Kesey, LLC v. Francis

Full title: KESEY, LLC, an Oregon Limited Liability Company, Plaintiff, v. MICHELLE…

Court: United States District Court, D. Oregon

Date published: Apr 3, 2009

CV. 06-540-AC (D. Or. Apr. 3, 2009)

Opinion

CV. 06-540-AC.

April 3, 2009

OPINION AND ORDER

JOHN ACOSTA, Magistrate Judge

Opinion and Order on Evidentiary Objections

In December of 1983, Michelle Francis ("Francis")¹ and Mike Hagen ("Hagen") approached Ken Kesey ("Kesey") and asked him to write a screenplay about the Pendleton Round-Up (the "Screenplay"). Kesey agreed and worked on the Screenplay for most of 1984, initially with the assistance of Irby Smith ("Smith") and then alone. In September of 1984, Kesey delivered the final draft of the Screenplay detailing the events of the 1911 Pendleton Round-Up entitled the "Last Go Round," to Sundown Fletcher ("S F"), a corporation created by Francis and Hagen² to market and license the Screenplay.

1 Michelle Francis was also known as Mischelle McMindes and signed documents relevant to this action using that name. She will be referred to as Michelle Francis throughout this Opinion.

2 Kendall Early was also a co-founder of S F but is not involved in this litigation.

In the early 1990's, both S F and Kesey optioned their rights in the Screenplay to Katherine Wilson ("Wilson") through her company Associates³ Film Producers Services ("Associates") (collectively the "Wilson Defendants"). Later in the 1990's, Kesey wrote a novel with Ken Babbs ("Babbs") using virtually the same characters and plots as the Screenplay, also entitled the "Last Go Round" (the "Novel"). The Novel was published in 1994.

3 The pleadings and documents filed in this case refer to this defendant as both "Associates Film Producers Services" and "Associated Film Producers Services." To be consistent, the court will refer the corporation as Associates, which is how the defendant is identified in the court caption.

Kesey died intestate on November 10, 2001. Kesey's heirs formed plaintiff Kesey, LLC ("Plaintiff"), a limited liability corporation, for the sole purpose of holding and handling Kesey's intellectual property. On April 14, 2003, Norma Faye Kesey ("Faye"), ⁴ Kesey's widow and the personal representative of his estate, assigned all of Kesey's interest in the Screenplay to Plaintiff. Smith quitclaimed his interest in the Screenplay to Plaintiff on April 11, 2006.

4 While the legal name of Kesey's widow is Norma Faye Kesey, she is referred to as Faye throughout the pleadings because she identifies herself using her middle name.

On April 21, 2006, Plaintiff filed this action against Francis, Hagen and S F ("Defendants") asking the court to determine who owns the rights to the Screenplay.⁵ Presently before the court are summary judgment motions filed by both Plaintiff and Defendants. Both parties included in the summary judgment pleadings numerous objections to each other's evidentiary offerings. These include general objections to a body of evidence, such as Plaintiffs objection to the authentication of Defendants' evidence and Defendants' objection to Plaintiffs submissions of settlement negotiations, as well as specific objections to testimony, factual statements or exhibits, such hearsay, relevance and lack of foundation.

5 Plaintiff also named the Wilson Defendants as defendants in this action. Plaintiff and the Wilson Defendants resolved their dispute and filed a stipulated motion for judgment on September 10, 2007. The Wilson Defendants remain in the case as cross claimants.

In this Opinion, ⁶ the court addresses the parties myriad evidentiary objections, ruling on the general objections first and then moving to the specific objections to the evidence that survive the general objections. Determination of the merits of the parties' respective arguments necessarily turns on the evidence each has offered in support of their positions. Those evidentiary offerings have drawn numerous objections and those objections must be resolved before the merits of the parties' motions can be addressed and decided. Therefore, the court will address the merits of the parties' respective summary judgment motions in a separate Findings and Recommendation.⁷

6 Evidentiary rulings are nondispositive and are subject to the "clearly erroneous" or "contrary to law" standard of review by a district judge if such rulings are objected to by a party. 28 U.S.C. § 636(b)(1)(A) (2007); FED. R. CIV. P. 72(a).

7 Judge Stewart of this court took the same approach in Tefera v. City Center Parking, CV No. 07-1413-ST, 2009 WL 439706 (D. Or. Feb. 20, 2009).

General Evidentiary Objections

A. Authentication of Defendants' Evidence

Plaintiff objects to the deposition testimony and documentary evidence offered by Defendants, arguing that the evidence is not properly authenticated. In support of their motion for summary judgment, Defendants offer three affidavits from Francis and 137 pages of deposition testimony and documentary evidence. The 137 pages consist of copies of the specific page or item referenced in Defendants' Concise Statement of Material Facts ("Defendants' Facts") and is prefaced by Defendants' Index of Evidence in Support of Concise Statement of Facts (the "Index") which correlates each page to the factual statement. If the page is from a deposition, the Index specifies the party being deposed as well as the jump cite for the relevant information. If the page is from an affidavit, the Index identifies the affiant and the paragraph relied on. If the page is a document, such as a letter, the Index refers to the document as an exhibit to a deposition, the deponent and the jump cite where the document was discussed. To illustrate, in support of factual statement number 11, the Index reveals that the evidentiary support is found at pages 39-43 and consists of Francis' deposition testimony at 65:7-19 and Exhibit 2 to the Hagen deposition at 40:18-22 and 41:13-42:17. Only the pages identified in the Index have been offered. The deposition testimony and documentary evidence are not otherwise authenticated.

1. Standards

The evidence presented in support of or in opposition to a motion for summary judgment must be based on personal knowledge, properly authenticated and admissible under the Federal Rules of Evidence. FED. R. CIV. P. 56(e). "The requirement of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." FED. R. EVID. 901(a). Evidence that is not properly authenticated will not be considered by the court when reviewing a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002).

The judges in this district have cited Orr on numerous occasions and have, for the most part, applied and enforced the authentication requirements set forth therein. See Tefera v. City Center Parking, CV No. 07-1413-ST, 2009 U.S. Dist. LEXIS 13431, at *1 (D. Or. Feb. 29, 2009) (deposition excerpts not properly authenticated by plaintiff under Orr were still considered by the court when they were easily identifiable as part of the same depositions properly offered and authenticated by defendant even though they were not the same pages offered by the defendant); Briggs v. Holsapple, CV No. 08-6037-KI, 2009 WL 395134, at *1 n. 1 (D. Or. Feb. 11, 2009) (court noted that neither party had properly authenticated deposition excerpts with a cover page and reporter's certificate as required by Orr and suggested that parties submit all relevant pages from a deposition together, but then considered the evidence despite the fact that it was "needlessly frustrating to determine the identity of the deponent."); Tyle v. Bergelectric Corp., CV No. 07-284-AC, 2008 WL 2677995, at *2-3 (D. Or. July 2, 2008) ("Rule 56 Documents" offered by pro se plaintiff after receiving summary judgment advice notice but before defendant filed summary judgment motion were not properly authenticated and were not admissible); Till v. American Family Mutual Insurance Co., CV No. 06-1376-BR, 2007 WL 1876511, at *6 (D. Or. June 26, 2007) (court relied on Orr in considering whether hearsay evidence was sufficiently reliable to be admitted to defeat a summary judgment motion); United States ex rel. Sutton v. Reynolds, 564 F. Supp. 2d 1183 (D. Or. 2007) (documents and transcripts that were not authenticated in accordance with Orr were inadmissible and not considered by the court with the exception of evidence that was offered by both parties and properly authenticated by one); Simpson v. Held, CV No. 07-44-BR, 2007 WL 1667148, at *2 (D. Or. June 1 2007) (relying on Orr for the proposition that "[t]he Court may only consider admissible evidence that is submitted by a party in support of a pleading"); Krouth v. Brown, CV No. 04-1045-BR, 2006 WL 3758256, at *3 (D. Or. Dec. 18, 2006) (citing Orr as authority for "well-settled rule" that "only admissible evidence may be considered when ruling on a motion for summary judgment"); Schleining v. Chicago Pneumatic Tool Co., 04-1413-BR, 2006 WL 696309, at *3 (D. Or. March 15, 2006) (restating the requirement of both a caption and a reporter's certificate to authenticate a trial transcript); Gorans v. Washington County, CV No. 04-423-BR, 2005 WL 1586762, at *3-4 (D. Or. July 1, 2005) (failure to indicate in the court reporter's certificate whether the deponent reserved the right to read and correct the deposition transcript was not fatal to proper authentication when all other requirements of Orr were met); Fischer v. City of Portland, CV No. 02-1728-BR, 2004 WL 2203276, at * 1 (D. Or. Sept. 27, 2004) (summarizing the requirements stated in Orr and then applying them to numerous evidentiary objections); Rowder v. Banctec, Inc., CV No. 03-1463-KI, 2004 WL 1490325, at *3 (D. Or. July 1, 2004) (court excluded letter that was not properly authenticated with an affidavit in accordance with Orr.); Standish v. Woods, CV No. 03-933-AS, 2004 WL 1379466, at *4 (D. Or. May 10, 2004) (Unauthenticated documents were not considered on motion for summary judgment but court did grant motion to dismiss the claim on another basis); Elston v. Toma, CV No. 01-1124-BR, 2004 WL 1048132, at *3 (D. Or. April 15, 2004) (court applied the rule enunciated in Orr that documents produced by a party in discovery are deemed authentic when offered by the party-opponent and found the documents admissible); Bonneau v. Clifton, 215 F.R.D. 596, 601 (D. Or. 2003) (court did not exclude evidence when party corrected oversight by providing a copy of the court reporter's certificate required for deposition excerpts by Orr after objections were filed); Sams v. Geico Corp., CV No. 01-1458-BR, 2002 WL 31975065, at *2 (D. Or. Nov. 27, 2002) ( Orr cited and relied on for the proposition that only admissible evidence is to be considered when ruling on a summary judgment motion and for the manner in which to authenticate documents through personal knowledge); Grimm v. Healthmont, Inc., CV No. 01-982-BR, 2002 WL 31549095, at *3 n. 2 (D. Or. Oct. 29, 2002) (copy of severance pay plan not offered through individual who had the personal knowledge to authenticate it properly was inadmissible and not considered by court); Blount v. Connecticut General Life Insurance, Co., CV No. 01-1341-BR, 2002 WL 31974405, at *1 (D. Or. July 2, 2002) (court relied on general admissibility standard for summary judgment evidence and specific requirements for authenticating documents through personal knowledge) Various judges also have recognized that, in addition to the specific authentication methods specifically set forth in Orr, the Ninth Circuit acknowledged that evidence may also be authenticated by reviewing its content pursuant to Fed.R.Evid. 901, which requires "evidence sufficient to support a finding that the matter in question is what its proponent claims." See Precision Castparts Corp. v. Hartford Accident Indemnity Co., CV No. 04-04-1699-HU, 2007 WL 2590438, at *7-8 (D. Or. Aug. 27, 2007) (documentary evidence that was identified by counsel's affidavit as documents produced by opposing party, were on opposing parties' letterhead or were identified by opposing parties' witnesses in deposition testimony was properly authenticated under Rules 901 and 902); Renteria v. Oyarzun, CV No. 05-392-BR, 1007 WL 1229418, at *2 (D. Or. April 23, 2007) (in the absence of any evidence to show that the excerpts were fraudulent, deposition transcripts which lacked a copy of the court reporter's certification but did include the cover page identifying the deponent, the action and the time and place of the deposition were authenticated under Rule 901(b)(4)); Prineville Sawmill Co. v. Longview Fibre Co., CV No. 01-1073-BR, 2002 WL 31974434, at * 11 (D. Or. Sept. 23, 2002) (in the absence of evidence showing that the excerpts were fraudulent, deposition excerpts which included the cover page of the deposition identifying the deponent, the action and the time and place of the deposition and which were attached to an affidavit in which counsel attests that the excerpts were true copies of the transcripts provided by the court reporter who took the deposition were sufficiently authenticated under Rule 901(b)(4)). Also, a few judges have acknowledged the authentication requirements set forth in Orr but have declined to strike unauthenticated evidence in light of the court's ultimate ruling against the proponent of such evidence. In other words, the court found that the unauthenticated evidence was not outcome determinative. See Mountain Forestry, Inc. v. Oregon Dept. of Forestry, CV No. 06-1082-AC, 2008 WL 2388667, at *3 n. 6 (D. Or. June 10, 2008) (deposition excerpts which did not comply with Orr requirements were not properly authenticated and not admissible even though court considered evidence in light of lack of objection and fact that evidence contained in excerpts was not outcome determinative); Paulson v. Carter, CV No. 04-1501-KI, 2006 WL 381951, at *1 (D. Or. Feb. 16, 2006) (court considered evidence to provide plaintiff with the benefit of the doubt even though plaintiff's evidence was not properly authenticated under the requirements set forth in Orr); Estate of Elkan v. Hasbro, Inc., CV No. 04-1344-KI, 2005 WL 3095522, at *2 (D. Or. Nov. 18, 2005) (court acknowledged that Orr requirements for documents authenticated by personal knowledge — "the document must be attached to an affidavit from an affiant through whom the exhibit could be admitted into evidence" — were not met but relied on the evidence anyway to give the plaintiff the benefit of every inference); Paul v. County of Union, et al., CV No. 04-1543-HU, 2005 WL 2083017, at *11-12 (D. Or. Aug. 22, 2005) (defendants' motion to strike deposition transcripts denied as moot based on recommendation that defendants' summary judgment motion be granted even with consideration of plaintiffs evidence and plaintiff's submission of appropriate authentication documents with his response brief).

On one occasion, this court distinguished between admissibility requirements for evidence offered at the summary judgment stage and evidence presented at trial, and considered evidence in ruling on a summary judgment motion even though the evidence was not authenticated as required by Orr. In Thompson v. Lampert, CV No. 02-135-HU, 2004 WL 1673102, at *5 (D. Or. July 24, 2004), the court noted that the admissibility of the contents of the evidence, rather than the admissibility of the form of the evidence, is the primary question at the summary judgment stage. If the evidence "can be presented in admissible form in trial, the court may consider it at the summary judgment stage." Id. While acknowledging that the plaintiffs allegations were inadmissible in their current form because they were not contained in a sworn declaration or affidavit, the court held that "because plaintiff could testify under oath at trial regarding his personal knowledge of what he could or could not do in his cell without a wheelchair and how the lack of a wheelchair in the cell affected him, I have considered his unsworn statements at this point." Id.

The judges in this district have applied the tenets of Orr in differing ways. However, the general principles enunciated by the Ninth Circuit in that case — that evidence must be sufficiently reliable before the court may consider it and that the authentication requirement is not merely a pro forma concept — have been consistently adopted and followed. The court will consider Plaintiffs objections to the evidence offered by Defendants in support of their summary judgment motion in accordance with the Orr guidelines.

2. Deposition Excerpts

Plaintiff asserts that none of the deposition testimony is properly identified and that certification from the court reporter is lacking. The Ninth Circuit stated in Orr that:

A deposition or an extract therefrom is authenticated in a motion for summary judgment when it identifies the names of the deponent and the action and includes the reporter's certification that the deposition is a true record of the testimony of the deponent. See Fed.R.Evid. 901(b); Fed.R.Civ.P. 56(e) 30(f)(1). Ordinarily, this would be accomplished by attaching the cover page of the deposition and the reporter's certification to every deposition extract submitted. It is insufficient for a party to submit, without more, an affidavit from her counsel identifying the names of the deponent, the reporter, and the action and stating that the deposition is a "true and correct copy." Such an affidavit lacks foundation even if the affiant-counsel were present at the deposition.

Orr, 285 F.3d at 774 (footnote and case citations omitted). The deposition excerpts offered by Defendants are not accompanied by either a cover page or a reporter's certification, nor are they identified in an affidavit from counsel and, with the exception of names on the top of some of the pages, have no identifying information. It is impossible to tell from the excerpts who is being deposed, who is asking the questions, when the deposition occurred and whether the deposition relates to this action. Defendants took no steps to authenticate the deposition excerpts even after Plaintiff filed their objections. Defendants' deposition excerpts are not properly authenticated under any reasonable interpretation of the rule.

Plaintiff, however, has offered and authenticated a number of excerpts from the depositions of the same individuals, thereby providing the basis for their admissibility. In Orr, the Ninth Circuit held that:

when a document has been authenticated by a party, the requirement of authenticity is satisfied as to that document with regards to all parties, subject to the right of any party to present evidence to the ultimate fact-finder disputing its authenticity.

Orr, 285 F.3d at 776. The deposition excerpts offered by Defendants from the depositions of Hagen, Faye, and Shannon Kesey are identified at the top with the name of the deponent, and at the bottom with the name and phone number of the court reporting service that recorded and transcribed the deposition, and are consistent, both in content and appearance, with the properly authenticated excerpts offered by Plaintiff. Accordingly, Defendants' excerpts from these depositions are properly authenticated through Plaintiffs submissions. However, the deposition excerpts from Francis and Wilson do not contain identifying features that are consistent with the depositions offered and authenticated by Plaintiff. Therefore, any excerpt submitted by Defendants from the depositions of Francis and Wilson not also offered by Plaintiff are not properly authenticated and not admissible. Plaintiffs objections to pages 1, 2, 9-11, 16, 17, 25, 36, 39, 60, 62, 63, 65, 67-77, 89-94, 104, and 124 of Defendants' evidence in support of their concise statement of facts, which represent deposition excerpts of Francis and Wilson not offered or authenticated by Plaintiff, therefore are sustained and the evidence stricken from the record.

