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Case 2:04-cv-08425-VAP-E Document 195 Filed 06/22/10 Page 6 of 30 Page ID #:6246 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOSANGELES 870263 v1 (2K) INTRODUCTION Defendants’ Motion in Limine to Exclude Lay Witness Testimony (“Motion”) seeks to exclude testimony from twelve of the fourteen fact witnesses Plaintiff Log Cabin Republicans (“Log Cabin”) may introduce at trial. Disregarding the nature of this action, Defendants’ Motion asserts that fourteen lay witnesses is an unreasonable number of witnesses to present in this action. Defendants discount that this action seeks to find unconstitutional a federal law enacted nearly two decades ago that has spanned three Presidential terms and effected the lives of tens of thousands of servicemembers, civilians, and government officials. Log Cabin has narrowly determined that nine of these people – six former servicemembers and three government witnesses – can provide relevant testimony crucial to its presentation. Four other witnesses are necessary to rebut Defendants’ challenge to Log Cabin’s standing to bring this case. Log Cabin’s limited list of lay witnesses is reasonable under the circumstances. 1 Defendants also discount the practical impact “Don’t Ask, Don’t Tell” (“DADT”) has on the servicemembers it affects. Defendants’ Motion claims that testimony of “six former service members” – out of the roughly 14,000 people discharged under DADT and the thousands of others that have been impacted by it – constitutes a “needless presentation of cumulative evidence.” Motion at 12. In doing so, Defendants imply that DADT affects all individuals similarly, regardless of gender, rank, or military branch, and dismiss the personal experience and unique injury suffered by each person discharged under, or impacted by, DADT. Each witness will provide different testimony relevant to Log Cabin’s claims. For the reasons shown below, the inclusion of all of Log Cabin’s proposed lay witnesses is appropriate. The Court should deny Defendants’ Motion. 1 Indeed, in the recent trial concerning the constitutionality of Proposition 8’s amendment prohibiting same-sex marriage, enacted less than two years ago, plaintiffs called eight lay witnesses. - 1 - PLAINTIFF’S OPPOSITION TO MOTION IN LIMINE TO EXCLUDE LAY WITNESS TESTIMONY
Case 2:04-cv-08425-VAP-E Document 195 Filed 06/22/10 Page 7 of 30 Page ID #:6247 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOSANGELES 870263 v1 (2K) FACTUAL BACKGROUND This action is a facial constitutional challenge to DADT. At trial, Log Cabin intends to rely on testimony from three categories of lay witnesses: (1) former servicemembers impacted by DADT (“Former Servicemembers”); (2) Log Cabin representatives who will establish standing (“Log Cabin Representatives”); and (3) Defendants’ 30(b)(6) witnesses. After the Court stated its inclination to apply the Witt standard to this case at the April 26, 2010, hearing on Defendants’ motion summary judgment, Log Cabin’s counsel recognized the importance of introducing fact witnesses to demonstrate the practical effect and enforcement of DADT. Declaration of Melanie Scott (“Scott Decl.”), 2. Thus, on May 5, 2010, Log Cabin’s counsel reached out to Lt. Jenny L. Kopfstein, SSgt. Anthony Loverde, and P03 Joseph Christopher Rocha to potentially serve as witnesses. Id. at 4. Log Cabins’ counsel had previously spoken briefly with Major Mike Almy and Sgt. Stephen Vossler in early April 2010, and then contacted them again after the April 26 hearing. Id. at 3. On May 17, 2010, Log Cabin’s counsel emailed Defendants’ counsel to inform them of Log Cabin’s intent to call at trial the Former Servicemembers. Id. at 5; Motion, Attchmt. 3. At that time, Log Cabin’s counsel offered to make the witnesses available for deposition. Id. at 6.; Motion, Attchmt. 3. Defendants declined the offer of discovery. Id. Each Former Servicemember will provide important, relevant testimony about his or her own individual, experiences to show that DADT does not further, and in fact harms, its stated purpose of preserving unit cohesion and troop morale: Major Michael Almy: During Almy’s 18 years of service with the Air Force (five years as a reservist and 13 years on active duty), he served in the Middle East and obtained numerous awards, including the 2004 Lieutenant General Leo Marquez Award in the field grade officer category for electronic maintenance, an award presented to maintainers who have demonstrated the highest degree of - 2 - PLAINTIFF’S OPPOSITION TO MOTION IN LIMINE TO EXCLUDE LAY WITNESS TESTIMONY
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