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admitting as admissions by party opponents portions of newspaper articles and reporter's notes where either direct quotes or specific statements were attributed to individual defendants or their agents
Summary of this case from Adams v. City of N.Y.Opinion
02 Civ. 1234 (WHP), 02 Civ. 1367 (WHP), 02 Civ. 6537 (WHP).
November 26, 2006
MEMORANDUM AND ORDER
Defendants move to exclude from evidence two newspaper articles and contemporaneous notes of New York Times reporter William K. Rashbaum ("Rashbaum"), a newspaper article by Daily News reporter John Marzulli ("Marzulli") and a newspaper article by Associated Press reporter Karen Matthews ("Matthews") on the grounds that they are inadmissible hearsay under Fed.R.Evid. 801 and 802. Citing Fed.R.Evid. 403, Defendants also move to preclude the testimony of Marzulli and Matthews, as well as the introduction into evidence of the Affidavit of Rudolph W. Giuliani dated December 7, 2004 (the "Giuliani Affidavit"). For the following reasons, Defendants' motions are granted in part and denied in part.
BACKGROUND
These federal civil rights actions involve a dispute over whether the City of New York had a policy of denying summonses and desk appearance tickets ("DATs") to individuals arrested at demonstrations. Plaintiffs seek to introduce into evidence four newspaper articles reporting remarks by various City officials suggesting such a policy existed. The four articles are: (1) a May 30, 2001 New York Times article by Rashbaum titled "Quietly, Police Give Protesters a Night in Jail" (the "First Rashbaum Article") (Declaration of Mark D. Zuckerman dated Nov. 15, 2006 ("Zuckerman Decl."), Ex. B); (2) a July 14, 2001 New York Times article by Rashbaum titled "Policy of Jailing Protesters on Minor Crimes is Revoked" (the "Second Rashbaum Article," together with the First Rashbaum Article the "Rashbaum Articles") (Zuckerman Decl. Ex. A); (3) a July 14, 2001 New York Daily News article by Marzulli titled "Protester Jailings End" (the "Marzulli Article") (Zuckerman Decl. Ex. C); and (4) a May 31, 2001 Associated Press article by Matthews titled "Civil Liberties Union Files Suit Over NYPD Arrest Policy" (the "Matthews Article") (Zuckerman Decl. Ex. D). Plaintiffs also seek to introduce Rashbaum's contemporaneous notes (the "Rashbaum Notes" or "Notes"), which they claim corroborate the contents of the Rashbaum Articles. (Zuckerman Decl. Ex. L: Rashbaum Notes.) Finally, Plaintiffs wish to call Marzulli and Matthews as witnesses.
DISCUSSION
I. Legal StandardsFed.R.Evid. 801(c) provides, in relevant part: "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Thus, newspaper articles containing quoted remarks are hearsay within hearsay — they contain out of court statements by the quoted individual, within a document that is itself an out of court statement. Newspaper articles are usually inadmissible hearsay. See, e.g., In re Columbia Sec. Litig., 155 F.R.D. 466, 474 (S.D.N.Y. 1984) ("Often, when offered to prove that certain statements were made, newspaper and magazine articles are held inadmissible as hearsay."); McAllister v. New York City Police Dep't, 49 F. Supp. 2d 688, 705 (S.D.N.Y. 1999) ("Newspaper articles are hearsay . . . and . . . are not admissible evidence."); Holmes v. Gaynor, 313 F. Supp. 2d 345, 358 (S.D.N.Y. 2004) (holding newspaper article inadmissible on hearsay grounds).
Nonetheless, hearsay within hearsay is admissible under Fed.R.Evid. 805 if "each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." A statement is not hearsay if it is an admission of a party opponent — i.e., if it is "offered against a party and is (A) the party's own statement, in either an individual or representative capacity . . . 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." Fed.R.Evid. 801(d)(2). "A statement qualifies as a party admission even though the party denies having made it, if the statement's proponent provides adequate proof to support a finding that the statement was made by the party." 5 MacLaughlin, et al., Weinstein's Evidence § 801.30[3].
In addition, Fed.R.Evid. 803, 804 and 807 establish several categories of exceptions to the general rule that hearsay evidence is inadmissible. In particular, Fed.R.Evid. 803(5) excludes from the hearsay rule
[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
And Fed.R.Evid. 807 provides, in relevant part:
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.
Thus, newspaper articles need not be excluded from evidence when they contain admissions by a party opponent under Rule 801, provided the article is a recorded recollection under Rule 803(5), or falls within the "residual exception" of Rule 807.