3. Documentary Evidence

Plaintiff also contends that the documentary evidence offered by Defendants is not properly authenticated. As with the deposition excerpts, some of the documents offered by Defendants also have been offered and authenticated by Plaintiff. These documents, which include a January 1984 letter signed by Kesey (page 27), copies of cancelled checks to either Kesey or Irby Smith signed by Hagen or Francis (pages 42, 43, 47 and 48), the first and last pages from the Screenplay (pages 58 and 59), a Deal Memo Option Agreement signed by Hagen, Francis and Wilson on August 14, 1990 (pages 78-81), a Deal Memo Option Agreement signed by Hagen, Francis and Wilson on August 12, 1992 (pages 85-88), a February 8, 1994, letter from Lawrence Rose to William Skrzyniarz (pages 105 and 106), a February 18, 1994, letter from William Skrzyniarz to Lawrence Rose (pages 108 and 109), and a May 19, 1994, letter from Lawrence Rose to William Skrzyniarz (page 123), are properly before the court and will be considered. Plaintiffs objections to this documentary evidence are overruled.

Additional correspondence between Lawrence Rose and William Skrzyniarz (pages 95, 96, 107, and 110-122), as well as a letter dated February 15, 2002, from Michael Rudell to Sterling Lord (pages 128 and 129), and an email dated September 23, 2004, from Stephen Fromkin to Shannon Kesey (page 132), is identified with Bates numbers starting with a "P" indicating that the letters were produced during discovery by Plaintiff. "Documents produced by a party in discovery are deemed authentic when offered by the party-opponent." Elston, 2004 WL 1048132, at *3 (citing Orr, 285 F.3d at 777 n. 20). Accordingly, Plaintiffs objections to pages 95, 96, 107, 110-122, 128, 129, and 132 are also overruled.

Page 24 of Defendant's evidence in support of their motion for summary judgment is a newspaper article date September 13, 1984, from the Tri-City Herald entitled Kesey Back in Saddle for Film on Round-Up. Rule 902 of the Federal Rules of Evidence provides that "[p]rinted materials purporting to be newspapers or periodicals" are self-authenticating. FED. R. EVID. 902(6). Plaintiffs assertion that page 24 is not properly authenticated is without merit and is overruled.

Defendants offer a document that appears to be a signed draft of the August 14, 1990, Deal Memo Option Agreement between S F and Associates (pages 82-84). The authentication of documentary evidence can be accomplished through a witness who "wrote it, signed it, used it or saw others do so." Orr, 285 F.3d at 774 n. 8 (quoting 31 WRIGHT GOLD, FEDERAL PRACTICE PROCEDURE: EVIDENCE § 7106, at 43 (2000)). The excerpt from Wilson's deposition that originally identified this document was not properly authenticated and has been stricken from the record. Defendants have not attempted to authenticate this document in any other manner. Plaintiffs objection to this document is sustained and the document stricken from the record.⁸

8 The final draft of this document, which incorporates all of the changes noted on the document, was offered by both Plaintiff and Defendants and has been admitted.

The last documents offered by Defendants are pages of Francis's affidavit signed June 16, 2008. The entire affidavit has been offered by Defendants and is part of the record. Plaintiffs objection to the pages of the affidavit, found at pages 6, 7, 12, 13, and 133-136, is overruled.

4. Unsubmitted Evidence

Plaintiff also notes that Defendants refer to evidence not filed with the court in their summary judgment pleadings. For example, in their brief in support of summary judgment, Defendants refer to their request for production of documents and, in their objections to Plaintiffs evidence, they mention deposition testimony given by Katherine Wilson but not offered by either party. The court will not consider this evidence as it was not properly offered and authenticated as required by Orr. Thus, Plaintiffs objection on this point is sustained.

B. General Objections to Defendant's Concise Statement of Material Facts

In addition to the objections to the authentication of Defendants' evidence, Plaintiff generally asserts that "Defendants' `evidence' consists mostly of assertions, speculation and innuendo" and does not support their concise statement of facts or the arguments made in their memorandum in support of summary judgment. (Pl.'s Evidentiary Objections at 1.) Plaintiff further argues that the court "is under no obligation to complete the jigsaw puzzle of evidence offered up by the S F Defendants." (Pl.'s Evidentiary Objections at 2.) The court must determine what evidence is admissible, relevant, and substantive. FED. R. EVID. 104. In fact, the court has already addressed the admissibility issues based on lack of authentication and will address Plaintiff's specific objections to Defendants' concise statement of facts and the evidence offered in support of those facts in detail below. To the extent Defendants' arguments are not based on proper evidence in the record, the court will discount or reject such arguments and rule accordingly when addressing the merits of the parties motions for summary judgment.

C. Declarations Filed in Support of Plaintiff's Motion for Summary Judgment

Defendants object to the declarations submitted by Plaintiff in support of its motion for summary judgment, including those of Faye, Babbs, Smith, and David Aronoff, based on the fact that none of the declarations were witnessed by a notary. A party filing a motion for summary judgment will generally support that motion with affidavits. Under Rule 56 of the Federal Rules of Civil Procedure, the affidavits "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." FED. R. CIV. P. 56(e)(1). While Rule 56 refers specifically to affidavits, a party may also offer unsworn declarations in support of a motion for summary judgment provided the declarations comply with the requirements of 28 U.S.C. § 1746. Section 1746 requires that an unsworn declaration executed within the United States include language that "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct," as well as the date on which the declaration was executed. 28 U.S.C. § 1746 (2007).

In each of the declarations Plaintiff offered, language substantially similar to the following appears immediately above the declarant's signature:

I declare under penalty of perjury under the laws of the United States and the State of Oregon that the forgoing is true and correct and that this Declaration was executed by me in Creswell, Oregon, on June 10, 2008.⁹

9 The language differs only with regard to the city and date on which the declaration was executed.

Plaintiffs declarations clearly comply with the requirements of Rule 56 and § 1746. Defendants' objections to Plaintiffs declarations are overruled.

D. Settlement Negotiations

Plaintiff offers statements attributable to Francis and Hagen, as well as documents drafted by Defendants, after September 1984, the date Kesey delivered and was paid for the second draft of the Screenplay. Defendants assert that these statements and documents were related to settlement negotiations and are barred by Rule 408 of the Federal Rules of Evidence.

1. Standards

Rule 408 provides:

(a) Prohibited uses. — Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish — or accepting or offering or promising to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses. — This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

FED. R. EVID. 408. The purpose behind Rule 408 is to foster the "promotion of the public policy favoring the compromise and settlement of disputes." FED. R. EVID. 408 advisory committee's note. Accordingly, Rule 408 does not apply when the parties were not engaged in the compromise or settlement of a dispute at the time the statements were made or the documents created.

Federal courts are divided on what conduct qualifies as the compromise or settlement of a dispute. The Second Circuit has held that "where a party is represented by counsel, threatens litigation and has initiated the first administrative steps in that litigation, any offer made between attorneys will be presumed to be an offer within the scope of Rule 408." Pierce v. F.R. Tripler Co., 955 F.2d 820, 827 (2d Cir. 1992). In the Third Circuit, "Rule 408 applies where an actual dispute or a difference of opinion exists, rather than when discussions crystallize to the point of threatened litigation." Affiliated Mfrs., Inc. v. Aluminum Co. of America, 56 F.3d 521, 527 (3d Cir. 1995). Similarly, the Eleventh Circuit found that "[f]or Rule 408 to apply, there must be an actual dispute, or at least an apparent difference of opinion between the parties, as to the validity of a claim." Dallis v. Aetna Life Ins. Co., 768 F.2d 1303, 1307 (11th Cir. 1985).

A few courts have addressed the issue of whether parties were engaged in business communications rather than settlement negotiations in the context of Rule 408. In Big 0 Tire Dealers, Inc. v. Goodyear Tire and Rubber Co., 561 F.2d 1365 (10th Cir. 1977), the parties were in a dispute over the use of the term "Bigfoot" to describe and advertise their tires. Big O began its use of "Bigfoot" with regard to its tires in February 1974. Id. at 1368. In late August 1974, before launching its "Bigfoot" campaign, Goodyear asked Big O for a letter indicating that it had no objection to Goodyear's use of the term. On September 10, 1974, the parties met to discuss the issue further. During this meeting, Big O voiced objections to Goodyear's use of "Bigfoot," represented that it would not be interested in selling the right to use the term, and asked Goodyear to wind down the "Bigfoot" campaign as soon as possible. Goodyear launched its "Bigfoot" promotion on September 16, 1974. The next day, Big O sent a letter to Goodyear confirming its belief that Goodyear would quickly wind down the "Bigfoot" campaign. Goodyear denied that it agreed to discontinue the "Bigfoot" campaign and represented that it would continue to use "Bigfoot" indefinitely. On October 10, 1974, Goodyear mentioned that it might be willing to pay Big O for the use of the term "Bigfoot". Big O again indicated that it was not interested in selling Goodyear the right to use the term. Goodyear explained that it wanted to avoid litigation and then commented that if Big O initiated litigation, the case would last long enough to allow Goodyear to benefit from the Bigfoot campaign for as long as it desired. Id.

Big O offered the communications between the parties as evidence. Goodyear objected arguing that the communications were inadmissible as compromise negotiations under Rule 408. The district court ruled that the communications were "simply business communications and were relevant and material to show knowledge, willful infringement, and misconduct by Goodyear." Id. at 1372. The Tenth Circuit sustained the ruling, agreeing that the communications were "simply business communications." Id. at 1373.

A careful perusal of all the testimony relating to the communications convinces us that the court did not commit manifest error in ruling they were business communications and not compromise negotiations. The discussions had not crystallized to the point of threatened litigation, a clear cut-off point, until after October 10, the date of the conversations between Big O's president and Goodyear's executive vice-president.

Id.

The District Court of Puerto Rico found that seven letters exchanged between counsel prior to litigation were compromise negotiations rather than business communications, and were inadmissible under Rule 408. Matosantos Commercial Corp. v. SCA Tissue North American, LLC., 369 F.Supp.2d 191 (D.P.R. 2005). The court explained that:

[i]t is evident from the letters that the negotiations between the parties were meant to appease MCC's discontent with the loss of its exclusivity on the Savoy and Coronet product lines. MCC did mention on its counsel's letters that it believed to have a valid Law 75 claim against SCA and proposed the terms of the agreement that would cause it to desist from filing suit. Specifically, MCC stated that SCA was in violation of its exclusive distribution rights and that, if an agreement was reached, it was "willing to waive whatever causes of action it might have against SCA" (cite omitted). In its response letters, SCA stated its terms for a continuing relationship between the two corporations and set forth its understanding that its acts did not give rise to a Law 75 action. Clearly, these were not merely business communications but rather compromise negotiations meant to avoid litigation and, contrary to SCA's assertion, the threat of litigation was latent.

Id. at 199.

The Ninth Circuit has likewise found that the circumstances surrounding the communications, including both the timing of the offer and the existence of a disputed claim, are relevant to the determination of whether they were made in the compromise or settlement of a dispute. In Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338 (9th Cir. 1987), the court distinguished between a severance plan offered at the time an employee is terminated in exchange for a release of all potential claims and compensation offered to a previously terminated employee which is contingent upon the release of the employee's discrimination claim. The court explained that in the latter circumstance, the employee relinquishes the right to a judicial determination of a viable discrimination claim and, as such, the offer of compensation qualifies as a settlement offer under Rule 408. On the other hand, the circumstances surrounding the offer of a severance package which occurs contemporaneously with the notice of termination is generally considered to be relevant to the issue of whether discrimination occurred. Id. at 1342. The court explained:

[Where] the employer tries to condition severance pay upon the release of potential claims, the policy behind Rule 408 does not come into play. Rule 408 should not be used to bar relevant evidence concerning the circumstances of the termination itself simply because one party calls its communication with the other party a "settlement offer."

Id. at 1343. See also Coleman v. Quaker Oats, 232 F.3d 1271, 1290 (9th Cir. 2000) (district court did not abuse its discretion in excluding employer's offer of additional medical benefits in exchange for a release of claims after terminated employee filed a discrimination charge with the EEOC); Mundy v. Household Finance Corp., 885 F.2d 542, 547 (9th Cir. 1989) (employer's offer of payment of money for outplacement services three weeks after termination and after terminated employee had retained legal counsel but before any claims were filed were properly excluded under Rule 408 as a settlement offer).

The Ninth Circuit again relied on the purpose and public policy considerations behind Rule 408 in finding that statements made during a grievance proceeding prior to the filing of a discrimination claim were not made in furtherance of the settlement of a dispute and were, therefore, admissible. Josephs v. Pacific Bell, 443 F.3d 1050, 1064 (9th Cir. 2006). In Wall Data Inc. v. Los Angeles County Sheriff's Dept., 447 F.3d 769, 784 (9th Cir. 2006), the Ninth Circuit upheld the trial court's decision not to exclude an internal memorandum written almost a week before the parties settlement discussions "crystallize[d]." The Ninth Circuit reasoned that:

Because the memorandum did not contain evidence "furnishing or offering or promising to furnish . . . valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount," Fed.R.Evid. 408, and because the memorandum was written before settlement discussions began, admission of the memorandum by the district court did not constitute reversible error.

Id.

The Ninth Circuit follows those courts that draw a clear distinction between communications in furtherance of business interests and settlement negotiations arising from actual disputes, and it imposes the requirement that settlement discussions must have first "crystallized" before Rule 408's bar will apply. Indeed, Rule 408's purpose "is to encourage the compromise and settlement of existing disputes." Josephs v. Pacific Bell, 443 F.3d at 1064 (italics added). See also 2 CHRISTOPHER B. MUELLER LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 135, at 86 (2d ed. 1994) ("But the Rule has distinct limits. Perhaps most importantly, it assumes the existence of a controversy — a difference which can be compromised. Hence, it does not exclude statements or conduct made before such controversy arises.").

2. Discussion — September and October 1984 Communications

Here, the record demonstrates that the evidentiary offerings at issue concern communications that occurred before an actual dispute or controversy existed. Specifically, the evidence before the court shows that in late 1983, Francis and Hagen approached Kesey and asked him to write a screenplay about the Pendleton Round-Up. Kesey agreed and the parties entered into an agreement for Kesey to provide Defendants two distinct drafts of the Screenplay in exchange for $10,000 ($5,000 for each draft). Kesey gave Defendants the second draft of the Screenplay and received the second payment of $5,000 in mid-September, 1984. Thereafter, the parties engaged in negotiations for the motion picture rights to the Screenplay.

In describing the events that occurred after Kesey delivered the second draft of the Screenplay, Faye recounted various conversations she had with Francis. Faye remembered Francis stating that the $10,000 was paid to Kesey as an inducement for Kesey to work on the Screenplay, rather than another novel that he was working on in late 1983. (Faye Kesey Decl. ¶ 6.) In another conversation, Francis told Faye that the $10,000 was merely a down payment on the six-month option that S F tried to negotiate for. At his deposition, Hagen referred to the initial payment of $5,000 to Kesey in January 1984 as "kind of a kick-start to get the process going" and indicated that the discussions which occurred in late September and October 1984 were for the purpose of acquiring the rights to the Screenplay from Kesey. (Aranoff Decl. Ex. AA at 40, 84).

On September 30, 1984, Francis sent a letter to Faye forwarding copies of unrelated option/purchase agreements and discussing the terms of the proposed agreement between Defendants and Kesey. For example, Kesey had requested 2 1/2 percent of the producer's gross rather than the net. Francis agreed to add the request to the "agreement and then negotiate for that position for Ken when we form an alliance with our `line producers.'" Francis then asked Faye to:

consider the revised agreement that you will receive in a few days. We cannot move forward (i.e. solicit funds or seriously negotiate) without the fundamental agreement between S F, Inc. and Ken. The sooner we get an agreement the more likely we can reach our goal of filming next Round Up.

* * *

I hope we can get these arrangements done as soon as possible. At that time we can write the check for $10,000 and begin the option period. Thank you for your help in this matter — I hope the initial agreement you receive will be able to be negotiated to comfortable terms for you and Ken.

(Aronoff Decl. Ex. E at 1-2.)

Francis forwarded the revised agreement discussed in the letter of September 30, 1984, to Faye on October 4, 1984. The cover letter read:

Enclosed is the agreement w/2 1/2 of producers gross. I have a couple investors waiting for your terms and signatures. Also, Carey Williams has a production company interested in discussing this as soon as we secure agreements.

(Aronoff Decl. Ex. F at 1.) The enclosed "Deal Memo Option/Purchase Agreement" provided for the sale of a six-month option to the motion picture rights of the Screenplay from Kesey to S F in exchange for a payment of $20,000, $10,000 of which had already been paid to Kesey and the remainder to be paid after the signing of the agreement. The option could be extended by S F, Inc., for $1,000 per month for an indefinite period. If the option was exercised, Kesey was entitled to $50,000, plus either $25,000 or $50,000, depending on the final approved budget of the motion picture, and 2 1/2 percent of the producer's gross profits as defined in the agreement. (Aronoff Decl. Ex. F at 2.) Kesey was designated as the "Owner" of the Screenplay and, by signing the agreement, would represent and warrant that he was "the sole owner of all rights in the Property which are optioned and has the full and sole right and authority to convey the same." (Aronoff Decl. Ex. F at 2, 5.)

