2followed the rules and used as expert witnesses any of the authors it cites (as contemplated bythe May 11 Scheduling Order), and had Plaintiff’s counsel then had the opportunity to deposethem, Plaintiff would have been able to obtain similarly damaging testimony from them as well.
I.The Hearsay At Issue
In its opposition to Plaintiff’s summary judgment motion, BLAG relied on dozensof inadmissible hearsay documents. (
,BLAG 56.1 ¶¶ 30, 32, 61, 64, 65, 66, 68, 70, 79,81.) Yet, contrary to BLAG’s assertion, Plaintiff did not move to strike materials about “thedegree of homosexual persons’ political power [or] the nature of discrimination that homosexual persons have faced.” (BLAG Br. at 10.) This is because Plaintiff did not seek to strike anymaterials the underlying substance of which might arguably be the type of information of whichthe Court could take judicial notice (such as the pending repeal of “Don’t Ask Don’t Tell”).Instead, Plaintiff sought to strike just twelve of BLAG’s many hearsaydocuments, relating only to two discrete subjects:1. The immutability of sexual orientation. For example, BLAG selectively citescertain statistics from a study in support of its assertion that sexual orientation isnot an immutable characteristic.
Entry 3 of Appendix to Motion to Strike(“App. Entry”).2. The effect on children of having gay parents. For example, BLAG refers to a2004 article from Slate.com to establish that studies concerning parenting bylesbians and gay men were flawed.
App. Entry 7.These are paradigmatic examples of matters that not only must be resolved through a testedfactual record but, because of their social scientific nature, are within the appropriate purview of expert, not lay, testimony. They are certainly not factual matters that are within the generalknowledge of the Court or counsel, so resort to untested sources of information is particularlyinappropriate here.
Case 1:10-cv-08435-BSJ -JCF Document 73 Filed 08/22/11 Page 3 of 12