UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

SPEECHNOW.ORG, et al., ) 

 ) 

 Plaintiffs, ) 

 ) Civ. No. 08-248 (JR) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________) 

FEDERAL ELECTION COMMISSION’S REPLY ARGUMENTS RELATED 

TO PLAINTIFFS’ FIRST MOTION IN LIMINE 

Thomasenia P. Duncan 

(D.C. Bar No. 424222) 

General Counsel 

David Kolker 

(D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

Robert Bonham 

(D.C. Bar No. 397859) 

Senior Attorney 

Vivien Clair 

Greg J. Mueller (D.C. Bar No. 462840) 

Graham M. Wilson 

Attorneys 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: December 12, 2008 (202) 694-1650 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 1 of 42
1

TABLE OF CONTENTS 

 Page 

Introduction.....................................................................................................................1 

I. This Court May Accept the Commission’s Proposed Findings 

 Because They Support Legislative Facts ............................................................2 

II. Commission Witnesses Rozen and Johnson Were Properly Designated 

 Fact Witnesses and Rule 26(a) Poses No Bar to Testimony By Them 

 or Witnesses Yowell and Bright .........................................................................3 

A. The Testimony of Ross Johnson and Robert Rozen is Proper 

 Lay Testimony That Is Not Subject to the Expert Disclosure 

 Deadline ..................................................................................................4 

 

B. None of the Commission’s Witnesses Should be Excluded 

 Due to the Disclosure Requirements of Rule 26(a) ................................8 

1. Application of the Disclosure Procedures to Legislative 

 Fact Witnesses Could Not Work in the Manner Plaintiffs 

 Suggest........................................................................................8 

 

2. The Commission’s Witnesses Were Disclosed or Made 

Known to the Plaintiffs at the Appropriate Time.....................11 

 

3. If Any Commission Disclosure Was Untimely, the Error 

 Was Harmless or Substantially Justified....................................16 

 

III. Michael Calogero’s Testimony Should Not Be Excluded..................................23 

 A. Mr. Calogero’s Declaration Consists of Lay Testimony .......................23 

 B. Mr. Calogero Was Timely Identified as a Witness ................................25 

IV. The Affidavits and Declarations from McConnell v. FEC and 

 Massey v. Caperton Are Admissible ..................................................................27 

 A. The Declarations are Admissible as Legislative Facts..........................27 

 B. The Sworn Testimony from Other Cases Is Admissible 

 Evidence................................................................................................28 

 

 1. The Beckett Declaration ...........................................................30 

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 2. The Bumpers Declaration .........................................................30 

 3. The Simpson Declaration..........................................................31 

 4. Pennington Declaration.............................................................32 

 5. The Chapin Declaration ............................................................33 

 6. The Drake Affidavit..................................................................33 

V. The Documents Challenged by Plaintiffs Are Admissible to Demonstrate 

 Legislative Facts, and Many Are Not Hearsay ....................................................34 

VI. Copies of Secondary Authorities Cited in Expert Reports Need 

 Not Be Filed With The Court...............................................................................36 

CONCLUSION.............................................................................................................37 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 3 of 42
GLOSSARY 

SN Facts = Plaintiffs’ Opening Brief on Proposed 

Findings of Fact for Certification Under 

2 U.S.C. § 437h, Oct. 28, 2008 (Dkt. # 44) 

FEC Facts = FEC’s Proposed Findings of Fact, Oct. 28, 

2008 (Dkt. # 45) 

FEC Resp. Mem. = FEC’s Memorandum in Support of Response 

to Plaintiffs’ Proposed Findings of Fact, Nov. 

