In re The Walt Disney Co. Derivative Litig.

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COURT OF CHANCERY OF THE WILLIAM B. CHANDLER III STATE OF DELAWARE CHANCELLOR COURT OF CHANCERY COURTHOUSE 34 THE CIRCLE GEORGETOWN, DELAWARE 19947 February 4, 2005 Joseph A. Rosenthal Rosenthal, Monhait, Gross & Goddess, P.A. P.O. Box 1070 Wilmington, DE 19899 Robert K. Payson Stephen C. Norman Kevin R. Shannon Potter Anderson & Corroon LLP P.O. Box 951 Wilmington, DE 19899 Seth D. Rigrodsky Milberg Weiss Bershad & Schulman, LLP 919 North Market Street, Suite 411 Wilmington, DE 19801 David C. McBride Young Conaway Stargatt & Taylor LLP P.O. Box 391 Wilmington, DE 19899 R. Franklin Balotti Anne C. Foster Lisa Schmidt Richards, Layton & Finger P.O. Box 551 Wilmington, DE 19899 A. Gilchrist Sparks, III S. Mark Hurd Morris, Nichols, Arsht & Tunnell P.O. Box 1347 Wilmington, DE 19899 Andre G. Bouchard Joel Friedlander Bouchard, Margules & Friedlander 222 Delaware Avenue, Suite 1102 Wilmington, DE 19801 Lawrence C. Ashby Ashby & Geddes P.O. Box 1150 Wilmington, DE 19899 Re: In re The Walt Disney Co. Derivative Litig. Civil Action No. 15452 Dear Counsel: I have received the parties submissions with respect to evidentiary objections and deposition designations. With the exception of certain objections detailed below, the remaining objections are hereby OVERRULED. The parties should note that many of the hearsay objections were overruled. To the extent, however, that the parties attempt to 1 use hearsay statements (within documents or testimony that have been admitted) to prove the truth of the matter asserted, the Court will accord no weight to those statements. If that information is to be used for a non-hearsay purpose, the Court will give the evidence the weight and consideration it is due. Furthermore, when certain statements are defined as non-hearsay, such as a statement by a party,1 the law is clear that those statements are only admissible for the truth of the matter asserted when offered against the party that made that statement. The Court will only consider these statements when offered in accordance with the law. Similarly, all objections with respect to expert reports have been overruled. Those reports are admissible under the applicable standards, but the Court will give varying weight to the different reports and diverse parts of those reports, as the Court, in its discretion as fact-finder, deems appropriate. With respect to the exhibits withdrawn by plaintiffs that defendants have requested be reinstated and admitted,2 those exhibits shall not be admitted into evidence and may not be cited by the parties in their post-trial briefs. The objections to the following exhibits are hereby SUSTAINED on the following grounds: ¢ ¢ ¢ ¢ ¢ ¢ PTE 147 Hearsay; This exhibit may not be used to prove the truth of the matters asserted therein PTE 395 Hearsay PTE 396 Hearsay PTE 397 Hearsay PTE 400 Hearsay PTE 402 Hearsay 1 D.R.E. 801(d)(2). PTE 15, 71, 73, 171 (DD002568 only), 304, 388, 446, 509, 515, 559, 560 (WD 08778 only), 598, 608 and 700. 2 2 ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢ PTE 411 Hearsay as to all defendants but Mr. Eisner PTE 469 Hearsay PTE 471 Hearsay PTE 489 Hearsay PTE 490 Hearsay PTE 581 Foundation and Relevance PTE 642 Foundation and Relevance to the extent that the receipts were not submitted by Mr. Ovitz to Disney for reimbursement or that such expenses were not reimbursed DTE 157 Relevance DTE 162 No foundation was laid that this document meets the requirements for a present sense impression, and it is therefore hearsay DTE 172 Relevance DTE 235 This is not evidence DTE 236 Relevance; The use of this document is limited to impeachment DTE 237 Relevance; The use of this document is limited to impeachment DTE 240 Relevance; The use of this document is limited to impeachment The objections to the following deposition designations are hereby SUSTAINED on the following grounds: ¢ ¢ ¢ ¢ ¢ ¢ Stephen Bollenbach (89:16-90:2) Hearsay Michael Eisner (125:8-125:24; 489:15-490:2; 587:23-590:2; 590:12591:12) Hearsay and Foundation Robert Girdlestone (37:23-38:9) Speculation Donald Ohlmeyer (27:22-28:17; 29:14-30:13; 33:13-33:25; 34:5-36:15; 38:739:14; 43:9-44:19; 45:13-54:3; 58:14-58:25; 64:22-66:8; 67:14-68:19; 69:1671:12; 82:2-82:21) Hearsay, Foundation, Speculation and Relevance Michael Rubel (152:21-153:18) Relevance Irwin Russell (830:4-830:12; 832:13-833:25; 834:20-835:11; 841:19-21) Foundation, Speculation and Leading As a final note, the Court is in receipt of the parties correspondence with respect to page limits to be placed upon the briefs to be filed in the upcoming months. It is the decision of the Court that plaintiffs Opening Brief shall not exceed 100 pages, defendant Ovitz s Answering Brief shall not exceed 40 pages, the remaining defendants Answering Brief shall not exceed 60 pages, and plaintiffs Reply Brief shall not exceed 50 pages. These page limits represent the entire permitted length of the briefs, including facts, law, 3 argument, and footnotes. In all other aspects, the parties briefs shall conform to Court of Chancery Rule 171 and the briefing schedule previously established. IT IS SO ORDERED. Very truly yours, /s/ William B. Chandler III William B. Chandler III WBCIII:amf 4

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