Kesey, LLC v. Francis et al, No. 3:2006cv00540 - Document 93 (D. Or. 2009)
Court Description: OPINION AND ORDER - Signed on 4/3/09, by Magistrate Judge John V. Acosta. (Attachments: Part 2 and Part 3 of Opinion and Order) (See conclusion starting at page 77 and continuing to end of document at page 87.) (peg)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON KESEY, LLC, an Oregon Limited Liability Company, CV.06-540-AC OPINION AND ORDER Plaintiff, v. MICHELLE FRANCIS, aka MISCHELLE McMINDES, an individual; MIKE HAGEN, an individual; KATHERINE WILSON, an individual; SUNDOWN & FLETCHER, INC., an Oregon corporation; ASSOCIATES FILM PRODUCER SERVICES, an Oregon partnership or other business entity; and DOES 1 through 100, inclusive, Defendants. ACOSTA, Magistrate Judge: Opinion and Order on Evidentimy Objections In December of 1983, Michelle Francis ("Francis")' and Mike Hagen ("Hagen") approached 'Michelle Francis was also known as Mischelle McMindes and signed documents relevant to this action using that name. She will be refened to as Michelle Francis throughout this Opinion. Page 1 - OPINION AND ORDER {SIB} 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 ofIJ'by 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. In the early 1990' s, both S&F and Kesey optioned their rights in the Screenplay to Katherine Wilson ("Wilson") through her company Associates 3 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. 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 propetiy. 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. On April 21 , 2006, Plaintifffiled this action against Francis, Hagen and S&F ("Defendants") 2Kendall Early was also a co-founder of S&F but is not involved in this litigation. 3The 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 cOUli will refer the corporation as Associates, which is how the defendant is identified in the court caption. 4While the legal name of Kesey's widow is NOlma Faye Kesey, she is referred to as Faye throughout the pleadings because she identifies herself using her middle name. Page 2 - OPINION AND ORDER {SIB} asking the court to determine who owns the rights to the Screenplay. 5 Presently before the COUlt are summary judgment motions filed by both Plaintiff and Defendants. Both pmties included in the summmy 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. In this Opinion, 6the court addresses the parties myriad evidentiary obj ections, ruling on the general objections first and then moving to the specific objections to the evidence that survive the general objections. Determination ofthe merits ofthe pmties' respective arguments necessarilytums 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 COUlt will address the merits of the pmties' respective summary judgment motions in a separate Findings and Recommendation. 7 II II / II II / 5Plaintiff 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. 6Evidentimy rulings are nondispositive and are subject to the "clearly elToneous" or "contrmy to law" standard ofreview by a district judge if such rulings are objected to by a party. 28 U.S.C. § 636(b)(l)(A) (2007); FED. R. CIv. P. 72(a). 7Judge Stewart of this court took the same approach in Tejera v. City Center Parking, CV No. 07-1413-ST, 2009 WL 439706 (D. Or. Feb. 20, 2009). Page 3 - OPINION AND ORDER {SIB} General Evidentimy Objections A. Authentication of Defendants' Evidence Plaintiff objects to the deposition testimony and documentmy evidence offered by Defendants, arguing that the evidence is not properly authenticated. In support of their motion for summmy judgment, Defendants offer tln-ee 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 ofMaterial Facts ("Defendants' Facts") and is prefaced by Defendants' Index of Evidence in SuppOli 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 pmty 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. Ifthe 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 II, the Index reveals that the evidentimy 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. I. Standards The evidence presented in support of or in opposition to a motion for summmy judgment must be based on personal knowledge, properly authenticated and admissible under the Federal Rules of Evidence. FED. R. CIY. P. 56(e). "The requirement of authentication ... as a condition precedent to admissibility is satisfied by evidence sufficient to suppOli a finding that the matter in Page 4 - OPINION AND ORDER {SIB} 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. 01'1' v. Bank ofAmerica, 285 F.3d 764, 773 (9th Cir. 2002). The judges in this district have cited 01'1' on numerous occasions and have, for the most part, applied and enforced the authentication requirements set fOlth therein. See Tejera 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 plaintiffunder 01'1' were still considered by the comt 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.l (D. Or. Feb. 11,2009)(comt 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. 07-284AC, 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 }"futual 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 reI. 