24, 2008 (Dkt. # 57-2) 

FEC Resp. to SN Facts = FEC’s Response to Plaintiffs’ Proposed 

Findings of Fact, Nov. 21, 2008 (Dkt # 55) 

SN Resp. to FEC Facts = Plaintiffs’ Brief in Response to the FEC’s 

Proposed Findings of Fact, Nov. 21, 2008 

(Dkt. # 54) 

SN 1st Mot. = Plaintiffs’ First Motion in Limine, Nov. 21, 

2008 (Dkt. # 51) 

Reply re 1st Mot. = FEC’s Reply Arguments Related to Plaintiffs’ 

First Motion in Limine, Dec. 12, 2008 

SN 2nd Mot. = Plaintiffs’ Second Motion in Limine, Nov. 21, 

2008 (Dkt. # 52) 

Reply re 2nd Mot. = FEC’s Reply Arguments Related to Plaintiffs’ 

Second Motion in Limine, December 12, 

2008 

SN Rebuttal Facts = Plaintiffs’ Proposed Findings of Fact in 

Rebuttal, Nov. 21, 2008 (Dkt. # 53) 

 

FEC Resp. to SN 

Rebuttal Facts 

= FEC’s Response to Plaintiffs’ Proposed 

Findings of Fact in Rebuttal, Nov. 21, 2008 

(Dkt. # 55) 

FEC Reply = FEC’s Reply Regarding Proposed Findings of 

Fact, Dec. 12, 2008 

FEC Reply Mem. = FEC’s Memorandum in Support of Reply 

Regarding Proposed Findings of Fact, Dec. 

12, 2008 

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INTRODUCTION 

In the midst of the parties’ briefing on proposed findings of fact, plaintiffs (collectively 

“SpeechNow”) filed two purported “motions in limine” that seek to prevent the Court from 

considering most of the Federal Election Commission’s (“FEC” or “Commission”) evidence and 

proposed facts. As the Court stated in its Order of December 9, 2008 (Doc. 61), those motions 

“will be considered arguments” about the Court’s consideration of the Commission’s evidence 

and proposed facts, and the Commission “may respond to those arguments in the context of its 

general briefing . . .” For the convenience of the Court, in this reply the Commission responds to 

the arguments SpeechNow has raised in its “First Motion in Limine.” 

 SpeechNow’s broad attack on the Commission’s evidence and proposed facts suffers 

from numerous flaws: It ignores the key difference between adjudicative and legislative facts, 

conflates the distinction between an expert witness and expert testimony, attempts to deprive the 

Commission of the benefit of the work product privilege, and disregards the limits of the hearsay 

rule. Moreover, to the extent that any technical violations of the discovery deadlines occurred, 

SpeechNow is unable to show that it has suffered any harm that would warrant the extreme 

remedy of disregarding any of the Commission’s evidence. Indeed, in many instances the timing 

of SpeechNow’s actions were no different from those about which plaintiffs complain, and the 

record demonstrates that SpeechNow declined to take advantage of opportunities for additional 

discovery that would have cured the alleged shortcomings it perceives. In sum, there is no basis 

for excluding or disregarding any of the Commission’s evidence or proposed findings of fact. 

 Throughout their responses regarding the Commission’s Proposed Findings of Facts, the 

plaintiffs make a number of exaggerated allegations, incorrectly accusing the Commission of 

violating various Federal Rules of Evidence and Civil Procedure. Plaintiffs seek to have nearly 

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all of the Commission’s evidence individually excluded, culminating in a request for the Court to 

“disregard” the Commission’s Proposed Findings of Fact submission “in its entirety.” (See SN 

Resp. to FEC Facts at 40.) In fact, plaintiffs commit a number of Federal Rules violations 

themselves and made some of the same decisions about disclosure in this “legislative facts” case 

about which they complain. For example, plaintiffs submitted expert reports with their proposed 

findings of fact that had been revised from when they had been submitted at the expert report 

deadline several months earlier, including testimony by Jeffrey Milyo that was materially 

different from his report. (See FEC Resp. to SN Facts at 29-32.) Plaintiffs produced a 

previously undisclosed and materially different draft of Rodney Smith’s expert report by email 

during Mr. Smith’s deposition. (Id. at 24-26.) Plaintiffs failed to make many of the expert 

disclosures required by Rule 26(a)(2) when they disclosed Mr. Smith as an expert. (Id. at 23-24.) 

