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New Spurlock v. Fox Developments: A Ruling on Motions to Strike

September 29, 2010

If you recall, it’s been quite awhile since we’ve seen anything out of Judge Nixon’s courtroom on the Spurlock v. Fox rezoning case.  Flying under the radar just a few days ago, the judge came down with his ruling on the various Motions to Strike filed by the parties several months back.  It’s not a substantive ruling (i.e. doesn’t decide the case), but does determine what evidence the judge will base his substantive ruling on, and, perhaps more importantly, what the official evidentiary record will be on appeal.

For reference, here’s a link to my index of all that I’ve written on the Spurlock v. Fox case — there will also be links further down to the previous posts that touched on the topics I’m referencing.

Without further ado, let’s jump on in to the Order [pdf]:

From November 3, to November 20, 2009, the Court held a hearing on Plaintiffs’ Motion for Preliminary Injunction (“the Hearing”). Both parties presented witnesses and sought to admit a large number of exhibits during the Hearing. This Court’s decisions on Parties’ non- evidentiary motions are forthcoming, but the Court must first resolve the evidentiary objections contained in Parties’ motions to strike.

That’s the background. Let’s get to the meat.

Plaintiffs’ Motion to Strike

Dr. Milan Mueller

As to Dr. Mueller, the principal objection was that Defendants did not disclose the full nature of his expert testimony in his expert report, as they are required to do under the Federal Rules of Civil Procedure.  Essentially, they argued, he turned over a skeletal report, and then went into a whole lot of detail and new theories about which they had no warning.  Defendants argue, citing a 6th Circuit case called Thompson, that their expert was merely “expounding” upon the basic opinions included in the report, as he is allowed to do.

The theory behind modern civil trial practice is very heavy on pre-trial disclosures — as much as possible is supposed to be disclosed and disputed beforehand.  Thus, no sandbagging — you can’t hide what your witnesses are going to say, especially not expert witnesses.  The other side has to have a fair chance to get ready with their own expert testimony.  Them’s the rules.  And, as it turns out, Judge Nixon is going to enforce ’em:

The Court finds Thompson inapposite here. Defendants do not assert that Mueller’s testimony regarding segregative effect is based on common background principles of his field. Instead, Mueller used his own methods that were not previously disclosed in his reports. Mueller’s testimony regarding certain undisclosed metrics is therefore not the kind of “expounding” contemplated by the Sixth Circuit.

Because Mueller did not give notice to Plaintiffs about his use of the “no majority,”2 “choice,” and “transportation” metrics, the Court hereby GRANTS Plaintiffs’ Motion with respect to any testimony regarding Mueller’s conclusions regarding the Rezoning Plan’s “segregative effect.” However, in parts of Mueller’s testimony, Mueller makes statements based solely upon the “10 percent” and “90 percent” metrics. Because such statements are based upon methods described in his report, the Court finds they are in compliance with Rule 26 and deems such statements ADMISSIBLE under Rule 26.

So, as to Mueller, his testimony regarding certain theories of whether a school is “segregated” or “racially isolated” are out; others are in.

Partial win for Plaintiffs.

Of course, those weren’t the only objections to Mueller’s testimony.  These too Judge Nixon handles in turn:

This Court finds Creative unconvincing, as Mueller’s analysis of the demographic data went beyond a “simple computation.” As described in the previous section, “segregative effect,” at least as it appears from the Parties’ memoranda, is a phenomenon that may be determined using an almost infinite number of computations and guidelines. While the consideration of the “no majority” metric may be a legitimate consideration in determining segregative effect, it is in no way an obvious metric to a non-expert looking at school demographic data. For the reasons set forth in this and the previous section, the Court hereby GRANTS this portion of Plaintiffs’ Motion.

Win for Plaintiffs.

Several other aspects of Mueller’s testimony are also successfully stricken, including:

  • (1) statements regarding a general movement across the country away from non-contiguous zoning and toward Nashville’s example of neighborhood schooling (Tr. Vol. A, at 15:19-16:22); (2) testimony regarding how the Rezoning Plan provided for choice “in perpetuity as opposed to being a temporary grandfathering-type clause” (Tr. Vol. A, at 16:10-15); and (3) any of Mueller’s observations about how Metro did not assign a default school to students . . . .
  • Mentions of Dr. Gary Orfield and his use of the previously discussed “10 percent” metric.
  • Exhibits 81-85, which were not included in Dr. Mueller’s expert report, but which Defendants attempted to admit into evidence.
  • Any discussion of Mueller’s trip to Germantown to tour the neighborhood and see the schools, since the trip was made after the expert report was completed.

Plaintiffs were unsuccessful in getting some brief answers to legal questions (“Sir, do you know whether it’s lawful to assign students on the basis of race?”), which doesn’t make any difference since it’s the judge, not a jury, deciding the case, as well as Mueller’s use of the “90 percent” metric (about which I wrote), which actually could matter, given that it changes the percentage of Metro schools, significantly I would argue, that are “racially isolated” (read: segregated).

Dr. William Rock

Plaintiffs also wanted to strike a minor point of Dr. Rock’s testimony and were rebuffed.  No real effect.

Dr. Jesse Register

Finally, Plaintiffs wanted to strike the entire testimony of Director of Schools Jesse Register claiming that, since he testified as an expert at the hearing and no expert report was ever provided beforehand, his entire testimony should be stricken.  This was always kind of a silly argument, since the Court can certify experts on the stand, and the judge dispenses with it quickly.

