Opinion
Case No. 1:98-CV-479
September 21, 2001
ORDER
In accordance with an Opinion filed this day,
IT IS HEREBY ORDERED that Plaintiffs' Renewed Motion in Limine to Exclude Defense Exhibit 321 (Dkt. No. 447) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Plaintiffs' Renewed Motion in Limine to Exclude Defense Exhibits that are Hearsay and/or Lack Authentication (Dkt. No. 444) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Defendants' Proposed Exhibits 321(2) and (3) will not be admitted into evidence for their truth. They will be admitted for any other purpose consistent with the Federal Rules of Evidence and other law governing the Court.
IT IS FURTHER ORDERED that Defendants' Proposed Exhibits 321(4) and (12) will not be admitted into evidence for their truth. They will be admitted for any other purpose consistent with the Federal Rules of Evidence and other law governing the Court.
IT IS FURTHER ORDERED that Defendants' Proposed Exhibits 321(7), (8) and (9) will not be admitted into evidence.
IT IS FURTHER ORDERED that Defendants' Proposed Exhibits 209-211, 230, 231, 234, 237-239, 241, 247-251, 256, 261, 290, 311-312, and 313, identified in the Opinion as Letters, will not be admitted into evidence for their truth. They will be admitted for any other purpose consistent with the Federal Rules of Evidence and other law governing the Court.
IT IS FURTHER ORDERED that Defendants' Proposed Exhibits 211, 229, 243, 253, 283286, 317, and 318, identified in the Opinion as Newspaper, Magazine, and Newsletter Articles, will not be admitted into evidence for their truth. They will be admitted for any other purpose consistent with the Federal Rules of Evidence and other law governing the Court. Articles that may qualify for the business records exception to hearsay because they were written by an MHSAA employee will be admitted for their truth if sufficient testimony is offered to qualify the articles for the business records exception.
OPINION
This matter is before the Court on Plaintiffs' Renewed Motion in Limine to Exclude Defense Exhibit 321 and Plaintiffs' Renewed Motion in Limine to Exclude Defense Exhibits that are Hearsay and/or Lack Authentication. Plaintiffs seek exclusion of Def Proposed Ex. 321, a 22-part exhibit, on various grounds. Also, Plaintiffs seek exclusion of various (1) letters sent to the MHSAA, (2) newspapers, (3) magazine and newspaper articles, and (4) prior out-of-court statements by the MHSAA, encompassing forty-three of Defendants' Proposed Exhibits, on hearsay and/or lack of authentication grounds. The Court will grant in part and deny in part Plaintiffs' Renewed Motions in Limine.
I. Standard of Review and Applicable Federal Rules of Evidence
The Court exercises discretion over matters involving the admissibility and relevancy of evidence at trial. United States v. Seago, 930 F.2d 482, 494 (6th Cir. 1991).
Federal Rule of Evidence 802 provides for the inadmissibility of evidence which is hearsay, defined in Federal Rule of Evidence 801 as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801, 802. Prior statements by witnesses under certain circumstances and admissions by party-opponents are not considered hearsay under Federal Rule of Evidence 801(d) even though they would otherwise fall under the hearsay definition. Fed.R.Evid. 801(d)(1)-(2). Otherwise, hearsay statements must fall under a hearsay exception or be allowed because of another rule to be admissible. Fed.R.Evid. 802. Hearsay statements within hearsay must also come within a hearsay exception to be admitted for their truth. Fed.R.Evid. 805.
One category of evidence excluded from the hearsay rule is found in Federal Rule of Evidence 803(6), the business records exception. To fall within the exception, the evidence must be from information recorded by a person with knowledge and kept in the course of a regularly conducted business activity. Fed.R.Evid. 803(6). These characteristics must be shown by the testimony of a qualified witness, and the exception does not apply if "the source of information or the method or circumstances of preparation indicate lack of trustworthiness." Id. Where a source of information was prepared for use in anticipated or on-going litigation, the information is not considered kept in the regular course of business and is not subject to the hearsay exception. Palmer v. Hoffman, 318 U.S. 109,113-14 (1943) (accident reports prepared by railroad were not "business records" because "[t]heir primary utility is in litigating, not in railroading").