II. The Rashbaum Articles and Notes
A. Admissions by Party Opponents
Those portions of the Rashbaum Articles and Notes that contain direct quotations or attribute specific statements to individual Defendants or their agents are not hearsay because they are admissions by party opponents under Rule 801(d)(2). In particular, the Rashbaum Articles and Notes reference certain statements by Daniel S. Connelly, Special Counsel to the City Law Department, and Thomas Antenen, the New York City Police Department's Deputy Commissioner of Public Information. Though not named as Defendants in these actions, both Connelly and Antenen appear to be agents of the City and their statements accordingly constitute admissions by the City for purposes of Rule 801(d)(2). Neither Connelly nor Antenen directly denies having made any of the statements attributed to them. This is precisely the circumstance in which Rule 801(d)(2) is most properly invoked.
There was one instance in which Antenen testified that he doubted he had made a statement attributed to him without direct quotation in the First Rashbaum Article. (Zuckerman Decl. Ex. I: Transcript of Deposition of Thomas Antenen ("Antenen Dep."), at 109-112.) At the same time, Antenen appears to have implicitly conceded that direct quotations attributed to him were accurate. (Antenen Dep., at 110-112.)
Notably, Defendants cite no case in which a newspaper article was excluded where the reporter was available to offer foundational testimony, or possessed contemporaneous notes corroborating such testimony. See, e.g., Horta v. Sullivan, 4 F.2d 2 (1st Cir. 1993) (declining to admit newspaper article where "[n]o affidavits or depositions from the unidentified newspaper reporter or reporters were submitted to the court.");Cody v. Harris, 409 F.3d 853 (7th Cir. 2005) (declining to admit newspaper article where plaintiff failed to offer any evidence related to the reporter, his method of reporting, or other assurances of trustworthiness).
B Residual Exception
Moreover, the Rashbaum Articles themselves are admissible under the residual exception of Rule 807. Rashbaum testified at his deposition that he has an independent recollection of the statements quoted and summarized in his articles, in particular statements made by Connelly and Antenen. (Plaintiffs' Responses to Defendants' Initial Motions in Limine, Ex. A: Transcript of Deposition of William Rashbaum, at 13-17, 20-26, 52-53, 72, 74, 84.) Contemporaneous notes of the statements that form the basis for the articles are available. (Zuckerman Decl. Ex. L: Rashbaum Notes.) As noted, neither Connelly nor Antenen — the two individuals who apparently provided the principal foundation for the Rashbaum Articles — directly denies having made the statements attributed to them. Moreover, Rashbaum, Connelly and Antenen are all available to be called as witnesses and cross examined. Thus, there is "adequate supporting evidence . . . [to] confer some substantial guarantee of trustworthiness" on the Rashbaum Articles. Columbia Securities, 155 F.R.D. at 475 (admitting magazine article and reporter's contemporaneous notes under the residual exception because reporter was available to testify and the notes corroborated the contents of the article).
There is also a compelling need for the evidence contained in the Rashbaum Articles, since all senior officials deposed by Plaintiffs claimed to have no recollection of the City's policy regarding the granting of summonses and DATs to arrested demonstrators. Given the circumstantial assurances of veracity associated with the Rashbaum Articles, the availability of the individuals concerned for cross examination, and the compelling need for the evidence they contain, this Court finds the Rashbaum Articles admissible under Rule 807, assuming an adequate foundation is established at trial. See Columbia Securities, 155 F.R.D. at 466. For similar reasons, Rashbaum's contemporaneous notes are also admissible.
C. Rule 403 and Scope of Admissibility
Significant portions of the Rashbaum Articles and Notes should be redacted due to the risk of unfair prejudice, confusion of the issues and the likelihood that the jury will be misled. See Fed.R.Evid. 403. Specifically, quotations, attributions, references or information concerning individuals and organizations who are not Defendants or agents of Defendants in these actions (e.g., Christopher Dunn, the New York Civil Liberties Union, Lawrence Tribe, unidentified "constitutional scholars," the Reverend Al Sharpton, "three Bronx political leaders," the island of Vieques, Pamela Martens, the National Organization for Women, Citigroup, Charles King, Housing Work, Jonathan Moore, and various unnamed lawyers) must be redacted. References to these consolidated litigations or any related litigations in the articles and notes must also be redacted, as must any portion of the articles that refers to unnamed sources.See Mandal v. City of New York, No. 02 Civ 1234 (WHP), 2004 WL 2375817, at *3 (S.D.N.Y. Oct. 21, 2004) (Maas, Magistrate J.) (noting, in deciding to allow Plaintiffs to depose Rashbaum and Marzulli, that Plaintiffs sought only to verify statements from non-confidential sources).
