Under Rule 801(d)(2)(B), a statement is “not hearsay” if the “statement is offered against an opposing party” and “is one the party manifested that it adopted or believed to be true.” For a statement to be an adoptive admission, “the party or one of its agents must have understood and unambiguously assented to the statement.” United States ex rel. Landis v. Tailwind Sports Corp., 292 F.Supp.3d 211, 221 (D.D.C. 2017) (quoting United States v. Beckham, 968 F.2d 47, 52 (D.C. Cir. 1992))
Plaintiff, the OST defendants, and the CSG defendants all cite to Judge Cooper's decision in United States ex rel. Landis v. Tailwind Sports Corp, as instructive of how the Court should handle character evidence of this sort. 292 F.Supp.3d 211 (D.D.C. 2017); ECF No. 492 at 5; ECF No. 469 at 2-3; ECF 474 at 6. In Landis, as here, the plaintiff “move[d] the Court to exclude references at trial to [the plaintiff-relator's] character or his motivation for filing this qui tam action, including the fact that he stands to receive a share of any monetary award in this case.
Mr. Fesenmaier has not testified in this matter, and his deposition testimony regarding his motivation is not relevant. See United States ex rel. Landis v. Tailwind Sports Corp., 292 F. Supp. 3d 211, 215 (D.D.C. 2017) (finding that a defendant could not call the relator as a witness solely for the purpose of attacking his character or highlighting his motivation for filing the qui tam action). Dkt. 935.
United States ex rel. Landis v. Tailwind Sports Corp., 292 F.Supp.3d 211, 220 (D.D.C. 2017) (CRC) (quoting Palmer v. Hoffman, 318 U.S. 109, 113 (1943))
Although Rule 30(b)(6) deposition testimony is sometimes described as “binding,” testimony given in a Rule 30(b)(6) deposition is evidence, which, like any other deposition testimony, can be contradicted. See United States v. Tailwind Sports Corp., 292 F.Supp.3d 211, 217 (D.D.C. 2017) (“[T]he broad principle that testimony of a Rule 30(b)(6) representative binds the designating entity has been expressly repudiated by every court of appeals to consider the issue.”) “[T]he testimony of the representative designated to speak for the corporation are admissible against it.
The Rule 30(b)(6) testimony also is not binding against the organization in the sense that the testimony can be corrected, explained and supplemented, and the entity is not “irrevocably” bound to what the fairly prepared and candid designated deponent happens to remember during the testimony. 7 James Wm. Moore, et al., Moore's Federal Practice § 30.25[3] (3d ed. 2016); see also United States ex rel. Landis v. Tailwind Sports Corp., 292 F.Supp.3d 211, 217 (D.D.C. 2017) (“[T]he broad principle that testimony of a Rule 30(b)(6) representative binds the designating entity has been expressly repudiated by every court of appeals to consider the issue.”).
But even if Mian's interview notes "may not have been prepared in anticipation of litigation . . . they were prepared with a particular client and goal in mind, which raises similar concerns about their trustworthiness." United States ex rel. Landis v. Tailwind Sports Corp., 292 F. Supp. 3d 211, 220-21 (D.D.C. 2017).
This “understanding and assent may be established through conduct as well as words.” Id.; see also Landis v. Tailwind Sports Corp., 292 F.Supp.3d 211, 221 (D.D.C. 2017) (mere possession of document insufficient).
First, the District is not irreversibly bound by the testimony of its Rule 30(b)(6) witness. See United States ex rel. Landis v. Tailwind Sports Corp., 292 F.Supp.3d 211, 217 (D.D.C. 2017). Moreover, Plaintiff's characterization of Inspector Dickerson's testimony overreaches.
When a relator has no intention of testifying in trial, his self-serving interest in filing suit is irrelevant, as it does not affect whether a defendant's actions were legal or not. See United States ex rel.Landis v. Tailwind Sports Corp., 292 F. Supp. 3d 211, 215 (D.D.C. 2017) (finding it irrelevant whether the relator stands to receive a share of any monetary award in the case when the relator will not be providing testimony in trial). However, when a relator will testify at trial, as here, a defendant is permitted to "raise to the jury any challenges to [the relator's] credibility."