Evidence may also be excluded from the hearsay rule if it falls under the residual hearsay exception, found in Fed.R.Evid. 804. A statement not falling under any exception to the hearsay rule can still be admitted Rif . . . (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will be best served by admission of the statement into evidence.
Fed.R.Evid. 804. To make use of this exception, the proponent must make the statement, including name and address of the declarant, known to the adverse party sufficiently in advance of trial to provide the adverse party with a fair opportunity to prepare to meet it. Id.
Evidence must also be relevant to be admitted. "`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." Fed.R.Evid. 401. The standard for relevancy is very liberal, and a court may not exclude evidence on relevancy grounds that has even the slightest probative value, even if insufficient to prove the ultimate issue for which it is offered. Douglass v. Eaton Corp., 956 F.2d 1339, 1344 (6th Cir. 1992) (abrogated on other grounds, Weisgram v. Marley Co., 528 U.S. 440 (2000)).
Relevant evidence may be excluded if its probative value is substantially outweighed by danger of its unfair prejudice, confusion of the issues, waste of time, or needless cumulation of evidence. Fed.R.Evid. 403. Unfair prejudice in evidence is not a consideration in a bench trial, however, since the judge will also be the trier of fact. United States v. Hall, 2000 WL 32010, at *2 (6th Cir. Jan. 4, 2000) (citing Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994); Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. 1981)).
Evidence can be satisfactorily authenticated by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a). This can be done by a number of methods, including testimony of a witness with knowledge that a matter is what it is claimed to be. Fed.R.Evid. 901(b).
II. Analysis
The Court has already addressed Plaintiffs' argument that Defendants' exhibits were untimely disclosed in its Opinion (Dkt. No. 483) and Order (Dkt. No. 484) dated September 14, 2001. Specifically, the Court finds that Def. Proposed Ex. 321 was not late in that it was disclosed in response to Magistrate Judge Ellen S. Carmody's Order (Dkt. No. 369) dated May 3, 2001, which was the only Order to directly address this proposed exhibit. See, e.g., Magistrate Judge Joseph Scoville's Order (Dkt. No. 269) dated Oct. 23, 2000 (requiring only that Defendants disclose their "then known" exhibits within 30 days after Plaintiffs made their exhibit disclosures). The parties agree that Defendants disclosed Def. Proposed Ex. 321 by May 22, 2001, and this is prior to the deadline set for summary exhibits, which was May 25, 2001(Dkt. No. 369). Therefore, the Court rejects this argument of Plaintiffs with regard to the entire exhibit.
Moreover, since the Court will be the trier of fact in this matter, no evidence will be rejected because Plaintiffs argue that its probative value is outweighed by unfair prejudice. Plaintiffs are free to make arguments regarding the weight that should be given to particular pieces of evidence. Concerns about unfair prejudice are not present when there is no jury, and the Court wishes to have any relevant evidence before it in this matter of great public importance when it makes its factual findings and conclusions of law.
A. Analysis of Plaintiffs' Objections as to Def. Proposed Ex. 321
Proposed Exs. 321(5) and (13)
Defendants have voluntarily withdrawn Def. Proposed Exs. 321(5) and (13). Therefore, the Court will deny as moot Plaintiffs' Renewed Motion in Limine with respect to these exhibits.Proposed Ex. 321(1)
Plaintiffs claim this chart is incomplete because it does not encompass seasons for the MHSAA's Upper Peninsula tournaments. Plaintiffs have access to information about seasons and tournaments in the Upper Peninsula and may offer this information during the presentation of their case. Plaintiffs also object to claims on the chart. All of these objections address the content of the exhibit and the weight that should be afforded, but as none present a valid reason why this exhibit is inadmissible, the Court will deny Plaintiffs' motion as to this exhibit.