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 ofevidence that was offered by both Page 5 - OPINION AND ORDER {SIB} 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 SUppOlt ofa pleading"); Krouth v. Brown, CVNo. 04-1045-BR, 2006 WL 3758256, at *3 (D. Or. Dec. 18, 2006)(citing Orr as authority for "wellsettled rule" that "only admissible evidence may be considered when ruling on a motion for summaty judgment"); Schleiningv. 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 cettificate to authenticate a trial transcript); GOI'ans 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 cettificate whether the deponent reserved the right to read and cOtTect the deposition transcript was not fatal to proper authentication when all other requirements of Orr were met); Fischer v. City ofPortland, CV No. 02-1728-BR, 2004 WL 2203276, at *1 (D. Or. Sept. 27, 2004)(summarizingthe requirements stated in Orr and then applying them to numerous evidentiary objections); Rowder v. Banctec, Inc., CVNo. 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. 03933-AS, 2004 WL 1379466, at *4 (D. Or. May 10, 2004) (Unauthenticated documents were not considered on motion for summaty 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 discovety are deemed authentic when offered by the patty-opponent and found the documents admissible); Bonneau v. Clifton, 215 F.R.D. 596, 601 (D. Or. 2003)(COUlt did not exclude evidence when patty corrected oversight by providing a copy of the court repOlter's cettificate required for deposition Page 6 - OPINION AND ORDER {SIB} 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)(01'1' 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., CVNo. 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 summaryjudgment 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. HartfordAccident Indemnity Co., CVNo. 04-04-1699HU, 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. Apri123, 2007)(in the absence ofany evidence to show that the excerpts were fraudulent, deposition transcripts which lacked a copy of the court repOlier's cetiification 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., CVNo. Page 7 - OPINION AND ORDER {SIB} 01-1 073-BR, 2002 WL 31974434, at *11 (D. Or. Sept. 23, 2002)(in the absence ofevidence 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 90 1(b)(4)). Also, a few judges have acknowledged the authentication requirements set fOlih 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 lvfountain Forestry, Inc. v. Oregon Dept. of ForestlY, 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 oflack ofobjection and fact that evidence contained in excerpts was not outcome detetminative); Paulson v. Carter, CV No. 04-1501-KI, 2006 WL 381951, at *1 (D. Or. Feb. 16, 2006)(COUli considered evidence to provide plaintiff with the benefit of the doubt even though plaintiffs evidence was not properly authenticated under the requirements set forth in Orr); Estate ofElkan v. Hasbro, Inc., CV No. 041344-KI, 2005 WL 3095522, at *2 (D. Or. Nov. 18, 2005)(COUli 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 evety inference); Paul v. County of Union, et 01., 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 Page 8 - OPINION AND ORDER {SIB} that defendants' summaty judgment motion be granted even with consideration of plaintiffs evidence and plaintiffs submission ofappropriate 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 summaty 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. 01'. 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 summaty judgment stage. If the evidence "can be presented in admissible form in trial, the court may consider it at the summalY judgment stage." Id. While acknowledging that the plaintiffs allegations were inadmissible in their cutTent form because they were not contained in a sworn declaration or affidavit, the court held that "because plaintiffcould testify under oath at trial regarding his personal knowledge of what he could 01' 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 unswom 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 Page 9 - OPINION AND ORDER {SIB} certification from the court repOlier is lacking. The Ninth Circuit stated in Orr that: A deposition or an extract therefrom is authenticated in a motion for summmy 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(t)(1). Ordinarily, this would be accomplished by attaching the cover page of the deposition and the reporter's cetiification to evety deposition extract submitted. It is insufficient for a party to submit, without more, an affidavit from her counsel identifYing the names ofthe 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 anidavit 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 Plaintifffiled their objections. Defendants' deposition excerpts are not properly authenticated under any reasonable interpretation of the mle. Plaintiff, however, has offered and authenticated a number of excerpts from the depositions ofthe 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 pmiies, subject to the right of any pmiy 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 ofHagen, Faye, and Shannon Kesey are identified at the top with the name of the deponent, and at the bottom Page 10 - OPINION AND ORDER {SIB} 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 suppOli 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 