164 - Plaintiffs Opposition To Motion To Dismiss - 4-26-2010

Case 2:04-cv-08425-VAP-E Document 164 Filed 04/26/10 Page 1 of 22 Page ID #:4919
1 WHITE & CASE LLP

DAN WOODS (SBN 78638)
2 PATRICK O. HUNNIUS (SBN 174633)
PATRICK J. HAGAN (SBN 266237)
3 633 West Fifth Street, Suite 1900
Los Angeles, California 90071-2007
4 Telephone: (213) 620-7700
Facsimile: (213) 452-2329
5 Email: dwoods@whitecase.com
Email: phunnius@whitecase.com
6 Email: phagan@whitecase.com
7
Attorneys for Plaintiff
8 LOG CABIN REPUBLICANS
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA
11
12 LOG CABIN REPUBLICANS, No. CV 04-8425 VAP (Ex)
13
Plaintiff, PLAINTIFF’S RESPONSE TO
v. DEFENDANTS’ EVIDENTIARY
14 OBJECTIONS TO PLAINTIFF’S
UNITED STATES OF AMERICA and APPENDIX AND STATEMENT OF
15 ROBERT M. GATES, SECRETARY GENUINE ISSUES IN OPPOSITION
OF DEFENSE, in his official capacity, TO DEFENDANTS’ MOTION FOR
16 SUMMARY JUDGMENT
Defendants.
17
18
19 Plaintiff Log Cabin Republicans (“Log Cabin”) respectfully submits the
20 following responses to Defendants’ “Evidentiary Objections to Plaintiff’s Appendix
21 and Statement of Genuine Issues in Opposition to Defendants’ Motion for Summary
22 Judgment” (“Defendants’ Evidentiary Objections”).
23 Log Cabin responds to each of Defendants’ objections document-by-
24 document, below. For each row of the chart below: the first column is Defendants’
25 “Reasons the Document is Inadmissible,” quoted verbatim from Defendants’
26 Evidentiary Objections; the second column is the “Genuine Issues that Cite to this
27 Document” (according to Defendants’ Evidentiary Objections); and the third
28 column is Log Cabin’s response.
LOSANGELES 860614 (2K)
-1- RESPONSE TO DEFENDANTS’
EVIDENTIARY OBJECTIONS
Case No. CV 04-8425 VAP (Ex)
1 Documents Included in Plaintiff’s Appendix

2
App. 0839-0887: PERSEREC Report Entitled: “Nonconforming Sexual Orientation
3 and Military Suitability”
4 This report constitutes an 8 The PERSEREC Report is admissible as a party
out-of-court statement admission and therefore non-hearsay. Even if the
5
offered in evidence to PERSEREC Report were not a party admission, it
6 prove the truth of the would be admissible under several hearsay
matter asserted and is, exceptions. First, the report is admissible pursuant
7
therefore, inadmissible to Federal Rule of Evidence (“FRE”) 803(18), the
8 hearsay. In addition, this “learned treatise” exception. One or more of Log
document is a draft that Cabin’s expert witnesses, whose opinions
9
was never adopted by the Defendants have not objected to, rely upon the
10 Department of Defense PERSEREC Report and have established that it is a
(“DoD”) because Dod reliable authority. In addition, the PERSEREC
11
personnel found the Report is admissible pursuant to FRE 803(16), the
12 report to be flawed and “ancient document” exception, as it is more than
outside the scope of the 20 years old. Finally, the PERSEREC Report
13
approved research. See should be admitted pursuant to FRE 807, the
14 App. 1293-1294. residual hearsay exception.
Accordingly, this report
15
is not an admission by a
16 party-opponent.
17
18
19
20
21
22
23
24
25
26
27
28