Proposed Exs. 321(2)and (3)
These exhibits are maps titled "States Not Aligned with NCAA Championships" and "Boys/Girls Same Seasons." Plaintiffs object to these portions on the basis of late disclosure, which was resolved above; relevancy; and hearsay. Defendants represent to the Court that the underlying data for the maps came from the National Federation of State High School Associations (NFSHSA) in its Sports Seasons survey.
Defendants do not address Plaintiffs' relevancy objection in their pleadings, but the Court can foresee how this information could be relevant to issues at stake in this litigation. Whether high school sport seasons are aligned with National Collegiate Athletic Association (NCAA) seasons could have relevance to whether female athletes are hampered in collegiate recruitment and in obtaining scholarships, for example. As another example, the practices of other states in scheduling boys' and girls' sport seasons could conceivably be relevant to whether Defendants intentionally discriminated if Plaintiffs' proofs show that discrimination has occurred under the law.
However, there is a hearsay problem with these exhibits. Defendants assert that the information from which the map was created falls under the business records exception. But Defendants must provide evidence sufficient for the Court to make a finding that this information falls under that exception. To qualify under the business records exception, a person with knowledge, presumably from the NFSHSA since that body created what is asserted to be a business record, must testify that he or she recorded the information and that it was kept in the course of a regularly conducted business activity. Fed.R.Evid. 803(6). The question is not whether the MHSAA received the information in its regular course of business. Defendants have offered no argument that any of their listed witnesses are from the NFSHSA and can testify as to the creation of the information at issue.
Therefore, Plaintiffs are correct that this exhibit is hearsay, and Defendants have offered no argument that would put these exhibits into another category of hearsay exception. The Court will grant Plaintiffs' motion as to these exhibits.
Proposed Exs. 321(4) and (12)
These exhibits contain arguments supporting Defendants' position in current seasons scheduling, according to Defendants. Plaintiffs make a hearsay objection to these exhibits and argue that the business records exception would not apply because Plaintiffs claim that these exhibits were prepared by the MHSAA for purposes of advertising to the general public its position in this litigation. Defendants dispute the claim that these were public relations pieces, and they claim that these exhibit portions have never been used publicly. Defendants offer that these exhibit portions were prepared to summarize their arguments as to why current scheduling has certain benefits.
To the extent that the summaries of argument were prepared for this or any other litigation, even if they were prepared to summarize for the Court and not the general public, Plaintiffs are correct that these exhibit portions would not fall under the hearsay exception. Defendants in their pleadings have not disputed that the summaries were prepared for or because of this or any other litigation and further offers no argument why these exhibits qualify under the business records exception. Given the information provided by Defendants in their pleadings, the Court assumes that the summaries were prepared for litigation purposes and thus do not fall under the business records exception. Further, Defendants have offered no other hearsay exception under which these exhibit portions might qualify, so the Court will grant Plaintiffs' motion as to these exhibit portions.
Proposed Ex. 321(6)
This exhibit describes the history of expansion in tournaments offered by the MHSAA from its perspective. Plaintiffs make objections on the bases of hearsay, relevancy, and misleading information to this exhibit portion. To the extent that Plaintiffs claim this exhibit is misleading, Plaintiffs are free to present other evidence that they feel clarifies the evidence Defendants are presenting. But as stated above, the Court will not exclude exhibits on that basis since this is a bench trial.
As for Plaintiffs' hearsay objection, Defendants offer that the information in this exhibit portion comes from various MHSAA sources that will fall within the business records exception to hearsay inadmissibility. Defendants will have the opportunity to prove this at trial, since they assert other evidence offered will show that this is within the business records exception. Plaintiffs may make this objection again if appropriate.
As for Plaintiffs' relevancy objection, the Court finds that this information could be relevant to issues at stake in this litigation, like whether Michigan girls' chances for recruitment or to earn college scholarships are hampered by the differences in NCAA and MHSAA scheduling, offering of opportunities, etc. Therefore, the Court will deny Plaintiffs' motion as to this portion of the exhibit.
