Blog Entries Admissible on Summary Judgment to Show State of Mind

The University of Kansas (“KU”), in University of Kansas v. Sinks, 2008 U.S. Dist. LEXIS 23765 (D. Kan. Mar. 19, 2008), was suing to prevent unauthorized sale of KU apparel. In support of its motion for summary judgment, the plaintiff offered what the court described as “weblog entries ... certain internet postings to the Lawrence Journal-World to support their claims of (1) actual confusion and (2) consumers' belief that defendants' products bearing KU's trademarks and other indicia degrade the goodwill and positive associations of KU and its trademarks.” The defendants objected on hearsay grounds, and the plaintiffs maintained that the blog entries were not being offered for a hearsay purpose (i.e., not to prove the truth of the matter asserted, as required by Rule 801(c)) but rather as reflecting the state of mind of the writers (within Fed.R.Evid. 803(3) (“A statement of the declarant's then existing state of mind...”). The Court considered cases coming down both ways, and concluded in favor of admissibility: “While the Court agrees that the line is a fine one, it will consider the weblog evidence to the extent that it is not offered to prove the truth of the matter asserted.”

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