1 App. 1100-1128: Homosexuality and the Israel Defense Force

2 This report 43, 46 The report is admissible pursuant to FRE 803(18),
3
constitutes an the “learned treatise” exception. One or more of Log
out-of-court Cabin’s expert witnesses, whose opinions Defendants
4 statement have not objected to, rely upon the report and have
5 offered in established that it is a reliable authority. Finally, the
evidence to report should be admitted pursuant to FRE 807, the
6 prove the truth residual hearsay exception. Indeed, Defendants’
7 of the matter prior admissions confirm that the report has
asserted and is, substantial circumstantial guarantees of
8 therefore, trustworthiness. See, e.g., Admiral Mullen’s
9 inadmissible statements before the Senate Armed Services
hearsay. Committee that his counterparts in countries that
10 allow gays and lesbians to serve openly report “no
11 impact on military effectiveness.” Plaintiff’s
Statement of Genuine Issues, # 44.
12
App. 1129-1280: Gays in Foreign Militaries 2010: A Global Primer
13
This report 40 The report is admissible pursuant to FRE 803(18),
14
constitutes an the “learned treatise” exception. One or more of Log
15 out-of-court Cabin’s expert witnesses, whose opinions Defendants
statement have not objected to, rely upon the report and have
16
offered in established that it is a reliable authority. Finally, the
17 evidence to report should be admitted pursuant to FRE 807, the
prove the truth residual hearsay exception. Indeed, Defendants’
18
of the matter prior admissions confirm that the report has
19 asserted and is, substantial circumstantial guarantees of
therefore, trustworthiness. See, e.g., Admiral Mullen’s
20
inadmissible statements before the Senate Armed Services
21 hearsay. Committee that his counterparts in countries that
allow gays and lesbians to serve openly report “no
22
impact on military effectiveness.” Plaintiff’s
23 Statement of Genuine Issues, # 44.
24
25
26
27
28

1 App: 1281-1292: Attitudes of Iraq and Afghanistan Veterans Toward Gay and
2 Lesbian Service Members
3
This report constitutes an 35 The report is admissible pursuant to FRE
out-of-court statement 803(18), the “learned treatise” exception.
4 offered in evidence to One or more of Log Cabin’s expert
5 prove the truth of the witnesses, whose opinions Defendants
matter asserted and is, have not objected to, rely upon the report
6 therefore, inadmissible and have established that it is a reliable
7 hearsay. authority. Finally, the report should be
admitted pursuant to FRE 807, the residual
8 hearsay exception.
9
App: 1330-1359: Draft of PERSEREC report by Michael McDaniel
10 This report constitutes an 8 The PERSEREC Report is admissible as a
11 out-of-court statement party admission and therefore non-hearsay.
offered in evidence to Even if the PERSEREC Report were not a
12 prove the truth of the party admission, it would be admissible
13 matter asserted and is, under several hearsay exceptions. First,
therefore, inadmissible the report is admissible pursuant to FRE
14
hearsay. In addition, as 803(18), the “learned treatise” exception.
15 this document is clearly One or more of Log Cabin’s expert
marked as a draft, it is not witnesses, whose opinions Defendants
16
a statement from a party- have not objected to, rely upon the
17 opponent. PERSEREC Report and have established
that it is a reliable authority. In addition,
18
the PERSEREC Report is admissible
19 pursuant to FRE 803(16), the “ancient
document” exception, as it is more than 20
20
years old. Finally, the PERSEREC Report
21 should be admitted pursuant to FRE 807,
the residual hearsay exception.
22
23
24
25
26
27
28

1 App: 1360-1405: PERSEREC report entitled “Homosexuality and Personnel

2 Security”
3
This document states The PERSEREC Report is admissible as a
explicitly that it does not party admission and therefore non-hearsay.
4 address the military’s Even if the PERSEREC Report were not a
5 homosexual conduct party admission, it would be admissible
policy, and it is, therefore, under several hearsay exceptions. First,
6 not relevant to Plaintiffs’ the report is admissible pursuant to FRE
7 claims: “This work does 803(18), the “learned treatise” exception.
not deal with the One or more of Log Cabin’s expert
8 Department of Defense witnesses, whose opinions Defendants
9 policy that excludes have not objected to, rely upon the
homosexuals from PERSEREC Report and have established
10 military service. The that it is a reliable authority. Finally, the
11 exclusion policy is PERSEREC Report should be admitted
separate from those pursuant to FRE 807, the residual hearsay
12 policies that apply to a exception.
13 civilian being investigated
for a clearance.” App.
14 1366
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1 App. 1406-1491: Successful Integration of Stigmatized Minorities Into The U.S.