Proposed Exs. 327), (8 and 9)
These three exhibit portions compare offerings of the MHSAA to what it alleges that Michigan colleges have provided, federal law has required, and other states have provided. Plaintiffs make relevancy objections that resolve this part of their motion, and Plaintiffs' other objections of misleading information and untimely disclosure have already been addressed. Defendants argue that all three portions are relevant because they pertain to the history of the MHSAA's program expansion.
Program expansion as discussed in Proposed Ex. 321(7), "Program Expansion: MHSAA: Ahead of Colleges," is not relevant to this litigation as the issue left for trial is whether scheduling girls' seasons when they are currently scheduled is discriminatory. Certainly, information about the history of the collegiate programs at Michigan State University and Central Michigan University, which is contained in this portion, is not relevant to the issue in this trial either.
Similarly, Proposed Ex. 321(8), "Program Expansion: MHSAA: Ahead of Federal Laws," pertains to the number of tournaments conducted for girls through history, while comparing that history to the history of federal law on sex discrimination. This is clearly not relevant to the issue of whether sports seasons are scheduled in such a way to be discriminatory to females. The Court will grant Plaintiffs' motion with respect to this exhibit portion.
Finally, Proposed Ex. 321(9), "Program Expansion: MHSAA: Ahead of Other States," is not relevant to the issue at stake in this trial. Again, it only pertains to the number of championships for girls offered in Michigan and in other states. This is in no way relevant to seasons scheduling.
Therefore, the Court will grant Plaintiffs' motion with respect to these three exhibit portions as they are clearly irrelevant. As such, the Court will not address Plaintiffs' hearsay objections to these portions.
Proposed Ex. 321(10)
This exhibit portion addresses MHSAA and/or schools' accommodation of student interests in offering tournaments in girls' sports. Plaintiffs object to this exhibit portion on the basis of relevance. The exhibit portion does not address seasons scheduling, but it is conceivable that the timing of when tournaments began to be offered has any relevance to how or why seasons are scheduled. As such, the Court will deny Plaintiffs' motion with respect to this exhibit.
Proposed Ex. 321(11)
Plaintiffs have no objection to this exhibit.
Proposed Ex. 321(14)
Plaintiffs object to this exhibit portion on hearsay and relevancy grounds, as well as other grounds addressed in their Motion in Limine to Exclude Surveys. These objections seem to go to the underlying data. As Defendants argue, the Court finds that this exhibit summarizes previous survey findings already deemed admissible on all of the grounds that Plaintiffs argue here. See Opinion and Order dated April 6, 2001 (Dkt. Nos. 354 and 355). If Plaintiffs have specific objections with respect to the translation of the survey results to the summarized form in which they are presented by Defendants, Plaintiffs may make those at trial. The Court will deny Plaintiffs' motion with respect to this portion.
Proposed Exs. 321(15), (16), and (7)
These exhibits contain the results of a study commissioned by the MHSAA on the quantity of media coverage in major Michigan newspapers that college men's basketball receives as compared to college women's basketball, which are played in the same season at the college level. Plaintiffs challenge these exhibits on hearsay and relevancy grounds.
Plaintiffs' hearsay objection is misplaced. Defendants offer a compilation of data based on how much coverage each sport received during a given period of time measured in column inches in newspapers, lines per day on the Internet, and minutes and seconds on television. There is no hearsay concern with regard to the articles or television stories themselves since Defendants are not offering any information within the sources for the truth of the matters asserted in those articles. Defendants will need to authenticate the study at trial, and they will be given this opportunity.
The Court also finds that these exhibits are relevant. To the extent that Defendants can offer this evidence for proof that by analogy, high school girls' sports' media coverage would suffer if girls' sports were moved to the same seasons as boys' sports, that supports their argument that there are benefits to the two sexes playing in different seasons and thus no discrimination. The fact that disparate media coverage may constitute distasteful discrimination by private entities does not negate the fact that media coverage for girls may suffer if seasons are moved, according to Defendants' evidence. It is relevant at the very least to the issue of whether Defendants intentionally discriminated if Defendants considered practical consequences to moving the sports seasons. Therefore, the Court will deny Plaintiffs' motion as to these exhibits.
