Commercial Litigation and Arbitration

Preliminary Injunctions — Court May Consider Hearsay Evidence on P.I. Motion — Admissibility under Federal Rules of Evidence Goes to Weight at P.I. Stage

Gluco Perfect, LLC. v. Perfect Gluco Prods., Inc., 2014 U.S. Dist. LEXIS 141966 (E.D.N.Y. Oct. 3, 2014):

The court makes the following findings of fact based on the parties' submissions and testimony and evidence presented at the preliminary injunction hearing. In hearing evidence on a motion for preliminary injunction, the "ordinary rules of evidence do not apply." Sunham Home Fashions, LLC v. Pem-Am., Inc., No. 02-CV-6284, 2002 WL 31834477, at *9 (S.D.N.Y. Dec. 17, 2002); see also Zeneca Inc. v. Eli Lilly & Co., No. 99-CV-1452, 1999 WL 509471, at *4 (S.D.N.Y. 19, 2009) (same). Specifically, hearsay evidence may be considered on a motion for a preliminary injunction. Mullings v. City of New York, 626 F.3d 47, 52 (2d Cir. 2010) (holding, as a matter of first impression, that trial courts may consider hearsay in evaluating a motion for a preliminary [*6]  injunction). Nonetheless, during a preliminary injunction hearing, the court may consider whether evidence is hearsay in order to determine the weight it should be given. See id. ("The admissibility of hearsay under the Federal Rule of Evidence goes to weight, not preclusion, at the preliminary injunction stage."); Zeneca, 1999 WL 509471, at *2 ("The Court has . . . applied the Federal Rules of Evidence in determining the weight to be accorded the evidence that was introduced [at the preliminary injunction hearing].") Moreover, this court has considered whether the exclusion at trial of inadmissible hearsay evidence will affect plaintiffs' likelihood of success on the merits.

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