A. Phillips, United States District Judge, 6 Defendants United States and Secretary of Defense (collectively, Defendants), by 7 and through counsel, will move in limine under Federal Rules of Evidence 402, 403 8 and 802 to exclude certain proposed exhibits that Plaintiff intends to offer into 9 evidence at trial. The motion will be based upon these moving papers, the attached 10 Memorandum of Points and Authorities in support of the Motion, and upon such other 11 and further arguments, documents, and grounds as may be advanced in the future. This Motion is made following the conference of counsel pursuant to Local 12 13 Rule 7-3, which took place by telephone on June 8, 2010. 14 Dated: June 18, 2010 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Respectfully submitted, TONY WEST Assistant Attorney General ANDR BIROTTE, JR United States Attorney JOSEPH H. HUNT Director VINCENT M. GARVEY Deputy Branch Director /s/ Ryan B. Parker PAUL G. FREEBORNE W. SCOTT SIMPSON JOSHUA E. GARDNER RYAN B. PARKER Trial Attorneys
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TABLE OF AUTHORITIES CASES
3 AAMCO Transmissions, Inc. v. Baker, 591 F. Supp. 2d 788 (E.D. Pa. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 4 Adams v. Teck Cominco Alaska, Inc., 231 FRD 578 (D. Alaska) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5 6 Ake v. General Motors Corp., 942 F. Supp. 869 (W.D.N.Y. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 7 Albee v. Continental Tire North Am., Inc., No. 09-1145, 2010 WL 1729092 (E.D. Cal. Apr. 27, 2010) . . . . . . . . . . . . 9 8 9 Alexie v. United States, No. 3:05-cv-00297, 2009 WL 160354 (D. Alaska Jan. 21, 2009) . . . . . . . 16 10 Baker v. Delta Airlines, Inc., 6 F.3d 632 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 11 12 Banks v. U.S., 78 Fed. Cl. 603 (Fed. Cl. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 13 Bohler-Uddeholm Am., Inc. v. Ellwood Group, Inc., 247 F.3d 79 (3d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 14 15 Branco v. Life Care Centers of Am., Inc., No. 05-1139, 2006 WL 4484727 (W.D. Wash. May 4, 2006) . . . . . . . . . . . 9 16 Bromberg v. U.S., 389 F.2d 618 (9th Cir. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 17 18 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 19 Costantino v. Herzog, 203 F.3d 164 (2d Cir.2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 20 21 FCC v. Beach Commc'ns, 508 U.S. 307 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 22 Fireman's Fund Ins. Co. v. U.S., No. 04-1692, 2010 WL 2197532 (Fed. Cl. May 26, 2010) . . . . . . . . . . . . 16 23 24 Fong v. American Airlines, Inc., 626 F.2d 759 (9th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 25 Gable v. Patton, 142 F.3d 940 (6th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 26 27 Gibson v. County of Riverside, 181 F.Supp.2d 1057 (C.D. Cal. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 28
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Goldman v. Weinberger, 475 U.S. 503 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2 3 Gonzales v. Carhart, 550 U.S. 124 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4 Green v. Baca, 226 F.R.D. 624 (C.D. Cal 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 5 6 Howard v. U.S. Dep't of Def., 354 F.3d 1358 (Fed. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 7 Jimenez v. Hernandez, No. 06-1501, 2009 WL 921289 (D.P.R. Mar. 31, 2009) . . . . . . . . . . . . . . 16 8 9 Kuntz v. Sea Eagle Diving Adventures Corp., 199 F.R.D. 665 (D. Haw. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 10 Law v. National Collegiate Athletic Association, 185 F.R.D. 324 (D.Kan.1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 11 12 Lizotte v. Praxair, Inc., 640 F.Supp.2d 1335 (D. Wash. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 13 Logan v. City of Pullman, 392 F. Supp. 2d 1246 (E.D. Wash. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 17 14 15 Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924 (9th Cir. 2002), as amended by 313 F.3d 1093 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 16 17 Luce v. U.S., 469 U.S. 38 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 18 MDK, Inc. v. Village of Grafton, 277 F. Supp. 2d 943 (E.D. Wisc. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 19 20 McCullen v. Coakley, 573 F. Supp. 2d 382 (D. Mass. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 21 Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971 (1st Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 22 23 Morgan v. Plano Independent School Dist., No. 04-447, 2007 WL 397494 (E.D. Tex. Feb. 1, 2007) . . . . . . . . . . . . . . . 8 24 Opuku-Boateng v. State of Cal., 95 F.3d 1461 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 25 26 28
Paddack v. Dave Christensen, Inc., 745 F.2d 1254 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 27
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1 Palmerin v. City of Riverside, 794 F.2d 1409 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2 Pittsburgh Press Club v. U.S., 579 F.2d 751 (3d Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3 4 Rostker v. Goldberg, 453 U.S. 57 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 5 Sanitation & Recycling Indust., Inc. v. City of New York, 928 F. Supp. 407 (S.D.N.Y. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 6 7 Schneider v. Revici, 817 F.2d 987 (2d Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 8 Shimozono v. The May Dep't Stores Co., No. 00-4261, 2002 WL 34373490 (C.D. Cal. Nov.20, 2002) . . . . . . . . . . 10 9 10 Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 11 Sigler v. American Honda Motor Co., 532 F.3d 469 (6th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 12 13 In re Slatkin, 525 F.3d 805 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 14 Smart v. Ashcroft, 401 F.3d 119 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 15 16 Sternhagen v. Dow Co., 108 F. Supp. 2d 1113 (D. Mont. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 17 Sugar Asssoc. v. McNeil-PPC, Inc., No. 04-10077, 2008 WL 4755611 (C.D. Cal. Jan. 7, 2008) . . . . . . . . . . . 4, 5 18 19 Televisa, S.A. De C.V. v. Univision Communications, Inc., 635 F. Supp. 2d 1106 (C.D. Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 20 Trepel v. Roadway Exp., Inc., 194 F.3d 708 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 21 22 U.S. v. An Article of Drug, 661 F.2d 742 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 23 U.S. v. Connors, 825 F.2d 1384 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 24 25 U.S. v. Fowlie, 24 F.3d 1059 (9th Cir.1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 26 U.S. v. Hughes, 535 F.3d 880 (8th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 27 28
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1 U.S. v. Jackson, 84 F.3d 1154 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2 U.S. v. Lujan, 504 F.3d 1003 (9th Cir.2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7 3 4 U.S. v. Martinez, 588 F.3d 301 (6th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 5 U.S. v. Raines, 362 U.S. 17 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 6 7 U.S. v. Salerno, 481 U.S. 739 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 8 U.S. v. Sanchez-Lima, 161 F.3d 545 (9th cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20 9 10 U.S. v. Valdez-Soto, 31 F.3d 1467 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 11 U.S. v. Vallejo, 237 F.3d 1008 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 12 13 U.S. v. Washington, 106 F.3d 983 (D.C. Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 14 Utah Women's Clinic, Inc. v. Leavitt, 844 F. Supp. 1482 (D. Utah 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 15 16 Vance v. Bradley, 440 U.S. 93 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 17 Western & Southern Life Ins. Co. v. State Bd., 451 U.S. 648 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 18 19 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11 20 Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 21 22 STATUTES 23 10 U.S.C. 654 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 FEDERAL RULES OF CIVIL PROCEDURE 24 25 Rule 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 26 Rule16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 27 Rule 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 28 Rule 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 22
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FEDERAL RULES OF EVIDENCE Rule 703 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Rule 801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14 Rule 807 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17, 19 LEGISLATIVE HISTORY S. Rep. 103-112, at 288 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 MISCELLANEOUS
7 James Wm. Moore et al., Moore's Federal Practice 37.22[2][a] (3d ed. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 9 10 Wright & Victor James Gold, Federal Practice and Procedure: Evidence 6273 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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INTRODUCTION Plaintiff Log Cabin Republicans (LCR) has brought a facial substantive
3 due process challenge to the federal statute, 10 U.S.C. 654, and implementing 4 regulations that comprise the militarys policy on homosexual conduct, commonly 5 known as Dont Ask, Dont Tell (DADT). Because LCR brought a facial, 6 rather than as-applied, challenge, it faces a heavy burden. A facial challenge to a 7 legislative Act is the most difficult challenge to mount successfully, since the 8 challenger must establish that no set of circumstances exists under which the Act 9 would be valid. U.S. v. Salerno, 481 U.S. 739, 745 (1987). LCR seeks to meet 10 this burden by, among other things, introducing over 300 exhibits identified on its 11 exhibit list. Yet, LCRs efforts in this regard are misguided. LCRs facial constitutional challenge present the Court with legal, not 12
1 13 factual questions. See U.S. v. Lujan, 504 F.3d 1003, 1006 (9th Cir.2007) ([T]he 14 constitutionality of a federal statute [is] a question of law that we review de
15 novo.). But evidence is only relevant if it makes the existence of any fact that is 16 of consequence more or less probative. See Fed. R. of Evid. (FRE) 401. As 17 LCRs facial claim raises a purely legal issue, there are no facts that are of 18 consequence contained within LCRs proposed exhibits. Thus, LCRs proposed 19 exhibits are not legally relevant or otherwise admissible. See FRE 402 (Evidence 20 which is not relevant is not admissible.). 21 In addition, LCR has identified a number of exhibits that it produced to the 22 defendants less than a week ago. Pursuant to Federal Rule of Civil Procedures 23 37(c)(1), the Court should exclude these late-identified exhibits, as LCR cannot 24 25
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26 remain genuine issues of fact in dispute regarding whether LCR has standing to bring its suit, as 27 defendants have not lodged relevancy objections to certain exhibits that they believe LCR 28 intends to use to establish its standing to sue.
DEFENDANTS MOTION IN LIMINE TO EXCLUDE CERTAIN OF PLAINTIFFS PROPOSED EXHIBITS
Although LCRs facial substantive due process claim does not raise factual issues, there
the Court recognized in its May 27 Order. See Dkt. No. 170, pp. 19, 21. Accordingly,
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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543
1 establish a substantial justification for its untimely production, and defendants 2 would be prejudiced at this late stage in the litigation. 3 Finally, even if evidence outside the statute and legislative history otherwise 4 was legally relevant to the resolution of LCRs facial constitutional challenge, 5 many of the documents LCR seeks to enter as exhibits contain hearsay or multiple 6 levels of hearsay. See FRE 801(c), 805. The hearsay statements contained within 7 LCRs proposed exhibits are not subject to any of the exceptions to the hearsay 8 rule and, accordingly, are inadmissible. See FRE 802, 805. For each of these 9 reasons, as set forth more fully below, the Court should grant the defendants
2 10 motion in limine.
11 12
BACKGROUND LCR has listed over 300 exhibits on its draft proposed exhibit list.
13 Conceptually, LCRs proposed exhibits can be separated into five basic categories. 14 The first category of exhibits contain documents that were created by groups or 15 individuals who actively advocate for the repeal of DADT (collectively, the 16 Advocacy Exhibits). This category includes documents prepared by advocacy 17 groups such as the Palm Center and Servicemembers Legal Defense Network, and 18 19 20 21 22 23 24 25 26 27 28
Defendants have lodged specific objections to individuals exhibits identified in LCRs exhibit list, and those objections are reflected in Exhibit 1 to this motion. This motion in limine addresses certain of the defendants objections common to a number of exhibits. To the extent this motion does not address a specific exhibit where defendants have lodged an objection, defendants in no way have waived their objections to those exhibits.
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1 by individuals such as Aaron Belkin and Nathaniel Frank, two of LCRs experts in 3 4 5 2 this case, as well as books (and book chapters) and journal/law review articles. 3 The second category of exhibits includes articles from newspapers, 4 magazines, and blogs; unofficial transcripts from television programs; and 5 documents containing or analyzing poll results (collectively, the Media and
6 6 Polling Exhibits). The third category of exhibits includes documents created by government 7 7 8 contractors (the Contractor Exhibits). The fourth category of exhibits contain documents that were not previously 9
10 disclosed to defendants and which, in large part, relate to the particular facts and 8 11 circumstances of individual service members who were discharged under DADT. 12 Finally, the fifth category of exhibits includes the remainder of LCRs 13 exhibits, such as, among other things, LCRs experts reports, email exchanges by 14 non-parties, non-party letters, articles, and other documents that do not fall within 15 the other four categories. As set forth below, the majority of the documents in each of these five 16 17 categories are irrelevant to the issues before the Court and, in many instances, 18 19 20
These exhibits include exhibit numbers 10, 12, 13, 15, 16, 17, 21, 22, 25, 26, 31, 58, 60 69, 77, 79, 80, 81, 220, 223, 233, 240, 251, 261, 264, 273, 274, 277, 278, 279, 280, 311, and 333.
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21 153, 155, 162, 163, 164, 177, 178, 209, 210, 219, 225, 226, 227, 243, 282, 283, 300, and 301. 22 5 23 and 307 24 25 26 27 28
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The book and book chapter exhibits include numbers 20, 27, 30, 34, 43, 53, 54, 56, 62,
These include exhibit numbers 18, 35, 52, 67, 78, 161, 169, 218, 224, 241, 242, 278,
The exhibits that fall within this second category include exhibit numbers 11, 32, 44, 168, 259, 260, 272, 293, 294, 296, 297, 299, 302, 303, 304, 310, 313, 314, 316, 317, and 336. The exhibits that fall within this third category include numbers 69, 70, 71, 72, 73, 74, 101, 172, 193, 199, 212, 231, and 290.
8 7
These exhibits include 40, 41, 110A, 111-129, 131-151, 255, and 256.