Proposed Ex. 321(18)
This exhibit portion describes the number of Michigan women recruits that go to college athletic programs, and the underlying data was obtained from various sources. Plaintiffs raise an untimely disclosure objection already resolved above and a hearsay objection. One piece of the underlying data came from the U.S. Census Bureau. The Court notes that census information falls squarely under the residual hearsay exception. Population information is offered as evidence of a material fact in making these comparisons, and the Census Bureau's information is certainly the most probative evidence on population available. Moreover, the general purposes of these rules and the interests of justice will be best served by admission of the statement into evidence, as the Court has no reason whatsoever to doubt its veracity, and Plaintiffs can easily verify the information by checking Census Bureau information. See Fed.R.Evid. 804.
However, each of the remaining pieces of information on this chart must fall under a hearsay exception of some type to be admitted as part of the chart. To fall under the business records exception, for example, it is not enough that the MHSAA compiled this data as collected by other entities in its own regular course of business. To qualify for this exception, a person from the entity creating the information source must be able to testify at trial that he or she was a person with knowledge who recorded the information and kept it in the course of a regularly conducted business activity. Since the Court cannot discern from Defendants' pleadings whether they mean they collected the data themselves or they have data that was collected by another entity, the Court will allow Defendants to present evidence on this matter at trial to determine if all or part of this exhibit qualifies under the business records exception to hearsay inadmissibility.
The Court will also be willing to entertain arguments at trial that these data sources fall under other applicable exceptions, including the residual exception, as Defendants' pleadings give the Court reason to believe at least some of the hearsay objections could be resolved. However, the Court is concerned about the reliability of these sources and will particularly want to hear about how it can be assured that these sources are reliable before the sources will be admitted under this exception. As such, the Court will deny Plaintiffs' motion as to this portion of the exhibit.
Proposed Ex. 321(19)
The Court has already addressed Plaintiffs' untimely disclosure objections. Therefore, the Court will deny Plaintiffs' motion as to this exhibit.
Proposed Ex. 321 20)
Plaintiffs object to this exhibit on hearsay, authentication, and untimely disclosure grounds, which have already been addressed. As to Plaintiffs' authentication objection, Defendants will have the opportunity to authenticate the exhibit at trial.
As to the hearsay objection, the first page of the exhibit is demonstrative. Provided that Defendants offer the evidence contained therein through another admissible means, the first page will also be admitted. The second page is a summary of State Board of Education minutes, according to Defendants. Defendants also point out that Plaintiffs have proposed various portions of State Board of Education minutes in their exhibits. Presumably the parties will be prepared to answer hearsay objections to this particular source at trial since both are offering the source. The Court will give both parties an opportunity to do so and will deny Plaintiffs' motion as to this exhibit.
Proposed Ex. 321(21)
This exhibit is a compilation of various interest groups that Defendants allege support or do not support changing seasons for girls' sports. Plaintiffs make hearsay, lack of authentication, and untimely disclosure objections to this exhibit. The Court is concerned about the potential for hearsay in this exhibit, but since Defendants argue that representatives of these groups will testify at trial, the Court will reserve ruling on this exhibit until trial. After Defendants have put on their case, Defendants will have the opportunity to offer argument that this exhibit, or at least some of it, is not hearsay because each piece of information falls under an exception that has been sufficiently established through other evidence at trial. Plaintiffs may object again as to hearsay if appropriate at trial.
The Court does not anticipate a potential authentication problem with this exhibit, since it is merely a list of alleged supporters for Defendants' position and surely Defendants will offer testimony to make that assertion. The Court has also addressed the untimely disclosure objection. Therefore, the Court will deny Plaintiffs' motion with respect to this exhibit.
Proposed Ex. 321(22)
The exhibit is a list of other sports associations in Michigan besides the MHSAA. Plaintiffs make hearsay, relevancy, and untimely disclosure objections to this exhibit. Defendants will have the opportunity to resolve hearsay objections at trial after offering testimony of its witnesses, given Defendants' assertions in their pleadings, and the Court will rule at that time. As to relevancy, the Court issued an Order clarifying that evidence on whether the MHSAA is a "state actor" will be considered relevant at trial. Arguably, this exhibit could be relevant on that point and other issues in this litigation. Therefore, the Court will deny Plaintiffs' motion with respect to this exhibit.