It is clear from this evidence that the parties were engaged in business negotiations, not settlement negotiations, in late September and October 1984. There was no dispute over who owned the copyright in the Screenplay. Both Francis and Hagen acknowledged that Kesey owned the copyrights and that S F needed to acquire such rights before attempting to license the Screenplay. The "Deal Memo Option/Purchase Agreement" specifically provided that Kesey was the sole owner of all rights in the Screenplay. Defendants were merely engaged in business negotiations to purchase option rights from Kesey. No offer of compromise of a disputed claim was implicated in the correspondence between the parties during this time. In the absence of an actual dispute or an offer to compromise an existing controversy, Rule 408 is not applicable and does not bar the admission of this evidence. Defendants' Rule 408 objections to the documentary evidence found at Exhibits E and F, and the testimonial evidence found in the declarations and deposition excerpts offered by Plaintiff relating to communications which occurred in the mid-1980's, are overruled.¹⁰

10 Defendants also object to some of this evidence on relevance grounds. This objection is discussed below.

3. Discussion — 2004 and 2005 Communications

Defendants assert the same Rule 408 objection to evidence offered by Plaintiff relating to communications between the parties in 2004 and 2005. On December 13, 2004, Defendants' attorney forwarded a letter to the literary agent who had represented Kesey¹¹ claiming that S F owned "the screen rights to the screenplay written as a work for hire by Ken Kesey in 1983-1984 entitled `Last Go Round.'" (Aronoff Decl. Ex. T at 1.) The letter advised the recipients that S F had copyrighted the Screenplay in 1994, and that the Wilson Defendants had copyrighted a revised version of the Screenplay in 1994 as well. After describing the evidence he felt supported the claim that S F owned the rights to the Screenplay, Defendants' counsel stated:

11 The letter was also addressed to David Skinner and to Klarquist, Sparkman, a Portland, Oregon, intellectual property law firm.

If you believe that there is a legal basis to conclude that anyone other than my client holds the rights to this screenplay (and all of its versions), we would ask that you reply immediately to inform us of the basis for any claim which may be asserted by any other person or party. We would ask that you not only inform us of any person or entity which you think may have a claim, but more importantly, of any facts which would support a position that this was not a work for hire. We would assume that if we agree that this was a work for hire that there would also be agreement that my client would hold all rights. Thus, only if there is a factual dispute related to this being a work for hire would there be any further issue to discuss.

We understand that you were planning on closing on a deal and we thought it best to inform you as soon as possible that we do not believe that your clients have any legal basis to pursue a deal that does not include my client. We ask that you refrain [from] any further efforts to market rights that do not belong to anyone other than my client.

As the holder of all legal rights in this matter, my client is pursuing its options with various studios as we speak and will continue to do so unless and until there is some demonstrated basis to conclude that this was not a work for hire.

(Aronoff Decl. Ex. T at 2.)

Plaintiff's counsel responded to the letter on October 14, 2005, contesting S F's ownership of the Screenplay based on a work-for-hire argument and asserting that the Screenplay was exclusively owned and controlled by the successors-in-interest to the rights of Kesey. (Aronoff Decl. Ex. U.) Plaintiff's counsel set forth in detail his arguments to refute Defendants' position that Kesey wrote the Screenplay as a work for hire or an employee of S F and noted that Kesey had published the Novel in 1994. He then closed:

Finally, your letter concludes by stating that your client "is pursuing its options with various studios . . . and will continue to do so. . . ." Please be advised that any such conduct by your clients, as well as any other assertion of rights by your client in the Screenplay, is damaging my clients and is wrongfully interfering with their prospective economic advantages as the true holders of the copyright and all other rights in the Screenplay. Accordingly, demand is hereby made that your client immediately cease and desist from any conduct under which it is claiming rights in the Screenplay. If your client does not do so, my clients will have no choice but to commence appropriate legal action seeking, among other things, monetary, injunctive, and declaratory relief.

We look forward to your prompt assurances that your client will immediately cease and desist from the above-described conduct. Should we not expeditiously receive such assurances, based on your statement that your client "is pursuing its options with various studios . . . and will continue to do so," my clients may have no choice but to begin appropriate legal proceedings.

This letter is not intended as a comprehensive statement of my clients' rights and remedies, all of which are expressly reserved.

(Aronoff Decl. Ex. U at 4.)

Neither letter comes within Rule 408's bar. Defendants' counsel's December 13, 2004, letter presumes no dispute exists went he sent it to Plaintiff's attorney. The letter simply is an assertion and summary explanation of Defendants' position regarding the Screenplay copyright, coupled with an invitation to Plaintiff to offer any facts that contradict that position. Plaintiff's counsel's October 14, 2005, letter, to be sure, made clear that an actual dispute existed between the parties, but it lacks any language that reasonably can be interpreted as furnishing, offering to furnish, or promising to accept consideration or any other thing of value to settle or compromise the parties' dispute. In fact, the letter conveys the opposite message: that Plaintiff will initiate legal action against Defendants if Defendants do not "cease and desist" their efforts to market the Screenplay.

In the absence of the existence of a dispute or an offer of valuable consideration to compromise a dispute prior to the October 14, 2005, letter, Rule 408 does not apply. Defendants' Rule 408 objection to these letters, identified as Exhibits T and U, as well as the related testimonial evidence, is overruled.¹²

12 Again, the court addresses Defendants' relevance objection to this evidence, below.

E. Statements Attributable to Ken Kesey

Defendants argue that all of the statements offered by Plaintiff and attributable to Kesey are hearsay for which no exception exists. The court will address hearsay objections to specific evidence in detail below. Defendants also assert that if the court finds any hearsay statement admissible under an exception, the admission of such statement violates the Confrontation Clause due to the fact that Kesey passed away in 2001 and is not available for cross examination. FED. R. EVID. 804. The Confrontation Clause, which originates from the Sixth Amendment, applies only to criminal matters. See Austin v. United States, 509 U.S. 602, 608 n. 4 (1993) (noting prior decision holding that the Confrontation Clause does not apply in civil cases); United States v. Alisal Water Corp., 431 F.3d 643, 658 (9th Cir. 2005) (same); U.S. Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1287 n. 13 (11^th Cir. 2001) ("Of course, the Confrontation Clause is not applicable to civil cases."). Thus, Defendants' Confrontation Clause objection to hearsay evidence admitted in this, a civil case, is overruled.

F. Request for Judicial Notice

Finally, Defendants object to the court's consideration of the terms of the settlement between Plaintiff and the Wilson Defendants as set forth in the stipulated judgment filed with the court on September 12, 2007. Rule 201 of the Federal Rules of Evidence allow a court to take judicial notice of a fact that is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FED. R. EVID. 201(b). Documents previously filed with the court in the instant litigation are subject to judicial notice. See Asdar Group v. Pillsbury, Madison and Sutro, 99 F.3d 289, 290 n. 1 (9th Cir. 1996) (taking judicial notice of facts contained in complaint and prior court orders in case). However, the court may not judicially notice the truth of the disputed facts contained in such document. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). In this instance, the court will take judicial notice that Plaintiff and the Wilson Defendants filed Exhibit JJ representing that they have settled their issues relating to this litigation but it will not judicially notice the truth of Wilson's statement in that document that Plaintiff is the owner of the rights to the Screenplay. Ownership of the Screenplay is disputed — indeed, it is the question this court must ultimately decide. As Lee instructed, the court here should not judicially notice facts in dispute. Accordingly, Defendants' objections are sustained to this extent.

Defendants also object to the court's judicial notice of the characterizations made by Kesey and Faye with regard to the ownership of the Novel in their filings with the U.S. Copyright Office identified as Exhibits M and O. Again, and for the reasons stated above, the court will take judicial notice that the documents were filed but will not judicially notice the truth of the representations in those documents that Kesey owned the copyrights to the Novel.

Specific Evidentiary Objections

Both parties have presented numerous evidentiary objections generally made at trial, where the court has an opportunity to hear the objection as well as the response and the purpose for which the evidence is being offered. Here, however, the parties have raised their objections and provided a very brief, if any, discussion of the authority supporting each objection. Nonetheless, at the summary judgment stage the court still must determine whether the evidence the parties offer meets the admissibility standards or Rule 56(e).

A. Standards

At the summary judgment stage, the court must look at the evidence presented to it by the parties and, initially, determine if there is a genuine issue of material fact. While engaging in this task, the court must necessarily apply the underlying summary judgment when it encounters evidence that is irrelevant, speculative, ambiguous, argumentative, or constitutes a legal conclusion exclusively within the purview of the court's consideration. See Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110, 1119 (E.D. Cal 2006) (noting that various evidentiary objections, such as relevance, were redundant at the summary judgment stage where the court can award summary judgment only in the absence of a genuine issue of material fact based on evidence the contents of which must be admissible). It is a waste of the court's time to analyze the parties' objections to the evidence on any of these grounds independently of its consideration of the merits of the underlying summary judgment motions. The court finds these objections redundant to the court's ultimate determination of whether a genuine issue of material fact exists and that any discussion of the objections at this juncture would be superfluous. Accordingly, the court will not address these objections in detail in this Opinion.

The same can not be said of objections that are based on the admissibility of the evidence, such as authentication objections, which the court has already considered in detail, or hearsay objections. The Ninth Circuit generally has applied the limitations found in the hearsay rule, set forth in Rule 802 of the Federal Rules of Evidence, to evidence offered by the parties at the summary judgment stage. Orr, 285 F.3d 764, 778; Beyenne v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988). Similarly, the Ninth Circuit requires that affidavits offered in support of summary judgment be based on personal knowledge. Bliesner v. The Communication Workers of America, 464 F.3d 910, 915 (9th Cir. 2006).

Plaintiff objects to the consideration of various statements contained in Francis's three affidavits on the grounds that the statements are not based on personal knowledge and, therefore, lack the proper foundation or are hearsay and do not qualify for an exception. Plaintiff asserts similar objections to the evidence identified by Defendants as support for Defendants' Facts. Defendants object to statements contained in the affidavits of Faye Kesey, Ken Babbs, and Irby Smith for the same reasons. Defendants also object to a number of Exhibits offered by Plaintiff. The court will address each of the statements and exhibits and the objections thereto below.¹³

13 To the extent either party also objects to evidence on grounds that the evidence is a legal conclusion, is vague or ambiguous or is irrelevant, the court will not address the objections in this Opinion but will consider the objections when viewing the evidence to determine whether a genuine issue of material fact exists, in addressing the parties' substantive arguments in its Findings and Recommendations.

Hearsay is defined as an out of court statement offered in evidence to prove the truth of the matter asserted. FED. R. EVID. 801. Hearsay is admissible only if it qualifies as an exception to the general hearsay rule. Federal Rule of Evidence 602 provides that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." The evidence establishing personal knowledge of the matter may consist of the witness's own testimony. Id.

B. Discussion

1. Francis Affidavit signed June 16, 2008

a. paragraph 2

Paragraph 2 of Francis's affidavit, signed June 16, 2008 (the "First Francis Affidavit"), provides:

That Affiant in summer or early fall 1983 told Mike Hagen of the main ideas for the story "Last Go Round" as Affiant got information for this screenplay from a newspaper article and also from a cowboy named Marty Wood and Affiant also took pages and pages of interviews in 1983-87 from several now unknown persons on the Umatilla and other Indian reservations that had knowledge related to the Indian character (Jackson Sundown), the African American character (George Fletcher) as well as from several other prominent professional rodeo cowboys such as Chris Libbert, Roy Cooper, Marty Henson, a black cowboy named Charlie Samson, and the Severe Brothers family (long-time Pendleton Oregon rodeo saddle makers) as well as interviewed relatives of the lead character John Spain. That Affiant no longer has these voluminous notes. That the main ideas for this story "Last Go Round" involved the mentoring relationship between the black man (George Fletcher), the Nez Perce Indian character (Jackson Sundown), and the "coming of age" of the white cowboy (John Spain) which was the real storyboard of the screenplay as well as the context of the climactic scene (i.e. the protagonist of the screenplay is John Spain and the real conflict involves the judges awarding the bronc riding trophy to Spain, when the crowd felt that it should have gone to the black man, George Fletcher); Hagen did not know any of these details until Affiant shared them with him.

Plaintiff objects to the statement that Hagen did not know of the details of the 1911 Round-Up until Francis shared them with him. Plaintiff argues that Francis lacks the foundation to support her statement about what Hagen did or did not know. The court agrees. Francis did not present evidence that she was personally aware of the extent of Hagen's knowledge regarding the details surrounding the 1911 Pendleton Round-Up, nor did she state that Hagen made such a statement to her before she shared her information with him. Accordingly, the statement lacks a proper foundation. Plaintiffs objection is sustained and the statement is stricken from the record.¹⁴

14 Plaintiff's objections to this evidence as conclusory and speculative are moot.

b. paragraph 3

Plaintiff objects to Francis's statement found in paragraph 3 of the First Francis Affidavit that Kesey was not aware of the relationship between Sundown, Fletcher, and Spain before his discussions with Francis and Hagen in December 1983.¹⁵ Plaintiff argues that Francis lacks foundation for this statement and that evidence exists to establish that Kesey knew of the story behind the 1911 Pendleton Round-Up as early as Fall of 1979. Paragraph 3 provides:

15 Plaintiff also objects to Defendants' reliance on pages 9-10 attached to the Index, which is an excerpt from Francis's deposition, as evidentiary support for this statement. The court has already determined that this evidence was not properly authenticated and has stricken pages 9 and 10 from the record.

That after Affiant discussed these ideas with Hagen and conducted research, they brought these ideas to Ken Kesey in about December 1983 when they first discussed the idea of asking Kesey to write a screenplay for a corporation which Affiant indicated would be called "Sundown Fletcher Inc.". At that time, Kesey admitted not knowing about the relationship between the black man, the Indian man and the "coming of age" of the white cowboy which was the real "juice" of the story as well as that Kesey admitted that he did not know the climax of the story nor of the main character John Spain as set forth above. Hagen and Francis informed Kesey in detail as to the history of the three main characters and provided photographs of them. Hagen and Francis purchased historical and rodeo nonfiction books and sent Ken Kesey packages of photos, historical information, rodeo and horsemanship terminology of the time and other information about the Pendleton Round-Up and geography of that area.

In this paragraph, Francis asserts that Kesey admitted to having no knowledge of the relationship between the three main characters or of the climax of the story. This seems the sole basis for any personal knowledge Francis may have had regarding Kesey's knowledge of the events surrounding the 1911 Pendleton Round-Up. In this context, Francis is offering Kesey's out-of-court statement regarding his knowledge of the characters or climax of the story for the truth of the matter asserted — that Kesey was unaware of the factual background of the 1911 Round-Up until after his conversation with Hagen and Fracis. As such, these statements must be evaluated under the hearsay rule and its exceptions. Defendants did not file a brief responding to Plaintiffs objections to Francis's affidavits and, thus, Defendants have not asserted any arguments that the hearsay statements qualify for an exception to the hearsay rule.

The most likely basis upon which Kesey's statement could be admitted is an admission by a party opponent, which is not hearsay under Federal Rule of Evidence 801(d)(2). However, Kesey is not named as a plaintiff and, therefore, does not qualify as a party opponent. Plaintiff, the actual opposing party in this action, is a limited liability corporation created by Kesey's heirs for the sole purpose of receiving and holding all literary rights once owned by Kesey, including Kesey's rights to the Screenplay. Accordingly, Plaintiff would be properly characterized as the successor-in-interest to Kesey's rights in the Screenplay, which rights it received through Kesey's heirs.¹⁶

16 Kesey died intestate in November, 2001. The assets of his estate, including all of his intellectual property rights, were distributed to Plaintiff pursuant to a court order filed March 10, 2003.

Historically, courts accepted the common law principles of privity and allowed an admission by a transferor to be admitted as evidence in litigation involving the transferee. This practice was interrupted by the adoption of the current version of Rule 801(d)(2), which specifically defines which statements are properly classified as admissions and thus, fall outside of the parameters of the hearsay rule.

To qualify as a admission by a party opponent under Rule 801(d)(2), the statement must be:

(A) the party's own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

The majority of the federal courts have read this rule literally, determined that the draftsmen did not intend to give the courts the ability or discretion to add new categories of admissions, and held that privity-based admissions are not within the language of the rule. In doing so, the courts noted that such admissions may otherwise be admissible under a specific exception to the hearsay rule set forth in Rules 803 and 804 or under the residual exception found in Rule 807.

In Huff v. White Motor Corp., 609 F.2d 286, 289 (7th Cir. 1979), Helen Huff, acting as personal representative of the estate of her deceased husband, initiated a wrongful death action against the manufacturer of a fuel system whose defective design allegedly caused the death of her husband. Huff asserted that the fuel system ruptured and caught fire after the truck which her husband was driving collided with an overpass support. Huff's husband eventually died from the severe burns he suffered in the fire. Id.

The manufacturer offered the decedent's statement that he lost control of the truck when he tried to put out a fire on his pant leg, to establish that the fire was caused by something other than a ruptured fuel system. Id. at 290. The manufacturer argued that privity existed between Huff and the decedent and that the statement was admissible as an admission. Id. The Seventh Circuit rejected this argument. While acknowledging that privity-based admissions generally were accepted by the courts under common law, the court stated that:

[t]he admissibility of privity-based admissions in the federal courts is now controlled, of course, by the Federal Rules of Evidence. A reading of Article VIII of those rules, the article on hearsay, leads us to conclude that privity-based admissions are to be tested for admissibility under the residual exception provided for in Rules 803(24) and 804(b)(5) rather than under the admissions provision, Rule 801(d)(2). Although neither the rules themselves nor the Advisory Committee Notes refer to privity-based admissions, and Congress added nothing on the subject in its consideration of the rules, the language of Rule 801(d)(2) and the general scheme of the hearsay article support our conclusion. Privity-based admissions are within the definition of hearsay, Rule 801(c), an extra-judicial statement offered "to prove the truth of the matter asserted," and are not among the specifically defined kinds of admissions that despite Rule 801(c) are declared not to be hearsay in Rule 801(d)(2). Nor are they covered by any of the specific exceptions to the hearsay rule listed in Rules 803 and 804. Thus privity-based admissions are not admissible, as such, if the rules are to be read literally. Moreover, the very explicitness of Rule 801(d)(2) suggests that the draftsmen did not intend to authorize the courts to add new categories of admissions to those stated in the rule. No standard for judicial improvisation or discretion are provided in Rule 801(d)(2), as they are in Rules 803(24) and 804(b)(5).