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1 contain inadmissible hearsay and hearsay within hearsay. Accordingly, the Court 2 should grant the defendants motion in limine. 3 4 I. 5 6 Legal Standards A. Motions In Limine A motion in limine refer[s] to any motion, whether made before or during ARGUMENT
7 trial, to exclude anticipated prejudicial evidence before the evidence is actually 8 offered. Sugar Asssoc. v. McNeil-PPC, Inc., No. 04-10077, 2008 WL 4755611 9 (C.D. Cal. Jan. 7, 2008) (citing Luce v. United States, 469 U.S. 38, 40 n. 2 (1984)). 10 A motion in limine is a recognized method under Fed. R. Civ. P. 16 for obtaining a 11 pretrial order simplifying issues for trial and ruling in advance on the 12 admissibility of evidence. Fed. R. Civ. P. 16(c)(2)(A) & (C). In fact, the Court 13 has a duty to exercise its power to exclude testimony or evidence in appropriate 14 cases because motions in limine enable the Court to define the issues, facts, and 15 theories actually in contention and to weed out extraneous issues. The Ninth 16 Circuit has recognized that motions in limine are useful tools to resolve issues 17 which would otherwise clutter up the trial. Palmerin v. City of Riverside, 794 18 F.2d 1409, 1413 (9th Cir. 1986). Indeed, pretrial rulings on critical evidentiary 19 questions permit the trial to be conducted more efficiently and effectively. Id. 20 (citation omitted). 21 22 B. Relevancy Under the Federal Rules, evidence must be relevant to be admissible. FRE
23 402. Evidence is relevant if it has any tendency to make the existence of any fact 24 that is of consequence to the determination of the action more probable or less 25 probable than it would be without the evidence. Baker v. Delta Airlines, Inc., 6 26 F.3d 632, 641 (9th Cir. 1993) (quoting FRE 401). The particular facts of the case 27 determine the relevancy of a piece of evidence. U.S. v. Vallejo, 237 F.3d 1008, 28 1015 (9th Cir. 2001). LCR has the burden of establishing by a preponderance of
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1 the evidence that each of its proposed exhibits is relevant. U.S. v. Connors, 825 2 F.2d 1384, 1390 (9th Cir. 1987); Sugar Assoc., 2008 WL 4755611, at *1 (citing 3 Bourjaily v. United States, 483 U.S. 171, 175 (1987)). C. Hearsay 4 5 A statement offered in evidence to prove the truth of the matter asserted is 6 not admissible absent one of the exceptions contained in FRE 803 or 804. See FRE 7 801 & 802. In addition, hearsay within hearsay is inadmissible unless each part of 8 the combined statements conform with an exception to the hearsay rule set forth 9 in FRE 803 or 804. See FRE 805. LCR has the burden of establishing that a 10 particular hearsay exception applies to each level of hearsay contained within the 11 exhibits it seeks to introduce at trial. See Los Angeles News Service v. CBS 12 Broadcasting, Inc., 305 F.3d 924 (9th Cir. 2002), as amended by 313 F.3d 1093 13 (9th Cir. 2002). 14 II. 15 16 17 18 LCR Cannot Meet Its Burden Of Establishing The Relevancy of Most of Its Proposed Exhibits A. Evidence Outside Of The Statute And Legislative History Is Inappropriate In A Facial Constitutional Challenge LCR seeks to introduce approximately 300 exhibits at trial. The
19 overwhelming majority of these exhibits are in support of LCRs facial substantive 20 due process challenge to DADT. Indeed, it is apparent that LCR intends to use 21 these exhibits to challenge the wisdom and logic of Congress in enacting DADT 22 both at the time of enactment, and since enactment under a continuing rationality
9 23 theory. As discussed in defendants summary judgment and supplemental
24 25 26 27 28
As explained in defendants motion for summary judgment, the DADT policy must be reviewed at the time of its enactment and is not subject to challenge on the ground of changed circumstances. See, e.g., U.S. v. Jackson, 84 F.3d 1154, 1161 (9th Cir. 1996); Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 977 (1st Cir. 1989) (evaluating the continued need for, and suitability of, legislation of this genre is exactly the kind of policy judgment that the rational
(continued...)
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1 briefing, as well as below, LCRs intended use of exhibits for this purpose, 2 regardless of the level of scrutiny employed by the Court, is wholly inappropriate 3 in resolving LCRs facial constitutional challenge. For the reasons previously identified by the Court in its June 9, 2009 Order 4 5 (Dkt. No. 83, p. 16) and by defendants in their summary judgment and 6 supplemental briefing, LCRs facial constitutional challenge properly is governed 7 by rational basis review. The Supreme Court has made abundantly clear that a 8 legislative choice subject to the rational basis test is not subject to courtroom fact9 finding and may be based on rational speculation unsupported by evidence or 10 empirical data. FCC v. Beach Commcns, 508 U.S. 307, 315 (1993). The proper 11 analysis instead asks whether the legislature rationally could have believed that 12 the conditions of the statute would promote its objective. W. & S. Life Ins. Co. v. 13 State Bd., 451 U.S. 648, 671-72 (1981) (emphasis in original). Rational basis 14 review, moreover, is not a license for courts to judge the wisdom, fairness, or 15 logic of legislative choices. Beach Commcns, 508 U.S. at 313. Rather, those 16 challenging the legislative judgment must convince the court that the legislative 17 facts on which the classification is apparently based could not reasonably be 18 conceived to be true by the governmental decisionmaker. Vance v. Bradley, 440 19 U.S. 93, 111 (1979). That is not what LCR has sought to do here by the exhibits it 20 wishes to introduce at trial. 21 22 23 24 25 26 27 28
9
(...continued)
basis test was designed to preclude.). Courts have found that even where Congress has determined that a previous enactment is no longer necessary, that finding does not render the statute unconstitutional. Smart v. Ashcroft, 401 F.3d 119, 123 (2d Cir. 2005); Howard v. U.S. Dept of Def., 354 F.3d 1358, 1361-62 (Fed. Cir. 2004). Accordingly, LCRs exhibits that postdate the enactment of DADT and which LCR seeks to use in an effort to establish that circumstances have changed since 1993 (e.g., recent polling data; the recent views of certain former military official, recent analyses of foreign militaries) are legally irrelevant and, accordingly, should be excluded.
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Even if the Court were to apply a heightened level of scrutiny, the Supreme
2 Court has rejected reliance upon evidence outside of the statute and legislative 3 history to support a constitutional challenge that is governed by heightened review. 4 See Goldman v. Weinberger, 475 U.S. 503, 509 (1986) (rejecting expert testimony 5 in context of constitutional challenge to military policy regarding the wearing of 6 yarmulka, and holding that such evidence has no relevance in the context of a 7 constitutional challenge to military policy). The Courts holding in Goldman is 8 especially pertinent here, for, like the plaintiff in that case, LCR challenges a 9 policy regarding the military, to which the courts must accord great deference. 10 Goldman, id. at 507; see Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981) 11 ([J]udicial deference to . . . congressional exercise of authority is at its apogee 12 when legislative action under the congressional authority to raise and support 13 armies and make rules and regulations for their governance is challenged.). 14 Thus, regardless of the level of scrutiny the Court ultimately adopts, because 15 the facial constitutionality of DADT is a question of law, consideration of facts 16 beyond the statute and legislative history is inappropriate. See U.S. v. Lujan, 504 17 F.3d 1003, 1006 (9th Cir.2007) ([T]he constitutionality of a federal statute [is] a 18 question of law that we review de novo.); Gable v. Patton, 142 F.3d 940, 944 (6th 19 Cir. 1998) (Because the four provisions are challenged with regard to facial 20 constitutionality, thus implicating only issues of law, neither Plaintiff nor 21 Defendants contest the appropriateness of summary judgment.); MDK, Inc. v. 22 Village of Grafton, 277 F. Supp. 2d 943, 947 (E.D. Wisc. 2003) (A facial 23 challenge alleges that the law cannot constitutionally be applied to anyone, no 24 matter what the facts of the particular case may be.) (emphasis added) (citing 25 Forsyth County v. Nationalist Movement, 505 U.S. 123, 133 n.10 (1992); 26 Sanitation & Recycling Indust., Inc. v. City of New York, 928 F. Supp. 407 27 (S.D.N.Y. 1996) (a facial challenge is made in a factual vacuum; any factual 28 determinations are irrelevant) (emphasis added) (quoting Gen. Offshore Corp. v.
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1 Farrelly, 743 F.Supp. 1177, 1187 (D.V.I 1990)). Thus, a facial challenge must 2 challenge the language rather than the application and enforcement of a statute. 3 See Utah Womens Clinic, Inc. v. Leavitt, 844 F. Supp. 1482, 1488 (D. Utah 1994) 4 (emphasis added), dismissed in part, reversed in remanded in part on other 5 grounds, 75 F.3d 564 (10th Cir. 1996). Accordingly, in deciding LCRs facial claims, the Court must be careful 6 7 not to go beyond the statute's facial requirements and speculate about 8 hypothetical or imaginary cases. Wash. State Grange v. Wash. State 9 Republican Party, 552 U.S. 442, 449-50 (2008) (citing U.S. v. Raines, 362 U.S. 17, 10 22 (1960)) (emphasis added). It is precisely for this reason that courts have 11 rejected the submission of evidence in consideration of a facial constitutional 12 challenge. See McCullen v. Coakley, 573 F. Supp. 2d 382, 386-87 (D. Mass. 2008) 13 (rejecting parties requests to adopt various findings of fact, and holding that 14 [w]hile this information may be important to Plaintiffs as-applied challenge, it is 15 largely irrelevant to the facial challenge.); Morgan v. Plano Independent School 16 Dist., No. 04-447, 2007 WL 397494, *3 (E.D. Tex. Feb. 1, 2007) (rejecting on
10 17 relevancy grounds affidavit in support of challenge to facial validity of policy). Because LCRs facial constitutional claim present only legal questions, there 18
19 are no facts of consequence in this action and the proposed exhibits it intends to 20 offer into evidence in support of its constitutional claim are irrelevant under FRE 21 402 as a matter of law. Accordingly, the Court should grant defendants motion in 22 23 24 25 26 27 28
Indeed, because LCR is challenging the DADT statute, the exhibits it has identified that pre-date the enactment of the statute (and the legislative hearings), are legally irrelevant under FRE 402. Accordingly, these exhibits, which include Ex. 152, 154, 156, 165, 166, 167, 170, and173, should be excluded.
10
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1 limine. See Bromberg v. U.S., 389 F.2d 618, 618 (9th Cir. 1968) (affirming 11 2 exclusion of irrelevant exhibits). 3 4 5 6 B. Exhibits Reflecting The Facts Of Individual Service Members Discharges Under DADT Are Legally Irrelevant In A Facial Constitutional Challenge On Saturday, June 12, 2010, LCR made available for inspection and copying
7 approximately 50 documents that reflect the records of various service members 8 who were discharged under DADT (and whom LCR disclosed months after the 9 close of discovery as potential witnesses). LCR has informed the defendants that it 10 seeks to introduce these exhibits (and present testimony from the service members 11 associated with these exhibits) in an attempt to demonstrate that DADT does not 12 12 further its stated purposes. These proposed exhibits should be excluded for 13 multiple reasons. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
To the extent LCR contends that the Court somehow already has ruled upon this issue because the Court allowed discovery in this case, LCR is mistaken. On July 24, 2009, the Court ruled, over defendants objections, that LCR was entitled to seek certain discovery in this case. See Dkt. No. 91. That ruling, however, in no way establishes that LCRs proposed exhibits are otherwise relevant or admissible for purposes of trial. See Branco v. Life Care Centers of Am., Inc., No. 05-1139, 2006 WL 4484727, *2 (W.D. Wash. May 4, 2006) (Relevance under 26(b)(1) is defined more broadly than relevance for evidentiary purposes, and discoverable information need not be admissible at trial.) (citing Shoen v. Shoen, 5 F.3d 1289, 1299-300 (9th Cir. 1993); Albee v. Continental Tire North Am., Inc., No. 09-1145, 2010 WL 1729092, *7 (E.D. Cal. Apr. 27, 2010) (recognizing distinction between admissibility at trial and discoverability); 7 James Wm. Moore et al., Moores Federal Practice 37.22[2][a] (3d ed. 2007) ([T]he standard for determining whether information is relevant for purposes of pretrial discovery is substantially broader than the standard for relevance during trial.). Compare FRE 26(b)(1) (Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.) with FRE 401 (Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.). Accordingly, the fact that the Court previously allowed LCR to conduct discovery in this case in no way resolves the issue of whether any of LCRs exhibits are admissible for purposes of trial under FRE 401 and 402. The admissibility of LCRs six unimtely identified service members is addressed in defendants separate in limine to exclude lay witness testimony.
11
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First, these exhibits should be excluded because LCR failed to timely
2 disclose them. Rule 37(c)(1) of the Federal Rules of Civil Procedure provides, If 3 a party fails to provide information . . . as required by Rule 26(a) or (e), the party is 4 not allowed to use that information . . . to supply evidence . . . at a trial unless the 5 failure was substantially justified or is harmless. Given the express language of 6 this provision, the Ninth Circuit has found these sanctions to be self-executing 7 and automatic unless the non-disclosing party shows that its failure to disclose 8 was substantially justified or harmless. Yeti by Molly Ltd. v. Deckers Outdoor 9 Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (quoting advisory committee note to 10 Fed. R. Civ. P. 37); see Shimozono v. The May Dept Stores Co., No. 00-4261, 11 2002 WL 34373490, at *17-19 (C.D. Cal. Nov. 20, 2002) (excluding trial witness 12 not properly disclosed); Adams v. Teck Cominco Alaska, Inc., 231 FRD 578 (D. 13 Alaska) (excluding from trial exhibits that were not properly produced during 14 discovery under Rule 37(c)(1)). Here, there is no justification for LCRs failure to 15 properly and timely identify these exhibits that it intends to submit at trial to 16 establish its claims, and there can be little dispute that defendants are prejudiced by 13 17 this untimely disclosure. 18 Second, even if the Court were to disregard LCRs failure to comply with 19 the Rules, these exhibits are legally irrelevant to a facial challenge to DADT. 20 Testimony regarding how a statute has been applied is patently irrelevant and 21 inappropriate in a facial challenge. As noted already, the Supreme Court has made 22 clear that courts must not go beyond the statutes facial requirements in 23 adjudicating facial challenges. Wash. State Grange, 552 U.S. at 449-50. [I]t is 24 neither [the courts] obligation nor within [the courts] traditional institutional role 25 26 27 28
In addition to failing to timely disclose the documents reflecting the discharges of particular service members, LCR also made available for the first time on June 12, 2010 the following exhibits: Ex. 193; 199; 201; 202; 203; 275; 281; 292; 308; 318; 320; and 335. Accordingly, the Court should exclude these exhibits under FRCP 37(c)(1).