2 Army
3
This report constitutes an The report is admissible. First, the report
out-of-court statement is admissible pursuant to FRE 803(18), the
4 offered in evidence to “learned treatise” exception. One or more
5 prove the truth of the of Log Cabin’s expert witnesses, whose
matter asserted and is, opinions Defendants have not objected to,
6 therefore, inadmissible rely upon the report and have established
7 hearsay. that it is a reliable authority. Finally, the
report should be admitted pursuant to FRE
8 807, the residual hearsay exception.
9
App. 1492-1558: U.S. Army Research Institute (AIR) Research Report 1657
10 This report constitutes an 49 The report is admissible. First, the report
11 out-of-court statement is admissible pursuant to FRE 803(18), the
offered in evidence to “learned treatise” exception. One or more
13 matter asserted and is, opinions Defendants have not objected to,
therefore, inadmissible rely upon the report and have established
14
hearsay. In addition, this that it is a reliable authority. Finally, the
15 document states on its face report should be admitted pursuant to FRE
that it does not represent 807, the residual hearsay exception.
16
the position of the Indeed, Defendants’ prior admissions
17 Department of the Army: confirm that the report has substantial
“Note, The findings in this circumstantial guarantees of
18
report are not to be trustworthiness. See, e.g., Admiral
19 construed as an official Mullen’s statements before the Senate
Department of the Army Armed Services Committee that his
20
position, unless so counterparts in countries that allow gays
21 designated by other and lesbians to serve openly report “no
authorized documents.” impact on military effectiveness.”
22
App. 1493 Plaintiff’s Statement of Genuine Issues, #
23 44.
24
25
26
27
28

1 App. 1730-1754: Comparative International Military Personnel Policies

2 This report constitutes an 53 The report is admissible. First, the report
3
offered in evidence to “learned treatise” exception. One or more
5 matter asserted and is, opinions Defendants have not objected to,
therefore, inadmissible rely upon the report and have established
7 report should be admitted pursuant to FRE
807, the residual hearsay exception.
8 Indeed, Defendants’ prior admissions
9 confirm that the report has substantial
circumstantial guarantees of
10 trustworthiness. See, e.g., Admiral
11 Mullen’s statements before the Senate
Armed Services Committee that his
12 counterparts in countries that allow gays
13 and lesbians to serve openly report “no
impact on military effectiveness.”
14 Plaintiff’s Statement of Genuine Issues, #
15 44.
16
17
18
19
20
21
22
23
24
25
26
27
28

1 App. 1791-1806: February 2, 2010 transcript of Admiral Mike Mullen’s and

2 Secretary of Defense Robert Gates’s testimony before the Senate Armed Services
Committee
3
In his testimony, Admiral 9, 44, 88 False. A full quote of Admiral Mullen’s
4 Mullen prefaced his statement with the language quoted by
5 comments with the defendants follows: “Mr. Chairman,
following statement: “Mr. speaking for myself and myself only, it is
6 Chairman, speaking for my personal belief that allowing gays and
7 myself and myself only … lesbians to serve openly would be the right
.” App. 1795. Because he thing to do. No matter how I look at this
8 was not speaking on issue, I cannot escape being troubled by the
9 behalf of the Government, fact that we have in place a policy which
Admiral Mullen’s forces young men and women to lie about
10 testimony from that point who they are in order to defend their fellow
11 forward is not an citizens. For me personally, it comes down
admission by a party- to integrity – theirs as individuals and ours
12 opponent and constitutes as an institution. I also believe that the
13 inadmissible hearsay. great young men and women of our
military can and would accommodate such
14 a change. I never underestimate their
15 ability to adapt.” (emphasis added)
16 None of Admiral Mullen’s responses to the

factual questions posed by the Committee
17
regarding the policy, the lack of a factual
18 record supporting the policy, or other
countries’ experiences regarding allowing
19
military service by openly gay individuals
20 were “prefaced” by any such limitation,
nor were Secretary Gates’ comments
21
limited in any such manner.
22
Therefore, the statements of Admiral Gates
23 proffered by Log Cabin are admissions of
24 Defendants and non-hearsay.
25
26
27
28