Defendants are free to explore any alleged bias on the part of Rashbaum during cross examination, as they were previously allowed to do at his deposition. See Mandal, 2004 WL 2375817, at *3 (noting that Defendants intended to cross-examine Rashbaum and Marzulli about their credibility, bias and memory during their respective depositions).
III. The Marzulli and Matthews Articles
A. Admissions by Party Opponents
As with the Rashbaum Articles, those portions of the Marzulli and Matthews Articles that contain direct quotations or attribute specific statements to individual Defendants or their agents are not hearsay because they are admissions by party opponents under Rule 801(d)(2). Connelly, Safir and Giuliani do not deny making the statements attributed to them in the Marzulli and Matthews Articles. Moreover, although in contrast to Rashbaum, Marzulli and Matthews do not recall writing their articles and do not possess contemporaneous notes that are consistent with them, each is apparently prepared to offer foundational testimony about his routine reporting practices and those of the Daily News and Associated Press, respectively. See Fed.R.Evid. 406. And the thrust of the statements attributed to Connelly and Defendants Safir and Giuliani is consistent with the independently verified contents of the Rashbaum Articles. Accordingly, statements attributed to Connelly, Safir and Giuliani in the Marzulli and Matthews Articles are not hearsay.
B. Recorded Recollection Exception
The Marzulli and Matthews Articles are also admissible as the reporters' recorded recollections. Rule 803(5) requires the party proffering a recorded recollection to show that: (1) the witness now has insufficient recollection to testify fully and accurately; and (2) the statement was made or adopted at a time when the subject matter was fresh in the witness' memory. Fed.R.Evid. 803(5). Marzulli and Matthews have each testified that they have no independent recollection of the matters discussed in their articles. Each is also purportedly prepared to testify that he wrote the article when the subject matter was fresh in his memory. Accordingly, assuming an adequate foundation is established at trial, the Marzulli and Matthews Articles are admissible as recorded recollections of Marzulli and Matthews. See Tracinda Corp. v. DaimlerChrysler AG, 362 F. Supp. 2d 487, 496-97 (D. Del. 2005) (admitting magazine article containing quotations of a party where the author testified that (1) he had no independent recollection of the matters discussed; (2) the article was written while the subject matter was still fresh in his mind; (3) he had no incentive to misrepresent what was said; and (4) his usual reporting practice was to check all quotations against tape recordings of his conversations); Sadrud-Din v. City of Chicago, 883 F. Supp. 270 (N.D. Ill. 1995) (admitting portions of a newspaper article where reporter testified he had little recollection of his interviews but affirmed that he had accurately transcribed the notes on which the article was based in accord with his usual practices while the subject matter was still fresh in his mind); cf. Jacobson v. Deutsche Bank, A.G., 206 F. Supp. 2d 590 (S.D.N.Y. 2002) (declining to apply Rule 803(5) where reporter did not testify that he had an "insufficient recollection but rather declined to testify about the article and invoked the journalist privilege). In compliance with the facial requirements of Rule 803(5), the Marzulli and Matthews Articles must be read into the record and cannot be received as exhibits.
C. Rule 403 Issues
As with the Rashbaum Articles, significant portions of the Marzulli and Matthews Articles must be redacted due to Rule 403 considerations.
IV. Testimony of Marzulli and Matthews, and the Giuliani Affidavit
For reasons already discussed, Defendants' motion to exclude the testimony of Marzulli and Matthews is denied. Plaintiffs may call Marzulli and Matthews to establish the foundation necessary to introduce the Marzulli and Matthews articles. Defendants may cross-examine Marzulli and Matthews on their credibility, bias and memory.
Because Defendants concede that their motion to exclude the Giuliani Affidavit is predicated on the exclusion of the Matthews Article, and because Giuliani is a party to these actions, Defendants' motion to exclude the Giuliani Affidavit is denied.
CONCLUSION
For the foregoing reasons, Defendants' motion to exclude the Rashbaum, Marzulli and Matthews Articles is granted in part and denied in part. The Rashbaum, Marzulli and Matthews Articles may be introduced with redactions as set forth in this Memorandum and Order. Defendants' motion to exclude the Rashbaum Notes is denied. Defendants' motion to preclude the testimony of Marzulli and Matthews is also denied, as is their motion to exclude the Giuliani Affidavit. Redacted copies of the four newspaper articles and the Rashbaum Notes will be circulated to counsel at a conference on November 27, 2006.
SO ORDERED: