Skidmore v. Led Zeppelin - Motion To Exclude Hearsay PDF

Case 2:15-cv-03462-RGK-AGR Document 134 Filed 03/25/16 Page 1 of 18 Page ID #:3360
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Peter J. Anderson, Esq., Cal. Bar No. 88891

E-Mail: pja@pjanderson.com
LAW OFFICES OF PETER J. ANDERSON
A Professional Corporation
100 Wilshire Boulevard, Suite 2010
Santa Monica, CA 90401
Tel: (310) 260-6030
Fax: (310) 260-6040
Attorneys for Defendants
JAMES PATRICK PAGE, ROBERT ANTHONY
PLANT, JOHN PAUL JONES, WARNER/CHAPPELL
MUSIC, INC., SUPER HYPE PUBLISHING, INC.,
ATLANTIC RECORDING CORP., RHINO
ENTERTAINMENT COMPANY and WARNER
MUSIC GROUP CORP.
Helene Freeman, Esq., admitted pro hac vice
E-Mail: hfreeman@phillipsnizer.com
PHILIPS NIZER LLP
666 Fifth Avenue
New York, NY 10103-0084
Tel: (212) 977-9700
Fax: (212) 262-5152
Attorneys for Defendants
JAMES PATRICK PAGE, ROBERT ANTHONY
PLANT and JOHN PAUL JONES
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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MICHAEL SKIDMORE, etc.,

Plaintiff,
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vs.
LED ZEPPELIN, et al.,
Defendants.
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Case No. 2:15-cv-03462 RGK (AGRx)

DEFENDANTS NOTICE OF
MOTION AND MOTION IN
LIMINE NO. 1 TO EXCLUDE
HEARSAY; MEMORANDUM OF
POINTS AND AUTHORITIES AND
DECLARATION IN SUPPORT
Date: May 10, 2016
Time: 9:00 a.m.
Courtroom of the Honorable
R. Gary Klausner
United States District Judge
TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on May 10, 2016, at 9:00 a.m. or as soon
thereafter as the matter may be heard in Courtroom 850 of the above-entitled District
Court, located at 255 East Temple Street, Los Angeles, California, defendants James
Patrick Page, Robert Anthony Plant, John Paul Jones, Warner/Chappell Music, Inc.,
Super Hype Publishing, Inc., Atlantic Recording Corporation, Rhino Entertainment
Company and Warner Music Group Inc., will move the above-entitled Court, the
Honorable R. Gary Klausner, United States District Judge presiding, for an Order
excluding all evidence and argument as to claimed out-of-court statements of Randy
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Wolfe, professionally known as Randy California, offered by plaintiff.
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This Motion is brought on the grounds that, as stated more fully in the
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accompanying Memorandum of Points and Authorities, the claimed out-of-court
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statements are inadmissible hearsay and also would confuse issues, mislead the jury,
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prejudice defendants and result in undue delay and wasted trial time.
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This Motion is based upon this Notice of Motion and Motion, the
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Memorandum of Points and Authorities filed with this Notice of Motion and
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Motion, the pleadings and papers on file in this action, the matters of which this
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Court may take judicial notice, and such additional matters and oral argument as
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may be offered in support of the Motion.

The Motions are made following the conference with plaintiffs counsel
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pursuant to Local Rule 7-3. Defendants attempted to schedule that conference for
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March 18, 2016, but plaintiffs counsel was unavailable until March 22, 2016, and
the conference took place on that date.
Dated: March 25, 2016
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/s/ Peter J. Anderson

Peter J. Anderson, Esq.
Attorney for Defendants
JAMES PATRICK PAGE, ROBERT
ANTHONY PLANT, JOHN PAUL JONES,
WARNER/CHAPPELL MUSIC, INC.,
SUPER HYPE PUBLISHING, INC.,
ENTERTAINMENT COMPANY and
WARNER MUSIC GROUP CORP.
Helene M. Freeman, Esq.
PHILLIPS NIZER LLP
JAMES PATRICK PAGE,
ROBERT ANTHONY PLANT and
JOHN PAUL JONES
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MEMORANDUM OF POINTS AND AUTHORITIES