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1 to resolve questions of constitutionality with respect to each potential situation that 2 might develop. Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (considering a 3 facial substantive due process challenge). Indeed, even if LCRs proposed exhibits 4 theoretically were to show that the discharge of these particular members did not 5 further DADTs stated purposed, that in no way supports the conclusion that 6 DADT is facially unconstitutional. 7 III. 8 Many of LCRs Proposed Exhibits Contain Inadmissable Hearsay Even if the LCRs proposed exhibits related to its facial constitutional
9 challenge otherwise were relevant under FRE 402, many of LCRs exhibits contain 10 inadmissible hearsay and in many instances hearsay within hearsay. Because 11 these statements which plainly are being offered for the truth of the matter 12 asserted do not fall within any of the exceptions to the hearsay rule, LCRs 13 proposed exhibits containing inadmissible hearsay should be excluded. See FRE 14 802. 15 16 17 A. The Media and Polling Exhibits Are Inadmissible Under FRE 802 and 805 LCR seeks to introduce a host of newspaper articles and polls. LCRs
18 purpose in seeking to introduce these exhibits is to establish that the attitudes of the 19 general public, certain former military officials, and the military more generally 20 have changed since the enactment of DADT in 1993 and are now supportive of a 21 repeal of the statute. Beyond the irrelevance of such evidence in a facial 22 constitutional challenge, these exhibits plainly are being offered for the truth of the 23 matter asserted (e.g., that attitudes regarding open homosexuality in the military 24 have, in fact, changed since 1993) and, accordingly, are inadmissible hearsay. As a Central District of California Court recently explained, [g]enerally, 25 26 newspaper articles and television programs are considered hearsay under Rule 27 801(c) when offered for the truth of the matter asserted. Even when the actual 28 statements quoted in a newspaper article constitute nonhearsay, or fall within a
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1 hearsay exception, their repetition in the newspaper creates a hearsay problem. 2 Thus, statements in newspapers often constitute double hearsay. Green v. Baca, 3 226 F.R.D. 624, 637-38 (C.D. Cal 2005). In this case, the articles and transcripts 4 of television programs that LCR seeks to introduce contain out-of-court statements 5 concerning, among other things, the views of former military leaders. Indeed, in 6 most of the articles, the authors have included quotations or statements from other, 7 non-military individuals. These statements are hearsay within hearsay and, 8 accordingly, are inadmissible under FRE 805. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The polling exhibits LCR seeks to introduce similarly constitute 10 inadmissible hearsay. As the Ninth Circuit has observed, [p]olls generally raise 11 complicated hearsay problems because they report what pollsters say the persons 12 polled said. Opuku-Boateng v. State of Cal., 95 F.3d 1461, 1471 n.18 (9th Cir. 13 1996). LCRs Polling Documents suffer from this exact hearsay problem. They 14 contain out-of-court statements from pollsters reporting on out-of-court statements 15 from persons who were polled. Because the statements of the pollster and of the 16 polled persons are both offered to prove the truth of the matter asserted the 17 opinion of the surveyed group they are hearsay and hearsay within hearsay, 18 respectively. Moreover, LCR cannot show that its Polling Documents fall within the 19 20 residual exception. See Pittsburgh Press Club v. U.S., 579 F.2d 751, 758 (3d Cir. 21 1978) (The proponent of [polling] evidence, of course, has the burden of 22 establishing [the] elements of admissibility.). To satisfy the circumstantial 23 guarantees of trustworthiness requirement of Rule 807, LCR must prove that the 24 poll it seeks to introduce was conducted in accordance with generally accepted 25 principles. Gibson v. County of Riverside, 181 F.Supp.2d 1057, 1067 (C.D. Cal. 26 2002) (Timlin, J.) (citing Pittsburgh Press Club, 579 F.2d 751, 758). In Gibson, 27 the Court looked to standards articulated by the Third Circuit to determine whether 28 a poll was conducted in accordance with accepted principles:
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1 2 3 4 5 6 7 8 9 10
A proper universe must be examined and a representative sample must be chosen; the persons conducting the survey must be experts; the data must be properly gathered and accurately reported. It is essential that the sample design, the questionnaires and the manner of interviewing meet the standards of objective surveying and statistical techniques. Just as important, the survey must be conducted independently of the attorneys involved in the litigation. The interviewers or sample designers should, of course, be trained, and ideally should be unaware of the purposes of the survey or the litigation. A fortiori, the respondents should be similarly unaware.
11 Gibson, 181 F. Supp. 2d at 1067-68 (quoting Pittsburgh Press Club, 579 F.2d 751, 14 12 758). LCR cannot show that the Zogby Poll (Ex. 11) meets these standards and 13 has not identified a witness who is qualified to do so. In addition, the Zogby Poll 14 was commissioned by the Palm Center, an organization that actively advocates for 15 the repeal of DADT. As such, the poll is not objective and lacks the circumstantial 16 guarantees of trustworthiness required by FRE 807. 17 18 19 B. The Contractor Exhibits Contain Hearsay and Are Not Party Admissions LCR also seeks to introduce as exhibits reports prepared by government
20 contractors regarding the United States military or the militaries of foreign 21 countries. LCR intends to introduce these reports to prove the truth of the 22 conclusions and observations in the reports. Accordingly, LCRs Contractor 23 Exhibits constitute inadmissible hearsay. See FRE 802. Indeed, many of these 24 25 26 27 28
This approach is consistent with the guidance contained in the 1972 Committee notes to Federal Rule of Evidence 703, which counsels courts faced with determining whether public opinion polls are admissible to focus on the techniques that were employed in administering the polls.
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1 reports also contain quotations or statements from non-parties, which are hearsay 2 within hearsay. See FRE 805. 3 Under FRE 801(d)(2), if a partys own statements are offered against it, 4 those statements are not hearsay. Indeed, if certain conditions are met, statements 5 from third parties can be considered party admissions. See FRE 801(d)(2)(B), (C), 6 and (D). The statements in LCRs Contractor Documents, however, do not meet 7 the necessary conditions to constitute party admissions and, accordingly, are 8 inadmissible. First, pursuant to FRE 801(d)(2)(B), if a party adopts or manifests a belief in 9 10 the truthfulness of a third party statement, that statement may be accepted as a 11 party admission. As LCR cannot establish that defendants have adopted or 12 manifested a belief in the truthfulness of the statements in the Contractor 13 Documents, FRE 801(d)(2)(B) does not apply. 14 Second, under FRE 801(d)(2)(C) and (D), statements made by a partys 15 agent can be considered party admissions if the agent had authority to speak for the 16 party or made the statement within the scope of its agency or employment. The 17 party asserting that a statement is admissible under FRE 801(d)(2)(C) or (D) has 18 the burden of showing either that the third party had authority to speak for the 19 party or that the third partys statement was made within the scope of its agency or 20 employment. See FRE 801(d)(2) Committee Notes, 1997 Amendment; see, e.g., 21 Lizotte v. Praxair, Inc., 640 F.Supp.2d 1335, 1339 (D. Wash. 2009) (The 22 proponent of the [FRE 801(d)(2)(D)] evidence has the burden of proving the 23 foundational agency requirement by a preponderance of the evidence.). LCR 24 cannot meet that burden here. 25 None of the Contractor Documents contains any evidence that the 26 contractors who created the documents were authorized to speak for the 27 Department of Defense or were entitled to do so within the scope of its agency. 28 Indeed, several of the Contractor Documents contain unambiguous disclaimers that
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1 the contents of the documents represent the views of the authors and not the 2 sponsoring federal agency. For example, LCR seeks to introduce an exhibit 3 entitled Update of the U.S. Research Institute's Longitudinal Research Data Base 4 of Enlisted Personnel. See Ex. 172. The document was created by a contractor 5 for the Army Research Institute for the Behavioral and Social Sciences (ARI) 6 and contains on its title page an express statement that the document does not 7 represent the position of the Department of the Army: The views, opinions and 8 findings in this report are those of the author(s) and should not be construed an 9 official Department of the Army position, policy, or decision unless so designated 10 by other authorized documents. Other of the Contractor Documents contain
15 11 similar disclaimers. As there is no evidence that the contractors who created the Contractor 12
13 Documents had authority to speak on behalf of defendants or that they spoke on 14 behalf of defendants as part of their agency or employment, and several of the 15 documents contain explicit statements to the contrary, LCR cannot meet its burden 16 of showing that the Contractor Documents are party admissions. 17 18 19 C. The Advocacy and Miscellaneous Documents Are Inadmissible Under FRE 802 and 805 The Advocacy and Miscellaneous Exhibits also contain out-of-court
20 statements offered to prove the truth of the matters asserted. The Advocacy 21 Exhibits purport to identify problems with DADT or the reasons Congress 22 provided for enacting it. LCR plans to offer these documents to prove what they 23 24 25 26 27 28
LCR seeks to introduce another exhibits prepared by a contractor for the ARI entitled, Perspectives on Organizational Change in the Canadian Forces. See Ex. 70. The title page of the documents contains the following disclaimer: The findings in this report are not to be construed as an official Department of the Army position, unless so designated by other authorized documents. The author further states in an introduction to the document that [a]ny errors of fact, omissions of pertinent details, or misrepresentation of the information available are the sole responsibility of the author.
15
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1 assert: that Congress should have weighed differently the factors it considered in 2 enacting DADT. LCR also plans to offer the Miscellaneous Documents, which 3 include emails, letters, and an article, to prove the truth of the matters asserted. As 4 such, these documents constitute inadmissible hearsay. See FRE 802. 5 Additionally, most of the Advocacy and Miscellaneous Exhibits reference or 6 quote statements made by third parties, and LCR is seeking to introduce these 7 statements for the truth of the matter asserted. As explained above, these 8 statements are hearsay within hearsay and, accordingly, are inadmissible under 16 9 FRE 805. 10 III. 11 12 LCRs Proposed Exhibits Are Not Admissible Under Any Hearsay Exceptions At the summary judgment stage, LCR claimed that many of the documents it
13 included in its voluminous Appendix (and which it now seeks to admit at trial as 14 exhibits) were subject to various exceptions to the hearsay rule. Specifically, LCR 15 contended that many of its exhibits were admissible as learned treatises under FRE 16 17 18 19 20 21 22 23 24 25 26 27 28
A number of LCRs exhibits that fall into the Miscellaneous category are also rife with hearsay. For example, LCR has identified the reports of each of its six expert witnesses. See LCR Exs. 2, 23, 29, 33, 45, 50, 51 (cv for Embser-Herbert), 59. These reports are hearsay and are not subject to any hearsay exception. See Alexie v. United States, No. 3:05-cv-00297, 2009 WL 160354, at *1 (D. Alaska Jan. 21, 2009); Sigler v. American Honda Motor Co., 532 F.3d 469, 479-80 (6th Cir. 2008) (recognizing that expert reports are inadmissible hearsay); Jimenez v. Hernandez, No. 06-1501, 2009 WL 921289, at *2 (D.P.R. Mar. 31, 2009) (holding that [e]xpert reports are inadmissible hearsay, and that any expert opinions . . . must be elicited at trial through the testimony of the expert witnesses themselves, not their reports.); Ake v. General Motors Corp., 942 F. Supp. 869, 877-78 (W.D.N.Y. 1996) (The report is his opinion. [The expert] may testify about some things in the report, but the report itself is inadmissible.). Nor are these reports admissible under the residual exception to the hearsay rule. See Firemans Fund Ins. Co. v. U.S., No. 04-1692, 2010 WL 2197532, *45 (Fed. Cl. May 26, 2010) (holding that experts reports are not admissible under residual exception); Alexie, 2009 WL 160354, at *1 ([S]uch reports cannot meet the requirement of Fed. R. Evid. 807(b), because the experts live direct testimony is at least equally probative.), but cf. Televisa, S.A. De C.V. v. Univision Communications, Inc., 635 F. Supp. 2d 1106, 1109-10 (C.D. Cal. 2009) (allowing for
admission of expert report under residual exception to hearsay rule where expert was unavailable for trial because of perceived ethical conflict).