Februmy 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 Page 11 - OPINION AND ORDER {SIB} before the court and will be considered. Plaintiffs objections to this documentmy evidence are ovenuled. Additional correspondence between Lawrence Rose and William Skrzyniarz (pages 95, 96, 107, and 110-122), as well as a letter dated February 15, 2002, fi'om 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 pmty in discovery are deemed authentic when offered by the pmty-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 summmy judgment is a newspaper mtic1e date September 13, 1984, from the Tri-City Herald entitled Kesey Back in Saddle for Film on Round-Up. Rule 902 ofthe Federal Rules ofEvidence provides that "[p]rinted materials purpOlting 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 ovel1'uled. 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 documentmy 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 Page 12 - OPINION AND ORDER {SIB} objection to this document is sustained and the document stricken from the record.' 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 ofthe affidavit, found at pages 6, 7, 12, 13, and 133-136, is oVen'uled. 4. Unsubmitted Evidence Plaintiffalso notes that Defendants refer to evidence not filed with the court in their summary judgment pleadings. For example, in their brief in SUppOlt ofsummary 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 ofDefendants' evidence, Plaintiffgenerally 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 COUlt has already addressed the admissibility issues based on lack of authentication and will address Plaintiffs specific '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. Page 13 - OPINION AND ORDER {SIB} 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 paliies motions for summary judgment. C. Declarations Filed in Suppoli of Plaintiffs Motion for Summary Judgment Defendants object to the declarations submitted by Plaintiff in support of its motion for summalY judgment, including those of Faye, Babbs, Smith, and David Aronoff, based on the fact that none of the declal'ations were witnessed by a notary. A patiy filing a motion for SUmlllalY 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. Cry. P. 56(e)(I). While Rule 56 refers specifically to affidavits, a patiy may also offer unsworn declarations in suppoli of a motion for summalY judgment provided the declarations comply with the requirements of28 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 perjmy that the foregoing is true and con'ect," 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 peljmy 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 Page 14 - OPINION AND ORDER {SIB} by me in Creswell, Oregon, on June 10, 2008. 9 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, aftet' September 1984, the date Kesey delivered and was paid for the second draft of the Screenplay. Defendants assett that these statements and documents were related to settlement negotiations and are batTed by Rule 408 of the Federal Rules of Evidence. I. Standards Rule 408 provides: (a) Prohibited uses. - Evidence of the following is not admissible on behalf of any patty, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity 01' 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 pubic office or agency in the exercise of regulatory, investigative, or enforcement authority. (b) Permitted uses. - This rule does not require exclusion ifthe 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 9The language differs only with regard to the city and date on which the declaration was executed. Page 15 - OPINION AND ORDER {SIB} favoring the compromise and settlement ofdisputes." FED. R. EVID. 408 advisOlY 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, tlueatens 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. TripleI' & 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 clystallize to the point of threatened litigation." AffiliatedlYfji·s., Inc. v. Aluminum Co. ofAmerica, 56 F.3d 521,527 (3d Cir. 1995). Similarly, the Eleventh Circuit found that "[fjor 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 (lIth Cir. 1985). A few courts have addressed the issue of whether patties 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 patties were in a dispute over the use of the telm "Bigfoot" to describe and advertise their tires. Big 0 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 0 for a letter indicating that it had no objection to Goodyear's use ofthe term. On September 10,1974, the parties met to discuss the issue fl1lther. During this meeting, Big 0 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 Page 16 - OPINION AND ORDER {SIB} the "Bigfoot" campaign as soon as possible. Goodyear launched its "Bigfoot" promotion on September 16, 1974. The next day, Big 0 sent a letter to Goodyear confitming 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 0 for the use of the term "Bigfoot". Big 0 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 0 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 0 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 enol' 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 ofthe conversations between Big O's president and Goodyear's executive vice-president. Id. The