1 App. 1807-1876: November 2000 report by Aaron Belkin and R. L. Evans entitled
2 “The Effects of Including Gay and Lesbian Soldiers in the British Armed Forces”
3
This report constitutes an 41, 43, 46 The report is admissible. First, the report
confirm that the report has substantial
10 circumstantial guarantees of
Mullen’s statements before the Senate
12 Armed Services Committee that his
and lesbians to serve openly report “no
14 impact on military effectiveness.”
44.
16
17
18
19
20
21
22
23
24
25
26
27
28

1 App. 1877-1888: 2003 Report by Aaron Belkin entitled “Don’t Ask, Don’t Tell: Is
2 the Gay Ban Based on Military Necessity”
3
This report constitutes an 41 The report is admissible. First, the report
44.
16
17
18
19
20
21
22
23
24
25
26
27
28

1 App. 1889-1928: September 2000 report by Aaron Belkin and R.L. Evans entitled
2 “The Effects of Including Gay and Lesbian Soldiers in the Australian Armed Forces
3
This report constitutes an 43, 46 The report is admissible. First, the report
11 trustworthiness. See, e.g. Admiral
44.
16
17
18
19
20
21
22
23
24
25
26
27
28

1 App. 1929-1935: 2009 article by Col. Om Prakash entitled “The Efficacy of ‘Don’t
2 Ask, Don’t Tell’”
3
This report constitutes an 153 The fact that Colonel Prakash’s report won
out-of-court statement the Secretary of Defense National Security
4 offered in evidence to Essay Competition for 2009 is not hearsay.
5 prove the truth of the
matter asserted and is, Moreover, the report itself is admissible.
6 therefore, inadmissible First, the report is admissible pursuant to
hearsay. FRE 803(18), the “learned treatise”
7
exception. One or more of Log Cabin’s
8 expert witnesses, whose opinions
Defendants have not objected to, rely upon
9
the report and have established that it is a
10 reliable authority. Finally, the report
should be admitted pursuant to FRE 807,
11
the residual hearsay exception. Indeed,
12 Defendants’ prior admissions confirm that
the report has substantial circumstantial
13
guarantees of trustworthiness. See, e.g.,
14 Admiral Mullen’s statements before the
Senate Armed Services Committee that
15
there “just isn’t any objective data out
16 there” regarding the effects of the policy
and its impact on military service
17
members. Plaintiff’s Statement of Genuine
18 Issues, # 9.
19 App. 1936-1973: 2010 report by Gary Gates entitled “Lesbian, Gay, and Bisexual
20 Men and Women in the U.S. Military: Updated Estimates”
21 This report constitutes an 115, 116, The report is admissible. First, the report
out-of-court statement 121, 122 is admissible pursuant to FRE 803(18), the
27
28

1 App. 1982-2013: March 24, 1995 report entitled “Conduct Unbecoming: The First
2 Annual Report on ‘Don’t Ask, Don’t Pursue, Don’t Harass’”
3
This report constitutes an 20 The report should be admitted pursuant to
out-of-court statement FRE 807, the residual hearsay exception.
4 offered in evidence to
matter asserted and is,
6 therefore, inadmissible
7 hearsay.
8 App. 2014-2049: 1996 report entitled “Conduct Unbecoming: The Second Annual
Report on ‘Don’t Ask, Don’t Teel, Don’t Pursue, Don’t Harass’”
9
10 out-of-court statement FRE 807, the residual hearsay exception.
prove the truth of the
12 matter asserted and is,
hearsay.
14
15 App. 2050-2089: 1997 report entitled “Conduct Unbecoming: The Third Annual
Report on ‘Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass’”
16
17 out-of-court statement FRE 807, the residual hearsay exception
18
offered in evidence to
hearsay
21
22
23
24
25
26
27
28