1.
INTRODUCTION
In this copyright infringement action, plaintiff claims that forty-five years ago
members of Led Zeppelin copied the beginning of Stairway to Heaven from an
instrumental titled Taurus by the late Randy Wolfe. Plaintiff intends to rely upon
testimony by non-parties as to what Wolfe supposedly told them.
example, only, plaintiff intends to rely upon:
By way of
x testimony by Tracy Longo that in the 1990s Wolfe told him, e.g., that
Led Zeppelins members attended Spirit concerts, that Wolfe and Led
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Zeppelins members interacted backstage in December 1968, that
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Wolfe showed Jimmy Page how to play Taurus and that Wolfe
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intended to pursue a claim over Stairway to Heaven.
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x testimony by Paul Franklin that Wolfe told him, e.g., that Wolfe felt
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Stairway to Heaven copied Taurus, that Wolfe and Led Zeppelins
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members hung out together, that Wolfe had confronted Jimmy Page
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and what was supposedly said by Wolfe and Page.
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x testimony by David Waterbury that Wolfe told him, e.g., that Wolfe
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felt Stairway to Heaven copied Taurus and that Wolfe had confronted
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Jimmy Page and what was supposedly said by Wolfe and Page.
x testimony by Janet Wolfe that Wolfe told her, e.g., that he knew
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Jimmy Page had copied Taurus.
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This and comparable testimony and argument that plaintiff intends to offer at
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trial is inadmissible hearsay and also would confuse the issues, mislead the jury,
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prejudice defendants and result in undue delay and wasted trial time. Accordingly,
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evidence or argument as to Wolfes claimed out of court statements should be
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excluded.
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2.
EVIDENCE AND ARGUMENT OFFERED BY PLAINTIFF AS TO
WHAT RANDY WOLFE SUPPOSEDLY SAID IS PROPERLY
EXCLUDED
(a)
Testimony Offered by Plaintiff as to What Wolfe Supposedly Said

Is Inadmissible Hearsay
Hearsay is a statement by someone who does not testify at a hearing and
which is offered to prove the truth of the matter asserted in the statement. Muniz v.
United Parcel Serv., Inc., 738 F.3d 214, 223 (9th Cir. 2013); Fed. R. Evid. 801(c).
[A]n extra-judicial statement is hearsay and inadmissible when the immediate
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inference the proponent wants to draw is the truth of [the] assertion on the
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statements face Mahone v. Lehman, 347 F.3d 1170, 1173 (9th Cir. 2003), quoting
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Orr v. Bank of Am., NT & SA, 285 F.3d 764, 779 n. 26 (9th Cir. 2002). Hearsay is
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inadmissible unless it comes within one of the exceptions set forth in Federal Rules
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of Evidence 803 or 804 or the residual exception in Rule 807.
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Testimony as to what Wolfe said, offered for the truth of his supposed
None of Rule 803s
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statements, does not fall within any of the exceptions.
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exceptions apply and, while Wolfe is unavailable due to his apparent death, the
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testimony does not purport to repeat statements of personal or family history similar
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to birth, adoption, legitimacy, ancestry [or] marriage . . . .
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804(b)(4); United States v. Olafson, 213 F.3d 435, 441 (9th Cir. 2000) (hearsay
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testimony as to declarants citizenship and alienage admissible as personal or family
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history), cert. denied 531 U.S. 914, 121 S. Ct. 269, 148 L. Ed. 2d 195 (2000); Porter
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v. Quarantillo, 722 F.3d 94, 98 (2d Cir. 2013) (hearsay statement as to age at time
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relocated not within exception because not a statement as to birth, etc.); Vega-
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Alvarado v. Holder, No. CV 09-5591-RSWL AJWX, 2011 WL 333101, at *4 (C.D.
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Cal. Jan. 28, 2011) (Rule 804(b)(4) encompasses statements that relate only to
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matters of pedigree, such as the dates of a birth, marriage, or death, and the fact and
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degree of family relationships). The statements attributed to Wolfe also do not