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1 803(18), apparently based upon the fact that LCRs seven expert witnesses relied 2 upon the documents. LCR also contended that many of its exhibits fell within the 3 residual hearsay exception under FRE 807. LCR has the burden of showing that 4 its proposed exhibits are admissible, a burden that it cannot meet here. See, e.g., 5 Logan v. City of Pullman, 392 F. Supp. 2d 1246, 1253 (E.D. Wash. 2005) (As the 6 proponent of the hearsay evidence, Plaintiffs bear the burden of proving its 7 admissibility.). Because none of the hearsay exceptions apply, LCRs proposed 8 hearsay exhibits should be excluded. 9 10 11 A. LCRs Proposed Exhibits Are Not Admissible As Learned Treatises Under FRE 803(18) The learned treatise exception does not apply to LCRs proposed exhibits for
12 at least three reasons. First, the learned treatises exception states on its face that it 13 does not allow documents to be admitted as exhibits: If admitted, the statements 14 may be read into evidence but may not be admitted as exhibits. FRE 803(18) 15 (emphasis added); U.S. v. An Article of Drug, 661 F.2d 742, 745-46 (9th Cir. 1981) 16 (holding that while an expert may read excerpts of learned treatises into evidence, 17 the treatises themselves may not be admitted as exhibits). The explicit language of 18 FRE 803(18), therefore, forecloses LCRs argument that its hearsay reports may be 19 admitted as learned treatises. 20 Second, for a learned treatise to be admitted as documentary evidence, it 21 must be established as a reliable authority by the testimony of the expert who relied 22 upon it or to whose attention it was called. Banks v. U.S., 78 Fed. Cl. 603, 648 n. 23 75 (Fed. Cl. 2007) (citing FRE 803(18)). Because the documents LCR intends to 24 introduce have not been established as reliable authorities by its experts, either in 25 their reports or at their depositions, they are not subject to admission under FRE 26 803(18). 27 Third, many of the documents LCR seeks to offer as exhibits do not qualify
28 as learned treatises by their plain terms. The Committee Notes to FRE 803(18)
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1 explain that a treatise is written primarily and impartially for professionals, 2 subject to scrutiny and exposure for inaccuracy, with the reputation [of the writer] 3 at stake. See, e.g., Costantino v. Herzog, 203 F.3d 164, 173 (2d Cir.2000) 4 (applying standard from FRE 803(18) Committee Notes); U.S. v. Martinez, 588 5 F.3d 301, 312 (6th Cir. 2009) (same). The Advocacy Exhibits clearly do not fit 6 this description. Advocacy groups like the Palm Center and Servicemembers 7 Legal Defense Network issue reports to further their political agendas. Such 8 reports are not written primarily for professionals, or subject to scrutiny and 9 exposure for inaccuracy and are not impartial. See Martinez, 588 F.3d at 312 10 (holding that video did not constitute a learned treatise because it was prepared for 11 litigation purposes, it was not subject to peer review or public scrutiny, and it was 12 not written primarily for professioanls ... with the reputation of the writer at 13 stake); Schneider v. Revici, 817 F.2d 987, 991 (2d Cir. 1987) (rejecting book as 14 learned treatise that was written by the defendant). Rather, they are prepared to 15 support the groups purpose to advocate for the repeal of DADT. Reports written 16 by individual advocates, like LCRs expert witnesses Aaron Belkin and Nathaniel 17 Frank, are subject to the same evidentiary shortcomings. The Media Exhibits are not treatises either, as they are not necessarily 18 19 impartial, and are clearly not written for professionals. In addition, there is no 20 evidence that the Contractor or Miscellaneous Documents qualify as learned 21 treatises. LCRs proposed exhibits do not qualify as learned treaties under FRE 17 22 803(18) and should not be admitted under that exception. 23 24 25 26 27 28
Nor are these exhibits independently admissible simply because LCRs experts rely upon these exhibits in offering their opinions. Although FRE 703 permits experts to rely upon inadmissible evidence in certain situations, that evidence cannot be admitted to prove the truth of what it asserts. Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1262 (9th Cir. 1984). Nor does FRE 703 permit expert testimony to be used as a pretense for the admission of otherwise inadmissible and unreliable hearsay. Trepel v. Roadway Exp., Inc., 194 F.3d 708, 721 (6th Cir.
17
(continued...)
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1 2
B.
LCRs Exhibits are not Admissible Under the Residual Exception
Nor are LCRs exhibits admissible under FRE 807. The residual exception,
3 which allows courts to admit hearsay documents that are not admissible under any 4 of the other exceptions, is to be used rarely and in exceptional circumstances. 5 Fong v. American Airlines, Inc., 626 F.2d 759, 763 (9th Cir. 1980). LCR bears a 6 heavy burden of establishing the applicability of FRE 807. See U.S. v. 7 Washington, 106 F.3d 983, 1001-02 (D.C. Cir. 1999). LCR cannot meet its heavy 8 burden of establishing such circumstances in this case. 9 Hearsay evidence sought to be admitted under Rule 807 must have 10 circumstantial guarantees of trustworthiness equivalent to the listed exceptions to 11 the hearsay rule. U.S. v. Sanchez-Lima, 161 F.3d 545, 547 (9th cir. 1998) (citing
18 12 U.S. v. Fowlie, 24 F.3d 1059, 1069 (9th Cir.1994)). Furthermore, the statements 13 must (1) be evidence of a material fact; (2) be more probative on the point for
14 15
17
(...continued)
16 1999). Rule 703 does not authorize admitting hearsay on the pretense that it is the basis for 17 transmitting them to the jury. 29 Charles Alan Wright & Victor James Gold, Federal Practice 18 and Procedure: Evidence 6273 (1997). In such a case, Rule 703 is simply inapplicable and 19 20 21 22 23 24 25 26 27 28
In determining whether there are guarantees of trustworthiness, courts apply a totality of the circumstances test, including whether: (1) the declarant was known and named; (2) the statement was made under oath; (3) the declarant knew assertions were subject to crossexamination; (4) the statement was based upon personal knowledge; (5) the declarant had a motivation to lie; (6) the statement was corroborated; (7) the declarant was qualified to make the statement; (8) the declarant made a prior inconsistent statement; (9) the statement was videotaped; (10) the proximity of time between the events described and the statement; (11) the statement is prepared in anticipation of litigation; and (12) the statements spontaneity. See Bohler-Uddeholm Am., Inc. v. Ellwood Group, Inc., 247 F.3d 79, 113 (3d Cir. 2001) (first seven factors); AAMCO Transmissions, Inc. v. Baker, 591 F. Supp. 2d 788, 799 (E.D. Pa. 2008) (remaining factors).
expert opinion when, in fact, the expert adds nothing to the out-of-court statements other than
the usual rules regulating the admissibility of evidence control. Id. ; see also Law v. National Collegiate Athletic Association, 185 F.R.D. 324, 341 (D.Kan.1999) (The NCAA basically presented [the expert] as a channeler, seeking to present non-expert, otherwise inadmissible hearsay through the mouth of an economist.).
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1 which it is offered than any other evidence which the proponent can procure 2 through reasonable efforts; (3) serve the general purposes of the Rules of Evidence 3 and the interests of justice by its admission into evidence, and (4) the proponent 4 must provide notice to the other party before trial. Id.; In re Slatkin, 525 F.3d 805, 5 812 (9th Cir. 2008). LCRs proposed exhibits do not come close to meeting these requirements. 6 7 As an initial matter, the documents LCR has identified contain run-of-the-mill 8 hearsay statements that lack guarantees of trustworthiness equivalent to the listed
19 9 exceptions to the hearsay rule. Absent such guarantees, LCRs documents do not 10 fall within the residual exception. Moreover, as discussed above, LCRs proposed
11 exhibits which LCR seeks to introduce to establish a facial substantive due 12 process violation are not evidence of material facts. As LCRs facial challenges 13 present purely legal issues, there are no factual issues that are material to LCRs 14 claims. Indeed, many of LCRs proposed exhibits are cumulative of the
20 15 information that Congress considered in enacting DADT. See U.S. v. Hughes,
16 17 18 19 20 21 22 23 24 25 26 27 28
One illustrative example of the type of run-of-the-mill hearsay statements LCR seeks to admit is Plaintiffs Exhibit 294, an editorial from the Washington Post entitled Bigotry that Hurts Our Military. The editorial contains out-of-court statements from the author who, in turn, references out-of-court statements from others, some of whom he refers to only as some unnamed Senior leaders. Similarly, Exhibit 302, a transcript of The Rachel Maddow Show, is another prime example of the type of routine hearsay statements LCR seeks to introduce. The document contains out-of-courts statements that Ms. Maddow made during her television program. Some of Ms Maddows statements refer to statements made by other individuals, including a statement made by another individual while appearing on another television program. These statements are representative of the vast amount of routine hearsay statements, many of which are from unnamed sources, that LCR seeks to admit through its identified exhibits. For example, in connection with the enactment of DADT, the House and Senate Armed Services Committees conducted 14 days of hearings, heard testimony from more than 50 witnesses, traveled to military facilities to investigate the issue, and heard from witnesses with a wide range of views and various backgrounds, including the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, military and legal experts, enlisted personnel, officers, and
20
19
(continued...)
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Filed 06/18/10 Page 28 of 30
1 535 F.3d 880, 882-83 (8th Cir. 2008) (holding that cumulative evidence is not 2 properly admitted under residual hearsay exception). Finally, admitting LCRs 3 hearsay documents would prejudice defendants, by allowing unreliable evidence to 4 be used against them without the ability to cross-examine the hearsay declarants, 5 and would run contrary to the purposes of the Rules of Evidence and the interests 6 of justice. See, e.g., U.S. v. Valdez-Soto, 31 F.3d 1467, 1471-72 (9th Cir. 1994) 7 (holding that statements possessed requisite degree of reliability to be admissible 8 under residual exception where hearsay declarant was subject to cross9 examination); Kuntz v. Sea Eagle Diving Adventures Corp., 199 F.R.D. 665, 668 10 (D. Haw. 2001) (same); Sternhagen v. Dow Co., 108 F. Supp. 2d 1113 (D. Mont. 11 1999) (holding that hearsay declarants statement lacked indicia of reliability 12 where he was uanvailable for cross-examination, the declarant had an interest in 13 presenting facts most favorable to his side as an initial party to the lawsuit, and the 14 hearsay statement was not spontaneous). At bottom, LCR cannot show that its 15 documents meet the criteria to be admitted under the residual exception, and the 16 rare and exception circumstances that warrant application of the exception do not
21 17 exist here.
18 19 20 21 22 23 24 25 26 27 28
20
(...continued)
public policy activists. See Cook v. Gates, 528 F.3d 42, 58-59 (1st Cir. 2008). Among the information Congress considered in enacting DADT was the experience of foreign militaries. See S. Rep. 103-112, at 288 (1993), 1993 WL 286446. It is apparent that LCR, through the submission of exhibits reflecting the experience of foreign militaries, is seeking to question the wisdom of Congress regarding its judgement in 1993 considering the relative relevance of that foreign military experience. Exhibits that fall within this category, and which should be excluded, include, among others: Ex. 2, 13, 18, 22, 23, 33, 69, 70, 71, 72, 77, 78, 79, 80, 83, 212, 217, 229, 259, 263, 290 and 300. In addition, based upon LCRs witness list, see Dock. No. 173, it is apparent that LCR will be unable to lay a proper foundation for many of its proposed exhibits, including establishing through witness testimony that the overwhelming majority of documents it seeks to admit are authentic, relevant, and otherwise admissible.
21
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1 2
CONCLUSION LCRs facial challenges present the Court with one issue: whether DADT is
3 constitutional as a matter of law. Because the only issue before the Court is a legal 4 question, LCR cannot meet its burden of establishing that its proposed exhibits are 5 relevant or otherwise admissible. Even if the Court were to determine that LCRs 6 proposed exhibits were relevant, LCR has failed to timely identify and produce a 7 number of its exhibits and, therefore, these exhibits should be excluded under 8 Federal Rule of Civil Procedure 37(c)(1). Finally, many of LCRs proposed 9 exhibits contain inadmissible hearsay statements (or hearsay within hearsay), and 10 are not subject to any hearsay exception. Accordingly, the Court should grant 11 defendants motion in limine regarding LCRs proposed exhibits. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Filed 06/18/10 Page 30 of 30
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: June 18, 2010 Respectfully submitted, TONY WEST Assistant Attorney General ANDR BIROTTE, JR United States Attorney JOSEPH H. HUNT Director VINCENT M. GARVEY Deputy Branch Director /s/Ryan B. Parker PAUL G. FREEBORNE W. SCOTT SIMPSON JOSHUA E. GARDNER RYAN B. PARKER Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Room 6108 Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8202 paul.freeborne@usdoj.gov Attorneys for Defendants United State of America and Secretary of Defense
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Case 2:04-cv-08425 Document 179--1 Filed 06/18/10 37 Pages
DEFENDANTS OBJECTIONS TO PLAINTIFFS EXHIBIT LIST Exhibit No.