Plaintiffs did not produce a number of publications relied upon by their experts (see, e.g., SN 

Rebuttal Facts ¶¶ 182, 183, 184, 186, 192), and introduced a number of newspaper articles and 

other sources that would be considered hearsay if not offered to support legislative facts. (See 

e.g., SN to FEC Facts at 82 n.24; SN Facts ¶ 128.) The Commission has noted these issues 

where appropriate in order to help the Court evaluate the merit of the plaintiffs’ proposed facts. 

If the Court intends on granting the plaintiffs’ requests for more draconian remedies, the 

Commission asks that the parties be treated with parity. 

I. The Court May Accept the Commission’s Evidence and Proposed Findings of Fact 

Because They Support Legislative Facts 

 Virtually all of the Commission’s proposed findings of fact challenged by SpeechNow 

are not “adjudicative facts” about plaintiffs that would be subject to the Federal Rules of 

Evidence, but “legislative facts” that help the courts decide questions of law and policy. See

Advisory Committee Notes (1972) to Fed. R. Evid. 201(a). As we explain in detail in Section I 

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of our accompanying Memorandum in Support of Reply Regarding Proposed Findings of Fact 

(“FEC Reply Mem.”), the legislative facts at issue here are relevant to the broad policy concerns 

raised by plaintiffs’ constitutional challenge and may be considered by the courts regardless of 

the usual evidentiary requirements for adjudicative facts.

II. Commission Witnesses Rozen and Johnson Were Properly Designated Fact 

Witnesses and Rule 26(a) Poses No Bar to Testimony By Them or Witnesses 

Yowell and Bright 

A substantial portion of plaintiffs’ Motion consists of strained argument regarding 

whether several of the Commission’s witnesses and declarations were disclosed in a “timely 

manner.” The cornerstone of this argument is that three of the Commission’s witnesses should 

have been disclosed by August 15, 2008,1

 the deadline for expert disclosures according to the 

parties’ Joint Scheduling Report. Declaration of Robert Gall in Support of Plaintiffs’ First 

Motion in Limine (“Gall Decl.”), Exh. GG. Plaintiffs, however, wrongly construe the statements 

of Ross Johnson and Robert Rozen, two of the Commission’s lay witnesses, as expert testimony. 

See 1st Mot. at 2-18. Because this characterization is incorrect, the expert disclosure deadline is 

irrelevant, and, for this reason alone, the portions of the plaintiffs’ Motion regarding these 

witnesses should be denied. 

 Scattered throughout their argument about the expert disclosure deadline, and in 

reference to two of the Commission’s other witnesses, plaintiffs also make various other 

complaints about the timing of the Commission’s supplemental initial disclosures and production 

of witness declarations. These arguments should be rejected because (i) plaintiffs ignore the 

significance of the fact that the witnesses at issue testify regarding legislative facts; (ii) the 

 

1

 Specifically, plaintiffs claim that Ross Johnson, Robert Rozen, and P. Michael Calogero 

should have been disclosed as expert witnesses. See SN 1st Mot. at 2-18. The admissibility and 

timeliness of Calogero’s declaration is discussed infra pp. 23-27. 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 7 of 42
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witnesses were disclosed, or plaintiffs were otherwise on notice of such witnesses, at the 

appropriate time; (iii) plaintiffs had the opportunity, and in every instance, did, in fact, propound 

written third-party discovery on the challenged witnesses; (iv) the plaintiffs had no right to 

declarations or draft declarations protected by the attorney work-product doctrine; and (v) any 

untimely disclosures were substantially justified. Plaintiffs’ heated mischaracterizations of the 

discovery proceedings in this case do not justify excluding the Commission’s evidence. 