District Court ofPuerto Rico found that seven letters exchanged between counsel prior to litigation were compromise negotiations rather than business communications, and were Page 17 - OPINION AND ORDER {SIB} inadmissible under Rule 408. j"'Jatosantos 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 fi'om 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 ofthe 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, contraty to SCA's assertion, the threat of litigation was latent. Id. at 199. The Ninth Circuit has likewise found that the circumstances sUlTounding 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. ReichholdChemicals, Inc., 817 F.2d 1338 (9th Cir. 1987), the cOUli 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 sUlTounding 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 occulTed. Id. at 1342. The court explained: Page 18 - OPINION AND ORDER {SIB} [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 ofadditional medical benefits in exchange for a release of claims after terminated employee filed a discrimination charge with the EEOC); jlIundyv. Household Finance Corp., 885 F.2d 542, 547 (9th Cir. 1989)(employer's offer ofpayment ofmoney for outplacement services tlu'ee weeks after termination and afterterminated 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 ofthe settlement ofa 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 intel11al memorandum written almost a week before the parties settlement discussions "crystallize[d]." The Ninth Circuit reasoned that: Because the memorandmn 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. Page 19 - OPINION AND ORDER {SIB} The Ninth Circuit follows those courts that draw a clear distinction between communications in fUliherance 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). CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE See also 2 § 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 concem communications that occUlTed before an actual dispute or controversy existed. Specifically, the evidence before the cOUli 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 ofthe Screenplay and received the second payment of$5,000 in mid-September, 1984. Thereafter, the pmiies engaged in negotiations for the motion picture rights to the Screenplay. In describing the events that occUlTed 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 Dec!. Page 20 - OPINION AND ORDER ~ 6.) In another {SIB} 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 refened to the initial payment of $5,000 to Kesey in Janumy 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 Dec!. Ex. AA at 40, 84). On September 30, 1984, Francis sent a letter to Faye forwarding copies of umelated option/purchase agreements and discussing the terms ofthe 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 cmmot 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 anangements 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 comfOliable terms for you and Ken. (Aronoff Dec!. 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 wI 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. (AronoffDecl. Ex. F at I.) The enclosed "Deal Memo OptionlPurchase Agreement" provided for Page 21 - OPINION AND ORDER {SIB} 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 2 112 percent ofthe producer's gross profits as defined in the agreement. (AronoffDecl. 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 Propeliy which are optioned and has the full and sole right and authority to convey the same." (AronoffDecl. Ex. Fat 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 ofall 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 Page 22 - OPINION AND ORDER {SIB} Plaintiff relating to communications which occurred in the mid-1980's, are overruled. to 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 Keseyll 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 Dec!. 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 ofthe 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: Ifyou 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 ofthe basis for any claim which may be asselied by any other person or patiy. We would ask that you not only infOlm us of any person or entity which you think may have a claim, but more impOliantly, ofany 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 ifthere is a factual dispute related to this being a work for hire would there be any fuliher issue to discuss. We understand that you were planning on closing on a deal and we thought it best to infOlm 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 ofall legal rights in this matter, my client is pursuing its options Defendants also object to some of this evidence on relevance grounds. This objection is discussed below. 