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Fed. R. Evid.
share the inherent trustworthiness generally applicable to a persons statements as
to his or a relatives birth or other matters of ancestry. Rassano v. Immigration &
Naturalization Serv., 377 F.2d 971, 973 (7th Cir. 1966).
Neither is the testimony as to Wolfes supposed statements admissible under
Federal Rule of Evidence 807. To come within that Rule, the hearsay must have
circumstantial guarantees of trustworthiness equivalent to the listed exceptions to the
hearsay rule . . . [and] must (1) be evidence of a material fact; (2) be more probative
on the point for which it is offered than any other evidence which the proponent can
procure through reasonable efforts; and (3) serve the general purposes of the Rules
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of evidence and the interests of justice by its admission into evidence. United
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States v. Sanchez-Lima, 161 F.3d 545, 547 (9th Cir. 1998). This residual hearsay
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exception is to be used only rarely, in truly exceptional cases. Pozen Inc. v. Par
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Pharm., Inc., 696 F.3d 1151, 1161 (Fed. Cir. 2012), quoting United States v. Walker,
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410 F.3d 754, 757 (5th Cir. 2005).
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exception applied in a criminal case because the defendant sought to rely on
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videotaped testimony under oath, based on the witnesses personal knowledge and
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consistent with their prior statements; the jury had the opportunity to view their
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demeanor; and the government was provided the opportunity to cross-examine the
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witnesses. Sanchez-Lima, 161 F.3d at 547. Nothing of the sort applies to the
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hearsay testimony plaintiff intends to present at trial.
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Thus, for example, in Sanchez-Lima the
Accordingly, evidence or argument as to Wolfes claimed out of court

statements should be excluded.
(b)
The Claimed Testimony Would Confuse Issues, Confuse the Jury,

Prejudice Defendants and Waste Trial Time
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In addition to being inadmissible hearsay, the testimony is properly excluded
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if its probative value is substantially outweighed by a danger of one or more of the
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following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
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wasting time, . . . . Fed. R. Evid. 403. That balancing test requires the assessment
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of probative value in order to weigh it against the danger of undue prejudice. United
States v. McFall, 558 F.3d 951, 963-64 (9th Cir. 2009). That test tips decidedly in
favor of exclusion.
First, there is no probative value in second-hand assertions as to what Wolfe
supposedly said decades ago. Not only is the claimed evidence stale and suspect,
but, for example, second-hand assertions that Wolfe said or believed copying
occurred are not relevant. Wolfe was not a musicologist and, even if he were, there
is no evidence he conducted the analytic dissection and exclusion of public domain
elements required by law and which reveals that the claimed similarity is a centuries-
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old descending chromatic scale and other unprotected material. Swirsky v. Carey,
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376 F.3d 841, 845 (9th Cir. 2004); Copyright Office Compendium 802.5(A)
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(chromatic scales and arpeggios are common property musical material in the
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public domain); Smith v. Jackson, 84 F.3d 1213, 1216, n. 3 (9th Cir. 1996)
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(common or trite musical elements not protected). Neither is there any evidence
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Wolfe ever saw, let alone compared and analyzed, Hollenbeck Musics 1967 Taurus
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transcription, which is the only work protected by the Taurus copyright that plaintiff
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sues upon. Newton v. Diamond, 204 F. Supp. 2d 1244, 1249-51 (C.D. Cal. 2002),
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affd 388 F.3d 1189, cert. denied 545 U.S. 1114 (2005).
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Also, second-hand assertions that years and even decades ago Wolfe said he
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interacted with members of Led Zeppelin or, in December 1968, showed Jimmy
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Page how to play Taurus are not only rife with credibility issues, but contrary to the
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direct testimony of those who were present and able to testify. For example, both
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Jay Ferguson and Mark Andes the only surviving members of Spirit present at that
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concert have no recollection of seeing Wolfe interact with Jimmy Page. Anderson
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Decl. at 8, 3-4, & Exh. 1-2.
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In addition, second-hand assertions about Wolfes supposed statements that in
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1973 he confronted Jimmy Page and that Page rejected any claim of copying, are
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irrelevant as post-dating the 1971 recording and release of Stairway to Heaven.