Description
Objections
1 10 U.S.C. 654 (1993) Nathaniel Frank Expert Report (Jan. 18, 2 2010) 3 S. Rep. No. 103-112- National Defense Authorization Act for Fiscal Year 1994 "Report of the Board Appointed to Prepare and Submit Recommendations to the Secretary of the Navy for the Revision of Policies, Procedures and Directives Dealing with Homosexuals 25 December 1956-15 March 1957)" (the "Crittenden Report") (DoD LA 7-10 49668-49741) Theodore Sarbin and Kenneth Karols, Defense Personnel Security Research and Education Center, "Nonconforming Sexual Orientations and Military Suitability" (OSD P&R 7328-7376) U.S. Gen. Accounting Office, Report to Congressional Requesters, "Defense Force Management: DOD's Policy on Homosexuality" (June 1992) U.S. Gen. Accounting Office, Report to the Hon. John W. Warner, U.S. Senate, "Homosexuals in the Military: Policies and Practices of Foreign Countries" (June 1993) RAND National Defense Research Institute, "Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment" (1993) U.S. Gov. Accountability Office, Report to Congressional Requesters, "Military Personnel Financial Costs and Loss of Critical Skills Due to DOD's Homosexual 1 Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication
Relevance
Relevance
Conduct Policy Cannot be Completely Estimated" (Feb. 2005) Blue Ribbon Commission Members Report, "Financial Analysis of 'Don't Ask, Don't Tell': How Much Does the Gay Ban Cost?" (Feb. 2006) Sam Rodgers, "Opinions of Military Personnel on Sexual Minorities in the Military" (Zogby International, Dec. 2006) Aaron Belkin et al., "How to End 'Don't Ask, Don't Tell:' A Roadmap of Political, Legal, Regulatory, and Organizational Steps to Equal Treatment" (Palm Center, May 2009) Aaron Belkin and Melissa Levitt, "Homosexuality and the Israel Defense Forces: Did Lifting the Gay Ban Undermine Military Performance?," Vol. 27 No. 4 Armed Forces & Society 541 (2001) Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication
10
11
12
13
Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication
14 Inadvertently Skipped Nathaniel Frank, "Gays and Lesbians at War: Military Service in Iraq and Afghanistan Under 'Don't Ask, Don't Tell'" (Center for the Study of Sexual Minorities in the Military, University of California, Santa Barbara, Sept. 15 15, 2004) Nathaniel Frank, "The Road to Gays in the Military Runs through Iowa," Huffington Post, available at http://www.huffingtonpost.com/nathanielfrank/the-road-to-gays-in-the16 m_b_183492.html (Apr. 6, 2009) Nathaniel Frank, "Refuting the Latest Arguments Against Gay Troops," Huffington Post, available at http://www.huffingtonpost.com/nathanielfrank/refuting-the-latest17 argum_b_327553.html (Oct. 20, 2009) 2
Relevance; Hearsay; Hearsay within Hearsay ; Foundation; Authentication
Nathaniel Frank et al., "'The Importance of Objective Analysis' on Gays in the Military: A Response to Elaine Donnelly's Constructing the Co-Ed Military" (15 Duke J. 18 Gender L. & Pol'y 419, 2008) 19 Not used
Nathaniel Frank, Unfriendly Fire 113-136 20 (New York, St. Martins Press 2009) Nathaniel Frank, "Gay Troops and the Trouble with Polls," Huffington Post, available at http://www.huffingtonpost.com/nathanielfrank/gay-troops-and-the21 troubl_b_460291.html (Feb. 12, 2010) Nathaniel Frank, "Gays in Foreign Militaries 2010: A Global Primer" (Palm Center, Feb. 22 2010)
Relevance; Hearsay; Hearsay within Hearsay; Foundation; Incomplete (part of Ex. 300)
23 Rob MacCoun Expert Report (Jan. 19, 2010) 24 Inadvertently Skipped Leonard Wong et al., "Why They Fight: Combat Motivation in the Iraq War" (US Army College, Strategic Studies Institute, 25 July 2003) Robert MacCoun et al., "Does Social Cohesion Determine Motivation in Combat? An Old Question Answered," Vol. 32 No. 4 26 Armed Forces & Society 646 (July 2006) Robert MacCoun, "Sexual Orientation and Military Cohesion: A Critical Review of the Evidence," in Out in Force: Sexual Orientation and the Military (University of 27 Chicago Press, 1996) 3
Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication
Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Hearsay within Hearsay; Foundation
Relevance; Hearsay; Hearsay within Hearsay; Foundation
28 Inadvertently Skipped Elizabeth Hillman Expert Report (Jan. 18, 2010) Elizabeth Hillman, "Guarding Women: Abu Ghraib and Military Sexual Culture" in One of the Guys: Women as Aggressors and Torturers 111-123 (Seal Press, 2007). Servicemembers Legal Defense Network, "Conduct Unbecoming: 10th Annual Report on Don't Ask, Don't Tell" (2004) Bonnie Moradi and Laura Miller, Attitudes of Iraq and Afghanistan War Veterans toward Gay and Lesbian Service Members (Armed Forces and Society, Oct. 29, 2009). Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication
29
30
31
32
33 Aaron Belkin Expert Report (Jan. 15, 2010) Aaron Belkin and Geoffrey Bateman, "Does the Gay Ban Preserve Soldiers' Privacy?" in Don't Ask, Don't Tell Debating the Gay Ban in the Military (Lynne Rienner Publishers, 34 2003) Aaron Belkin and Melissa S. Embser-Herbert, "A Modest Proposal: Privacy as a Flawed Rationale for the Exclusion of Gays and Lesbians from the U.S. Military," Vol. 27 No. 35 2 International Security 178 (2002) Log Cabin Republicans' Internal Survey of 36 Members (LCR 1-17) (Feb. 22, 2010) 37 Not used 38 Declaration of John Doe (June 11, 2007) 39 Inadvertently Skipped 4
Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Hearsay within Hearsay
Hearsay
Letter from John Alexander Nicholson (SUBJECT TO PROTECTIVE ORDER) 40 (Feb. 10, 2002) Letter from John Alexander Nicholson (SUBJECT TO PROTECTIVE ORDER) 41 (Feb. 8, 2002) 42 Not used
Relevance; Hearsay; Hearsay within Hearsay Relevance; Hearsay; Foundation
Relevance; Hearsay; Hearsay within Hearsay; Nathaniel Frank, Unfriendly Fire 191-192 (St. Foundation; Incomplete (part of 300) 43 Martins Press 2009) Yusef Najafi, "Servicemembers' Milestone, Largest Organization of Gay Veterans Opens DC headquarters" Metroweekly, available at Relevance; Hearsay; http://metroweekly.com/news/?ak=4369 (July Hearsay within Hearsay; Foundation 44 2, 2009) Relevance; Hearsay; Hearsay within Hearsay; 45 Alan Okros Expert Report Foundation; Authentication 46 Inadvertently Skipped 47 Inadvertently Skipped 48 Inadvertently Skipped 49 Inadvertently Skipped Melissa Sheridan Embser-Herbert Expert 50 Report (Jan. 15, 2010) Melissa Sheridan Embser-Herbert Curriculum 51 Vitae Melissa Sheridan Embser-Herbert, Excerpt from "Feminism, Militarism, and Attitudes Toward the Role of Women in the Military," 52 Vol. 14 Issue 2, Feminist Issues 25 (1994) 5 Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation
53
54
55
56
Melissa Sheridan Embser-Herbertt, Excerpt from Camouflage Isn't Only for Combat (New York University Press, 1998) Melissa Sheridan Embser-Herbert, "A Missing Link" in In the Company of Men (Northeastern University Press, 2005) Melissa Sheridan Embser-Herbert, "Frederick the Great or Frederick's of Hollywood? The Accomplishment of Gender Among Women in the Military" in Everyday Inequalities, (Blackwell Publishing Ltd. 1998) Melissa Sheridan Embser-Herbert, "Gays and Lesbians in the Military" in U.S. Military's 'Don't Ask, Don't Tell' Policy: A Reference Handbook, (Praeger Sec. Int'l., 2007)
Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation
57 Not used Lawrence Korb et al., "Ending 'Don't Ask, Don't Tell:' Practical Steps to Repeal the Ban on Openly Gay Men and Women in the U.S. Military" (Center for American Progress, 58 June 1, 2009) Lawrence Korb Expert Report (LCR 152171) Servicemembers Legal Defense Network, Excerpt from "About 'Don't Ask, Don't Tell,'" available at http://www.sldn.org Defense Manpower Data Center, "Separations Due to Homosexual Conduct" (Report Prepared for Under Secretary of Defense for Plans, May 12, 2009) (DMDC 225-257) Lawrence Korb, "Evolving Perspectives on the Military Policy on Homosexuals: A Personal Note in Gays and Lesbians in the Military: Issues, Concerns, and Contrasts (Aldine Transaction, 1994)
59
60
Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication
61
Relevance; Foundation
62
Memorandum from Craig Alderman to Director DOD Personnel Security Research and Educational Center regarding PERS-TR98-002, Nonconforming Sexual Orientations and Military Suitability (Jan 18, 1989) (DoD Relevance; Foundation 63 LA 2-6 42416-42417) Palm Center, excerpt from "Attitudes of Iraq and Afghanistan War Veterans Toward Gay and Lesbian Service Members" available at Relevance; Hearsay; 64 http://www.palmcenter.org/) (Oct. 29, 2009) Foundation; Authentication Notice of 30(b)(6) deposition (Retained) 65 (Dec. 21, 2009) Memorandum from David Chu to the Secretaries of the Military Departments regarding Directive Type (DTM) 08-018 66 Enlistment Waivers (June 27, 2008) Michael Boucai, Balancing Your Strengths Against Your Felonies: Considerations for Military Recruitment of Ex-offenders," 61 U. Miami L. Rev. 997 (2007) (available at 67 http://www.palmcenter.org) 68 Not Used Gwyn Harries-Jenkins, excerpt from "Comparative International Military Personnel Policies" (U.S. Army Research 69 Institute, May 1993) (ARI 60756-60779) Franklin Pinch, "Perspectives on Organizational Change in the Canadian Forces" (U.S. Army Research Institute, 70 January 1994) (ARI 60206-60272) Memorandum from Paul Gade to Bob Wisher regarding Review of Sr. Pinch's Report Entitled Perspectives on Organizational Change in the Canadian Forces (June 28, 71 1993) (ARI 60755) Email communications between Franklin Pinch and Paul Gade regarding gays in 72 Canadian military (Nov. 1, 2000) (ARI 7 Relevance
Relevance
Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication; Incomplete Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication
Relevance Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication
62002-62004) Paul Gade et al., "Social Science Research on Homosexuals in the Military" in Gays and Lesbians in the Military: Issues, Concerns, and Contrasts (Sandra Stanley and Wilbur Scott, eds., Aldine Transaction, 1994) Paul Gade, U.S. Army Research Institute, slides regarding Research Findings and Issues Concerning Homosexuals in Military Service (ARI 61994-62001) Paul Gade, "The Integration of Homosexuals in the U.S. Military" (Nov. 18, 1992) (ARI 60533-60534) Dep't of the Army, "Future organizational change US Army (Focus Army) Chronology of Policy Events/Activities" (July 30, 1993) (ARI 62125-62128) Aaron Belkin and R.L. Evans, The Effects of Including Gay and Lesbian Soldiers in the British Armed Forces Appraising the Evidence (Palm Center, Nov. 2000) (LCR 4706-4775) Aaron Belkin and Melissa Levitt, "Homosexuality and the Israel Defense Forces: Did Lifting the Gay Ban Undermine Military Performance?," Vol. 27 No. 4 Armed Forces & Society 541 (2001) Aaron Belkin and Jason McNichol, The Effects of Including Gay and Lesbian Soldiers in the Australian Defence Forces Appraising the Evidence" (Palm Center, Sept. 19, 2000) (LCR 4666-4705) Aaron Belkin and Jason McNichol, Effects of the 1992 Lifting of Restrictions on Gay and Lesbian Service in the Canadian Forces: Appraising the Evidence (Palm Center, Apr. 2000)
73
Relevance; Hearsay; Hearsay within Hearsay
74
Relevance
75
Relevance
76
Relevance; Hearsay; Foundation; Authentication
77
78
79
80
Aaron Belkin, "Don't Ask, Don't Tell: Is the Gay Ban Based on Military Necessity?" 81 (Palm Center, 2003) (LCR 3367-3378)
82 Not used Ministry of Defence, Memorandum attaching 2002 "Tri-Service Review of the Armed Forces' Policy on Homosexuality and Code of Relevance; Hearsay; Social Conduct" (British Ministry of Defence, Hearsay within Hearsay; Foundation; Authentication 83 May 18, 2007) 84 Not used Defendants' Objections and Responses to Plaintiff's First Set of Requests for Admission 85 (Jan. 28, 2010) Relevance Defense Manpower Data Center, Chart titled "Homosexual Separations by Service and Reason, DoD Official Numbers FY 97- FY 86 08" (DMDC 250-253) Relevance; Foundation Dep't of the Army, Excerpt from Future Organizational Change - U.S. Army, Focus Army Task Force Documentation Book Relevance; Hearsay; 87 (1993) (ARI 62124) Foundation; Incomplete 88 Not used Memorandum regarding Gays and Lesbians at War: Military Service in Iraq and Afghanistan Under "Dont Ask, Don't Tell" (redacted) 89 (OSD P&R Plans 58910-58911) Relevance; Foundation Bonnie Moradi and Laura Miller, "Attitudes of Iraq and Afghanistan War Veterans toward Gay and Lesbian Service Members" (Armed Forces and Society, Oct. 29, 2009) (DMDC 90 11-22) Duplicate of Ex. No. 32 91 Not used FORSCOM Regulation 500-3-3 (July 15, 92 1999) 9
93 DOD Instruction Number 1332.14 94 DOD Instruction Number 1332.30 Dep't of Defense, Deputy Secretary of 95 Defense Organizational Chart (2008) Dep't of Defense, Defense Agencies 96 Organizational Chart (2008) Chart titled "Days between deployment end date and separation date active duty 97 separations as of April 1, 2010 98 Not used 99 Not used Michael McDaniel, "Preservice Adjustment of Homosexual and Heterosexual Military Accessions: Implications for Security Clearance Suitability" Defense Personnel Security Research and Education Center, 100 (Jan. 1989) (DoD LA 2-6 42467-42496) Theodore Sarbin, "Homosexuality and Personnel Security" (Defense Personnel Security Research and Education Center, 101 Sept. 1991) (PERSEC 7818-7863) 102 Not used Defendants Objections and Responses to Plaintiffs First Set of Requests for 103 Production of Documents (Jan. 12, 2010) Defendants Objections and Responses to Plaintiffs First Set of Interrogatories (Feb. 104 22, 2010) Defendants Objections and Response to Plaintiffs Second Set of Requests for 105 Admission (Feb. 22, 2010) Relevance Relevance