1 App. 2090-2168: 1998 report entitled “Conduct Unbecoming: The Fourth Annual
2 Report on ‘Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass’”
3
7 hearsay
8 App. 2169-2253: 1999 report entitled “Conduct Unbecoming: The Fifth Annual
9
hearsay
14
15 App. 2254-2340: 2000 report entitled “Conduct Unbecoming: The Sixth Annual
16
18
hearsay.
21
22
23
24
25
26
27
28

1 App. 2341-2443: 2001 report entitled “Conduct Unbecoming: The Seventh Annual
2 Report on ‘Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass’”
3
7 hearsay.
8 App. 2444-2500: 2002 report entitled “Conduct Unbecoming: The Eighth Annual
9
hearsay.
14
15 App. 2501-2561: 2003 report entitled “Conduct Unbecoming: The Ninth Annual
16
18
hearsay.
21
App. 2562-2617: 2004 report entitled “Conduct Unbecoming: The Tenth Annual
22
23 This report constitutes an 29 The report should be admitted pursuant to
therefore, inadmissible
27 hearsay.
28

1 App: 2618-2621: February 24, 2010 Los Angeles Times article entitled “Navy
2 Moves to Allow Women on Submarines”
3
This article constitutes 11 The article is not “double hearsay.” The
inadmissible double statements quoted within the article from
4 hearsay. See e.g., Green Secretary Gates are admissions and
5 v. Baca, 226 F.R.D. 624, therefore non-hearsay. The article itself
637 (C.D. Cal 2005) should be admitted pursuant to FRE 807,
6 (“Generally, newspaper the residual hearsay exception. The
7 articles and television Department of Defense has trumpeted this
programs are considered change in policy (including by virtue of
8 hearsay under Rule 801(c) reprinting news articles) on its own
9 when offered for the truth website. See, e.g., “Women to Serve on
of the matter asserted. Subs, Gates Tell Congress,” American
10 Even when the actual Forces Press Service,
11 statements quote in a www.defense.gov/news/newsarticle.aspx?i
newspaper article d=58066 (last visited April 20, 2010).
12 constitute nonhearsay, or
13 fall within a hearsay
exception, their repetition
14 in the newspaper creates a
15 hearsay problem. Thus,
statements in newspapers
16 often constitute double
17 hearsay.”)
18 App. 2773-2775: August 28, 2000 New York Times article entitled “Military
Reserves are Falling Short in Funding Recruits”
19
This article constitutes 72 The article should be admitted pursuant to
20
inadmissible double FRE 807, the residual hearsay exception.
21 hearsay.
22
23
24
25
26
27
28

1 App. 2776-2777: March 31, 2010 Washington Post article entitled “A ‘Don’t Ask,
2 Don’t Tell’ Rules Complicate Survey of Troops on Policy Change”
3
This article 92 The article is not “double hearsay.” The
constitutes statements quoted within the article are
4 inadmissible admissions and therefore non-hearsay. The
5 double hearsay. article itself should be admitted pursuant to FRE
807, the residual hearsay exception. The
6 Department of Defense has posted a web page
7 (http://www.defense.gov/home/features/2010/03
10_dadt/) regarding its current “policy review”
8 of the policy that features videotaped statements
9 by both General Carter F. Ham and the
Department of Defense’s General Counsel, Jeh
10 C. Johnson, in which they comment on the legal
11 difficulties the Department faces in soliciting
feedback regarding the policy from gay service
12 members subject to the policy.
13
App. 2778-2820: Balancing Your Strengths Against Your Felonies: Consideration
14 for Military Recruitment of Ex-Offenders
15 This report 114, 117, The report is admissible. First, the report is
constitutes an out- 119, 120 admissible pursuant to FRE 803(18), the
16
of-court statement “learned treatise” exception. One or more of
17 offered in Log Cabin’s expert witnesses, whose opinions
evidence to prove Defendants have not objected to, rely upon the
18
the truth of the report and have established that it is a reliable
19 matter asserted authority. Finally, the report should be admitted
and is, therefore, pursuant to FRE 807, the residual hearsay
20
inadmissible exception.
21 hearsay.
22
23
24
25
26
27
28