Id. at 290-91.

The Sixth Circuit used similar reasoning in excluding statements made by corporate agents offered in an action brought by the trustee of the bankrupt corporation. Calhoun v. Baylor, 646 F.2d 1158 (6th Cir. 1981). The court held that "Rule 801(d)(2) does not include statements by predecessors in interest among the types of statements the rule makes admissible" and then cited Weinstein as support:

As one commentator has pointed out, the rule

rejects privity as a ground of admissibility by making no provision for it. Under the common law rule declarations by a predecessor in title offered against a successor were often admitted. Morgan objected strenuously to this result, arguing that there is no "magic" in privity and pointing out that acceptance of the privity principle leads to dubious distinctions, particularly in bankruptcies.

4 Weinstein's Evidence 801-165 (1979) (citations omitted).

Calhoun, 646 F.2d at 1162-63.

Both bankruptcy courts and district courts have followed suit. See Teltronics Services, Inc. v. Anaconda-Ericsson, Inc., 29 B.R. 139, 165 (1983) (Rule 801(d)(2) rejects privity as a grounds of admission. "Thus, in order to be admissible, statements formerly recognized as privity-based admissions must fall withing another recognized hearsay exception."); In Re Cornfield, 365 F. Supp. 2d 271, 277 (E.D.N.Y. 2004) ("Notably, Rule 801(d)(2)(A) provides for several types of party-opponent admissions-such as adoptive admissions, or statements made by an agent-but does not include any provision concerning privity-based admissions.") Virtually all of the noted treatises addressing the Federal Rules of Evidence have reached the same conclusion as well. See 30B MICHAEL H. GRAHAM, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 7019 (Interim ed. 2000); 2 MCCORMICK ON EVIDENCE § 260 (6th ed. 2006); 4 CHRISTOPER B. MUELLER LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 430 (2d ed. 1994).

This court finds the reasoning discussed above to be logical and supported by the language of the Rule itself and, therefore, adopts the same.¹⁷ Accordingly, the court finds that the statements attributed to Kesey in paragraph 3 of the First Francis Affidavit are not admissible under Rule 801(d)(2) as admissions by Plaintiff, Kesey's successor-in-interest to his rights in the Screenplay.

17 This court recognizes that other courts have admitted a decedent's extrajudicial statements in actions brought on their behalf by their estate, finding that the decedent was a party to the action. See Estate of Shafer, 749 F.2d 1216 (6th Cir. 1984); Phillips v. Grady County Bd. of County Commissioners, 92 Fed. Appx. 692 (10^th Cir. 2004); Schroeder v. de Bertolo, 942 F.Supp. 72 (D.P.R. 1996). This is distinguishable from the case currently before the court in that a successor-in-interest has filed the action, not the personal representative of Kesey's estate.

As to the applicability of hearsay exceptions under Rule 803 or 804, or the residual exception found in Rule 807, the only specific exceptions likely to apply to Kesey's statement are: 1) present sense impression found in Rule 803(1); 2) state of mind found in Rule 803(3); and 3) statement against interest found in 804(b)(3). Rule 803(1) provides an exception to the hearsay rule for statements "describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." FED. R. EVID. 803(1) (2008). Kesey's statement that he did not know about the relationship between Fletcher, Sundown, and Spain does not describe or explain or event or condition and was not made while he was perceiving anything. Thus, it does not qualify for this exception.

The state of mind exception applies to statements "of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will." FED. R. EVID. 803(3). This exception applies only where the declarant's mental, emotional, or physical condition at the time the statement is made is at issue. In the civil context, this exclusion generally comes into play to prove motive, intent, or damages.

Kesey's statement that he was not aware of certain aspects of the 1911 Pendleton Round-Up is not evidence of his mental, emotional or physical condition at the time the statement was made. It is merely evidence that he lacked certain information at that time and, to that extent, it runs squarely afoul of Rule 803(3)'s prohibition against using statements of memory or belief to "prove the fact remembered or believed[.]" Kesey's statement does not qualify for the state of mind exception.

The statement against interest exception found in Rule 804(b)(3) applies only when the declarant is unavailable as a witness and allows the admission of:

[a] statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.

The rule requires that the declarant know that the statement was against his interests at the time it was made. Here, Kesey purportedly admitted that he was not aware of the background facts before the parties began discussing the Screenplay, before Kesey wrote the Screenplay, and well before the parties began arguing over who owned the rights to the Screenplay. If Kesey made the statement Francis describes, he did not know that his statement was contrary to his interests at the time he made it. The statement does not qualify for the statement against interest exception.

The last possible exception is the residual exception set forth in Rule 807 which provides:

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (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 best be served by admission of the statement into evidence. However, a statement may not be admitted under the exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

FED. R. EVID. 807 (2008). To qualify for the residual exception, the statement offered must be evidence of a material fact — it must be relevant to the ultimate issue before the court which, in this instance, is the question of who owns the literary rights to the Screenplay.

The statement at issue is evidence that Kesey did not know some of the factual details behind the plot of the Screenplay until Francis and Hagen provided him with that information in late 1983. The only possible relevance of this statement is as support of Defendants' argument, found in a footnote to their motion for summary judgment, that they should, at the least, be considered "a joint author and co owner of the screenplay because of their contribution of the main concepts of the screenplay of which Kesey was not aware." (Defs.' Mot. for Summ. J. at 19 n. 3.)

The Copyright Act defines a "joint work" as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. § 101 (2007). The Ninth Circuit has held that "joint authorship requires each author to make an independently copyrightable contribution." Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir. 1990). Only original works of authorship are entitled to copyright protection. 17 U.S.C. § 102(a) (2007). "No author may copyright facts or ideas." Harper Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 547 (1985).

Francis and Hagen's contribution of the factual information about the 1911 Pendleton Round-Up is not entitled to copyright protection. Accordingly, whether or not Kesey was aware of the factual background of the 1911 Pendleton Round-Up before discussing story ideas with Francis and Hagen in December 1983 is not a fact relevant to any of the claims or arguments currently before the court. Kesey's statement is not offered as evidence of a material fact and is not admissible under the residual exception to the hearsay rule. Therefore, Francis's statement in paragraph 3 of the First Francis Affidavit that Kesey admitted to not knowing of the relationship between Sundown, Fletcher, and Spain before his discussions with Francis and Hagen in December 1983 is hearsay and does not qualify for any hearsay exception. Plaintiff's objection to the admission of this statement is sustained and the evidence is stricken from the record.

c. paragraph 5

Paragraph 5 provides "that in all meetings where Kesey attended which Affiant estimates was at least 30 meetings, the statement was always made by Affiant that the screenplay was owned by the corporation and not once in front of these third persons did Kesey ever disagree with that statement." Plaintiff objects to this evidence arguing that it lacks foundation and is hearsay, conclusory, vague, and ambiguous.

In this paragraph, Francis is offering evidence that Kesey never contradicted her statement that S F owned the rights to the Screenplay. If this evidence is limited to an assertion that Francis never heard Kesey disagree with her statement, Plaintiff's lack of foundation argument is without merit. Francis clearly has personal knowledge of what she heard or, rather, did not hear. However, to the extent Francis is attempting to prove that Kesey never contradicted her statement to a third party outside of her presence, Francis lacks personal knowledge and the evidence is inadmissible on that point. Similarly, Francis lacks the requisite personal knowledge to establish that Kesey even heard her comment that S F owned the rights to the Screenplay.

The court must now consider whether the limited evidence that Francis never heard Kesey contradict her statement that S F owned the Screenplay is hearsay. Hearsay is defined as an out-of-court statement offered to prove the truth of the matter asserted. Rule 801 defines "statement" as "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." FED. R. EVID. 801(a). Clearly, Kesey's failure to act is not an oral or written assertion. The question then becomes whether Kesey's failure to act is "conduct" which he intended to be an "assertion." In other words, by not acting, did Kesey intend to agree with Francis's statement?

The Ninth Circuit has held that a criminal defendant's nonverbal conduct in consummating a drug transaction was not intended to be an assertion and that testimony describing the drug sales was not hearsay. United States v. Astorga-Torres, 682 F.2d 1331, 1335 (9th Cir. 1982). Similarly, testimony from hotel owners that previous guests occupying a room where a guest was found dead of carbon dioxide poisoning did not complain was not hearsay and was relevant to prove that the gas heater was not the source of the carbon monoxide. Cain v. George, 411 F.2d. 572, 573 (5th Cir. 1969). Here, the court finds that Kesey's failure to object to Francis's declaration that S F owned the Screenplay was not assertive conduct and, therefore, is not hearsay. The court overrules Plaintiff's objection to this paragraph and allows the admission of the evidence for the limited purpose of showing that Francis did not hear Kesey object to her statement that S F owned the Screenplay. In light of Francis's failure to describe the meetings (for example, when and where the meetings occurred or who and how many people were present) or the context in which she claimed that S F owned the Screenplay, and her lack of personal knowledge that Kesey even heard her state that S F owned the rights to the Screenplay, the relevance and/or probative value of this evidence is questionable. The court will take this into consideration, as well as Plaintiff's assertion that the evidence is conclusory, vague and ambiguous, in determining whether the evidence creates a genuine issue of material fact.¹⁸

18 Plaintiff asserts both a lack of foundation and a hearsay objection to paragraphs 16 and 18 of Defendants' Facts and the deposition excerpts from Francis's deposition offered as support. The court's ruling on Plaintiff's objections to paragraph 5 of the First Francis Affidavit are equally applicable to the statements found in Francis's deposition excerpts that support the factual statements in paragraphs 16 and 18.

Plaintiff asserts a hearsay objection to paragraph 8 which reads:

That Affiant believes that she had all of the missing records set forth above from about 1983-4 until about late 1995 when she discarded them. Before she discarded the documents, she spoke to Irby Smith who had called her to discuss the 1984 screenplay and Affiant told him that if he and/or Kesey ever went forward with the 1984 screenplay that she would make sure the corporation files legal action against them. Irby Smith indicated at that time that if Affiant felt that way that he and Kesey would not go forward with the 1984 screenplay.

At the outset, the court notes that there is no evidence that either Francis or Smith had any personal knowledge with regard to Kesey's intent to go forward with the Screenplay. Consequently, the statement lacks foundation with regard to the Kesey's intent and is not admissible for this purpose.

The question of whether Smith's statement that he would not go forward with the Screenplay based on Francis's threat of legal action is hearsay raises the issue of whether Francis is offering the statement to prove that Smith, in fact, did not intend to go forward with the Screenplay. Based on the context in which the statement is being offered, it appears that the statement is offered to prove the effect the statement had on Francis. She felt comfortable in discarding her records because Smith wanted to avoid legal action. In that context, the evidence is not offered for the truth of the matter asserted and is admissible to show the effect of the statement on Francis.¹⁹ Plaintiff's additional objections that the evidence is conclusory, vague, and ambiguous will be considered by the court when it addresses the pending summary judgment motions.

19 If Defendants have offered the statement to prove that Smith acknowledged that he did not have a right to go forward with the Screenplay or, in other words, that S F owned the Screenplay, the evidence is not probative on that issue. Smith made no representations regarding the ownership of the Screenplay.

2. Francis's Affidavit signed July 1, 2008

Paragraph 2 of Francis's affidavit signed July 1, 2008 (the "Second Francis Affidavit"), provides:

That Affiant is the one who received the original of the second draft screenplay from Ken Kesey on or about September 16, 1984. That this was the second draft of the screenplay which Kesey had delivered in 1984 to Affiant. Affiant does not recall the second draft containing any copyright logo on it when Affiant received it and is sure that the first draft delivered did not contain any such logo and did not have Irby Smith's name on it either. This brochure was printed prior to delivery of that second draft of the screenplay. That Affiant did not see or approve of the proof of the final version that was printed that contained a copyright logo on it and had Affiant seen it before it was printed, would have either had it reprinted or crossed it out.

Plaintiff objects to this evidence asserting that it lacks foundation. Francis is describing documents that she received and/or reviewed based on her memory of those documents. Francis has personal knowledge of these documents and of her memories, and is qualified to testify on this issue. Plaintiff's objection is overruled. Plaintiff also asserts that this evidence is vague, ambiguous, and irrelevant. The court will consider these objections when it addresses the merits of the pending summary judgment motions.

3. Francis's Affidavit signed July 7, 2008

Plaintiff also objects to paragraph 3 of Francis's affidavit signed July 7, 2008 (the "Third Francis Affidavit"), which provides:

In those newly found materials is the first proof of the brochure that Affiant had seen before the final copy was made. That proof is attached hereto as Exhibit DD and incorporated by reference as if more fully set forth herein. Affiant's prior affidavit had mentioned that Affiant had never seen the final printer's proof that was sent to the printer and then became what was filed as Exhibit V by Plaintiff until the time of her second deposition in May 2008. Having now seen this first proof, Affiant now knows that the portion of the final brochure filed by Plaintiff as Exhibit V which contained the reference to "copyright 1984 Ken Kesey" was added by the person (Susan Torrey) who designed the brochure for the corporation.

Plaintiff objects to the statement that Francis knows that the copyright designation was added by Susan Torrey, arguing that it lacks foundation. Plaintiff also objects to the admission of the first proof of the brochure because it was not produced during discovery.

Francis explains that she discovered the first proof of the brochure in a chest that had been in the possession of her ex-husband. Nothing in the record casts doubt on this explanation, and the court overrules Plaintiff's objection based on Francis's failure to produce the document during discovery.

Francis's statement credits her discovery and review of the first proof, which did not include the copyright designation, for her new-found knowledge that Susan Torrey added the copyright designation to the second proof of the brochure. The mere fact that the first proof did not include the copyright designation does not support Francis's conclusory statement that Susan Torrey added the copyright designation to the second proof. In the absence of other evidence that Francis had personal knowledge of Susan Torrey's conduct, this statement lacks the requisite foundation. Plaintiff's objection to this statement is sustained and the statement is stricken from the record.²⁰

20 Plaintiff's additional objection that the evidence is speculative is moot.

4. Faye Declaration signed June 13, 2008

Defendants object to numerous statements contained in Faye's declaration signed June 13, 2008 (the "Faye Declaration"), primarily because they are based on hearsay statements of Kesey and lack the proper foundation. Defendants also object to the admission of exhibits offered through the Faye Declaration.

a. paragraph 3

Defendants move to strike paragraph 3 of the Faye Declaration in its entirety arguing that it is based solely on hearsay statements from Kesey. Defendants cite to the phrases "Ken began telling me" and "Ken's longstanding interest in writing a screenplay" to support this argument. Defendants also move to strike the newspaper articles offered as Exhibit A as double hearsay.²¹

Commencing well over 30 years ago, Ken began telling me of his plans to write a novel or screenplay concerning the Pendleton Round-Up, a famous rodeo competition that has been annually conducted in Pendleton, Oregon, for almost 100 years. As a result, Ken frequently traveled to the Round-Up to research such a novel or screenplay. Indeed, while attending the Round-Up in 1979, Ken was interviewed by Pendleton's East Oregonian newspaper about his interest in writing such a screenplay, which resulted in two articles that were published in the September 15, 1979 issue of the East Oregonian, "Round-Up . . . Ken Kesey Has His Own Version" and "Kesey Looking to R-Up for Script Inspiration." True and correct copies of these articles are collectively filed herewith as Exhibit "A."²² The second of these two articles stated, among other things, that "The plot [of Ken's screenplay concerning the Round-Up] could be drawn from [Ken's] admiration of Jackson Sundown, the Nez Perce Indian who won the all-around title in 1916 at the age of 50. . . ." See Ex. "A." Because of Ken's longstanding interest in writing a screenplay concerning the Round-Up, by 1984 Ken had attended the Round-Up many times, had conducted extensive research concerning the early history of the Round-Up and had written character sketches and story outlines in preparation for writing a work.

21 Defendants made this objection in their opposition to the declaration of Ken Babbs. The court is addressing the objection at this time merely for the purposes of clarity.

22 The newspaper articles and all other exhibits referenced by Faye, Babbs and Smith in their declarations are attached to the declaration of David Aronoff.

The first possible hearsay statement included in this paragraph is Faye's statement that Kesey told her of his plans to in write a novel or screenplay concerning the Pendleton Round-Up. Plaintiff offers no explanation of the purpose for which it offers this statement or which hearsay exceptions might apply to the statement.

Reading the paragraph's first sentence literally, the truth of the matter asserted in it is that Kesey told Faye he intended to write about the Pendleton Round-Up. The statement is not admissible for that purpose, but it is admissible for another purpose. Whether or not, at the time he made the described statements to Faye, Kesey actually intended to write about the Pendleton Round-Up, his statements are admissible to show that at a time well before Defendants' first discussions with him, Kesey had knowledge of the Pendleton Round-Up generally and the significance of at least one of the persons who ultimately became the Screenplay's and the Novel's key characters. In fact, it is certainly possible that at the time of the statements he made to Faye, Kesey actually had no intent to write anything about the Round-Up or, alternatively, was not certain that he could write a story that could be published as a book or produced as a play. What is significant about his statement is that it shows that his knowledge of the Round-Up and its history predated his discussions with Francis. The remainder of the paragraph bears out this conclusion: regardless of the truth of the various statements in the paragraph, those statements show Kesey's knowledge of the Round-Up and its history, including at least one of the three persons who became the crux of the Screenplay and the Novel. Accordingly, the statement is admissible as evidence of Kesey's knowledge of the Round-Up and its history prior to the discussions with Francis.