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Second, any conceivable probative value of the testimony plaintiff intends to
offer as to what Wolfe said is plainly outweighed by the certainty of prejudice.
Plaintiff hopes to present a parade of witnesses as to what Wolfe supposedly said,
and no instructions are going to prevent the jury from confusing their testimony with
admissible evidence, all to defendants substantial and unfair prejudice. In addition,
witnesses testifying as to what Wolfe supposedly said also will add significantly to
the trial time, waste trial time and delay the proceedings.
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Accordingly, testimony as to what Wolfe supposedly said is also properly

excluded under Rule 403.
3.
CONCLUSION
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Lacking direct and admissible evidence, plaintiff hopes to rely on hearsay as
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to what Wolfe supposedly told third parties. The testimony is inadmissible under
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Rule 802 and 403, and the testimony and any argument as to what Wolfe supposedly
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said are properly excluded.
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Dated: March 25, 2016
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Peter J. Anderson, Esq.
JAMES PATRICK PAGE, ROBERT
ANTHONY PLANT, JOHN PAUL JONES,
WARNER/CHAPPELL MUSIC, INC.,
SUPER HYPE PUBLISHING, INC.,
ENTERTAINMENT COMPANY and
WARNER MUSIC GROUP CORP.
Helene M. Freeman, Esq.
PHILLIPS NIZER LLP
JAMES PATRICK PAGE,
ROBERT ANTHONY PLANT and
JOHN PAUL JONES
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DECLARATION OF PETER J. ANDERSON
I, Peter J. Anderson, declare and state:
1.
I am an attorney admitted to practice before this Court and all Courts of
the State of California. I have personal knowledge of the following facts and could
competently testify to these facts if called upon to do so.
2.
I represent defendants Warner/Chappell Music, Inc., Super Hype
Publishing, Inc., Atlantic Recording Corp., Rhino Entertainment Company, James
Patrick Page, Robert Plant and John Paul Jones in this action. This Reply
Declaration is submitted in support of their foregoing Motion in limine.
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3.
I took the deposition of Jay A. Ferguson on January 13, 2016, in this
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action.
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Attached to this Declaration as Exhibit 1 are true and correct copies of pages from
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the transcript of Mr. Fergusons deposition and which is marked to identify the
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testimony cited in the foregoing Motion.
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4.
Mr. Ferguson provided corrections to the transcript of his deposition.
I took the deposition of Mark Christopher Andes on January 15, 2016,
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in this action. Mr. Andes has not provided corrections to the transcript of his
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deposition. Attached to this Declaration as Exhibit 2 are true and correct copies of
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pages from the transcript of Mr. Andes deposition and which is marked to identify
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the testimony cited in support of the foregoing Motion.
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I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 25, 2016.
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PETER J. ANDERSON
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Case 2:15-cv-03462-RGK-AGR Document 134 Filed 03/25/16 Page 10 of 18 Page ID

#:3369
EXHIBIT 1

#:3370
JAY A. FERGUSON - 01/13/2016

FOR THE CENTRAL DISTRICT OF CALIFORNIA
MICHAEL SKIDMORE, ETC., )

)
PLAINTIFFS, ) CASE NO.
)
VS. ) 2:15-CV-03462 RGK (AGRx)
)
LED ZEPPELIN, ET AL., )
)
DEFENDANTS. )
)
___________________________)
VIDEOTAPED DEPOSITION OF JAY A. FERGUSON

WEDNESDAY, JANUARY 13, 2016
JOB NO. 68321

REPORTED BY: DAYNA HESTER, C.S.R. 9970
Personal Court Reporters, Inc.