1 App. 2821-2836: Report entitled “A Review of the Armed Forces Policy on

2 Homosexuality”
3 This report 42 The report is admissible pursuant to FRE

constitutes an 803(18), the “learned treatise” exception. One
4
out-of-court or more of Log Cabin’s expert witnesses, whose
5 statement offered opinions Defendants have not objected to, rely
in evidence to upon the report and have established that it is a
6
prove the truth of reliable authority. Finally, the report should be
7 the matter admitted pursuant to FRE 807, the residual
asserted and is, hearsay exception. Indeed, Defendants’ prior
8
therefore, admissions confirm that the report has
9 inadmissible substantial circumstantial guarantees of
hearsay. trustworthiness. See, e.g., Admiral Mullen’s
10
statements before the Senate Armed Services
11 Committee that his counterparts in countries that
12
allow gays and lesbians to serve openly report
“no impact on military effectiveness.”
13 Plaintiff’s Statement of Genuine Issues, # 44.
14 App. 2837-2878: “Effects of the 1992 Lifting of Restrictions on Gay and Lesbian
15 Service in the Canadian Forces: Appraising the Evidence”
16 This report 47 The report is admissible pursuant to FRE
constitutes an 803(18), the “learned treatise” exception. One
17 out-of-court or more of Log Cabin’s expert witnesses, whose
18 statement offered opinions Defendants have not objected to, rely
in evidence to upon the report and have established that it is a
19 prove the truth of reliable authority. Finally, the report should be
20 the matter admitted pursuant to FRE 807, the residual
asserted and is, hearsay exception. Indeed, Defendants’ prior
21 therefore, admissions confirm that the report has
22 inadmissible substantial circumstantial guarantees of
hearsay. trustworthiness. See, e.g., Admiral Mullen’s
23 statements before the Senate Armed Services
24 Committee that his counterparts in countries that
allow gays and lesbians to serve openly report
25 “no impact on military effectiveness.”
26 Plaintiff’s Statement of Genuine Issues, # 44.
27
28

1 App. 2879-2881: March 14, 2007 Washington Post article “Bigotry That Hurts Our
2 Military”
3
This article 156 The fact that former Senator Simpson has
constitutes changed his view regarding the Policy is not
4 inadmissible hearsay.
5 double hearsay.
Moreover, the article should be admitted
6 pursuant to FRE 807, the residual hearsay
exception.
7
8 App. 2937-2945: January 30, 2010 transcript of CNN Interview with William Cohen
9
This transcript of 157 The fact that former Secretary Cohen has
a CNN interview changed his view regarding the Policy is not
10 constitutes hearsay.
11
inadmissible
double hearsay. Moreover, the article should be admitted
12 pursuant to FRE 807, the residual hearsay
exception.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1 App. 2946-2993: September 15, 2004 report by Nathaniel Frank, Ph. D. “Gays and
2 Lesbians at War: Military Service in Iraq and Afghanistan under ‘Don’t Ask, Don’t
Tell’”
3
This article 113 The report is admissible pursuant to FRE
4 constitutes 803(18), the “learned treatise” exception. One
5 inadmissible or more of Log Cabin’s expert witnesses, whose
double hearsay. opinions Defendants have not objected to, rely
6 upon the report and have established that it is a
7 reliable authority. Finally, the report should be
admitted pursuant to FRE 807, the residual
8 hearsay exception. Indeed, Defendants’ prior
9 admissions confirm that the report has
substantial circumstantial guarantees of
10 trustworthiness. See, e.g. LCR App. at 1790a-
11 1790b (characterized by the Department of
Defense as a “thoughtful study” in an untitled
12 memorandum produced by Defendants at pages
13 Bates stamped OSD P&R Plans 058910-11).
14
15
16
17
App. 2994: March 29, 2010 article in Roll Call entitled “Wesley Clark Backs
18 Cunningham in North Carolina”
19 This article 158 The fact that General Clark has changed his
20 constitutes view regarding the Policy is not hearsay.
inadmissible
21 double hearsay. Moreover, the article should be admitted
pursuant to FRE 807, the residual hearsay
22
exception.
23
24
25
26
27
28