To the extent that Plaintiff is offering this testimony to prove that Kesey intended to write about the Pendleton Round-Up, the statement does not qualify for either the present sense (Rule 803(1)) or the state of mind (Rule 803(3)) exceptions. Kesey's statement does not describe or explain an event or condition, a requirement for the present sense exception. Additionally, Kesey's statement in the late 1970's that he was interested in writing about the Pendleton Round-Up at that time is not indicative of Kesey's intent or motive in writing the Screenplay in 1984 and, therefore, does not qualify for the state of mind exception. Finally, the lack of relevance between the statement about Kesey's literary interest in the Pendleton Round-Up in the late 1970's and the question of who owns the copyright to the Screenplay, written in 1984, prevents the application of the residual hearsay exception (Rule 807) as the statement is not relevant to any of the claims or arguments currently before the court. Accordingly Defendants' objection to the admission of the statement to prove that Kesey was interested in writing about the Pendleton Round-Up in the 1970's is sustained. The statement is not inadmissible for this purpose.

Defendants also assert that Faye's description of Kesey's longstanding interest in writing a screenplay and his actions in support of this interest are hearsay. Specifically, Faye describes how Kesey traveled to Pendleton to attend the Round-Up, conducted background research on the Round-Up and wrote character sketches and story outlines relating to the Round-Up. This conduct qualifies as a "statement" under Rule 801 only to the extent it was intended by Kesey as an assertion. The court finds that the conduct described by Faye was not intended by Kesey to be assertive conduct and, therefore, does not qualify as a statement under Rule 801. Kesey's conduct therefore falls outside the hearsay rule.

The rest of the paragraph consists of Faye referencing and quoting two newspapers articles reporting Kesey's plans to write a novel or screenplay using the Pendleton Round-Up as a backdrop. Defendants object to the admission of the newspaper articles published in the East Oregonian on September 15, 1979. Defendants argue that the articles are excludable as double hearsay based on statements allegedly made by Kesey.

Both newspaper articles were written by Bob Crider of the East Oregonian. The first article, entitled Ken Kesey Has His Own Version reads:

PENDLETON — For the moment, put aside thoughts of all that has been written about the Pendleton Round-Up. All the film, the radio reports, the conversations.

Ken Kesey — the manic Prankster of the 60's, life experimenter, challenger to The Establishment, and author of "Sometimes a Great Notion" and "One Flew Over the Cuckoo's Nest" — wants to tell his own version. It's a verison that has a lot of loose ends at the moment, fragments which he hopes to weave together for a screenplay.

Kesey was in Pendleton this week for what he figured was his sixth Round-Up. He came away from his first one in 1953 with a trip back to Springfield that included an incident giving him the initial inspiration for "Cuckoo's Nest."

He's leaving this one with the hopes he'll have enough material to sell Hollywood on a screenplay. It's not a new idea for Kesey, who said he feels the rodeo can serve as a good background for any fictional story.

"AND I THOUGHT about doing a novel about it," Kesey said in an interview with the East Oregonian. "But it's so visual it just seems to me that it ought to be a movie. So each year I come back here I always kick myself for not coming and getting enough pictures to show somebody in Hollywood, and show what I mean."

This year he's banking on having use of about 30 minutes of video tape that Bill Bradbury, director for Portland's KGW Television's "PM Magazine" show, was shooting.

If it works, Kesey said he'll "make up the bones of a plot to be set against this backdrop. Go down into Hollywood, get the money for it, get them to get it together with actors and movie crew, and be back here next year to shoot a movie against this backdrop."

". . . These guys in Hollywood aren't absolute dummies. They can't fail to recognize this as such a colorful setting for any kind of plot."

KESEY LED A colorful life after moving on from the field of athletics, where he was a standout wrestler for the University of Oregon, to become one of the bright young novelists of the early 1960's.

Today as he nears the age of 44, his graying, energized hair springs out from the side of a hat that keeps his head from blistering under the Indian Summer sun. Loose fitting clothes disguise his muscular frame, just as a soft tone of voice smooths over his wild and free-wheeling past.

Most publicized was his role as leader of the Merry Pranksters, a group from the San Francisco Bay area that turned heavily onto psychedelic drugs and altered the consciousness of obeying the establishment's gospel. Their music was that of the Grateful Dead. Although they painted their faces, it was no comparison to the painted faces of today's rock group Kiss, which Kesy mocked.

The Pranksters, including Pendleton native Mike Hagen, who joined Kesey at this year's Round-Up, painted up a 1939 bus with Day-Glo colors in 1964 and set upon a cross-country trip to New York and back to California, raising some smiles, but mainly a lot of consternation and police stops along the way.²³

23 The article continues on page 2A of the newspaper. This page was not offered by Plaintiff.

(Aronoff Decl. Ex. A at 1.) The second article, which is entitled Kesey Looking to R-Up For Script Information reads:

PENDLETON — Should anyone get excited about the prospects of Ken Kesey writing a film script inspired by the Pendleton Round-Up, it should be kept in mind that putting the creative product before an audience is a long process.

In an interview this week while attending the Round-Up, Kesey noted that his first inspiration for writing "One Flew over the Cuckoo's Nest" came in 1953, nine years before the novel was published.

Two years later, his second novel, "Sometimes a Great Notion," was published. But when he started writing it, he had no idea of the plot.

He's been working on another novel for the last 10 years, and the idea of either writing a novel or doing a film on the Round-Up has been kicked around in his mind for a long time.

KESEY ACTED AS if he was his own interviewer — throwing out questions to himself about what shape the film would take and then answering them in fragments that later could be cemented into a common, but complex, interwoven theme.

"When I wrote `Great Notion,' Kesey said, "I had no idea what the plot was. I just moved in there and got a job logging and started taking notes. And if the broth is rich enough, you'll always get a good soup. And there's some good cooking here."

To Kesey, the soup is how he perceives the mixture of Indians and their culture, cowboys and townspeople gathered in a region rich in its history. Together they fight the impersonal force of the 20th Century — a force that one is part of, and yet challenges. The impression is what Kesey perceives as the "American Myth."

THE PLOT COULD be drawn from his admiration of Jackson Sundown, the Nez Perce Indian who won the all-around title in 1916 at the age of 50; his interpretation of the bulls being to cowboys what Moby Dick was to Captain Ahab; or his impressions of the Silver Saddle bar on S.E. Emigrant.

"There are straight cowboys walking in there," Kesey said, "past horses tied to the fenceposts, the lamposts, as these great big muscle-car pickups drive by. Indians walking in and out of there. It's an amalgamation of the past and the present that's happening here. I'm not sure what the plot is, but the plot has to involve these two periods.

It is, perhaps, ironic that the Pendleton Round-Up that Kesey wants to use as a film backdrop now was a departure point in 1953 that sparked what later turned into his first novel. While taking the bus back to his home in Springfield, the traffic snarled on the Columbia Highway near Celilo Falls, where Indians were protesting construction of The Dalles Dam and its impending ruination of their fishing grounds.

Kesey said the bus driver told the passengers "some crazy Indian had taken a knife in his teeth and ran out in the road and ran into the grill of a truck that was bringing (equipment) to the dam they were building. And that was the initial inspiration of Cuckoo's Nest."

That incident represented "something native going against something predominantly strange and mechanical. And that's our myth, our native, our American Myth. The Indians personify it, but all of us are involved in it."

"That's why," Kesey said without pausing, "it was interesting in front of the Silver Saddle last night. Of shooting a scene that could have taken place a hundred years ago, except turning right by it are these big muscle cars with huge tires on the rear end of `em. Our trying to work this thing out with our tradition of the West and still keep our frame in the 20th Century is our American Myth."

His first idea of a plot centers around a descendant of Jackson Sundown who comes to the Round-Up "with a derisive attitude. And in the course of his stay here learns a lot about his background, and about the whole Western American trip. And it changes his life."

WHILE KESEY HAS carried his feeling for the Indians for a long time, he learned something new at this Round-Up; the athletic ability of Brahma bull riders and the help they give to each other.

"Although they're competing against each other in points, their real competition is against that bull. And so there are these guys offering suggestions to each other to help them against this impersonal force. That brings it in to that Moby Dick theme that I'm interested in."

"Sure it's the 20th century, sure the Arabs are buying stuff up. But we're, whether we're Indians or cowboys, we've got to offer suggestions about how to ride that bull to our friend . . . It's not human. It's not Nixon. It's not the CIA. It's not the Arabs."

"The bull is a brute animal and if you go against it like Ahab you'll be defeated. But as (Hermann) Melville said, you got to be a little bit morbid to seek the truth."

(Aronoff Decl. Ex. A at 2.)

The term "statement" in Rule 801 includes an "oral or written assertion." Accordingly, newspaper articles offered by someone other than the author, or "declarant," of the article is considered hearsay if offered for the proof of the matter asserted. Larez v. City of Los Angeles, 946 F.2d 630, 643 (9th Cir. 1991). Additionally, any statement attributable to a third party referred to or discussed in the article is also hearsay. Id.

Rule 805 of the Federal Rules of Evidence provides that:

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

The first layer of hearsay — the newspaper articles and the author's statements contained therein — qualify for the ancient document exception set forth in Rule 803(16). This Rule provides an exception to the hearsay rule for "[s]tatements in a document in existence twenty years or more the authenticity of which is established." The newspaper articles were written in 1979, well more than twenty years ago. Rule 902 of the Federal Rules of Evidence provides that "[p]rinted materials purporting to be newspapers or periodicals" are self-authenticating. Fed.R.Evid. 902(6). The statements attributed to the author of the articles are excluded from the hearsay rule under the ancient document exception. Defendants' objections to the statements are overruled and the newspaper articles are admitted.

The court now turns to the admissibility of the statements attributed to Kesey in the articles. Both articles contain numerous statements made by Kesey to the author of the articles. To the extent Plaintiff is offering these statements merely to establish that Kesey was talking about writing a screenplay with the Round-Up as a backdrop or that Kesey actually said these words to the author, the statements are not being offered for the truth of the matter asserted and are not hearsay, and therefore are admissible.

In its response to Defendants' objections to its concise statement of material facts, Plaintiff points to the articles as evidence that Kesey knew the factual underpinnings of the 1911 Pendleton Round-Up by 1979, four years before being approached by Hagen and Francis to write the Screenplay. In this context, Plaintiff is not offering the article to establish the truth of the matters asserted — that Kesey's historical rendition of the 1911 Round-Up was accurate — but rather that Kesey was aware of these facts. Again, in this context, Plaintiff is not offering the statements to prove the truth of the matter asserted, and Kesey's statements are not hearsay and are admissible.

Finally, to the extent Plaintiff is offering the statements contained in the articles to establish that Kesey was, in fact, planning to write a screenplay about the Round-Up, had numerous plots in mind and was engaged in research for the screenplay as early as 1979. In this context, the statements are out-of-court statements offered to prove the truth of the matter asserted and are hearsay.

The court has considered similar statements allegedly made by Kesey to Faye and determined that they do not qualify for any hearsay exception and should be excluded. The same reasoning is applicable to the statements Kesey allegedly made to the author of the articles discussing his intent to write about the Pendelton Round-Up as early as the late 1970s. Accordingly, Defendants' objection to the statements to prove that Kesey was interested in writing about the Pendleton Round-Up in the 1970s is sustained and the statements are inadmissible for this purpose.

b. paragraph 4

Defendants also move to strike paragraph 4 of the Faye Declaration in its entirety arguing that it is based solely on the hearsay statements of Kesey, that Faye lacks personal knowledge with regard to Francis and Hagen's specific interest in producing the Screenplay or general experience in motion picture industry and that anything said to Faye at a meeting in the fall of 1984 was in furtherance of settlement negotiations. Paragraph 4 provides:

In January 1984, Ken started pulling all of his research and ideas together in writing the "Last Go Round" screenplay ("the Screenplay") that is the subject of this lawsuit. In writing the Screenplay, Ken initially was assisted by our neighbor and good friend Irby Smith, who had worked as a producer and as an assistant director on many motion picture and TV productions. Irby later executed a Copyright Assignment, Transfer and Quitclaim dated April 11, 2006, a true and correct copy of which is filed herewith as Exhibit "B," pursuant to which all of his rights in the Screenplay were assigned to Plaintiff. Ken came up with the title "Last Go Round" for the Screenplay, and he wrote it at our house in Pleasant Hill, Oregon, on our computer. During or about the time that Ken was working on the Screenplay, Ken on several occasions spoke with defendants Mike Hagen ("Hagen") and Michele Francis (formerly known as MiShelle McMindes) ("Francis") who were interested in producing the Screenplay as a motion picture through a company they founded, defendant Sundown Fletcher Inc. ("S F"). Hagen was considered to be an old family friend and he introduced us to Francis. Neither of them was experienced in motion picture film production, but they apparently hoped to break into the movie business by using Ken's reputation as the author of such works as "One Flew Over the Cuckoos Nest" and "Sometimes a Great Notion."

Kesey's conduct in pulling together all of his research is not assertive conduct and, therefore, not a "statement" under Rule 801. Faye, as Kesey's wife, had the opportunity to witness Kesey writing the Screenplay with Smith. Accordingly, Faye had personal knowledge of both Kesey and Smith's actions while working on the Screenplay in the Pleasant Hill, Oregon, home she shared with Kesey. She also likely would have had personal knowledge of the fact that Hagen and Kesey spoke about the Screenplay, that Hagen was an old family friend, and that Hagen introduced her and Kesey to Francis. There is no dispute that Hagen and Francis were interested in producing the Screenplay through S F. Finally, the court already has found that the continuing discussions and correspondence between Kesey, Hagen, Francis, and S F were not in furtherance of settlement negotiations and not excludable under Rule 408. Faye's presence at the meeting between Kesey and Francis in the fall of 1984 establishes that Faye had personal knowledge of at least one conversation between Kesey and Francis and has the requisite knowledge to testify about what occurred at that meeting.

The inadmissible statement in this paragraph is Faye's statement that neither Hagen nor Francis "was experienced in motion picture film production, but they apparently hoped to break into the movie business by using Ken's reputation as the author of such works as `One Flew Over the Cuckoos Nest' and `Sometimes a Great Notion.'" There is no evidence that Faye has independent personal knowledge of Hagen or Francis's past experience in motion picture film production or where Faye obtained this information. Therefore, this statement lacks the proper foundation and is inadmissible.

For these reasons, Defendants' objections to the contents of Paragraph 4 are overruled with the exception of Faye's statement that neither Hagen nor Francis had experience as motion picture producers, which lacks proper foundation and is stricken. All other evidence contained in this paragraph is admitted.

c. paragraph 5

Paragraph 5 provides:

Ken spent much of the year 1984 writing the Screenplay, which told a fictional account of the famous real-life competition for the first World Championship Broncbusting tile at the 1911 Pendleton Round-Up. In that year, the final competition, or "last go round," was decided in a match up involving two broncbusting veterans, George Fletcher, a popular black cowboy, and Jackson Sundown, a Nez Perce Indian, and a young white kid named Johnathan E. Lee Spain. The story as recounted by Ken deals with the racism experienced by Fletcher and Sundown, the surprising rodeo victory that was awarded to Spain, and the audience's spontaneous decision, inspired by Fletcher's amazing final ride, to auction off commemorative pieces of Fletcher's hat to raise $400 that was then used to buy for Fletcher the silver saddle that had been awarded to Spain as the victor. The storyline is told from the perspective of much [sic] older Spain as he visits the hospital room of an unconscious young broncobuster who has been severely injured in a present-day Pendleton Round-Up competition. A true and correct copy of the Screenplay is filed herewith as Exhibit "C."

Defendants move to strike this paragraph in its entirety arguing that the Screenplay speaks for itself and that a witness is not allowed to summarize a document that has been entered into evidence. The court agrees. A copy of the Screenplay has been submitted by Plaintiff and is the best evidence of its contents under the Federal Rules of Evidence. FED. R. EVID. 1003. Accordingly, Faye's summary of the story told in the Screenplay violates the best evidence rule, is duplicative of the Screenplay itself, and is inappropriate and unnecessary. Defendants' motion to strike this paragraph in its entirety is sustained and the paragraph is stricken.

Defendants also object to the admission of the first page of Exhibit C asserting that the handwritten copyright logo included on that page was not on the version delivered to Defendants in September 1984. First, Defendants had every opportunity to submit a version of the Screenplay without the copyright logo but it did not do so. In fact, the copy of the first page of the Screenplay offered by Defendants as Page 59 of the Index includes the copyright logo. Second, Defendants' objection to the copyright logo is adequately presented in the Second Francis Affidavit. Defendants' motion to strike the first page of Exhibit C is overruled.

d. paragraph 6

Defendants' object to the contents of paragraph 6 based on their Rule 408 arguments — that the paragraph presents evidence of the parties' communications in furtherance of settlement negotiations. Defendants also argue that Faye's representation that Kesey was not employed by S F but was an independent freelance writer is a legal conclusion and should be stricken from the record.