10 liThe letter was also addressed to David Skinner and to Klat'quist, Sparkman, a POliland, Oregon, intellectual property law firm. Page 23 - OPINION AND ORDER {SIB} until there is with various studios as we speak and will continue to do so unless and for hire. some demonstrated basis to conclude that this was not a work (Aron offDe cl. Ex. T at 2.) Plaint iffs counsel responded to the letter on October 14,2005, contesting S&F's ownership that the Screenplay was of the Screenplay based on a work-for-hire argument and asserting exclusively owned and controlled by the successors-in-interestto the rights ofKesey. (AronoffDecl. dants' Ex. D.) Plaint iffs counsel set fOlih in detail his arguments to refute Defen wrote the Screenplay as a work for hire or an employee of S&F and noted position that Kesey that Kesey had published the Novel in 1994. He then closed: its Finally, your letter concludes by stating that your client "is pursuing be advised options with various studios ... and will continue to do so ...." Please ts by your that any such conduct by your clients, as well as any other assertion ofrigh ring with client in the Screenplay, is damaging my clients and is wrongfully interfe ght and all their prospective economic advantages as the true holders of the copyri your client other rights in the Screenplay. Accordingly, demand is hereby made that ng rights in immediately cease and desist from any conduct under which it is claimi choice but to the Screenplay. If your client does not do so, my clients will have no , monetary, commence appropriate legal action seeking, among other things injunctive, and dec1aratOly relief. iately We look forward to your prompt assurances that your client will immed not expeditiously cease and desist from the above-described conduct. Should we pursuing its receive such assurances, based on your statement that your client "is may have no options with various studios ... and will continue to do so," my clients choice but to begin appropriate legal proceedings. This letter is not intended as a comprehensive statement of my clients' and remedies, all of which are expressly reserved. rights (Aron offDe cl. Ex. U at 4.) ber 13,2004, letter Neither letter comes within Rule 408's bar. Defendants' couns el's Decem letter simply is an assertion presumes no dispute exists went he sent it to Plaint iffs attorney. The Page 24 - OPINION AND ORDER {SIB} and summary explanation ofDefendants ' posilio n regarding the Screen an invitation to Plaint iffto offer any facts that contradict that position. play copyright, coupled with Plaint iffs couns el's October en the parties 14, 2005, letter, to be sure, made clear that an actual dispute existed betwe , but it lacks g to fumish, or promising to any language that reasonably can be interpreted as furnishing, offerin accept consideration or any other thing ofvalue to settle or compromise the parties ' dispute. In fact, action against Defendants the letter conveys the opposite message: that Plaint iff will initiate legal play. if Defendants do not "cease and desist" their efforts to market the Screen le consideration to In the absence of the existence of a dispute or an offer of valuab does not apply. Defen dants' compromise a dispute prior to the Octob er 14, 2005, letter, Rule 408 Rule 408 objection to these letters, identified as Exhibits T and U, as evidence, is ovelTuled. well as the related testimonial 12 E. Statements Attributable to Ken Kesey Defendants argue that all ofthe statements offered by Plaint iff and attribu table to Kesey are ions to specific evidence hearsay for which no exception exists. The court will address hearsay object y statement admiss in detail below. Defendants also assert that ifthe court finds any hearsa an exception, the admission ofsuc h statement violates the Confrontation ible under Clause due to the fact that . FED. R. EVlD. 804. The Kesey passed away in 2001 and is not available for cross examination Confrontation Clause, which originates from the Sixth Amendment, applie s only to criminal matters. decision holding that the See Austin v. United States, 509 U.S. 602, 608 nA (1993)(noting prior Alisal Water Corp., 431 F.3d Confrontation Clause does not apply in civil cases); United States v. 1275, 1287 n.13 (11 th Cir. 643,6 58 (9th Cir. 2005)(same); Us. Steel, LLC v. Tieco, Inc., 261 F.3d 12Again, below. the comt addresses Defen dants' relevance objection to this evidence, Page 25 - OPINION AND ORDE R {SIB} cases."). Thus, Defen dants' 2001) ("Of course, the Confi'ontation Clause is not applicable to civil a civil case, is overruled. Confro ntation Clause object ion to hearsay eviden ce admitt ed in this, F. Reque st for Judicial Notice Finally, Defen dants object to the court's consid eration ofthe terms ofthe settlem ent betwe en ent filed with the court on Plaint iff and the Wilso n Defen dants as set forth in the stipula ted judgm a court to take judicia Septem ber 12,200 7. Rule 201 ofthe Federa l Rules ofEvi dence allow l notice (1) generally known within the of a fact that is "not subjec t to reasonable dispute in that it is either ready determ ination by resort territorial jurisdi ction ofthe trial court or (2) capabl e of accurate and R. EVID. 201(b). Docum ents to sources whose accuracy canno t reasonably be questi oned." FED. previo usly filed with the court in the instan t litigation are subjec t to judicia l notice. See Asdar Group taking judicia l notice offact s v. Pillsbwy, }dadison and Sutro, 99 F.3d 289,2 90 n.l (9th Cir. 1996)( cOUlt may not judicia lly notice contai ned in compl aint and prior court orders in case). Howev er, the ofLos Angeles, 250 F.3d 668, the truth of the disput ed facts contai ned in such docum ent. Lee v. City that Plaint iff and the Wilso 