B. Analysis of Plaintiffs' Objections as to other Defendants' Proposed Exhibits
Plaintiffs object to various proposed exhibits of Defendants on hearsay and lack of authentication grounds. First, it would be most just and efficient to allow Defendants an opportunity to authenticate their exhibits at trial. In most cases, Defendants have specifically indicated in their pleadings that their witnesses will be able to authenticate the exhibits at issue here. For now, the Court will assume that Defendants will be able to properly authenticate all of their exhibits at trial. If Plaintiffs wish to object to any exhibit on lack of authentication grounds after Defendants have put on their case, they may do so at that time.
Second, Plaintiffs have organized the proposed exhibits to which they object into five categories, including (1) letters sent to the MHSAA (Exs. 209-211, 230, 231, 234, 237-39, 241, 247251, 256, 259, 261, 290, 300, 303, 305, 311-313); (2) newspaper articles (Exs. 229, 283-286, 317-318); (3) magazine and newsletter articles (Exs. 211, 243, 253, 299); (4) prior out-of-court statements made by MHSAA (Exs. 206, 210, 230, 244, 245, and 252); and (5) miscellaneous statements (Exs. 225, 286, and 302). The Court will address their hearsay objections in this fashion as well, except that groups (2) and (3) will be considered together, noting as needed any exceptions to the Court's ruling with respect to individual exhibits.
Finally, Defendants made the very serious allegation that Plaintiffs have altered some of Defendants' exhibits in its motion attachments to the Court. Defendants suggested having an evidentiary hearing so it could present what it represents are the actual defense exhibits. While the Court is troubled by the allegation, this is a matter for another time. For now, the Court will decide the standards to be applied to these groups of various kinds of exhibits since it has reviewed the applicable law. Since Defendants pointed out some of the discrepancies they allege, but alleged that this problem extended to other exhibits and did not detail the exact discrepancies in their pleadings, the Court will make decisions applicable to the types of exhibits as they are grouped in the pleadings. Defendants can make objections to excluded exhibits at trial if appropriate on the basis that the Court was misled as to the content of an exhibit.
Letters Sent to the MHSAA
First, Defendants have voluntarily withdrawn Proposed Exs. 300, 303, and 305. Therefore, the Court will deny as moot Plaintiffs' Renewed Motion in Limine with respect to them.
This group of exhibits consists of letters that the MHSAA asserts that it has received. First, the Court would like to note that hearsay objections to letters are most likely misplaced. The Court cannot imagine that any party will be offering the letters for the truth of the matters asserted therein. In the Court's estimation, letters would be useful to show that the MHSAA knew of a certain level of agreement or disagreement with its decisions in seasons scheduling, etc., or some other similar nontruth purpose. Defendants' Proposed Exhibit 248, as Defendants have presented it in Ex. 2 to their brief, is a letter purportedly from an eighth grader named Kristen Lodden, for example. Miss Lodden makes this statement, among others, in her letter: "I play volleyball, basketball, and softball for my school." (See Defendants' Response in Opposition to Plaintiffs' Motion in Limine to Exclude Defense Exhibits That Are Hearsay and/or Lack Authentication (Dkt. No. 414), Ex. 2). It is not of consequence to this litigation whether it is true that Miss Lodden indeed played those sports for Rockford Middle School, as she asserted when she wrote the letter. It is of consequence that the MHSAA received a letter that its employees believed to be from an eighth grader who played volleyball, basketball, and softball in middle school and who expressed opinions about seasons scheduling of which the MHSAA as an entity had knowledge.