Relevance
Relevance; Hearsay; Hearsay within Hearsay
Relevance; Hearsay
Relevance
Relevance
10
Defendants Objections and Responses to Plaintiffs Second Set of Requests for 106 Production of Documents (Mar. 4, 2010) Defendants Objections and Responses to Plaintiffs Second Set of Interrogatories (Mar. 107 4, 2010) Defendants Supplemental Responses to Plaintiffs First Set of Requests for 108 Admission (Mar. 26, 2010) Draft of Log Cabin Republicans' Bylaws (Jan. 109 2006) Log Cabin Republicans' Articles of 110 Incorporation Alex Nicholson Certificate of Release or 110A Discharge from Active Duty (Mar. 29, 2003) Stephen Jay Vossler's Certificate of Release or Discharge from Active Duty (June 26, 111 2006) Michael Almy's Certificate of Release or 112 Discharge from Active Duty (Jul. 21, 2006) Letter from Colonel Paul Trahan to all Reviewed Authorities regarding Major 113 Michael D. Almy (Feb. 12, 2006) Memorandum from Lt. Colonel Jeffrey B, Kromer to All Reviewing Authorities regarding Major Michael Almy (Feb. 13, 114 2006) Memorandum from Major Scott D. Weenum, Department of the Air Force, to All Reviewing Authorities regarding Major Mike 115 Almy (Feb. 10, 2006)
Relevance; Hearsay
Relevance
Relevance
Relevance
Relevance
Relevance
Relevance
Relevance
Relevance
11
Memorandum for Record from Captain Stuart A. Williamson, Department of the Air Force, regarding Major Michael D. Almy (Jan. 25, Relevance 116 2006) Memorandum for Record from Captain Timothy Higgins, Department of the Air Force, regarding Major Almy (Feb. 13, 2006) Letter from Captain Hyral Walker, Jr., Dep't of the Air Force, regarding Major Michael D. Almy (Feb. 8, 2006) Memorandum for Record from Captain Quintin Tran, Dep't of the Air Force, to All Reviewing Authorities, regarding Major Michael D. Almy (Feb. 3, 2006) Memorandum for Record from First Lieutenant Rahsul Freeman, Department of the Air Force, to All Reviewing Authorities, regarding Major Michael D. Almy (Feb. 10, 2006) Memorandum for Record from First Lieutenant Bryan Zollinger, Dep't of the Air Force, to All Reviewing Authorities, regarding Major Michael D. Almy (Jan. 23, 2006)
117
Relevance
118
Relevance
119
Relevance
120
Relevance
121
Relevance
Memorandum from Senior Master Sargeant Leslie D. McElya to 52FW/CC regarding 122 Major Mike Almy (Feb. 7, 2006) Memorandum from Master Sargeant David H. Hogden to All Reviewing Authorities 123 regarding Major Mike Almy (Jan. 30, 2006)
Relevance
Relevance
Memorandum from Sargeant Denise D. Hyre to All Reviewing Authorities regarding Major 124 Mike Almy (Feb. 13, 2006) Relevance Memorandum from Senior Sargeant Thomas Ray, Department of the Air Force, to All Reviewing Authorities regarding Major Mike 125 Almy (Feb. 8, 2006) Relevance 12
Letter from Craig Weatherwax to all 126 concerned regarding Major Michael Almy Letter from Paul Tripp to all concerned 127 regarding Major Michael Almy Letter from General Robert H. Foglesong to Major Mike Almy regarding 2004 USAFE Lieutenant General Leo Marquez 128 Communcations Electronics Award (2005) Letter from M. Sgt. Patrick Nutt to undisclosed recipient regarding S. Sgt. 129 Loverde (Apr. 29, 2009) 130 Not used Email from Anthony Loverde to Jon Welch 131 (Apr. 22, 2008) Letter from Anthony Loverde to undisclosed recipient admitting his sexual orientation 132 (Apr. 22, 2008) Email from M. Sgt. Robert Eslinger to Anthony Loverde regarding "calling all 133 supervisors" (Apr. 28, 2008) 134 Anthony Loverde's Certificate of Discharge from Active Duty Letter from M. Sgt. Robert Eslinger to undisclosed recipient regarding Anthony Loverde Letter from CM Sgt. Michael Yakowenko to undisclosed recipient regarding Anthony Loverde (June 2, 2009) Letter from SM Sgt. Richard Horn to undisclosed recipient regarding Anthony Loverde (Apr. 28, 2008) Statement of Service, BOI Record of Proceedings in the Case of Lt.Jg. Jenny L. Kopfstein, USNR (Mar. 20, 2002)
Relevance Relevance
Relevance
Relevance
Relevance; Hearsay
Relevance; Hearsay
Relevance Relevance
135
Relevance
136
Relevance
137
Relevance
138
Relevance; Hearsay Relevance
Jenny L. Kopfstein Fitness Report and 139 Counseling Record 13
Memorandum for Record from Jenny Kopfstein to Commanding Officer, USS 140 Shiloh (Jul. 17, 2000) Jenny Kopfstein's Certificate of Release or 141 Discharge from Active Duty Joseph C. Rocha's voluntary statement 142 regarding sexual orientation (Sept. 19, 2007) Joseph C. Rocha's Evaluation Report and 143 Counseling Record (June 22, 2006) Joseph C. Rocha Evaluation Report and Counseling Record (with additional signature 144 from Lt. Castoire) (June 22, 2006) Joseph C. Rocha Evaluation Report and Counseling Record (with additional signatures from Lt. Castoire and Joseph 145 Rocha) (June 22, 2006) Memorandum from Commanding Officer, U.S. Naval Support Activity Bahrain to Superintendent of the U.S. Naval Academy 146 regarding Joseph Rocha (Jan. 23, 2006) Memorandum from Commanding Officer, U.S. Naval Support Activity Bahrain to Commander of Navy Installations Command 147 regarding Joseph Rocha (Apr. 12, 2007) Email from Joseph Rocha to undisclosed 148 recipient regarding harassment and abuse Memorandum from Commanding Officer, U.S. Naval Support Activity Bahrain to Commander, Navy Personnel Command 149 regarding Joseph Rocha Joseph Rocha's Certificate of Release or 150 Discharge from Active Duty Administrative Separation Proceeding Notice - Administrative Board Procedure for Joseph 151 Rocha
Relevance; Hearsay Relevance Relevance Relevance
Relevance
Relevance
Relevance
Relevance Relevance; Hearsay
Relevance Relevance
Relevance
14
Dep't of Defense, "Fact Sheet: Homosexuals in the Armed Forces" (Jan 1981) (DoD LA 2152 6 040937)
153
154
155
156
157
Relevance; Foundation Relevance; Hearsay; Brub, A. and D'Emilio, J., The Military and Hearsay within Hearsay; Lesbians During the McCarthy Years Foundation Memorandum from Robert L. Gilliat to Offices of the Judge Advocates General of the Army, Navy, and Air Force regarding Gays Veterans Association, Inc. v. Secretary of Defense Civ. No. 85-3193 filed October 4, 1985) (Oct. 15, 1985) (DoD LA 7-10 054873) Relevance; Foundation Murphy, L. R., Perverts by Official Order: The Campaign Against Homosexuals by the Relevance; Hearsay; United States Navy. (Harrington Park Press, Hearsay within Hearsay; 1988) Foundation Memorandum from Secretary of Defense Richard Cheney to the Secretary of the Army et al. regarding Delegation of Authority to Suspend Provisions of Law Relating to Promotion, Retirement or Separation of Army Personnel (Nov. 23, 1988) (DoD LA 7-10 051797) Relevance; Foundation Michael McDaniel, "Preservice Adjustment of Homosexual and Heterosexual Military Accessions: Implications for Security Clearance Suitability" (Defense Personnel Security Research and Education Center, Jan. 1989) (DOD LA 2-6 042467-042496) Duplicate of Ex. No. 100
158 Not used Memorandum from Craig Alderman, Jr., Deputy Undersecretary of Defense for Policy to Peter Nelson regarding PERSEREC Draft Report Nonconforming Sexual Orientations and Military Suitability (Feb. 10, 1989) 159 (DOD LA 2-6 042466) 15
Memorandum from Maynard Anderson, Ass't Deputy Undersecretary of Defense, to Deputy Under Secretary of Defense for Security Policy regarding Congressional Briefings (Oct. 18, 1989) (DoD LA 2-6 042458160 042461) Michelle Benecke and Kristin Dodge, Military Women in Nontraditional Job Fields: Causalities of the Armed Forces War on Homosexuals, 13 Harvard Womens Law 161 Journal 215 (1990) Allen Berube, Coming Out Under Fire: The History of Gay Men and Women in World War Two (The Free Press, 1990) Dyer, K. (ed.), Gays in Uniform; The Pentagon's Secret Reports (Boston: Alyson Publications 1990) Mary Ann Humphrey, My Country, My Right to Serve: Experiences of Gay Men and Women in the Military, World War II to the Present (HarperCollins 1990) Memorandum from Richard Cheney to the Secretaries of the Military Departments regarding Delegation of Authority to Suspend Provisions of Law Relating to Promotion, Retirement or Separation (Aug. 27, 1990) (DoD LA 7-10 051795 - 051796)
Relevance; Hearsay; Foundation
Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation
162
163
164
165
Dep't of the Navy, Naval Message regarding Sexual Harassment (Oct. 1990) (DoD LA 7166 10 047077 ) Letter from William Woodruff, Chief U.S. Army Litigation Division, to Irene Robertson regarding audit of DoD policy on homosexuality (Feb. 27, 1991) (DoD LA 2-6 167 042135-42137) Randy Shilts, Pentagon Memo Urged Reversing Ban on Gays in the Military Army 168 Says the Officer's Opinions is his Own, (San 16
Relevance; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation
Francisco Chronicle, June 25, 1991)
Relevance; Hearsay; Hearsay within Hearsay; Robert Maginnis, "A Contrary Agenda" (DoD Foundation ; 169 LA 7-10 47931-47944)(1991) Authentication Memorandum from James Schwenk to Irene Robertson attaching excerpts from Navy Women' Study Group "Update Report on the Progress of Women in the Navy (Oct. 24, 170 1991) (DoD LA 7-10 50025-50035) Relevance; Foundation Robert L. Maginnis, "Homosexuality in the Armys Future?" (Approx. 1991) (DoD LA 7171 10 47903 47922) Lori Ramsey and Barbara Urynowicz et al., "Update of the U.S. Army Research Institutes Longitudinal Research Data Base of Enlisted Personnel" (U.S. Army Research 172 Institute, Aug. 1992) Memorandum from T.D. Keating to Robert Adams stating that discharged homosexuals should receive half separation pay (Nov. 8, 173 1992) (DoD LA 2-6 40010 40011) Charles Jackson, Executive Vice President Non Comissioned Officers Assoc., statement before Republican Study Committee on homosexuals in the Armed Forces (Dec. 9, 174 1992) (DoD LA 7-10 49304 49353) Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication
17
Dep't of Defense, "Hypothetical Teaching Scenarios for Commanders and Personnel Involved in Recruiting, Accession Processing, Criminal Investigations, and Administrative Relevance; Foundation 175 Separations" (Navy 058969-058974) F. Pond, A Comparative Survey and Analysis of Military Policies with Regard to Service by Gay Persons, in Policy Concerning Homosexuality in the Armed Forces, (Senate Armed Services Committee Hearing, 103d 176 Cong., 2d Sess. Washington, D.C.) Randy Shilts, Conduct Unbecoming: Lesbians & Gays in the U.S. Military Vietnam to Persian Gulf (Fawcett Columbine, 1993) Marc Wolinsky and Kenneth Sherrill, Gays and the Military: Joseph Steffan versus the United States (Princeton University Press, 1993) David Burrelli, "Homosexuals and U.S. Military Personnel Policy (Congressional Research Service, Jan. 14, 1993) (DoD LA 26 45928- 46002) Memorandum from former President of the United States, William Clinton, to Secretary of Defense regarding ending discrimination on the basis of sexual orientation in the armed forces (Jan. 29, 1993) (DoD LA 7-10 55847) Memorandum from Les Aspin to Secretaries of the Army, Navy, Air Force and Joint Chiefs of Staff regarding Adminstrative Separation Procedures (Feb. 3, 1993) (DoD 710 54450 -54451) Memorandum from Robert Alexander to Deputy Assistant Secretaries of Army, Navy, Air Force regarding Armed Forces Applicant Screening and Periodic Briefing on Military Justice- Policy Guidance (Feb. 3, 1993) (DoD LA 7-10 55844) 18 Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation
177
178
179
180
Relevance
181
182
183
184
185
186
187
188
189
190
Memorandum from Les Aspin to Secretaries of Army, Navy, Air Force and Joint Chief of Staff regarding Administrative Separation Procedures (Feb. 3, 1993) (DoD LA 7-10 55845 - 055846) Eugene Gomulka, Deputy Chaplain of U.S. Marine Corps, testimony on Homosexuality and Military Service to Congress (Mar. 1, 1993) (DoD LA 2-6 39913 39917) Letter from former President of the United States, William Clinton, to Admiral Jim Stockdale regarding ban on homosexuality in the military service (Mar. 4, 1993) (Navy 58991) National Association of Evangelicals Resolution (Mar. 9, 1993) (DoD LA 2-6 39911 39912) Chaplain James Hutchens' testimony regarding Homosexuals in the Military before United States House of Representatives Republican Study Committee (Mar. 24, 1993) (DoD LA 2-6 39890 39903) Chaplain Edgren testimony regarding Homosexuals in the Military before United States House of Representatives Republican Study Research Committee (Mar. 24, 1993) (DoD LA 2-6 39904- 39910) Chaplain James Shaw, Director of the Ministry to the Armed Forces, Lutheran Church statement regarding Homosexuals in the Military to United States House of Representatives Republican Study Research Committee (Mar. 24, 1993) (DoD LA 2-6 39921 39926) Chaplain Timothy Tatum testimony regarding Homosexuals in the Military to U.S. Congress (Mar. 24, 1993) (DoD LA 2-6 39927 39929)