800-43-DEPOS
EXHIBIT 1
9

#:3371
09:39 1 Trust.
09:39 2 THE VIDEOGRAPHER: We're on the record.
09:39 3 Would the court reporter, please, swear in
09:39 4 the witness.
09:39 5 THE REPORTER: And I do want to
09:39 6 acknowledge my Rule 30 obligation for a federal
09:39 7 case.
09:39 8 My name is Dayna Hester, and I am
09:39 9 contracted by Personal Court Reporters.
10 At this time, please raise your right
11 hand.
12 THE WITNESS: (Witness did as requested.)
13 THE REPORTER: Do you affirm the testimony
14 you are about to give in the cause now pending will
15 be the truth, the whole truth, and nothing but the
16 truth?
17 THE WITNESS: I do.
18 THE REPORTER: Thank you.
19
20 JAY A. FERGUSON,
21 having been first duly sworn, was
09:39 22 examined and testified as follows:
09:39 23 ///
09:39 24 ///
09:39 25 ///
800-43-DEPOS
EXHIBIT 1
10 Page 9
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#:3372
09:39 1 EXAMINATION
09:39 2 BY MR. ANDERSON:
09:39 3 Q. Mr. Ferguson, again, I represent the
09:39 4 defendants in this action.
09:39 5 A. Uh-huh.
09:40 6 Q. Could you please state and spell your full
09:40 7 name.
09:40 8 A. Jay Ferguson. Spelled J-a-y; middle
09:40 9 initial A; Ferguson, F-e-r-g-u-s-o-n.
09:40 10 Q. Have you ever had your deposition taken
09:40 11 before?
09:40 12 A. No. This is the first time.
09:40 13 Q. Okay. Let me describe the procedure we're
09:40 14 going to follow today. Hopefully, that will help
09:40 15 ensure that the transcript is the most accurate
09:40 16 possible transcription of your -- of the information
09:40 17 that you have.
09:40 18 The woman to your right is a certified
09:40 19 shorthand reporter. She will be taking down my
09:40 20 questions, any objections by Mr. Malofiy, and your
09:40 21 testimony.
09:40 22 Because of the procedure we are following,
09:40 23 it's important that you answer audibly.
09:40 24 A. Uh-huh.
09:40 25 Q. It's difficult for the court reporter to
800-43-DEPOS
EXHIBIT 1
11Page 10
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#:3373

11:27 2 Q. To your knowledge, did Randy California,
11:27 3 or did you -- I'm sorry.
11:27 4 To your knowledge, did Randy California
11:27 5 ever speak with Jimmy Page?
11:27 6 A. Not to my knowledge.
11:27 7 Q. Did Randy California ever speak with any
11:27 8 other member of Led Zeppelin?
11:27 9 A. Not to my knowledge.
11:27 10 Q. Did any member of Spirit, other than the
11:27 11 occasion when you and Mr. Andes had a ten- or
11:27 12 15-second meet-and-greet with Robert Plant in
11:27 13 Birmingham, London -- England, did any member of
11:28 14 Spirit speak with any member of Led Zeppelin?
11:28 15 MR. MALOFIY: Objection. Asked and
11:28 16 answered.
11:28 17 THE WITNESS: Personal knowledge, no.
11:28 18 Hearsay, yes.
11:28 20 Q. And what is the hearsay you have heard?
11:28 21 A. I did hear a story that Randy confronted
11:28 22 Jimmy Page over this same issue.
11:28 23 Q. What issue?
11:28 24 A. The issue of authorship of "Stairway to
11:28 25 Heaven" vis-a-vis "Taurus."
800-43-DEPOS
EXHIBIT 1
12Page 87
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#:3374
EXHIBIT 2