Paragraph 6 provides:

Ken was not employed by S F in his writing of the [S]creenplay, but authored it as an independent freelance writer — which is precisely how Ken wrote virtually all of his works. At no time did S F treat Ken as an employee by, for example, providing health care or other employee benefits to Ken, paying Ken a regular pay check with tax withholding, giving Ken a business title or position with S F, or providing the office or computer that Ken used when he wrote the Screenplay. Instead of taking the position that the Screenplay was a work for hire owned by S F, Francis instead proposed a written agreement under which S F sought to acquire from Ken a six-month option in the Screenplay. Although no such option agreement was ever agreed to and executed, S F paid a total of $10,000 to Ken: First an initial payment of $5,000 was paid in January 1984, and a subsequent payment of $5,000 was made in September 1984. In addition, I understand that Irby Smith was paid $3,000 by S F. Initially, Francis told me that these payments were made as an inducement for Ken to work on "Last Go Round" instead of "Sailor Song," a novel that Ken had started about the same time; later Francis told me that this money was a down payment on the six-month option on the Screenplay that Francis later proposed.

This court already has determined that the parties were engaged in business negotiations, rather then settlement negotiations, during this period and that Rule 408 does not apply. The court will take into account Defendants' objection that Faye's description of Kesey as an independent contractor is a legal conclusion when it considers the evidence while addressing the substance of the parties' summary judgment motions. Defendants' objections to this paragraph are overruled and the evidence is admitted.

e. paragraph 7

Defendants move to strike the entirety of paragraph 7, which provides:

Ken never signed any contract or agreement granting an option or any other rights in "Last Go Round" to S F, Hagen or Francis. Although Ken signed a "To Whom it May Concern" letter dated January 8, 1984, a true and correct copy of which is filed herewith as Ex. "D," that letter contains no language conveying the copyright, or any other rights, in the Screenplay to S F or anyone else. On its face, the "To Whom it May Concern" letter is merely a letter of introduction. Although the letter states that Ken was writing the Screenplay "for" S F, the word "for" is not a grant or transfer of rights. The word "for" may denote that Ken was working on the Screenplay "for" S F to read it or "for" S F to consider making an offer to option or acquire it. The word "for" does not denote, however, that Ken was working on the Screenplay "for" S F to own the copyright, especially since the letter contains no mention of copyrights. The letter, in its entirety, states as follows:

Pleasant Hill, OR

January 8, 1984

To Whom it May Concern:

I have agreed to write a screenplay about bygone rodeo greats Jackson Sundown and Nigger George Fletcher, concerning their historic confrontation at the Pendleton Round-Up in 1916.²⁴ The name of the production company that I am writing for is SUNDOWN FLETCHER INC. and the people I am dealing with are Mike Hagen and Mischelle McMindes.

/s/Ken Kesey

Ken Kesey

See Ex. "D." It is clear that S F did not consider the "To Whom it May Concern" letter to constitute a transfer of rights to S F, since Francis subsequently contacted me on behalf of S F in September 1984 to propose an agreement with Ken whereby he would grant an option to S D in the Screenplay.

24 The Screenplay is about the 1911 Round-Up, not the 1916 Round-Up. Neither party disputes this fact, thought neither offers an explanation for the discrepancy.

Defendants offer Rule 408, best evidence, lack of foundation, and legal conclusion arguments in support of their motion to strike this paragraph. The Rule 408 objection to admissibility has been previously rejected, and the legal conclusion argument will be considered by the court in deciding the merits of the summary judgment motions. However, the best evidence argument is well-taken with regard to Faye's description of the contents of the "To Whom it May Concern" letter, a copy of which has been admitted into evidence, and the court agrees that Faye lacks personal knowledge of S F's interpretation or understanding of the legal impact of the "To Whom it May Concern" letter. Accordingly, the court overrules Defendants' objections based on Rule 408 and sustains the best evidence and lack of foundation objections. Faye's description of the "To Whom It May Concern" letter and her statement that S F did not consider the letter as a transfer of rights are stricken from Paragraph 7. The court defers its consideration of Defendants' conclusion of law argument for its determination of the merits.

f. paragraphs 8 and 9

Defendants again assert their Rule 408 argument in support of their motion to strike paragraphs 8 and 9 in their entirety, as well as their motion to exclude Exhibits E and F. These paragraphs provide:

8. Specifically, beginning in or about September 1984, Francis sent me correspondence and other materials pertaining to discussions that she had already commenced with Sue Kesey — my sister-in-law by marriage to Ken's brother — in an effort to negotiate a written agreement under which S F was seeking a six-month option to purchase the Screenplay. In particular, in Francis's letter to me dated September 30, 1984, Francis wrote to me as follows:

Ken asked me to direct the contract papers and questions to Sue Kesey while he was here during the Round-Up. Since you do the books for you and Ken I feel that we should begin with you receiving agreement information also.

I am sending copies of some recent correspondence with Sue. This includes copies of other option/purchase arrangements from unrelated projects that Sue requested for the purpose of familiarizing herself with the language and format.

At the Bill Graham tribute Ken said that he wanted 2 1/2 percent of the producer's gross instead of the net. That is a considerable change. We will agree to put that in our agreement and then negotiate for that position for Ken when we form an alliance with our "line producers." Please consider the revised agreement that you will receive in a few days. We cannot move forward (i.e. solicit funds or seriously negotiate) without the fundamental agreement between S F Inc. and Ken. The sooner we get an agreement the more likely we can reach our goal of filming the next Round-Up. . . .

. . .

I hope we can get these agreements done as soon as possible. At that time we can write the check for $10,000 and begin the option period

. . . .

A true and correct copy of the September 30, 1984 letter that I received from Francis is filed concurrently herewith as Ex. "E" (emphasis added).

9. A few days later, I received a hand-written note from Francis dated October 4, 1984, which enclosed her proposed revised agreement dated October 3, 1984. A true and correct copy of the handwritten October 4, 1984 is filed concurrently herewith as Ex. "F." The handwritten letter to me from Francis stated "[e]nclosed is the agreement w/2 1/2 [percent] of producer's gross. I have a couple investors waiting for your terms and signatures. Also, Carey Williams has a production company interest in discussing this as soon as we secure agreements. Id. (emphases added). The proposed agreement itself provided, among other things:

This will confirm the basic terms you (Ken Kesey) and Sundown Fletcher, Inc agreed upon relative to the option and purchase of certain rights to the literary material entitled LAST GO ROUND (herein property) written by Ken Kesey (herein "Owner.")

1. OPTION: Buyer is granted a 6 month option period commencing _____________, 1984, to purchase all motion picture and certain ancillary rights in the property. The consideration for the option is $20,000.00 total ($5,000.00 paid January 8, 1984, $5,000.00 paid September 30, 1984, and $10,000.00 paid _________________, 1984.[)] Buyer may extend the option period for an indefinite period for the payment of $1,000.00 a month. Sundown Fletcher, Inc., holds the exclusive right of continuing the option period for that amount indefinitely until both parties agree to discontinue the option in writing.

2. Upon exercise of the option, Buyer will pay Owner the amount of Fifty Thousand Dollars ($50,000.00). An addtional [sic] $25,000.00 will be paid upon commencement of the principal photography of the first motion picture if the final approved budget of such motion picture is between 10 million dollars and 15 million dollars and an additional $50,000.00 if the final approved budget of the first motion picture is 15 million dollars or more. Owner will also recieve [sic] 2 and 1/2 per cent of one hundred per cent of the gross profits recieved [sic] by the producers from said motion picture.

See Ex. "F." Ultimately, neither the draft option that Francis sent me on October 4, 1984, nor any other written agreement with S F was signed by Ken, and he never optioned or conveyed his rights in the copyright of the Screenplay to S F.

As noted above, the court has determined that the parties were engaged in business negotiations during this period and that Rule 408 does not apply. Defendants' objections to paragraphs 8 and 9, as well as their objections to Exhibits E and F, are overruled. The evidence is admitted and will be considered by the court.

g. paragraph 10

Defendants move to strike paragraph 10 of the Faye Declaration arguing that it is primarily an attempt to summarize the Novel. Defendants also object to the admission of a copy of the Novel and a New York Times book review of the Novel as irrelevant to the issues before the court, and further object to the admission of the New York Times article as hearsay.²⁵ Paragraph 10 provides:

25 Defendants assert the hearsay objection in its objections to the declaration of Ken Babb. The court will address that objection at this time as well.

By 1993, Ken, with assistance from his longtime friend Ken Babbs, began to write a novel based on the Screenplay, which also carried the title "Last Go Round" ("the Novel"). The Novel told the same story as the Screenplay, recounting the same fictionalized account of the famous competition for the first World Championship Broncbusting title at the 1911 Pendleton Round-Up, and the classic "last go round" between friends and competitors George Fletcher, Jackson Sundown, and Johnathan E. Lee Spain. A true and correct copy of the Novel is lodged herewith as Exhibit "G." The [N]ovel was published in 1994, it was distributed and sold nation-wide across the United States (in fact, it is readily available to this very day on Amazon.com), and it received considerable positive public, press and media attention across the nation. For example, the New York Times, in its review of the Novel published on July 7, 1994, stated that "Ken Kesey [in the Novel] takes a deep dive into Amercian mythology" and observed that "as well as being a ripsnorter of a yarn, the history [Ken Kesey] retells so energetically [in the Novel] has a surprising degree of wistful complexity." A true and correct copy of this book review is filed herewith as Ex. "H."

The question of whether the Novel and the New York Times article are relevant to the issues at hand is for the court to decide when considering the merits of the parties' summary judgment motions. The question of whether the New York Times article should be admitted over Defendants' hearsay objection must be addressed now.

The New York Times article, entitled A Western Tale as Tall as It Is True and written by Christopher Lehmann-Haupt, was published on July 7, 1994. It read:

It was "a great yarn" his father told him by a campfire one night, writes the novelist Ken Kesey in his introduction to "Last Go Round," a history in the form of a novel written with the aid of research by Mr. Kesey's friend Ken Babbs. The Keseys had been traveling to hunt antelope when they ran into the heavy traffic headed for the Pendleton Round Up, a famous rodeo in Oregon that reminded the author's father of what happened at the first roundup on the weekend of Sept. 16, 1911. He described it over the campfire that night, and it made, as Mr. Kesey repeats, "a marvelous yarn."

Now this is a pretty big buildup to what follows, which is the story of that 1911 roundup told by an actual star participant, Jonathan E. Lee Spain of Nashville, as imagined by Mr. Kesey. Perhaps this accounts for why a certain sense of strain pervades the narrative, why, for instance, Frank Gotch, the wrestler in William Cody's troupe Spain meets on the train to Pendleton, Ore., is `an unbelievably huge man, or at least something that walked enough upright like a man to have been squeezed into a man's suit." Spain's description continues: "He was hatless and he was hairless, not even any eyelashes. You could see the machinery of his muscles right through his skin and he was muscled all the way to this scalp."

The sense of strain induced by Mr. Kesey's big buildup may also explain why Parson Montanic, the Indian preacher Spain meets after the train arrives in Pendleton, has undergone such an unusual conversion from drunkenness to Christianity. As someone recounts the legend to Spain: "Then, this whopper goes, just as this stinkin' scapegrace was sliding down into his final sleep, a babe appeared in the heavens, naked as a jaybird and glowing like a red-hot ember. It came down and curled up next to him and kept him from freezing to death. Naturally, Montanic says it was the baby Jesus."

Much of "Last go Round" is similarly far-fetched. But then of course Mr. Kesey is writing in the tradition of the tall tale, where anything goes in the cause of fleshing out the myths of the American past. And what could be more exaggeratedly American in this time of sensitivity to multiculturalism than a yarn in which the stars of a legendary rodeo turn out to be a southern gentleman, a black, an Indian and a Jewish woman, and in which the villains try to rig the outcome of the show in favor of the white man?

At least you think that Mr. Kesey's tale is a tall one until you come to the first section of photographs in the book. Now it may be true that a few of the outlandish characters in the story are not pictured here and must therefore be presumed to have been invented by Mr. Kesey. But there are photos of George Fletcher and Jackson Sundown, respectively the black man and Indian of Mr. Kesey's yarn. There is Frank Gotch, the wrestler, looking almost as gigantic as his prose description. There is Parson Montanic dressed up in ornate Indian regalia and possibly blessing his flock.

So it gradually becomes clear that as much as Mr. Kesey may be exaggerating events, he is simultaneously unearthing a reality that is not usually associated with the frontier.

As it works itself out, Mr. Kesey's complex plot does concern itself with how the people who ran the 1911 roundup did try to rig it so that Spain would prevail over the black man and the Indian, with whom he had become good friends by the time the competition had reached its climax. Buffalo Bill Cody, who wants Spain for his traveling show, sics his huge wrestler on George Fletcher to make sure a black man won't win the cowboy championship.

But the details of the story, not its moral, are what captivate in "Last Go Round." Mr. Kesey is richly informative on the skills of rodeo-riding, whether they involve basic broncobusting or such trick events as the backward-riding race, in which the contestants mount their horses back to front, or the wild-cow milking, which pretty much explains itself.

As Spain puts it at one point in his narrative: "Sundown often remarked that there really aint but two basic skills to rodeoing: there's catching holt and there's staying on — ropin' and ridin'. Everything else is just tricks."

Mr. Kesey's sense of the comically outrageous surmounts his zeal to get history straight. For instance, Gotch, the gigantic wrestler, after cruelly disjointing several lesser rivals, finally meets his match in Preacher Montanic, who defeats the bully by securing him with a jaw lock on his posterior. And in the grand finale of the broncobusting competition, Mr. Kesey manages to keep topping himself with successively more exorbitant contrivances.

The story ends on a melancholy note. After losing the woman he fell in love with at the roundup, Johnny Spain reverts to the 90-year-old man who is reminiscing about his youthful adventures, and confesses that his life went downhill after that first Pendleton roundup. Even after a roping accident that cost him one hand, "when I had to take what ranch work I could get, I never thought of myself as a cowboy." He concludes: "I thought of myself, always, as a rodeo star, down on his luck a little but on the mend, on the road back to the top. Maybe you always think of yourself as what you were in that short high noon of fame, not what you are all the rest of the long twilight and dark."

So Mr. Kesey might have added that as well as being a ripsnorter of a yarn, the history he retells so energetically has a surprising degree of wistful complexity.

Faye references the article in support of her statement that the Novel received positive press.

The article is being offered only to prove that the New York Times published a positive review of the Novel, not to prove that the statements made in the article were true. What was said in the article is not nearly as important as the fact that it was said. As such, the article is not hearsay and is admissible. The copies of the Novel and the New York Times article are the best evidence of the contents of those two writings. Accordingly, Faye's summaries of the contents of these items violate the best evidence rule and are stricken.

Defendants move to strike the footnote included in paragraph 12 which reads that "[o]f course, after the commencement of this litigation in 2006, the Wilson Defendants entered into a settlement agreement with plaintiff Kesey LLC acknowledging that Plaintiff owns the copyright and all other rights in the Screenplay and Novel" and references the stipulated judgment docketed in this case on September 12, 2007, as docket entry #44. Defendants' objection to the court taking judicial notice of Wilson's statement that Plaintiff owns the copyright to the Screenplay has been addressed above.

h. paragraph 13

Paragraph 13 provides:

Many years later, I learned that on or about March 24, 1994, during the dispute with the Wilson Defendants concerning the publication of the Novel, counsel for the Wilson Defendants prepared and filed a copyright certificate purporting to register the copyright in the Screenplay with the U.S. Copyright Office as a "work-for-hire" of S F under Registration Certificate No. PAU 1-846-336. A true and correct copy of said Registration Certificate is filed herewith as Ex. "L."

Defendants argue that the term "many years later" is too vague to be admissible and that it contradicts Faye's deposition testimony that she had received letters discussing the copyright registration by 1994. These arguments are relevant to whether a genuine issue of material exists and will be considered by the court in conjunction with its review of the summary judgment motions.

i. paragraphs 18 and 19

Defendants object to paragraphs 18 and 19 of the Faye Declaration asserting that the correspondence offered and discussed in these paragraphs relate to settlement negotiations and is barred by Rule 408. These paragraphs provide:

18. On or about December 13, 2004, Mike Kratville, counsel for the S F Defendants wrote a letter to, among others, Sterling Lord, the literary agent who had represented Ken and subsequently Kesey LLC, asserting that S F owned and controlled all rights, including the copyright, in and to the Screenplay. A true and correct copy of this December 13, 2004 letter, which of learned of sometime subsequent to said date, is filed herewith as Ex. "T."

19. On or about October 14, 2005, after investigating the claims made by the S F Defendants in their letter of December 13, 2004, David Aronoff, counsel for Kesey LLC responded to the letter by pointing out that the S F Defendants' claim of copyright ownership in the Screenplay was legally deficient under the work-for-hire and statute of frauds provisions of the Copyright Act and such legal authorities. A true and correct copy of this October 14, 2005, letter is filed herewith as Ex. "U."

Again, as discussed above, the court has found that, in the absence of the existence of a dispute or an offer of valuable consideration to compromise a dispute prior to the October 14, 2005, letter, Rule 408 does not apply. Defendants' objections to these exhibits and statements are overruled.

j. paragraph 20

Defendants assert relevance and legal conclusion arguments in support of its motion to strike paragraph 20 of the Faye Declaration its entirety. This paragraph provides:

Because the parties were not able to resolve their dispute respecting ownership of the copyright in the Screenplay, after receiving an assignment from Irby Smith of his copyright interest as a co-author of the Screenplay on April 11, 2006 (see ¶ 4 and "B", supra), Plaintiff filed this action on April 21, 2006.

These arguments bear on the question of whether a genuine issue of material fact exists, and the court will consider them in its review of the summary judgment motions.