A. The Testimony of Ross Johnson and Robert Rozen is Proper Lay Testimony 

That Is Not Subject to the Expert Disclosure Deadline 

 Plaintiffs wrongly assert that the testimony of Ross Johnson and Robert Rozen should be 

excluded based on the expert disclosure requirements. However, plaintiffs fail to demonstrate 

that Johnson’s and Rozen’s statements are actually expert testimony and cite no legal authority 

on this point. See SN 1st Mot. at 2-20. In fact, their testimony is admissible pursuant to Rule 701 

because it (a) is “rationally based” on their own perceptions, not those of others; (b) will aid the 

Court in determining the legislative facts at issue; and (c) is “not based on scientific, technical, or 

other specialized knowledge within the scope of the Rule 702.” Fed. R. Civ. P. 701. Because 

plaintiffs’ characterization of certain parts of the declarations as expert testimony is without 

merit, the expert disclosure requirements are irrelevant, and the relevant statements are 

admissible under Rule 701 as proper opinion testimony by lay witnesses. 

 Before addressing plaintiffs’ specific allegations, it is important to note that the relevant 

inquiry is not whether the Commission’s witnesses have expertise, but the character of their 

testimony itself. As the Advisory Committee on Evidence Rules’ notes to Rule 701 explain, the 

2000 amendment that added part (c) to Rule 701 “does not distinguish between expert and lay 

witnesses, but rather between expert and lay testimony” (emphasis in original). Moreover, “[t]he 

fact that the [witness] based his opinion on specialized knowledge and might have been able to 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 8 of 42
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offer his opinion as an expert does not mean he was required to do so.” Williams Enterprises, 

Inc. v. Sherman R. Smoot Co., 938 F.2d 230, 234 (D.C. Cir. 1991).2

 

 Both Rozen and Johnson testified about facts and opinions that are clearly within their 

personal knowledge. (See Declaration of Chairman Ross Johnson (“Johnson Decl.”), FEC 

Exh. 2; Declaration of Robert Rozen (“Rozen Decl.”), FEC Exh. 3.) This is appropriate lay 

testimony because “[a]s long as [a witness] ha[s] personal knowledge of the facts, he [i]s entitled 

to draw conclusions and inferences from those facts — regardless of whether he applied any 

specialized experience.” Williams Enterprises, Inc., 938 F.2d at 234. Rozen has worked for 

decades on Capitol Hill and as a lobbyist, and has personal knowledge about fundraising from 

multiple perspectives. (Rozen Decl. ¶¶ 2-4, FEC Exh. 3.) Johnson had been a state 

representative for 26 years before joining California’s Fair Political Practices Commission and 

subsequently becoming its Chairman. (Johnson Decl. ¶¶ 2-3, FEC Exh. 2). Their testimony 

does not consist of any technical application of specialized skills, but rather describes various 

facts about fundraising and spending that they have witnessed and the opinions they draw from 

that experience. As the Advisory Committee notes explain, testimony based on that kind of 

experience was meant to be permitted under Rule 701 (emphasis added): 

Such opinion testimony is admitted not because of experience, training or 

specialized knowledge within the realm of an expert, but because of the 

particularized knowledge that the witness has by virtue of his or her position in 

the business. The amendment does not purport to change this analysis.

 

2

 Although Williams Enterprises was decided before the 2000 amendments to Rule 701, 

the “Advisory Committee’s position was that the amendment did not work a sea change to the 

rule.” United States v. Perkins, 470 F.3d 150, 155 n.8 (4th Cir. 2006) (allowing lay testimony by 

police officers about whether reasonable force was used against a suspect when officers had 

personal knowledge of the events). 

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Rozen and Johnson testify about the “business” of politics as they have experienced it, without 

any application of theoretical constructs that might require the work of an expert in political 

science or statistics. As the Advisory Committee notes explain, quoting State v. Brown, 836 

S.W.2d 530, 549 (1992) (emphasis added), 

the distinction between lay and expert witness testimony is that lay testimony 

“results from a process of reasoning familiar in everyday life,” while expert 

testimony “results from a process of reasoning which can be mastered only by 

specialists in the field.” 