Win for Defendants.


Defendants’ Motion to Strike

There were three main points of attack for Defendants: 1) The Garcia Memo, 2)

The Garcia Memo

The Defendants focused specifically on the January memo that Dr. Pedro Garcia wrote, outlining some pretty incendiary accusations, that was distributed by George Thompson to the press.  According to Judge Nixon, Plaintiffs had to clear two hurdles in getting the memo in under a hearsay exception (since it was clearly hearsay in the first instance): 1) Show that it was an adoptive admission (i.e. the person distributing it (i.e. “making” the statement) was actually adopting the statement as their own, and 2) Show that the person adopting the statement was an agent of the Defendant.

Judge Nixon finds both criteria satisfied:

The Court finds these cases persuasive—Thompson’s testimony also confirms that his behavior was an adoption of the truth of the statement, as Thompson said he distributed the Garcia memoranda to the press “so they could call and talk to [Garcia] and confirm the authenticity of this document.”

. . .

The Court finds that Thompson’s adoptive admission was within his scope of employment. Thompson was a member of the Board at the time he released the January Memo to the press, and was speaking about a subject matter within his job description, as he was responsible for voting for or against the Rezoning Plan.

That is a huge finding by the judge, maybe one of the biggest rulings in the case.

MASSIVE win for Plaintiffs.

But the Defendants aren’t done.  If they can’t keep the whole Memo out, they at least want to keep out the hearsay within hearsay, i.e. the quotations of other people that Garcia inserted into his memo, most notably the statement of Marsha Warden, to Kathy Nevill, who later relayed the statement to Dr. Garcia, who wrote it in his memo (three layers of hearsay).

Kathy [Nevill] indicated Marsha Warden was facing significant pressure from the Hillwood cluster parents to get rid of the African American students presently assigned to that cluster.

Amazingly (well, not really), Judge Nixon finds a way to justify admission, relying first on the “not offered for the truth of the matter, but rather for the fact that it was said” argument (a neat and technically sound legal argument; kudos, Plaintiffs), and later on the “residual” hearsay exception.  If you recall what I wrote here, this exception is fairly rarely used, but gives the Judge room to admit statements which don’t fall under a specific exception, but which they think should be admitted.  The old joke?  The answer to any question beginning with “Can a judge…” is always “Yes.”

From my earlier writings on the subject:

Finally, the Plaintiffs end with the “kitchen sink” approach: If nothing else, the “The Court Should Exercise Its Discretion if Necessary to Admit Dr. Garcia‘s Memoranda or Significant Portions Thereof.”  This falls under the “catchall” hearsay exception Rule (807) that basically allows judges to let in whatever the hell they want.  So, even if the other arguments don’t fly, there’s still room to fudge things quite a bit.

MASSIVE win for Plaintiffs.

As for the rest of the Order, I recommend you check it out.  Mostly its full of denials of almost all portions of the Defendants’ Motion to Strike, with a few relatively inconseqential exceptions.

The only major departure is the granting of the Defendants’ Motion to Strike the second Pedro Garcia memo (from February):

The Garcia memorandum was an out-of-court statement written by Pedro Garcia around the time of his termination as Board director. As a memorandum written in the usual fashion, it lacks any circumstantial guarantees of trustworthiness—the memorandum was not written under oath, Defendants did not have an opportunity to cross-examine Garcia at the time of his statement, and the circumstances under which the memoranda were written do not closely resemble any other hearsay exception. Furthermore, Garcia’s statements would have been more trustworthy had he returned to testify or take a deposition.

The Court hereby finds that the February Memo is hearsay without an exception. Defendants’ motion to strike the February Memo is therefore GRANTED.

Win for Defendants.

However, the testimony of Tommie Morton-Young, Walter Searcy, and Dr. Leslie Zorwick all stays in (with some minor strikes).  Expert reports and depositions are excluded from the evidentiary record (as they should be — they’re both hearsay, and I’m not really sure why the Plaintiff tried to get them into evidence in the first place).  Of major note is the judge’s decision to allow the “code word” testimony of both Tommie Morton-Young and Dr. Zorwick — this testimony is going to be crucial if Judge Nixon ends up ruling in favor of the Plaintiffs.


Overall, this Order is a pretty resounding defeat for the Defendants, and a major victory for the Plaintiffs.  One Garcia memo is in, the crucial Marsha Warden quote is in, a lot of Dr. Mueller’s testimony is out, and the Plaintiffs’ expert witness testimony about segregation and code words is in.

You can view this two ways: 1) As a prelude to an even bigger victory for Plaintiffs on the merits, or 2) As a consolation prize for the defeat that’s coming.  Given the extremely high burden that Plaintiffs have to shoulder here, I tend to think it’s the latter, despite Judge Nixon’s apparent predilections and willingness to find somewhat far-fetched (though legally sound) justifications for his rulings.

Next up: A meeting of the parties on October 27th, at 10 a.m. to “discuss further action.”

Stay tuned.

2 Comments leave one →
  1. Pamela Sanders permalink
    October 10, 2010 10:26 am

    Dr. Tommie Morton-Young is inded, “DR’ having received the Ph. D. from Duke University. I consider citing her as by name and another by title as offensive.


  1. The Garcia Letters : Post Politics: Political News and Views in Tennessee

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