With that said, in case the parties wish to admit letters for the truth of the matters asserted therein, the Court will address that issue. Defendants assert that United States v. Davidson, 760 F.2d 97, 98-99 (6th Cir. 1985) stands for the proposition that letters received in the regular course of business fall under the business records exception to the hearsay rule. Davidson was an appeal from a conviction for mail fraud, where the defendant sent two documents to his insurance company making a claim for his burned-down building, when in fact, he was the one who set the fire. Id. at 98.
In that case, the defendant on appeal argued that the documents were hearsay and not admissible under the business records exception. Id. The Sixth Circuit's discussion of his argument was summarily stated in only one paragraph. See id. at 98-99. The problem is that the government in that case was not offering the defendant's letters to his insurance company for the truth of the matters asserted therein. Cf id. In fact, it was because the defendant's statements were not true that he was successfully prosecuted. Cf. id. The government offered the letters to show that the defendant attempted to make a claim on his insurance policy by sending these letters. Cf. id. The fact that someone from the insurance company could testify that the letters were received in the regular course of the insurance company's business helped to authenticate the letters as actually received and likely sent by the defendant, but had nothing to do with trying to qualify the letters for the business records exception to the hearsay rule. Cf id. at 99. As such, Davidson is inapplicable to the question presented here.
Plaintiffs, on the other hand, cite many cases for the proposition that collecting a letter in the regular course of business does not qualify the letter for the business records exception. See, e.g., United States v. Yates, 553 F.2d 518, 521 (6th Cir. 1977); United States v. Selby, 33 F.3d 55, at *8-*9 (6th Cir. Aug. 8, 1994). Yates held that a postscript which read, "P.S. The F.B.I. just phoned to notify us that the robber turned himself in this morning and is now in their custody[,]" was a hearsay statement that did not qualify for the business records exception because the employees who wrote the letter with that post script did not have personal knowledge of the information in the post script. Yates, 553 F.2d at 521. The same reasoning would apply to letters that were received from outside a business and kept as part of business practice; their collection does not mean that the information in them is reliable.
It seems, however, that the main body of the letter that the employees wrote concerning the events of the bank robbery might be within the regular course of business, since the employees had personal knowledge and were under a duty to report the details to the bank. Cf. Yates, 553 F.2d at 521. The fact that the report took the form of a letter is inconsequential. Cf. id.
Despite the fact that some of those cases may be unpublished or relatively old decisions, the Court believes this to be because this is such a well-settled matter of evidence law. Therefore, no letter will be admitted for the truth of the matters asserted therein under the business records exception to the hearsay rule. The Court will grant Plaintiffs' motion with respect to uses of the letters for the truth of the matters asserted therein, but will deny Plaintiffs' motion with respect to other uses of the letters.
Newspaper, Magazine, and Newsletter Articles
First, Defendants have voluntarily withdrawn Proposed Ex. 299. Therefore, the Court will deny as moot Plaintiffs' Renewed Motion in Limine with respect to that exhibit.
Again, for the reasons stated above, the Court cannot imagine why the parties will seek to offer newspaper articles for the truth of the matters asserted therein. But if they do, the hearsay rule bars the admission of newspaper articles for that purpose, unless a party can present a valid hearsay exception. The business records exception is not a valid exception for most newspaper articles, since collecting them in one's regular course of business does not make them sufficiently reliable or qualify for this exception.
However, the Court can foresee that some of the articles may have been written by an employee of the MHSAA, for example. If that is the case, the writer of a particular article may testify that he or she had personal knowledge of the matters asserted in the article and that he or she was under a business duty to record that information. Such articles may then qualify for the business records exception. The fact that a business record is written in the form of an article does not disqualify it for possible consideration under the business records exception.
Plaintiffs are correct that such articles may be written in a biased manner, but that goes to the weight afforded the article and not to its hearsay character, unless the article does not qualify under the business records exception because it was written in anticipation of litigation or is otherwise unreliable. The Court will thus grant Plaintiffs' motion with respect to uses of the articles for the truth of the matters asserted therein. Defendants may still offer articles for other purposes or may offer testimony that seeks to qualify for the business records exception any articles written by MHSAA employees.