#:3375
MARK CHRISTOPHER ANDES - 01/15/2016

FOR THE CENTRAL DISTRICT OF CALIFORNIA
MICHAEL SKIDMORE, ETC., )

)
PLAINTIFFS, ) CASE NO.
)
VS. ) 2:15-CV-03462 RGK (AGRx)
)
LED ZEPPELIN, ET AL., )
)
DEFENDANTS. )
)
___________________________)
VIDEOTAPED DEPOSITION OF MARK CHRISTOPHER ANDES

FRIDAY, JANUARY 15, 2016
JOB NO. 69364

REPORTED BY: DAYNA HESTER, C.S.R. 9970

800-43-DEPOS
EXHIBIT 2
13

#:3376
1 today.
2 MARK CHRISTOPHER ANDES,
3 having been first duly sworn, was
4 examined and testified as follows:
5
6 EXAMINATION
7 BY MR. ANDERSON:
10:08 8 Q. Mr. Andes, could you please state and
10:08 9 spell your full name.
10:08 10 A. Mark Christopher Andes; M-a-r-k,
10:08 11 C-h-r-i-s-t-o-p-h-e-r, A-n-d-e-s.
10:08 12 Q. Thank you, sir.
10:08 13 A. Yes, sir.
10:08 14 Q. And, again, my name is Peter Anderson, and
10:08 15 I represent the defendants in this action.
10:08 16 Have you ever had your deposition taken
10:08 17 before?
10:08 18 A. I believe so, but it's a been a long time.
10:08 19 I'm not sure what it was in regard to. But I've
10:08 20 had -- I've been deposed before at some point.
10:08 21 Q. How long ago was it?
10:08 22 A. It's got to be, maybe, 20 years.
10:08 23 Q. Okay. Let me just go over the procedure
10:08 24 we're going to follow today.
10:08 25 The woman to your left is a certified
800-43-DEPOS
EXHIBIT 2
14 Page 7
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#:3377

12:06 2 Q. Have you ever spoken with Jimmy Page?
12:06 3 A. No.
12:06 4 Q. Did you see him, other than watching him
12:06 5 perform for a bit at the -- perform for some period
12:07 6 of time at the Denver Auditorium Arena in December,
12:07 7 did you see him backstage, or see him at any point
12:07 8 during that performance?
12:07 9 A. Yeah. Yeah. There was -- we were all
12:07 10 kind of milling about.
12:07 11 Q. But you didn't speak to him?
12:07 12 A. No.
12:07 13 Q. Did you see any member of Spirit speak to
12:07 14 him?
12:07 15 A. I don't recall.
12:07 16 Q. Okay. Have you ever spoken with John Paul
12:07 17 Jones?
12:07 18 A. I don't recall.
12:07 19 Q. Did you ever see anyone -- any member of
12:07 20 Spirit speak with John Paul Jones?
12:07 21 A. I have no memory of that.
12:07 22 Q. Have you ever spoken with John Bonham?
12:07 23 A. I really don't have a memory of that
12:07 24 either.
12:07 25 Q. Did you ever see any member of Spirit
800-43-DEPOS
EXHIBIT 2
15
Page 104
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Skidmore v. Led Zeppelin - Motion To Exclude Hearsay PDF

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Case 2:15-cv-03462-RGK-AGR Document 134 Filed 03/25/16 Page 1 of 18 Page ID #:3360

Peter J. Anderson, Esq., Cal. Bar No. 88891

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL SKIDMORE, etc.,

Case No. 2:15-cv-03462 RGK (AGRx)

Case 2:15-cv-03462-RGK-AGR Document 134 Filed 03/25/16 Page 2 of 18 Page ID #:3361

TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:

Super Hype Publishing, Inc., Atlantic Recording Corporation, Rhino Entertainment

excluding all evidence and argument as to claimed out-of-court statements of Randy

Wolfe, professionally known as Randy California, offered by plaintiff.

accompanying Memorandum of Points and Authorities, the claimed out-of-court

may be offered in support of the Motion.

