[brief] THE TRIAL COURT IMPROPERLY RELIED ON ONLINE SURVEYS TO DETERMINE WHETHER PLAINTIFFS HAD A REASONABLE PROBABILITY OF SUCCESS ON THE MERITS (Da107).  The Court cited to two (2) online surveys provided by Plaintiffs in support of its determination that Plaintiffs’ “proffered evidence is sufficiently clear and convincing to demonstrate the Amended Policies’ disparate impact on a protected class under the NJLAD (Da108). ”  However, New Jersey Rules of Evidence define “relevant evidence” as “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action. ”  N.J.R.E. 401.  Moreover, “[e]xcept as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of: (a) [u]ndue prejudice, confusing the issues, or misleading the jury; or (b) [u]ndue delay, wasting time, or needlessly presenting cumulative evidence. ”  N.J.R.E. 403.  As applied here, it was improper for the Court to rely on these two surveys in rendering its determination pertaining to Plaintiffs’ reasonable probability of success on the merits (Da108).  The primary survey cited to by the Court, “Exhibit F,” is, according to Plaintiffs, “an excerpted true and correct copy of” a presumably more comprehensive 2022 survey (Ibid.; Da027; Da066).  The Court notes that [...] did not “refute [Plaintiffs’] data or present alternate evidence sufficient to negate or call into question that data or the methodology by which the data was compiled (Da108). ”  However, it would have been virtually impossible for [...] to do so.  The “excerpt” cited by Plaintiffs and relied upon by the Court does not identify any methodology whatsoever which the surveyors used in creating this excerpted survey answer (Da027; Da066).  Plaintiffs have not provided information such as the number of individuals who participated in the survey, the manner in which it was distributed (mail, in-person, etc.), the number of responses, the layout of the survey, etc. (Ibid.).  Moreover, while Plaintiff includes a website link to a page purporting to contain “[a] full, unexcerpted copy” of the survey, the link leads to a webpage which “doesn’t exist (Da027). ”  Additionally, the parties never engaged in discovery or took depositions, and thus, [...] never had an opportunity to question Plaintiffs regarding the survey.  It was simply impossible for the Court to make a valid determination regarding the admissibility of this survey based on the limited information provided by Plaintiffs, and the survey should not have been credited as having “a tendency in reason to prove or disprove any fact of consequence to the determination of the action. ”  N.J.R.E. 401.  The second survey cited to by the Court, “Exhibit G,” does not contain any information relevant to the parental notification issue which is central to this matter, but rather, is relied upon by the Court for information regarding familial relations between individuals who identify as transgender and their “immediate families” (Da108; Da027; Da069).  Thus, any probative value presented therein is “substantially outweighed by the risk of undue prejudice [or] confusing the issues. ”  N.J.R.E. 403.  In sum, the Court’s determination regarding Plaintiffs’ reasonable probability of success on the merits rested on an impermissible basis, and the Order should be reversed.  POINT III