Johnson offers such common-sense testimony; for example, besides relating numerical 

information about campaign spending in California about which he has “personal knowledge” 

(e.g., Johnson Decl. ¶ 5, FEC Exh. 2), he explains the difficulty policing coordinated 

expenditures based on his own efforts to do so (Johnson Decl. ¶ 10, FEC Exh. 2): 

Independent expenditures, by definition, are not supposed to be coordinated with the 

candidates they support. Of course, such coordination would be difficult, if not 

impossible, to prove; however, there is reason to believe that cooperation occurs in 

various ways. For example, while I was serving as the Republican leader in the 

Assembly, an Assembly candidate came to me for an endorsement. To demonstrate the 

legitimacy of the campaign, the candidate told me that a professional association had 

directly committed to making a $75,000 independent expenditure in support. 

Subsequently, that association did, in fact, make such an independent expenditure on 

the candidate’s behalf. 

 Similarly, as Rozen’s testimony makes clear, his reasoning applies common sense, not 

scholarly abstractions or models, to the behavior he has witnessed. For example, after explaining 

the different degrees of appreciation Members have shown for donations of varying sizes, he 

explains (Rozen Decl. ¶ 13, FEC Exh. 3): 

Ordinarily, people feel inclined to reciprocate favors. Do a bigger favor for 

someone — that is, write a larger check — and they feel even more compelled 

to reciprocate. In my experience overt words are rarely exchanged about 

contributions, but people do have understandings: the Member has received a 

favor and feels a natural obligation to be helpful in return. This is how human 

relationships work. The legislative arena is the same as other areas of 

commerce and life. 

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These kinds of opinions based on personal experience apply “a process of reasoning familiar in 

everyday life” (Advisory Committee notes), not the application of specialized knowledge. 

This distinction was further explored in Tampa Bay Shipbuilding & Repair Co. v. Cedar 

Shipping Co., Ltd., 320 F.3d 1213, 1222 (11th Cir. 2003), when the court explained that when 

Rule 701 was amended in 2000, the Advisory Committee “carefully considered” the Department 

of Justice’s concerns that “a determination that anyone who testifies based on specialized 

knowledge they possess, whether through experience or professional learning, is subject to 

expert disclosure rules.” The Committee thus 

determined that further revision was necessary in order to clarify that the 

amendment was not intended to “prohibit lay witness testimony on matters 

of common knowledge that traditionally ha[d] been the subject of lay opinions.” 

In order to address the DOJ’s concern, the Committee added a further 

modification of the words “specialized knowledge.” As revised, the Rule 

now “provide[d] that testimony [could not] qualify under Rule 701 if ... 

based on ‘scientific, technical or other specialized knowledge within the scope 

of Rule 702.’ ” (emphasis in original). 

320 F.3d at 1222-23 (citations to Advisory Committee memorandum omitted). The Tampa Bay

decision thus upheld the admissibility under Rule 701 of testimony from witnesses with years of 

experience in the shipbuilding industry about the reasonableness of charges incurred for major 

repair expenses. Id. Simply stated, “opinion testimony based on ... years of experience and 

personal observations a[re] permitted by Fed. R. Evid. 701.” Webster v. Fujitsu Consulting, Inc. 

(In re NETtel Corp.), 369 B.R. 50, 65 (Bankr. D.D.C. 2007) (rejecting an attack on a lay witness 

based on the “lack of disclosure in discovery and the alleged expert opinion character of the 

declaration” because the declaration was based on “personal experiences”). 