Prior Out-of-Court Statements
Def. Ex. 206 is an article written for the MHSAA's magazine that was distributed to member schools. Plaintiffs allege that it was written in response to the Court's Order dated Jan. 21, 2001 and thus written for litigation purposes. Defendants allege that it was not written for litigation and does not mention the Court's Order. To the extent that Defendants wish to admit it for its truth, Plaintiffs may examine the writer at trial to determine if it qualifies for the business records exception. For now, Defendants have alleged sufficiently that it will qualify for the business records exception, so the Court will deny Plaintiffs' motion with respect to this exhibit.
Defendants assert that Def. Ex. 211 contains, among other documents distributed in a package to the Representative Council, an MHSAA-prepared document titled "Schools' Votes on Girls Volleyball and Basketball Seasons." This document is the part to which Plaintiffs object in their motion. Defendants represent that it was prepared by an employee of MHSAA and was a survey conducted at the request of a school district. The employee must testify at trial that he or she had personal knowledge of the truth of the matters asserted in this survey. The Court finds from Defendants' pleadings that he or she was under a business duty to record the information. Thus, for now, the Court will deny Plaintiffs' motion with respect to this exhibit (or portion thereof).
Based on Defendants' pleadings, the Court finds Def. Exs. 244 and 245 will be offered by Defendants for purposes other than for the truth of the matters asserted therein. Therefore, there is no hearsay problem, and the Court will deny Plaintiffs' motion with respect to these exhibits. Def. Ex. 252 contains press releases, and Defendants also assert that it contains other letters, survey documents, and survey results. Survey documents and results will be admitted under the business records exception for their truth if they so qualify. Letters will not be admitted for their truth. Defendants have not addressed the question of whether the press releases will be admitted for the truth of the matters asserted therein, and so the Court will assume that Defendants seek to admit them for other purposes. For now, the Court will deny Plaintiffs' motion as to their request that this exhibit be excluded, especially since Plaintiffs only address the press releases portion of the exhibit.
Miscellaneous Statements
First, Defendants have voluntarily withdrawn Proposed Ex. 302. Therefore, the Court will deny as moot Plaintiffs' Renewed Motion in Limine with respect to that exhibit. Def. Ex. 225 consists of the Constitution of the Big Nine Athletic Conference. The Court cannot see any reason why Defendants would admit this exhibit for its truth, but even if they do, Defendants' discussion about witness Kathy McGee leads the Court to believe that Defendants will qualify this exhibit for a hearsay exception. Therefore, the Court will deny Plaintiffs' motion as to this exhibit.
Defendants assert that Def. Ex. 286 is a set of box scores from MHSAA-sponsored games and other games. The Court assumes from the pleadings that if Defendants wish to offer this exhibit for the truth of the matters asserted therein, they will be able to provide a witness to testify such that the exhibit qualifies for a hearsay exception. Thus, the Court will deny Plaintiffs' motion as to this exhibit. Def. Ex. 308 is a list of Basketball Coaches Association of Michigan (BCAM) award nominees as provided by Defendants' witness Ms. McGee. Defendants assert that she maintains the list in her capacities as a representative of BCAM and as an athletic director and coach at Flint Powers High School. Therefore, if Defendants wish to admit this exhibit for its truth, the Court finds that there is no hearsay problem. Plaintiffs' motion will be denied as to this exhibit. Def. Ex. 309, data provided by the National Collegiate Athletic Association (NCAA), poses a hearsay problem. However, as Defendants have asserted that the NCAA's information will be valuable to all parties and the Court in this litigation, and that it possesses indicia of reliability sufficient to allow admission, the Court will consider arguments at trial that the NCAA information qualifies under the residual hearsay exception. As such, the Court will deny Plaintiffs' motion for now as to this exhibit.
III. Conclusion
Therefore, the Court will grant in part and deny in part Plaintiffs' Renewed Motion in Limine to Exclude Defense Exhibit 321. The Court will grant in part and deny in part Plaintiffs' Renewed Motion in Limine to Exclude Defense Exhibits that are Hearsay and/or Lack Authentication. An order consistent with this opinion will be entered.