Case 2:15-cv-03462-RGK-AGR Document 134 Filed 03/25/16 Page 3 of 18 Page ID #:3362

the conference took place on that date.

Dated: March 25, 2016

/s/ Peter J. Anderson

Case 2:15-cv-03462-RGK-AGR Document 134 Filed 03/25/16 Page 4 of 18 Page ID #:3363

MEMORANDUM OF POINTS AND AUTHORITIES

members of Led Zeppelin copied the beginning of Stairway to Heaven from an

testimony by non-parties as to what Wolfe supposedly told them.

example, only, plaintiff intends to rely upon:

Zeppelins members interacted backstage in December 1968, that

intended to pursue a claim over Stairway to Heaven.

Stairway to Heaven copied Taurus, that Wolfe and Led Zeppelins

and what was supposedly said by Wolfe and Page.

Jimmy Page had copied Taurus.

evidence or argument as to Wolfes claimed out of court statements should be

Case 2:15-cv-03462-RGK-AGR Document 134 Filed 03/25/16 Page 5 of 18 Page ID #:3364

EVIDENCE AND ARGUMENT OFFERED BY PLAINTIFF AS TO

WHAT RANDY WOLFE SUPPOSEDLY SAID IS PROPERLY

Testimony Offered by Plaintiff as to What Wolfe Supposedly Said

Hearsay is a statement by someone who does not testify at a hearing and

[A]n extra-judicial statement is hearsay and inadmissible when the immediate

of Evidence 803 or 804 or the residual exception in Rule 807.

statements, does not fall within any of the exceptions.

to birth, adoption, legitimacy, ancestry [or] marriage . . . .

testimony as to declarants citizenship and alienage admissible as personal or family

Alvarado v. Holder, No. CV 09-5591-RSWL AJWX, 2011 WL 333101, at *4 (C.D.

degree of family relationships). The statements attributed to Wolfe also do not

Case 2:15-cv-03462-RGK-AGR Document 134 Filed 03/25/16 Page 6 of 18 Page ID #:3365

share the inherent trustworthiness generally applicable to a persons statements as

to his or a relatives birth or other matters of ancestry. Rassano v. Immigration &

Naturalization Serv., 377 F.2d 971, 973 (7th Cir. 1966).

Neither is the testimony as to Wolfes supposed statements admissible under

circumstantial guarantees of trustworthiness equivalent to the listed exceptions to the

410 F.3d 754, 757 (5th Cir. 2005).

exception applied in a criminal case because the defendant sought to rely on

hearsay testimony plaintiff intends to present at trial.

Thus, for example, in Sanchez-Lima the

Accordingly, evidence or argument as to Wolfes claimed out of court

The Claimed Testimony Would Confuse Issues, Confuse the Jury,

In addition to being inadmissible hearsay, the testimony is properly excluded

if its probative value is substantially outweighed by a danger of one or more of the

Case 2:15-cv-03462-RGK-AGR Document 134 Filed 03/25/16 Page 7 of 18 Page ID #:3366

First, there is no probative value in second-hand assertions as to what Wolfe

is no evidence he conducted the analytic dissection and exclusion of public domain

Decl. at 8, 3-4, & Exh. 1-2.

In addition, second-hand assertions about Wolfes supposed statements that in

irrelevant as post-dating the 1971 recording and release of Stairway to Heaven.

Case 2:15-cv-03462-RGK-AGR Document 134 Filed 03/25/16 Page 8 of 18 Page ID #:3367

Second, any conceivable probative value of the testimony plaintiff intends to