Relevance; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication; Incomplete
Relevance; Foundation Relevance; Hearsay; Foundation; Authentication
Incomplete (part of legislative history)
Relevance; Hearsay; Foundation; Authentication; Incomplete
Relevance; Hearsay; Foundation; Authentication; Incomplete Relevance; Hearsay; Foundation; Authentication; Incomplete
19
191
192
193
194
195
Memorandum from Edward Martin, Acting Assistant Secretary of Defense to Secretaries of the Military Depts. regarding Medical Implication of Homosexuals in the Military (Mar. 30, 1993) (PERSEC 8000 8001) Senate Armed Services Committee Hearing Transcript regarding "Topic: the role of Unit Cohesionban on homosexuals in military" (Mar. 31, 1993) (DoD LA 7-10 49032 49068) RAND National Defense Research Institute, "Homosexuals and U.S. military Personnel Policy: Policy Options and Assessment" (interim report, Apr. 6, 1993) Letter from Clinton Anderson, American Psychological Association to Les Aspin regarding request for a meeting related to the ban on homosexuals in the military (Apr. 8, 1993) (DoD LA 2-6 36593-36604) U.S. Senate Committee on Armed Services Hearing Transcript, "To Receive Testimony on the Military Policy Concerning the Service of Gay Men and Lesbians in the Armed Forces: the Experience in Foreign Countries (Apr. 29, 1993) (DoD LA 2-6 44033-44209)
Incomplete (part of legislative history) Relevance; Hearsay; Foundation; Authentication
196 Not used U.S. House of Representatives Committee on Armed Forces Hearing Transcript regarding policy implications of lifting the ban on homosexuals in the military (May 4, 1993) 197 (DoD LA 2-6 43653-44032) U.S. Senate Committee on Armed Services Hearing Transcript "Testimony from Current and Former Members of the Military Services of Gay Men and Lesbians in the Armed Forces" (May 11, 1993) (DoD LA 2-6 43411198 43652) 20
199
200
201
202
RAND National Defense Research Institute, "Homosexuals and U.S. military Personnel Policy : Policy Options and Assessment" (interim report, June 3, 1993) Memorandum from Attorney General Janet Reno to President Clinton regarding defensibility of the new policy on homosexual conduct in the military (June 19, 1993) (OSD OEPM 14872-14873) H.W. Frank, "Legal Issues Raised during Senate Committee on Armed Forces" (Military Working Group, draft issue paper, Apr. 15, 1993) Ben G. Miller, "Homosexuality is Incompatible with Military Service" (Military Working Group, draft issue paper, May 20, 1993) Military Working Group, "Draft Statement of Option #2" (Jul. 7, 1993) Memorandum from Les Aspin to Secretaries of the Army, Navy, Air Force and Joint Chiefs of Staff regarding Policy on Homosexual Conduct in the Armed Forces (Jul. 19, 1993) (PERSEC 7973 7979) Letter from Lee Aspin to Hon. Richard Shelby attaching Summary Report of the Military Working Group and RAND report "Sexual Orientation and U.S. Military Personnel Policy: Options and Assessments" (Aug. 26, 1993) (OSD P&R 7428-7454) Dep't of Defense, DOD/GC Homosexual Conduct Implementation Memo and Service/GC Responses" (Dec. 9, 1993) (OSD OEPM 13347-13378) DoD Directive No. 1304.26 (Qualification Standards for Enlistment, Appointment and Induction, Dec. 21, 1993) (DoD Issuances WHS 58075-58084) 21
Relevance (draft document); Foundation; FRE 403
203
Relevance; Foundation Relevance (draft document); Foundation; FRE 403
204
205
206
207
Memorandum from Edwin Dorn to Assistant Secretaries of Army, Navy, Airforce regarding Training Guidance for DoD Policy on Homosexual Conduct in the Armed Forces 208 (Dec. 21, 1993) (OSD OEPM 31205 31229) Relevance; Foundation Relevance; Hearsay; Hearsay within Hearsay; M. Cammermeyer, Serving in Silence Foundation 209 (Viking, 1994) W. J. Scott and S.C. Stanley, Gays and Lesbians in the Military: Issues, Concerns, and Contrasts (Aldine de Bruyter, 1994) Dep't of Defense, "DOD Policy on Homosexual Conduct Training Plan" (U.S. Military Entrance Processing Command, 1994) (PERSEC 7912-7972) Philippe Manigart, "Comparative International Military Personnel Policies Homosexuals in Belgian Military" (U.S. Army Research Institute, Jan. 1994) (ARI 61001 61026) "Additional Q's & A's for Mr. Dorn's Deposition" (Feb. 11, 1994) (OSD OEPM 27530-27531) DoD Instruction 5505.8, "Investigations of Sexual Misconduct by the Defense Criminal Investigative Organizations and Other DoD Law Enforcement Organizations" (Feb. 28, 1994) (DoD LA 7-10 48964 48967) DoD Directive No. 1304.26, Change 1 (Update) Qualification Standards for Enlistment, Appointment and Induction (Mar. 4, 1994) (DoD LA 7-10 48889 48945) Memorandum from John Deutch to the Secretaries of the Military Departments, "Recoupment of Education Assistance Funds, Bonuses and Special PayBasis of Homosexual Conduct" (May 17, 1994) (OSD OEPM 30783 -30786) Relevance; Hearsay; Hearsay within Hearsay; Foundation
210
211
212
Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Hearsay; Foundation; Authentication
213
214
215
216
22
217
218
219
220
221
222
223
224
Canadian Forces, "Briefing Note for Director of Public Policy" (Aug. 25, 1995) C. Dixon Osburn, "A Policy in Desperate Search of a Rationale: The Military's Policy on Lesbians, Gays, and Bisexuals," 64 University of Missouri-Kansas City Law Review 199 (1995) Lois Shawver, "And the Flag Was Still There: Straight People, Gay People, and Sexuality in the U.S. Military" (Harrington Park Press, 1995) Servicemembers Legal Defense Network, Conduct Unbecoming: The First Annual Report on Dont Ask, Dont Tell, Dont Pursue, Dont Harass (1995) (LCR 40134044) Letter from Senate Armed Services Committee to Judith Ann Miller regarding Able v. US (Jul. 13, 1995) (DoD LA 2-6 44344-44346) Memorandum from Harlan Wilder to all staff JAGs regarding clarification of policy on homosexual conduct in the armed forces (Aug. 29, 1995) (DoD LA 2-6 044347) Servicemembers Legal Defense Network, "Conduct Unbecoming: The Second Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" (Feb. 1996) (LCR 4045-4080) J. Halley, "The Status/Conduct Distinction in the 1993 Revisions to Military Anti-Gay Policy," 3 GLQ: a Journal of Lesbian and Gay Studies 159 (1996)
Relevance; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Hearsay within Hearsay; Foundation
Relevance; Hearsay; Gregory Herek et al. Out in Force; Sexual Orientation in the U.S. Military (University of Hearsay within Hearsay; Foundation 225 Chicago Press, 1996 )
23
C.A. Rimmerman (Ed.), Gay Rights, Military Wrongs: Political Perspectives on Lesbians Relevance; Hearsay; and Gays in the Military (Garland Publishing, Hearsay within Hearsay; 226 Inc., 1996) Foundation Relevance; Hearsay; Hearsay within Hearsay; Leisa Meyer, Creating GI Jane (Columbia Foundation 227 University Press, 1996) Dep't of Defense, "Separations for Homosexual Conduct, Fiscal Year 1996" (OSD OEPM 008310) Ministry of Defence, Report of the Homosexuality Policy Assessment Team (London, British Ministry of Defence, Feb. 1996) Dep't of Defense, "Discharge/Separation of Officer Members by branch, sex, and reason for separation" (Feb. 21, 1996) (OSD OEPM 008312 8376) Gregory M. Herek, "Successful Integration of Stigmatized Minorities into the U.S. Army: an Overview of Research Relevant to Personnel Policies Concerning Sexual Orientation" (U.S. Army Research Institute, June 26, 1996) (ARI 059823 ARI 059908) Memorandum from Harlan Wilder to AF/JAG regarding the Air Force Equal Opportunity Policy Memorandum (Oct. 4, 1996) (DoD LA 2-6 44348) Servicemembers Legal Defense Network, Conduct Unbecoming: The Third Annual Report on Dont Ask, Dont Tell, Dont Pursue, Dont Harass (Feb. 1997) (LCR 4081-4120)
228
Relevance; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication
229
230
231
232
233
Dep't of Defense, "Information Paper" (DOD Relevance; Hearsay; 234 LA 2-6 040517-040522) (1980-1997) Foundation Letter from Robert Tyrer to Chief of Staff attaching Dep't of Defense, "Policy Governing Service of Homosexuals in the 235 Military" (Jul. 21, 1997) (DoD LA 2-6 Relevance; Foundation 24
040746-50) Dep't of Defense, "Rebuttal Cases" (Aug. 27, 236 1997) (16 LC 057844-057848) Memorandum from D.A. Anderson to Brad Weigman regarding follow-up information for SLDN report allegations (Oct. 31, 1997) 237 (DoD LA 2-6 044704) Memorandum from Commandant, U.S. Coast Guard to Office of the Under Secretary of Defense (Nov. 17, 1997) (DoD LA 2-6 238 40484-40488)
Relevance; Hearsay Foundation
239 Not used Servicemembers Legal Defense Network, "Conduct Unbecoming: The Fourth Annual Report on Dont Ask, Dont Tell, Dont Pursue, Dont Harass (1998) (LCR 4121240 4199) Rob MacCoun, Biases in the interpretation and use of research results,(49 Annual 241 Review of Psychology 259-287 1998) E. Kier, "Homosexuals in the U.S. Military: Open Integration and Combat Effectiveness" 23 International Security 5 (1998) Melissa Sheridan Embser-Herbert, Camouflage Isnt Only for Combat: Gender, Sexuality, and Women in the Military, (New York University Press, 1998). Dep't of Defense, "Homosexual Conduct Policy Briefing" (Jan 7, 1998) (DoD LA 2-6 40780-40787) Memorandum from Paul Mayberry to Bernie Rostker regarding trends in Navy Separations due to Homosexual Conduct (Jan. 19, 1998) (DoD LA 2-6 40723-40730) 25
Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Foundation; Authentication
242
243
244
245
Memorandum from Bernard Rostker to Assistant Secretary of Defense (Force Management Policy) regarding clarification of Homosexual Separation Data (Feb. 24, 246 1998) (DoD LA 2-6 40760-40771) Office of the Under Secretary of Defense (Personnel and Readiness), "Report to the Secretary of Defense regarding Effectiveness of the Application and Enforcement of the Department's Policy on Homosexual Conduct in the Military" (Apr. 1998) (DoD LA 2-6 247 036014-036031)
248 Not used Memorandum from the Assistant Secretary of Defense to the Secretary of the Army an Airforce regarding Compliance with DoD Recoupment Policy (Oct. 16, 1998) (OSD Relevance; Foundation 249 OEPM 30781 30795)
Memorandum and report from Harlan Wilder to ASD/FMP (Nov. 3, 1998) (DoD LA 2-6 250 40799-407803) Servicemembers Legal Defense Network, Conduct Unbecoming: The Fifth Annual Report on Dont Ask, Dont Tell, Dont Pursue, Dont Harass (1999) (LCR 4200251 4284)
26
Dep't of Defense, untitled report regarding number of DADT separations (DoD LA 2-6 252 040080-040081)
Dep't of Defense, report regarding number of DADT separations from FY 1994 to FY 1998 253 (Jan. 1999) (DoD LA 2-6 041168-041169) Dep't of Defense, "Statement by Under Secretary of Defense for Personnel and Readiness Rudy de Leon," (Jan. 22, 1999) 254 (DoD LA 2-6 036129-36133)
Memorandum from John P. McLaurin to Acting Assistant Secretary of Defense (Force Management Policy) regarding Compliance with DoD Recoupment Policy(Mar. 10, 1999) Relevance; Foundation 255 (OSD OEPM 30796) Memorandum from Harlan Wilder to Commander Defense Finance and Accounting Service regarding Debt Cancellations Mr. Joshua Jones 443-92-1188 and Ms. Jincy Pace 458-41-9079 (Mar. 10, 1999) (OSD Relevance; Foundation 256 OEPM 30797 30800) Memorandum from P.A. Tracey to the Director of Defense Finance and Accounting Service (Mar 17, 1999) (OSD OEPM 025367257 025368) Relevance; Foundation
27
Memorandum from Rudy De Leon to Secretaries of the Military Departments regarding Implementation of Recommendations to Homosexual Conduct Policy (Aug. 12, 1999) (DoD LA 2-6 035967258 035972) Sarah Lyall, European Court Tells British to Let Gay Soldiers Serve, The New York Times, available at http://www.nytimes.com/1999/09/28/world/e uropean-court-tells-british-to-let-gay-soldiers259 serve.html (Sept. 29, 1999) Sig Christenson, "Gay separations down by half ," San Antonio Express News, Oct. 11, 260 1999 (DoD LA 2-6 036056-036058) Servicemembers Legal Defense Network, Conduct Unbecoming: The Sixth Annual Report on Dont Ask, Dont Tell, Dont Pursue, Dont Harass (2000) (LCR 4285261 4371) Dep't of Defense, "Homosexuality and the Armed Forces Commanding Officers Information Pack" (Jan. 2000) (OSD OEPM 262 3088530893) Ministry of Defence, "A Review of the Armed Forces Policy on Homosexuality," 263 (London: British Ministry of Defense, 2000)
Relevance; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication
Palm Center, "Report of the General/Flag 264 Officers Study Group" (2008) Dep't of Defense, "Implementation of the DOD Homosexual Conduct Policy" (Jan 14, Relevance; Hearsay; 265 2000) (OSD OEPM 31413 31684) Foundation Dep't of Defense, "Evaluation Report: Military Environment with Respect to the Homosexual Conduct Policy" (Mar. 16, 2000) 266 (DoD LA 2-6 036334-82) Relevance; Foundation
28
267
268
269
270
Memorandum from Harlan Wilder to AF/SGJ (Mar. 20, 2000) (DoD LA 2-6 035829) Letter from Charles Moskos to Secretary Cohen regarding doctors, psychologists, and inspectors general "turning in" servicemembers who make private statements (Apr. 12, 2000) (OSD OEPM 026438) Dep't of the Army Inspector General, "DAIG Special Assessment/ Investigation of Allegations of Violations of the DOD Homosexual Conduct Policy at Fort Campbell" (Jul. 2000) (DOD LA 2-6 036135036332) Office of the Assistant Secretary of Defense, "DoD News Briefing" (Jul 21, 2000) (OSD OEPM 31015 31026)
