Commercial Litigation and Arbitration

Rules of Evidence Inapplicable to Discovery Motion

From Arista Records LLC v. Does 1-27, 2008 U.S. Dist. LEXIS 89681 (D. Me. Oct. 29, 2008):

Both a motion for leave to take a deposition and a motion to quash would typically be treated as addressing a discovery dispute subject to Local Rule 7(b). Commonly, the parties' memoranda supply the factual background for the dispute and the Court accepts the descriptions for purposes of its ruling; the Local Rule does not contemplate a full-blown evidentiary hearing, though in an unusual case the trial judge could order one. Here, in effect, the Plaintiffs anticipated that the deposition of the University would provoke controversy, and the Linares Declaration provided factual background for the motion. There is nothing unusual or improper about the filing of the Linares Declaration in support of the motion for leave to file immediate discovery and if the Defendants wished to present evidence by affidavit or declaration in their motion to quash that contradicted the Linares Declaration, they would have been free to do so.

Nonetheless, the Defendants forcefully argue that the Court cannot grant a motion based on inadmissible material, whether contained in an affidavit, declaration, or some other submission.... In support, the Defendants cite Federal Rule of Evidence 1101, which makes the Federal Rules of Evidence generally applicable to "civil actions and proceedings." Fed. R. Evid. 1101(b). Noting that Rule 1101 also lists certain proceedings where the rules of evidence do not apply, they observe that an ex parte motion for expedited discovery is not among the excepted proceedings. Fed. R. Evid. 1101(d).

But, subsection (d) does not "represent an exclusive and exhaustive list." United States v. Zannino, No. 83-235-N-3, 1985 U.S. Dist. LEXIS 19184, at *9 (D. Mass. June 5, 1985); 31 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 8077, at 620 (2000) (stating that "[s]ubdivision (d) is not a complete list of the situations in which the Evidence Rules are inapplicable"); see UAW v. Gen. Motors Corp., 235 F.R.D. 383, 386-87 (E.D. Mich. 2006) (concluding that a "fairness hearing" in a class action lawsuit is not subject to the rules of evidence, since it is not a trial). Thus, although not referenced in Rule 1101(d) as excepted proceedings, the First Circuit has observed that "[a]ffidavits and other hearsay materials are often received in preliminary injunction proceedings." Asseo v. Pan Am. Grain Co., 805 F.2d 23, 26 (1st Cir. 1986). As the First Circuit stated, with regard to hearsay materials in support of a motion for injunctive relief, "[t]he dispositive question is not their classification as hearsay but whether, weighing all the attendant factors, including the need for expedition, this type of evidence was appropriate given the character and objectives of the injunctive proceeding." Id.

A motion for leave to take an immediate deposition and a responsive motion to quash or modify, though they may have important ramifications in this case, are not nearly as significant as a dispositive motion or a motion for preliminary injunction in which the rules of evidence do not apply. The Court finds the contents of the Linares Declaration relevant and appropriate given the nature of the relief requested, and the Court denies Defendants' motion to strike.

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