1 App. 2995-3093: August 1992, Update of the U.S. Army Research Institute’s
2 Longitudinal Research Data Base of Enlisted Personnel
3
This report 135 The report should be admitted pursuant to FRE
constitutes an out- 807, the residual hearsay exception.
4 of-court statement
5 offered in
evidence to prove
6 the truth of the
7 matter asserted
and is, therefore,
8 inadmissible
9 hearsay.
10 App. 3094: February 3, 1020 New York Times article entitled “Powell Favors
Repeal of ‘Don’t Ask, Don’t Tell’”
11
This article 152 The report should be admitted pursuant to FRE
12 constitutes 807, the residual hearsay exception. In any
13 inadmissible event, Defendants now admit the fact Plaintiff’s
double hearsay. cited the article to establish.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1
Documents Cited in Plaintiff’s Genuine Issues
2 But Not Included in Its Appendix
3
Log Cabin Military Survey of Membership, produced by Plaintiff as Bates Nos.
4 LCR 001-017 and included as Exhibit B to the Declaration of Terry Hamilton
5 This “survey” is a 137 The report should be admitted pursuant to
compilation of FRE 807, the residual hearsay exception.
6 out-of-court
7 statements
introducing as
8 evidence to prove
9 the truth of the
matters asserted
10 and is, therefore,
11 inadmissible
12
Dated: April 26, 2010 WHITE & CASE LLP
13
14
By: /S/Patrick Hunnius
15
Patrick Hunnius
16 Counsel for Plaintiff
Log Cabin Republicans
17
18
19
20
21
22
23
24
25
26
27
28


164 - Plaintiffs Opposition To Motion To Dismiss - 4-26-2010

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Case 2:04-cv-08425-VAP-E Document 164 Filed 04/26/10 Page 1 of 22 Page ID #:4919

1 WHITE & CASE LLP

1 Documents Included in Plaintiff’s Appendix

LOSANGELES 860614 (2K)

1 App. 1100-1128: Homosexuality and the Israel Defense Force

LOSANGELES 860614 (2K)

LOSANGELES 860614 (2K)

1 App: 1360-1405: PERSEREC report entitled “Homosexuality and Personnel

LOSANGELES 860614 (2K)

1 App. 1406-1491: Successful Integration of Stigmatized Minorities Into The U.S.

LOSANGELES 860614 (2K)

1 App. 1730-1754: Comparative International Military Personnel Policies

LOSANGELES 860614 (2K)

1 App. 1791-1806: February 2, 2010 transcript of Admiral Mike Mullen’s and

16 None of Admiral Mullen’s responses to the

LOSANGELES 860614 (2K)

LOSANGELES 860614 (2K)

LOSANGELES 860614 (2K)

LOSANGELES 860614 (2K)

LOSANGELES 860614 (2K)

LOSANGELES 860614 (2K)

LOSANGELES 860614 (2K)

LOSANGELES 860614 (2K)

LOSANGELES 860614 (2K)

LOSANGELES 860614 (2K)

1 App. 2821-2836: Report entitled “A Review of the Armed Forces Policy on

3 This report 42 The report is admissible pursuant to FRE

LOSANGELES 860614 (2K)

LOSANGELES 860614 (2K)

LOSANGELES 860614 (2K)

LOSANGELES 860614 (2K)

LOSANGELES 860614 (2K)

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