5. Babbs Declaration signed June 13, 2008

Defendants object to numerous statements contained in Babbs's declaration signed June 11, 2008 (the "Babbs Declaration"), primarily because they are based on hearsay statements of Kesey and lack the proper foundation. Defendants' objection to the term "research" in paragraph 2 as vague will be considered by the court in weighing the evidence while considering the substantive arguments in the summary judgment motions.

a. paragraph 3

Defendants describe paragraph 3 of the Babbs Declaration as "pure hearsay" and move to strike the paragraph in its entirety. Paragraph 3 provides:

I learned of the 1911 Round-Up well over 30 years ago, when the famous story was first told to me by Kesey. He recounted to me how during the 1911 Round-Up the final competition, or "last go round," was decided in a match up involving George Fletcher, a popular local black cowboy, Jackson Sundown, an American Indian cowboy, and a young white kid named Johnathan Spain. The victory was awarded to Spain, but the audience, inspired by Fletcher's amazing final ride, spontaneously decided to take up a collection to buy Fletcher a silver saddle of the kind awarded to the victor.

To qualify as a hearsay statement, Plaintiff must have offered Kesey's description of the 1911 Round-Up to prove that the description is an accurate summary of the events of that Round-Up. In the context of the issues raised by the pending motions, Plaintiff is not concerned with whether the described summary is factually true, but only that Babbs learned of this verison of events in the late 1970's when Kesey shared his story of the 1911 Round-Up. The fact that Spain won the competition or that the crowd took up a collection for Fletcher is not important to the issues before the court. Accordingly, the court finds that paragraph 3 is not offered for the truth of the matter asserted, is not hearsay, and is admissible. Defendants' objections to Paragraph 3 are overruled.

b. paragraph 4

Paragraph 4 provides:

In 1979, sometime after Kesey had told me the famous story of the 1911 "last go round," Kesey and I traveled to Pendleton, Oregon, to observe and research the 1979 Round-Up as the setting for a possible motion picture. While we were there, Kesey was interviewed by Pendleton's East Oregonian about his interest in writing a screenplay about the Round-Up, which resulted in two articles that were published in the September 15, 1979 issue of that newspaper, "Round-Up . . . Ken Kesey Has His Own Version" and Kesey Looking to R-Up for Script Inspiration." True and correct copies of these articles are filed herewith as "Ex. "A." The second of these two articles stated, among other things, that "The plot [of Kesey's screenplay concerning the Round-Up] could be drawn from [Kesey's] admiration of Jackson Sundown, the Nez Perce Indian who won the all-around title in 1916 at the age of 50. . . ." Id.

The only objection Defendants make to this paragraph is that it relates to Exhibit A, which they argue is double hearsay and should not be admitted into evidence. The court has already addressed this objection and rules accordingly. As previously determined, Exhibit A is admitted as an ancient document. To the extent Plaintiff is offering Kesey's statements in the exhibit to prove that Kesey was interested in writing about the Pendleton Round-Up in the 1970's, Defendants' objections are sustained and the statements are inadmissible for this purpose.

c. paragraph 5

Defendants' objections to paragraph 5 of the Babbs Declaration are based on lack of foundation, hearsay, and legal relevancy. The legal relevancy objection will be taken into account when the court addresses the merits of the summary judgment motion. Paragraph 5 provides:

During the mid 1980's, Kesey, with assistance from Irby Smith, wrote a screenplay entitled "Last Go Round" ("the Screenplay") based on the historical events at the 1911 Pendleton Round-Up but it was not produced as a motion picture. A true and correct copy of the Screenplay is filed herewith as Ex. "C." As a result, during the early 1990's, Kesey and I decided to write the Novel, which [was] based on the Screenplay. Kesey told me that, because the Screenplay had never been produced, he hoped that the Novel could become the basis for a motion picture based on the 1911 Round-Up. It was at all times my understanding that Kesey owned the copyright in the Screenplay since, among other things, Kesey had written it, it bore the designation (c) Ken Kesey 1984 on its cover page, and Kesey exercised ownership rights over it by planning to create new works based on the Screenplay such as the Novel and a proposed motion picture.

Defendants object to Babbs's statement that Smith assisted Kesey in writing the Screenplay, arguing lack of foundation. The court agrees. Plaintiff has failed to establish that Babbs had personal knowledge of the facts surrounding the writing of the Screenplay. Any information Babbs obtained from third parties about who wrote the Screenplay would be hearsay and inadmissible. Defendants' objection to this statement is sustained.

Next, Defendants object to Babbs's reference to Exhibit C as a copy of the Screenplay. Defendants argue that Babbs "has no personal knowledge that the screenplay attached as Exhibit C was the exact document delivered to Defendants in September 1984." (Objections to Pl.'s Evidence in Supp. of Mot. for Summ. J. at 9). Babbs does not describe Exhibit C as the document delivered to Defendants. He merely states that it is a copy of the Screenplay. Defendants' objections to this description of Exhibit C are overruled.

Defendants object to Babbs's description of the copyright designation on the cover page of Exhibit C based on lack of knowledge. Babbs has personal knowledge of what he saw on the front page of copy of the Screenplay that he read. Again, the fact that he lacks personal knowledge about what copy of the Screenplay was given to Defendants in September 1984 is not relevant as Babbs never states that Exhibit C was the copy provided to Defendants at that time. This objection is overruled as well.

Finally, Defendants assert a hearsay objection to Babbs's statement that Kesey told him he hoped the Novel could become the basis for a screenplay. Plaintiff does not make clear the purpose for which it offers this statement. If it is offered solely to establish that Kesey and Babbs talked about the possibility that the Novel might result in a movie, its is not hearsay and it is admissible. If it is being offered to prove that Kesey truly hoped that the Novel would become the basis for a movie, it is hearsay and must qualify for an exception to be admissible. The court finds that the more likely purpose for the statement is to show that Kesey discussed this issue with Babbs at a specific point in time. Defendants' objections are overruled and the statement is admitted for this limited purpose.

d. paragraph 6

Defendants only objection to Paragraph 6 is that Babbs's characterization of himself as co-author of the Novel is a legal conclusion. That paragraph provides:

In or about 1991, I began co-authoring the Novel with Kesey. The Novel was based on the Screenplay and it also carried the title "Last Go Round." The Novel told the same story as the Screenplay, recounting the same fictional account of the famous competition for the first wold championship broncbusting title at the 1911 Pendleton Round-Up, including the classic "last go round" between friends and competitors George Fletcher, Jackson Sundown, and Jonathan Spain. A true and correct copy of the Novel is lodged herewith as Ex. "G."

This objection will be considered when the court addresses the merits of the parties motions for summary judgment.

e. paragraph 7

Paragraph 7 of the Babbs Declaration provides:

The [N]ovel was published in 1994, it was distributed and sold nation-wide across the United States (in fact, it is readily available on Amazon.com), and it received considerable positive public, press and media attention acress the nation. For example, the New York Times, in its review of the Novel, published on July 7, 1994, stated that "Ken Kesey [in the Novel] takes a deep dive into American mythology" and observed that "as well as being a ripsnorter of a yarn, the history [Kesey] retells so energetically [in the Novel] has a surprising degree of wistful complexity." A true and correct copy of this book review is filed herewith as Ex. "H."

Defendants' sole objection to this paragraph is that Exhibit H is hearsay and not legally relevant. The court has already addressed these arguments above. The article is not hearsay and is admitted. Babbs's summary of the contents of the article violates the best evidence rule and is stricken.

f. paragraph 9

Defendants assert that the contents of Paragraph 9 are a legal conclusion and that the entirety of the paragraph should be stricken. Paragraph 9 provides:

I have been personal friends for almost 40 years with defendant Mike Hagen, and I see him dozens of times each year. It is my understanding that Hagen is or was the president of defendant Sundown Fletcher Inc. ("S F"), which in this litigation is claiming ownership of the copyright in and to the Screenplay. Notwithstanding these facts, and my co-authorship of the Novel, Hagen has never once expressed to me that the copyright in [the] Screenplay is owned by S F or that the Novel infringes any rights held by S F in the Screenplay.

As with all other legal conclusion objections, the court will take the objection into account in determining whether a genuine issue of material fact exists during its consideration of the parties motions for summary judgment.

This proffered evidence raises the same issues as Kesey's failure to object to Francis's statement that S F owned the rights to the Screenplay. However, to the extent that this paragraph offers evidence of ownership by way of Hagen's silence about whether he owned an interest in the copyrights to the Screenplay or because he never asserted that the Novel infringed on that alleged ownership interest, the evidence is admissible because it is not hearsay. If Hagen's conduct — his silence in failing to assert an ownership interest or an infringement on that interest — was not intended as an assertion, it is not barred by the hearsay rule, which bars only that conduct intended to be an assertion. 4 CHRISTOPHER B. MUELLER LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 378, at 55 (2d ed. 1994). Alternatively, if Hagen intended his silence as an assertion, then it is an admission by a party under FED. R. EVID. 801(a)(2)(A). In either case, Hagen's conduct is admissible evidence, the only questions remaining are whether it constitutes an admission or instead mere evidence to be considered on the ultimate issue.

Here, there is no information upon which to base the conclusion that Hagen intended any silence or failure to object as an assertion. Without that foundation, the proffered evidence cannot be considered an admission. However, if Hagen's conduct is not viewed as an assertion, it is not hearsay and can be considered as evidence offered on the ownership question. The relevance of this evidence will be considered when the court considers the merits of the pending motions.

6. Smith Declaration signed June 10, 2008

Defendants object to numerous statements contained in Smith's declaration signed June 10, 2008 (the "Smith Declaration") primarily because they are based on hearsay statements of Kesey and lack the proper foundation.

a. paragraph 3

Defendants' objections to paragraph 3 of the Smith Declaration mirror their objections to paragraph 3 of the Babbs Declaration — that Smith's statement is based on hearsay statements from Kesey. Paragraph 3 provides:

In early 1984, because of my experience in the motion picture business, my friend Ken Kesey ("Kesey") asked me to help him to author a screenplay entitled "Last Go Round" ("The Screenplay") which was based on the real life historic events at the Pendleton, Oregon, Round-Up in 1911. In that year, the final competition, or "last go round" was decided in a match-up between George Fletcher, a popular local black cowboy, Sundown Jackson, an American Indian cowboy, and a young white kid named Jonathan Spain. Surprisingly, the victory was awarded to Spain, but the audience, inspired by Fletcher's amazing final ride, spontaneously took up a collection to buy for Fletcher the silver saddle that had been awarded to Spain as the victor.

For the reasons discussed above, the court finds that paragraph 3 is not offered for the truth of the matter asserted; thus, is not hearsay and is admissible. Defendants' objections to paragraph 3 of the Smith Declaration are overruled.

b. paragraph 4

Paragraph 4 of the Smith Declaration provides:

Kesey and I co-wrote the Screenplay, working side-by-side on Kesey's computer at his home in Pleasant Hill, Oregon, during the first half of 1984. I wrote the Screenplay with Kesey for between one to two months, during which time we completed approximately one-half of the Screenplay and created virtually all of the essential elements of the work, including the plot, sequence of events, characters, mood, tone, setting and pace. At that point in time, I became busy with other motion picture projects so Kesey completed the Screenplay without me. A true and correct copy of the Screenplay is filed herewith as Ex. "C."

Again, Defendants' objections to this paragraph are similar to those asserted against various statements in the Babbs Declaration — legal conclusion, relevance, and lack of foundation. The legal conclusion and relevance objections, which relate to Smith's characterization of himself as co-author of the first draft of the Screenplay, are more appropriately handled by the court during its review of the merits of the summary judgment motions. Defendants' assertion that Smith has no foundation to state that Exhibit C was what was delivered to Defendants as the second draft in September 1984 is overruled as Smith refers to Exhibit C as a copy of the Screenplay, not a copy of the Screenplay that was delivered to the Defendants in September 1984. Defendants' lack of foundation objection to Paragraph 4 also is overruled and the paragraph is admitted as Smith would have personal knowledge of writing the Screenplay with Kesey.

c. paragraph 5

Defendants object to the contents of Paragraph 5 asserting several general grounds. Paragraph 5 provides:

Kesey made arrangements for me to be paid $3,000 in connection with my work on the Screenplay by a company known as Sundown Fletcher Inc. ("S F"), which I understood had been formed by Michele Francis (then known as Michele McMindes) and Mike Hagen. It is my understanding that Kesey received $10,000 from S F. At no time were Kesey and I employees of S F. Among other things, S F never provided healthcare or other employee benefits to us, it did not provide regular paychecks with income tax or social security tax withholding, it did not provide the office or computer that Kesey and I used in writing the Screenplay, and it had no rights to assign additional projects or to supervise the work that Kesey and I did on the Screenplay. The amounts that Kesey and I were paid by S F were essentially a form of earnest money — designed to indicate S F's desire to acquire rights in the Screenplay that would have to be negotiated and memorialized in formal signed agreements providing for, among other things, much more substantial compensation to us, such as a participation in profits from the film. However, no such agreements were ever consummated.

Defendants' objections — relevance, legal conclusion, and vagueness — will be considered by the court in conjunction with the merits of the summary judgment motion.

d. paragraph 7

Defendants object to Smith's characterization of himself as co-author of the Screenplay in Paragraph 7 asserting that it is a legal conclusion. Paragraph 7 provides:

On April 11, 2006, I executed a Copyright Assignment, Transfer and Quitclaim pursuant to which all of my rights as a co-author of the Screenplay were assigned to Kesey LLC, the limited liability company that was formed by Kesey's heirs to administer his literary estate after he died. A true and correct copy of this document is filed herewith as Ex. "B." Accordingly, my authorship rights in the Screenplay are now held by Kesey LLC, the plaintiff in this litigation.

As noted above, this objection is appropriately handled when the court reviews the merits of the summary judgment motions.

7. Exhibits

a. Exhibits I, J, and K

Plaintiffs Exhibits I, J, and K are copies of correspondence between legal counsel for Kesey and the Wilson Defendants. Defendants only objection to these exhibits is that they do not include all of the correspondence between the parties during this period. Defendants can cure any issue by submitting additional correspondence between legal counsel for all parties to this action, which, in fact, they have done. The court will consider all the submitted correspondence in conjunction with Plaintiffs exhibits. The court overrules Defendants' objections and admits the exhibits.

b. Exhibits P, Q, R, and S

Defendants also generally object to the admission of the pleadings and orders entered by the probate court in the Kesey estate (identified as Exhibits P, Q, R, and S), arguing that the exhibits are not relevant to any issue in this case. The relevance objection will be considered by the court when it addresses the merits of the parties motions for summary judgment.

8. Deposition Excerpts

In its objections to Defendants' Facts, Plaintiff argues that various factual statements lack foundation or are conclusory, speculative, vague, ambiguous, or constitute a legal conclusion. At this juncture, the court will consider only the lack of foundation objections and will consider the other objections in conjunction with its ruling on the merits of the parties' summary judgment motions. In some cases, it appears that Plaintiff is asserting that the deposition excerpt identified as support for that factual statement does not, in fact, provide a foundation for that statement. In others, Plaintiff seems to suggest that the declarant lacks the requisite foundation to make the statement in the deposition. In the first scenario, the court will consider the objections at the same time it addresses the parties' motions for summary judgment. In the latter case, the court will address the objections at this time.²⁶

26 The court has addressed some of the objections while considering Plaintiff's objections to Francis's affidavits, above.

a. Defendants' Facts paragraph 6

Paragraph 6 of Defendants' Facts provides that "Kesey admitted that Hagen is the one who brought the main ideas for this screenplay concept to him." In support of this factual statement, Defendants refer to Hagen's deposition (Index at pages 22 and 23) and a newspaper article from the Tri-City Herald dated September 13, 1984 (Index at page 240.) In his deposition, Hagen indicates that he doesn't remember being interviewed by the reporter. The highlighted portion of the newspaper article provides that "Kesey was approached to write the script by long-time friend and Beta The[t]a Pi fraternity brother Michael Hag[e]n of Pendleton." Neither the deposition excerpt nor the highlighted portion of the article support the factual statement found in paragraph 6 of Defendants' Facts. In this instance, Plaintiffs foundation objection really pertains to whether the factual statement is supported by the referenced evidence, not whether the statements in the referenced evidence have the requisite foundation. Because the newspaper article does not support this specific factual statement, it is not relevant to the issues before the court and the court need not address Plaintiffs hearsay objection to the newspaper article.²⁷

27 The factual statement found in paragraph 6 of Defendants' Facts is similar to the factual statement made by Francis in paragraph 3 of the First Francis Affidavit, in which she states that Kesey admitted to not knowing about the relationship between Fletcher, Sundown, and Spain. The court sustained Plaintiffs lack of foundation and hearsay objections with regard to that statement and finds it likely that its ruling would be the same in this instance.

b. Defendants' Facts paragraph 8

Paragraph 8 of the Defendants' Facts reads, in part, that "[t]he parties agreed that the corporation would own the copyright for the $10,000 paid for two drafts." The deposition excerpts from Francis's deposition cited in support of this factual statement (page 32 of the Index) reveal only that Francis understood the Screenplay would be owned by S F and do not support that the parties reached an agreement.

Q. Was it your understanding that Sundown and Fletcher would own the copyright in the script for $10,000? A. I felt that the first draft and the second draft that we got, yes, that it was to be owned by the corporation and developed by the corporation. From there, you know, when you're in development, you know, opportunities come up in and other contracts are done later. Q. At this meeting on January 8, 1984, was it your understanding that the copyright in the script would be owned outright by Sundown Fletcher merely upon payment of $10,000 and nothing more? A. Yes. In this deposition excerpt, Francis discusses her understanding about who would own the Screenplay. This does not support the factual statement that the parties agreed the corporation would own the Screenplay. The lack of foundation argument goes to the support of the factual statement, not the supporting deposition excerpt.

c. Defendants' Facts paragraph 9

Similarly, paragraph 9 of Defendants' Facts provides, in part, that "Kesey knew the corporation would be the `holding company' for the screenplay." The support for this statement, which is an excerpt from Francis's deposition found at page 34 of the Index, provides "So we were very much discussing it as Sundown Fletcher, Incorporated, hoping the holding company for all of these activities, including the screenplay." Francis's statement that parties discussed her hope that S F would be the holding company for the Screenplay does not support Defendants' statement that Kesey knew S F would be the holding company for the Screenplay.