689 (9th Cir. 2001). In this instance, the court will take judicia l notice Defen dants filed Exhib it JJ repres enting that they have settled their n issues relating to this litigat ion but it will not judicia lly notice the truth of Wilso n's statem ent in that docum ent that Plaint iff is the is disput ed - indeed, it is the owner of the rights to the Screenplay. Owner ship of the Screenplay here should not judicia lly questi on this court must ultimately decide. As Lee instructed, the court ed to this extent. notice facts in dispute. Accordingly, Defen dants' object ions are sustain Defen dants also obj ect to the COUlt'S judicia l notice ofthe characterizat ions made by Kesey with the U.S. Copyr ight Office and Faye with regard to the owner ship of the Novel in their filings the COUlt will take judicia l identif ied as Exhib its M and O. Again, and for the reason s stated above, Page 26 - OPINI ON AND ORDE R {SIB} 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 Evidentimy Objections Both parties have presented numerous evidentiaty objections generally made at trial, where the court has an oppOitunity 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 velY brief, if any, discussion of the authority supporting each objection. Nonetheless, at the summaty 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 summatyjudgment when it encounters evidence that is irrelevant, speculative, ambiguous, argumentative, or constitutes a legal conclusion exclusively within the purview of the comt's consideration. See Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110, 1119 (E.D. CaI2006)(noting that various evidentiary objections, such as relevance, were redundant at the summary judgment stage where the court can award summaty 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 patties' objections to the evidence on any of these grounds independently of its consideration of the merits of the underlying summaty judgment motions. The comt finds these objections redundant to the coult's ultimate determination of whether a genuine issue of material fact exists and that any Page 27 - OPINION AND ORDER {SIB} discussion ofthe 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 fOlih in Rule 802 ofthe Federal Rules ofEvidence, to evidence offered by the pmiies at the summary judgment stage. 01'1',285 FJd 764, 778; Beyenne v. Coleman Sec. Services, Inc., 854 Fold 1179, 1182 (9th Cir. 1988). Similarly, the Ninth Circuit requires that affidavits offered in suppOli of summmy 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 lrby Smith for the same reasons. Defendants also object to a number of Exhibits offered by Plaintiff. The cOUli will address each of the statements and exhibits and the objections thereto below. 13 Hearsay is defined as an out of cOUli statement offered in evidence to prove the truth of the matter asselied. FED. R. EVID. 801. Hearsay is admissible only if it qualifies as an exception to the 13To the extent either pmiy also objects to evidence on grounds that the evidence is a legal conclusion, is vague or mnbiguous or is irrelevallt, the cOUli 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. Page 28 - OPINION AND ORDER {SIB} 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 ofthe matter." The evidence establishing personal knowledge ofthe matter may consist of the witness's own testimony. !d. 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 stOly "Last Go Round" as Affiant got infol1nation for this screenplay from a newspaper atiicle and also from a cowboy named Matiy 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 Libbeli, 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 ofthe 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 ofage" ofthe white cowboy (John Spain) which was the real storyboard of the screenplay as well as the context ofthe climactic scene (i.e. the protagonist ofthe 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 ofthe 1911 RoundUp until Francis shared them with him. Plaintiffargues that Francis lacks the foundation to support her statement about what Hagen did or did not know. The cOUli agrees. Francis did not present Page 29 - OPINION AND ORDER {SIB} 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.!4 b. paragraph 3 Plaintiffobjects to Francis's statement found in paragraph 3 ofthe 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." 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: 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 stOly as well as that Kesey admitted that he did not know the climax of the story nor ofthe main character John Spain as set forth above. Hagen and Francis informed Kesey in detail as to the histOly 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 infol1nation about the Pendleton Round-Up and geography of that area. In this paragraph, Francis asserts that Kesey admitted to having no knowledge of the !4Plaintiffs objections to this evidence as conclusOly and speculative are moot. !5Plaintiffalso objects to Defendants' reliance on pages 9-10 attached to the Index, which is an excerpt from Francis's deposition, as evidentimy 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. Page 30 - OPINION AND ORDER {SIB}
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