Relevance; Foundation; Authentication
Relevance; Hearsay; Foundation Relevance; Hearsay; Foundation
271 Not used Steven Lee Myers, "Military Reserves are Falling Short in Finding Recruits, New York 272 Times, Aug. 28, 2000 Servicemembers Legal Defense Network, "Conduct Unbecoming: The Seventh Annual Report on Dont Ask, Dont Tell, Dont Pursue, Dont Harass (2001) (LCR 4372273 4474) Gary Gates, Lesbians and Gay Men in the U.S. Military: Estimates from Census 2000 274 (LCR WI 1028-1050) Dep't of the Army, Army Publication 600-5, "Dignity and Respect, a Training Guide on 275 Homosexual Conduct Policy" (2001)
Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Foundation
Gail H. McGinn, "Homosexual Conduct Policy: Background & Current Issues" (Jul. 3, 2001) (OSD OEPM 31061 31074, 31188 276 311201) Relevance; Foundation
29
277
278
279
280
281
282
283
Servicemembers Legal Defense Network, "Conduct Unbecoming: The Eighth Annual Report on Dont Ask, Dont Tell, Dont Pursue, Dont Harass (2002) (LCR 44754531) Aaron Belkin and J. McNichol, Pink and Blue: Outcomes Associated with the Integration of Open Gay and Lesbian Personnel in the San Diego Police Department, 5 Police Quarterly 63 (2002) Servicemembers Legal Defense Network, "Conduct Unbecoming: The Ninth Annual Report on Dont Ask, Dont Tell, Dont Pursue, Dont Harass (2003) (LCR 45324592) SLDN Human Rights Watch, "Uniform Discrimination: The DADT Policy of the U.S. Military" (Jan. 2003) (OSD OEPM 31318 31373) David R. Segal and Mady Wechsler Segal, Americas Military Population (Population Bulletin, 57:4, Dec. 2004). Melissa Sheridan Embser-Herbert, A Missing Link: Institutional Homophobia and Sexual Harassment in the U.S. Military in In the Company of Men: Male Dominance and Sexual Harassment (2005) Elizabeth Hillman and Elizabeth Lutes, Defending America: Military Culture and the Cold War Court-Martial (Princeton University Press, 2005)
Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Hearsay; Hearsay within Hearsay; Foundation
Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation Duplicate of Ex. 214
DoD Directive 5505.8 (Jan. 24, 2005) (DoD 284 Issuances WHS 058644-48) Memorandum from Gail McGinn to Under Secretary of Defense regarding DoD Response to GAO Draft Report Financial Costs and Loss of Critical Skills Due to DOD's Homosexual Conduct Policy Cannot 285 be Completely Estimated"(P&R) (Feb. 4, 30
2005) (13 LC 057231-57232) Letter from David Chu to Derek Stewart regarding DoD response to Government Accountability Office, draft report "Financial Costs and Loss of Critical Skills Due to DOD's Homosexual Conduct Policy Cannot be Completely Estimated"(GAO) (Feb. 7, 286 2005) (13 LC 57225-57229)
Military Readiness Enhancement Act of 2005 287 (Mar. 2, 2005) (OSD OEPM 31402 31405)
Relevance
288 Not used Letter from Michael Dominguez to Senator Ron Wyden regarding response to letter to Secretary Rumsfield regarding DoD homosexual conduct policy in the military 289 (Sept. 21, 2006) (13 LC 57312-57313) Email from Franklin Pinch to Paul Gade regarding Gays in the Canadian Military 290 (Nov. 1, 2000) (AR 62002-62004)
Relevance; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation Authentication
291 Not used Bradford Booth et al. "What We Know About Army Families: 2007 Update" (Caliber, 2007) Relevance; Hearsay; available at http://www.army.mil/fmwrc/documents/resea Hearsay within Hearsay; 292 rch/whatweknow2007.pdf] Foundation; Authentication
31
Rick Maze, Rise in Moral Waivers Troubles Lawmaker, Army Times, Feb. 20, 2007, available at http://www.armytimes.com/news/2007/02/ap 293 WaivedRecruits070213/. Alan Simpson, Bigotry That Hurts Our Military, Washington Post, Mar. 14, 2007 Dep't of Defense, "Active Duty Separations By Service & ISC FY 2008" (DMDC 000034) Fred Kaplan, Dumb and Dumber, Slate, Jan. 24, 2008, available at http://www.slate.com/id/2182752/ Foreign Policy Magazine, The U.S. Military Index, 165 Foreign Policy 76 (March/April 2008) (LCR FP 220-222)
294
295
296
297
Relevance; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation
Gary Gates, Testimoney regarding Dont Ask Dont Tell Submitted to U.S. House of Representatives Armed Services Committee 298 (Jul. 18, 2008) (LCR WI 01025-27) Kyle Dropp and Jon Cohen, Acceptance of Gay People in Military Grows Dramatically, The Washington Post, Jul. 19, 2008, available at http://www.washingtonpost.com/wpdyn/conte nt/article/2008/07/18/AR2008071802561.htm 299 l
Nathaniel Frank, Unfriendly Fire (St. 300 Martins Press, 2009) Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth Relevance; Hearsay; Century America (Princeton University Press, Hearsay within Hearsay; Foundation 301 2009)
32
Rachel Maddow, The Rachel Maddow Show for Tuesday, May 19, available at http://www.msnbc.msn.com/id/30869189/. 302 (May 21, 2009) Spencer Ackerman, Dont Ask, Dont Tell Repeal Preview? Gates Opened CIA to Gays, Washington Independent, June 8, 2009, available at http://washingtonindependent.com/46071/dad 303 t-repeal-preview-gates-opened-cia-to-gays. General John M. Shalikashvili, Gays in the Military: Let the Evidence Speak, The Washington Post, June 19, 2009, available at http://www.washingtonpost.com/wpdyn/content/article/2009/06/18/AR200906180 304 3497.html
President Obama, Remarks at the LBGT Pride Month Reception (June 29, 2009) (LCR 305 3999-4002) Relevance President Obama, Remarks at the Human Rights Campaign Dinner (Oct. 11, 2009) 306 (LCR 3995-3998) Col. Om Prakash, The Efficacy of Dont Ask, Dont Tell, 55 Joint Force Quarterly 307 88 (2009) (LCR 4776-4782) Lawrence Kapp and Charles Henning, "Recruiting and Retention: An Overview of FY2008 and FY2009 Results for Active and Reserve Component Enlisted Personnel" (Congressional Research Service, Nov. 30, 308 2009) Dep't of Defense, report comparing homosexual conduct separation/recoupment 309 with weight control separation/recoupment 33
Relevance Relevance; Hearsay; Hearsay within Hearsay; Foundation
(OSD OEPM 27009-27011) Interview by CNN with William Cohen (Jan. 310 30, 2010) Gary Gates, Lesbian, Gay, and Bisexual Men and Women in the U.S. Military: Updated Estimates (Williams Institute, Feb. 2010) (LCR WI 1013-1050) Transcript of Testimony regarding Department of Defense Authorization for Appropriations for Fiscal Year 2011, and to Receive Testimony Relating to the "Don't Ask, Don't Tell" Policy: Hearing Before the Sen. Armed Services Comm., 111th Cong., 2nd Sess. (Feb. 2, 2010) Peter Baker, Powell Favors Repeal of Dont Ask, Dont Tell,'" New York Times, Feb. 3, 2010 Julian Barnes, Navy Moves to Allow Women on Submarines, Los Angeles Times, Feb. 24, 2010 Transcript of testimony given by Major Michael D. Almy to Senate Committee on Armed Services (Mar. 18, 2010) John McArdle, Wesley Clark Backs Cunningham in North Carolina," (Roll Call, Mar. 29, 2010) Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication
311
Relevance; Multiple Documents; Hearsay
312
313
314
Relevance Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Hearsay; Foundation Relevance; Hearsay; Hearsay within Hearsay; Foundation Relevance; Hearsay; Foundation
315
316
Craig Whitlock, A Dont Ask, Dont Tell Rules Complicate Survey of Troops on Policy 317 Change, (Washington Post, Mar. 31, 2010) Letter from American Bar Association President Carolyn Lamm to Senators Reid, McConnell, Levin, and McCain regarding support for repeal of 10 U.S.C. 654 (Apr. 318 26, 2010)
34
319
320
321
322
Transcript of Testimony regarding Hearing to Receive Testimony Relating to the "Don't Ask, Don't Tell" Policy Before the Sen. Armed Services Comm., 111th Cong., 2nd Sess. (Mar. 18, 2010) Exhibits added to the record of the Hearing to Receive Testimony Relating to "Don't Ask, Don't Tell" Policy Before the Sen. Armed Serives. Comm., 111th Cong., 2nd Sess. (Mar. 18, 2010) President Obama, statement on votes to repeal "Don't Ask, Don't Tell," available at http://www.whitehouse.gov/the-pressoffice/statement-president-votes-repeal-don-task-don-t-tell) (May 27, 2010) Memorandum from John Hutson to the ViceChief of Naval Operations regarding Homosexual Conduct Policy (NAVY 058930-058931)
Relevance
Relevance; Foundation Relevance; Hearsay; Foundation; Authentication
Personnel Security Research Center, table showing surveys of servicemembers on a 323 variety of topics (PERSEC 7945 7954) Information Paper by Jim Woodard to Secretary of Defense regarding Implementation and Status of DoD Policy on Homosexual Conduct (OSD OEPM 8383 324 8384)
Dep't of Defense, untitled "questions and 325 answers" (OSD OEPM 8390 8391) Memorandum from Rudy de Leon to the Secretaries of the Military Departments regarding the application and enforcement of the homosexual conduct policy (DoD LA 2-6 326 040075-040076) 35
Relevance; Foundation; Incomplete
Dep't of Defense, document titled Questions for the record: Ms. Gorelick (DoD LA 2-6 327 042624-28)
Relevance (draft of information in legislative history); Foundation; FRE 403 Relevance (draft of information in legislative history); Foundation; FRE 403
Dep't of Defense, "Proceedings Involving 328 Homosexuality" (OSD OEPM 053537)
Dep't of Defense, document regarding definition of homosexual statement (16 LC 329 57849-52)
330 Not used
Dep't of Defense, "Anti-Harassment Action 331 Plan" (OSD OEPM 30852 30853) Government Accountability Office, Draft "Financial Costs and Loss of Critical Skills Due to DOD's Homosexual Conduct Policy Cannot be Completely Estimated" (OSD 332 OEPM 31406 31412)
36
333
334
335
336
Palm Center, Creators of Gay Ban Tell Author it was Based on Nothing, available at http://www.palmcenter.org/press/dadt/release s/Creators+of+Military+Gay+Ban+Tell+Auth or+It+Was+%22Based+on+Nothing%22+. (Mar. 2, 2009) Dep't of Defense, "Policy Concerning Homosexuality in the Armed Forces" (DoD LA 7-10 48968 49031) Dep't of Defense, Department of Defense and Military Working Group Schematic Diagrams and Charts Interview by CNN with Chairman Di Paola NATO Chairman Di Paola: Allowing Gay men and Lesbians to serve openly working out quite well (Media Matters from America , Feb. 24 , 2010)
Relevance; Hearsay; Hearsay within Hearsay; Foundation; Authentication Relevance; Foundation; Authentication
1001 Not used
37
Case 2:04-cv-08425 Document 179--2 Filed 06/18/10 2 Pages
1 TONY WEST Assistant Attorney General 2 ANDR BIROTTE, Jr. United States Attorney 3 JOSEPH H. HUNT VINCENT M. GARVEY 4 PAUL G. FREEBORNE W. SCOTT SIMPSON 5 JOSHUA E. GARDNER RYAN B. PARKER 6 U.S. Department of Justice Civil Division 7 Federal Programs Branch Post Office Box 883 8 Washington, D.C. 20044 Telephone: (202) 353-0543 9 Facsimile: (202) 616-8460 E-mail: paul.freeborne@usdoj.gov 10 Attorneys for Defendants United States 11 of America and Secretary of Defense 12 13 15 16 v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV04-8425 VAP (Ex) [PROPOSED] ORDER GRANTING DEFENDANTS MOTION IN LIMINE TO EXCLUDE CERTAIN OF PLAINTIFFS PROPOSED EXHIBITS TRIAL: July 13, 2010 TIME: 8:30 a.m. BEFORE: Judge Phillips
14 LOG CABIN REPUBLICANS,
17 UNITED STATES OF AMERICA AND ROBERT M. GATES, Secretary of 18 Defense, 19 20 21 22 23 Defendants.
The Court, having considered Defendants Motion in Limine to Exclude
24 Certain of Plaintiffs Proposed Exhibits and all materials and argument submitted 25 in relation thereto, hereby orders as follows: 26 27 28
ORDER GRANTING DEFENDANTS MOTION IN LMINE TO EXCLUDE CERTAIN OF PLAINTIFFS PROPOSED EXHIBITS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543
1 3 trial:
IT IS HEREBY ORDERED that Defendants Motion is GRANTED. The
2 following proposed exhibits are hereby excluded and shall not be introduced at 4 Exhibit Nos. 2, 6, 9-13, 15-18, 20-23, 25-27, 29-36, 38, 40-41, 43-45, 50-56, 585 67, 69-81, 83, 85-87, 89-90, 95-97, 101, 103-108, 110A, 111-129, 131-157, 1596 175, 177-178, 180-195, 197-199, 201-203, 206, 208-213, 216-238, 240-287, 2897 290, and 292-336. 8 9 DATED: June ____, 2010 10 11 12 PRESENTED BY: 13 TONY WEST Assistant Attorney General 14 ANDR BIROTTE, Jr. 15 United States Attorney JOSEPH H. HUNT 16 VINCENT M. GARVEY 17 /s/ Ryan B. Parker 18 PAUL G. FREEBORNE 19 W. SCOTT SIMPSON JOSHUA E. GARDNER 20 RYAN B. PARKER Trial Attorneys 21 U.S. Department of Justice Civil Division 22 Federal Programs Branch Post Office Box 883 23 Washington, D.C. 20044 Telephone: (202) 353-0543 24 Facsimile: (202) 616-8460 E-mail: paul.freeborne@usdoj.gov 25 Attorneys for Defendants United States 26 of America and Secretary of Defense 27 28
ORDER GRANTING DEFENDANTS MOTION IN LMINE TO EXCLUDE CERTAIN OF PLAINTIFFS PROPOSED EXHIBITS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543
HON. VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE
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14 LOG CABIN REPUBLICANS,

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TABLE OF AUTHORITIES CASES

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DEFENDANTS MOTION IN LIMINE TO EXCLUDE CERTAIN OF PLAINTIFFS PROPOSED EXHIBITS

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First, these exhibits should be excluded because LCR failed to timely

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