Also in paragraph 9 is the factual statement that "Kesey knew the corporation would hold whatever was created," a statement allegedly supported by the following excerpt from Francis's deposition found at page 35 of the Index:²⁸

28 Defendants' also refer to page 36 of the Index as support for this statement. This page was not properly authenticated and has been stricken from the record.

Q. (By Mr. Aranoff) Okay. So you were purposefully nonspecific in Exhibit 1 so as not to frighten off Mr. Kesey? A. No, I was tough — I was getting kicked under the table by Mike Hagen. No, I was very clear that it was written for the corporation, that there were investors that we needed to honor, and that the investors, you know, are putting up money to make a profit; that the corporation would own what we create — whatever we created, whatever monies were made would be contained in the corporation. Again, Francis's statement does not support the factual assertion that S F would own the Screenplay. It merely records Francis's belief that S F would own everything that was created; it is not evidence that Kesey agreed to this proposition.

d. Defendants' Facts paragraph 19

Plaintiff objects to the evidence supporting a portion of paragraph 19 of the Defendants' Facts which provides that "Those option agreements with Sundown Fletcher gave her the right to market the 1984 screenplay which Kesey wrote for the corporation started in 1990 and Exhibit 1005 extended the time to February 12, 1995."²⁹ As support for this factual statement, Defendants refer to pages 69 to 88 of the Index. The court has determined that pages 69-77, which are deposition excerpts from Wilson's deposition, and pages 82-84, which contain a copy of an edited Deal Memo Option Agreement between S F and Associates signed August 14, 1990, were not properly authenticated and has stricken these documents from the record. The only support remaining for the factual statement are two Deal Memo Option Agreements between S F and Associates, signed August 14, 1990, and August 12, 1992, which give Associates the option to purchase certain rights from S F during the time period of August 12, 1990, through February 12, 1995. The agreements represent and warrant that S F is the sole owner of the Screenplay, the question to be resolved in this lawsuit. Plaintiff calls into question whether these documents are a proper foundation for the statement that the documents gave Associates rights to the Screenplay, not whether the agreements, themselves, are supported with the proper foundation, and the court will resolve that question when it addresses the merits.

29 Plaintiff also objects to the first sentence of paragraph 19, which is supported by page 67 and 68 of the Index. The deposition excerpts contained on those pages were not properly authenticated and have been stricken from the record.

e. Defendants' Facts paragraph 23

In paragraph 23 of Defendants' Facts, Defendants attempt to establish that Plaintiff was aware of S F's claim of ownership to the Screenpaly as early as the 1990's. The paragraph provides that "[t]he Keseys were aware as far back as the 1990s that the corporation had filed a copyright to the 1984 screenplay and were claiming rights to it." Defendants rely on deposition excerpts from Faye and Shannon Kesey to support this factual statement. In her deposition, Faye stated that she was aware that S F had filed a certificate of registration for the right of the Screenplay. The excerpt does not indicate when Faye became aware of the registration and, as such, is not support for the factual statement. The excerpt from Shannon Kesey's deposition provides:

Q. Have you ever met Katherine Wilson? A. Yes. Q. And how did you come about meeting her? A. It would have been through family friends. Q. Was she in any way, that you know of, involved in "Last Go Round"? A. Yes. Q. And what was her involvement, if you know? A. She claimed to have — she claimed to have rights through Sundown Fletcher. Q. Rights in what? A. The screenplay. Q. She told you that? A. I learned that. Q. When or where did you learn that from? A. Where or when? What did you say? Q. Well, let's say when first. A. I don't know the exact time, but it would have been in the `90s. Q. So sometime — A. It was before 2004 — I mean 1994. Q. Before 1994 — A. Uh-huh. The excerpt establishes that Shannon Kesey knew that Wilson claimed to have rights to the Screenplay through S F by 1994 but not that S F had filed a copyright to the Screenplay. As such, the excerpts do not firmly support the factual statement found in paragraph 23 of Defendants' Facts.

All of Plaintiff's lack of foundation objections to Defendants' Facts raise the issue of whether the supporting facts referenced adequately support the factual statements, not whether the supporting facts themselves lack the requisite foundation. The court will give additional consideration to Plaintiff's lack of foundation objections to the factual statements at the time it addresses the parties' pending summary judgment motions.

Conclusion General Evidentiary Objections

A. Authentication of Defendants' Evidence

1. Deposition Excerpts

Plaintiffs objections to pages 1, 2, 9-11, 16, 17, 25, 36, 39, 60, 62, 63, 65, 67-77, 89-94, 104, and 124 of Defendants' evidence in support of their concise statement of facts, which represent deposition excerpts of Francis and Wilson not offered or authenticated by Plaintiff, are sustained and the evidence stricken from the record. Plaintiffs objections to the remaining deposition excerpts, which are found at pages 3-5, 8, 14, 15, 18-23, 26, 28-35, 37, 38, 40, 41 44-46, 49-57, 61, 64, 66, 97-103, 125-127, 130, and 131 and have been authenticated by Plaintiff's submissions, are overruled and the evidence is admitted.

2. Documentary Evidence

Pages 27, 42, 43, 47, 48, 58, 59, 78-81, 85-88, 105, 106, 108, 109, and 123, which represent documents also offered and authenticated by Plaintiff, are properly before the court and will be considered. Plaintiffs objections to this documentary evidence are overruled.

Additional documents, found at pages 95, 96, 107, 110-122, 128, 129, and 132, were produced by Plaintiff during discovery and are deemed authentic. Plaintiffs objections to these documents are also overruled.

Page 24, a newspaper article date September 13, 1984, from the Tri-City Herald entitled Kesey Back in Saddle for Film on Round-Up, is self-authenticating under Rule 902(6) of the Federal Rules of Evidence. Plaintiffs assertion that page 24 is not properly authenticated is without merit and is overruled.

Plaintiff's objection to pages 82-84, which appear to be a signed draft of the August 14, 1990, Deal Memo Option Agreement between S F and Associates (pages 82-84), is sustained. The deposition excerpt that originally identified this document was not authenticated and Defendants have not attempted to authenticate this document in any other manner. The document is stricken from the record.

Finally, Plaintiffs objections to the pages of Francis's affidavit, found at pages 6, 7, 12, 13, and 133-137 are overruled and the evidence admitted.

3. Unsubmitted Evidence

Any evidence referenced by Defendant but not filed with the court was not properly offered or authenticated and will not be considered by the court.

B. General Objections to Defendant's Concise Statement of Material Facts

To the extent Defendants' arguments are not based on proper evidence in the record, the court will discount or reject such arguments and rule accordingly when addressing the merits of the parties' motions for summary judgment.

C. Declarations Filed in Support of Plaintiff's Motion for Summary Judgment

Plaintiffs declarations clearly comply with the requirements of FED. R. EVID. 56 and 28 U.S.C. § 1746. Defendants' objections to Plaintiffs declarations are overruled.

D. Settlement Negotiations

In the absence of the existence of a dispute or an offer of valuable consideration to compromise a dispute, FED. R. EVID. 408 does not apply to the parties communications before October 14, 2005. Defendants' Rule 408 objections to these oral and written communications are overruled.

E. Statements Attributable to Ken Kesey

The confrontation clause applies only in criminal matters. Defendants' confrontation clause objection to hearsay evidence from Kesey admitted in this, a civil case, is overruled.

F. Request for Judicial Notice

Defendants' objection to Plaintiffs request for judicial notice is sustained to the extent that the court agrees that it will not take judicial notice of the truth of the statements contained in the settlement document between Plaintiff and the Wilson Defendants or the documents filed by Kesey and Faye with the U.S. Copyright Office.

Specific Evidentiary Objections

A. First Francis Affidavit

1. paragraph 2

Francis's statement that Hagen had no knowledge of the story behind the 1911 Pendleton Round-Up lacks the requisite foundation. Plaintiffs objection is sustained.

2. paragraph 3

Francis's knowledge that Kesey did not know of the relationship between Sundown, Fletcher, and Spain is derived solely from Kesey's alleged admission. Kesey is not a party opponent under Rule 801(d)(2), the statement does not qualify for the specific exceptions of present sense impression (Rule 803(1)), state of mind (Rule 803(3)), or statement against interest (804(b)(3)), and does not qualify for the residual exception (Rule 807). Plaintiffs lack of foundation objection to this statement is sustained.

3. paragraph 5

Kesey's failure to object to Francis's statements that S F owned the Screenplay is not assertive conduct and is not subject to the hearsay rules. Francis has the required personal knowledge to support a claim that she did not hear Kesey object to her claim of ownership but not that Kesey did not object to anyone outside of Francis's presence. Plaintiffs hearsay and lack of foundation objections are overruled to this extent and the court will allow the evidence to support Francis's assertion that she did not hear Kesey object to her statement that S F owned the rights to the Screenplay.

4. paragraph 8

Francis's statement that Smith assured her that he and Kesey would not go forward with the Screenplay is admissible with regard to Smith alone. Neither Francis nor Smith had personal knowledge of Kesey's plans for the Screenplay. To the extent Francis is offering this statement to prove that Smith, in fact, agreed to not pursue the Screenplay, Plaintiffs hearsay objection is sustained. The statement is admitted to show the effect that Smith's statement had on Francis.

B. Second Francis Affidavit

Plaintiffs lack of foundation objection to Francis's statement that she did not remember seeing the copyright logo on the Screenplay or the second proof of the brochure found in paragraph 2 is overruled. Francis may testify to her memory of the documents she received and reviewed.

C. Third Francis Affidavit

Plaintiffs objection to the submission of the first proof the brochure in paragraph 3 because it was not produced during discovery is overruled. Francis fails to establish that she has personal knowledge that Susan Torrey added the copyright logo to the second proof of the brochure. Plaintiffs lack of foundation objection to this statement is sustained.

D. Faye Declaration

1. paragraph 3

Defendants' hearsay objection to Faye's statement that Kesey had plans to write about the Round-Up is overruled to the extent Plaintiff is offering the statement to prove that Kesey discussed the issue with Faye based on the fact that, in this context, the statement is not being offered to prove the truth of the matter asserted. To the extent Plaintiff is offering the statement to prove that Kesey, was, in fact, planning to write about the Round-Up as early as the 1970's, the statement is hearsay that does not qualify for any hearsay exception, and Defendants' hearsay objection is sustained. With regard to Faye's statement that Kesey had a longstanding interest in writing about the Round-Up as evidenced by her description of Kesey's research and writing, Kesey's conduct was not "assertive" and does not qualify as a hearsay "statement." Defendants' hearsay objection to this evidence is overruled.

2. paragraph 4

Defendants' hearsay objection to Faye's description of Kesey's conduct in pulling his Round-Up research together, which does not qualify as assertive conduct, is overruled. To the extent Faye's description of Kesey and Smith writing the Screenplay and Kesey's relationship with Francis and Hagen are derived from Faye's personal observation of Kesey with Smith, Francis and Hagen, Defendants' hearsay objection is overruled. Similarly, Faye is entitled to testify about what occurred between Kesey, Francis and Hagen at a meeting that she attended. Faye has failed to present evidence that she has personal knowledge of Francis and Hagen's movie-making experience. Defendants' lack of foundation objection to Faye's statement that neither Francis nor Hagen were experienced in motion picture film production is sustained and the statement stricken from the record.

3. paragraph 5

Defendants' objection to Faye's description of the Screenplay is sustained. The Screenplay is part of the record and is the best evidence of what it contains.

4. paragraph 6

Defendants' Rule 408 objections to Faye's testimony regarding the communications between the parties after September 1984 are overruled.

5. paragraph 7

Defendants' Rule 408 objections to Faye's testimony regarding the communications between the parties after September 1984 are overruled. Defendants' objection to Faye's description of the "To Whom it May Concern" letter is sustained. The letter is part of the record and is the best evidence of its contents. Faye lacks the foundation to testify on what legal interpretation Defendants give the letter. Accordingly, Defendants' objection to Faye's statement that S F did not consider the letter to constitute a transfer of rights to S F is also sustained.

6. paragraphs 8 and 9 — Defendants' Rule 408 objections to Faye's testimony regarding the communications between the parties after September 1984 are overruled.

7. paragraph 10

Defendants' objection to Faye's description of the Novel is sustained. The Novel is part of the record and is the best evidence of its contents.

8. paragraph 13

Defendants complain that Faye's statement regarding when she found out about the filing of the March 24, 1994, copyright certification is vague and contradicts her prior testimony. The court defers its consideration of this issue.

9. paragraphs 18 and 19

Defendants' Rule 408 objections to Faye's testimony regarding the communications between the parties prior to the October 14, 2005, letter are overruled.

10. paragraph 20

Defendants' relevance and legal conclusion objections to Faye's testimony regarding the assignment of Smith's literary interest in the Screenplay are deferred. The court will consider these objections when it addresses the merits of the parties' pending summary judgment motions.

E. Babbs Declaration

1. paragraph 2

The court defers its consideration of Defendants' contention that the use of the term "research" in the second paragraph of the Babbs Declaration is vague.

2. paragraph 3

Babbs's description of the story that Kesey told him about the 1991 Round-Up is not offered to prove that the story was true. Rather, it is offered to prove only that Kesey shared the story with Babbs well over 30 years ago. The description is not hearsay and Defendants' hearsay objection to the contents of this paragraph are overruled.

3. paragraph 4

Defendants' objection to this paragraph is based solely on their argument that the East Oregonian newspaper articles are hearsay. To the extent the Plaintiff is offering Kesey's statements in the article to prove the truth of the matter asserted — that Kesey intended to write about the Round-Up at the time the articles were written — the statements are offered for the truth of the matter asserted, are hearsay statements that do not qualify for an exception, and are inadmissible. Defendants' hearsay objection is sustained for this limited purpose.

4. paragraph 5

Babbs failed to present evidence that he has personal knowledge that Smith assisted Kesey in writing the Screenplay. Defendants' lack of foundation objection to this evidence is sustained. The hearsay objection to Babbs's statement that Kesey hoped the Novel would become a movie is sustained to the extent the statement is being offered to prove that Kesey, in fact, hoped to make a movie from the Novel.

5. paragraphs 6 and 9

Defendants' legal conclusion objections to Babbs's characterization of himself as coauthor of the Novel is deferred. The court will consider this objection when it addresses the merits of the parties' pending summary judgment motions.

6. paragraph 7

Defendants' objection to Babbs's description of the New York Times newspaper article is sustained. The article is part of the record and is the best evidence of what it contains.

F. Smith Declaration

1. paragraph 3

Smith's description of the story that Kesey told him about the 1991 Round-Up is not offered to prove that the story was true. The description is not hearsay and Defendants' hearsay objection to the contents of this paragraph are overruled.

2. paragraph 4

Defendants object to Smith's characterization of himself as coauthor of the Screenplay arguing that it is a legal conclusion. The court will consider this objection when it addresses the merits of the parties' pending summary judgment motions.

3. paragraph 5

Defendants assert legal conclusion, relevance and vagueness objections to Smith's description of the circumstances surrounding his work on the Screenplay and what the payments from Defendants represent. The courts consideration of these objections are deferred.

4. paragraph 7

Defendants' legal conclusion objections to Smith's characterization of himself as coauthor of the Screenplay is deferred. The court will consider this objection when it addresses the merits of the parties' pending summary judgment motions.

G. Aranoff Declaration

1. Exhibit A

Defendants' objection to the admission of the two East Oregonian newspaper articles is overruled in part and sustained in part. The articles themselves are admissible under the ancient document exception. To the extent Kesey's statements in the articles are offered to prove that he made the statement to the reporter or that he discussed an interest in writing about the Round-Up, the statements are not hearsay and are admissible. However, to the extent the articles are offered to prove the truth of the matter asserted — that Kesey, in fact, intended to write about the Round-Up, the statements are hearsay and Defendants' objections to the admission of the evidence for this purpose is sustained.

2. Exhibit C

Defendants' lack of foundation objection to the first page of the Screenplay, which contains a copyright logo, is overruled. The declarants referring to the Screenplay do not represent that it is the version of the Screenplay given to Defendants in September 1984 and Defendants offered the same document identified as page 58 to the Index.

3. Exhibits E, F, T, and U

Defendants' Rule 408 objection to these documents is overruled. In the absence of a dispute or an offer to compromise, Rule 408 is not applicable and does not bar the admission of this evidence.

4. Exhibit H

Defendants' hearsay objection to the New York Times book review of the Novel is overruled. The article is not being offered to prove the truth of the matter asserted.

5. Exhibits I, J, and K

Defendants' objection to the evidence on the grounds that it is an incomplete representation of the correspondence between the parties during this period is overruled.

6. Exhibits M, O, and JJ

The court sustains Defendants' objections to these exhibits and will limit its judicial notice of these documents to the fact that the documents were filed. It will not accept the documents to prove the truth of the matters asserted therein.

H. Deposition Excerpts

All of Plaintiff's lack of foundation arguments to Defendants' Facts raise the issue of whether the supporting facts referenced adequately support the factual statements, not whether the supporting facts themselves lack the requisite foundation. The court will give additional consideration to Plaintiff's lack of foundation objections to the factual statements at the time it addresses the parties' pending summary judgment motions.