 The testimony of Johnson and Rozen will help the Court in finding the legislative facts at 

issue here, and SpeechNow does not assert otherwise. Johnson’s testimony is especially 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 11 of 42
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informative because, as a longtime state legislator and Chairman of the California Fair Political 

Practices, he has seen first hand the corrupting effects of unregulated contributions to groups that 

make independent expenditures. (See Johnson Decl. ¶¶ 2-4, FEC Exh. 2.) As noted by 

plaintiffs, Rozen offered similar testimony in McConnell, also as a lay witness, and the Court 

relied on his observations in finding relevant legislative facts. (1st Mot. at 11; see e.g., 

McConnell, 251 F. Supp.2d at 472, 485, 489.) In sum, the usefulness of Johnson’s and Rozen’s 

testimony plainly fulfills the requirements of Rule 701. Johnson and Rozen are not expert 

witnesses in this case and, accordingly, the Commission was not required to make expert 

disclosures about them. As discussed below, plaintiffs were made aware of these lay witnesses 

at the proper time and propounded discovery on both individuals (including a deposition of 

Johnson). Plaintiffs’ motion regarding these witnesses thus has no merit and should be denied. 

B. None of the Commission’s Witnesses Should be Excluded Due to the 

Disclosure Requirements of Rule 26(a) 

1. Application of the Disclosure Procedures to Legislative Fact Witnesses 

Could Not Work in the Manner Plaintiffs Suggest

Plaintiffs claim that several witnesses’ testimony should be excluded based on the initial 

disclosure requirements of Fed. R. Civ. P. 26(a) and the sanctions provided in Fed. R. Civ. P. 

37(c)(1).3

 Plaintiffs’ requests for exclusion should be denied primarily because plaintiffs knew 

about the witnesses at the appropriate time, took advantage of the opportunity to propound 

discovery on the relevant individuals, and had no right to the witnesses’ declarations before they 

were filed. The disclosures were generally proper and the plaintiffs suffered no harm. 

Moreover, because these witnesses testified about legislative facts concerning issues such as 

 

3

 Plaintiffs argue that the Declarations of Kevin Yowell and Michael Bright should be 

excluded on these grounds (see Motion at 30-31) and mention in a footnote that the Rozen and 

Johnson Declarations should be excluded for the same reasons if they are in fact found not to be 

expert witnesses (see Motion at 11-12 n.5). 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 12 of 42
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independent expenditures and the potential for corruption, rather than adjudicative facts about 

the plaintiffs, the requirements for initial disclosures must be assessed with that distinction in 

mind. 

On June 6, 2008, when the Commission made its initial disclosures, it listed every 

witness of which it was aware that might have information regarding SpeechNow and related 

adjudicative facts. (See Gall Decl., Exh. W.) Since June 6, the Commission has not disclosed or 

relied on any additional witnesses that had actual knowledge of SpeechNow, the plaintiffs, or 

their activities. What the Commission has done is identify individuals who have knowledge of 

the relevant legislative facts, including general information about large contributions and 

independent expenditures and their relation to undue influence, corruption, and the appearance 

thereof. (See Declaration of Graham M. Wilson in Support of Response to Plaintiffs’ First 

Motion in Limine, FEC Exh. 167 (“Wilson Decl.”) Exh. 1, Defendant FEC’s Supplement to Its 

Initial Disclosures (August 14, 2008); Exh. 2, Defendant FEC’s Supplement to Its Initial 

Disclosures (September 12, 2008); Exh. 3, Defendant FEC’s Supplement to Its Initial 

Disclosures (September 17, 2008), Exh. 4, Defendant FEC’s Fourth Supplement to Its Initial 

Disclosures (September 26, 2008), and Exh. 5, Defendant FEC’s Fifth Supplement to Its Initial 

Disclosures (October 1, 2008).) 

This case does not involve a discrete event like a traffic accident, where only a certain 

number of people actually saw what happened and who, once identified, must be immediately 

disclosed to the opposing side if a party “may” use the witness, Fed R. Civ. P. 26(a)(1)(A)(i); 

there are many thousands of individuals who have relevant knowledge regarding the legislative 

facts in this case. Under plaintiffs’ theory of initial disclosures — requiring disclosure of anyone 

about whom the Commission was arguably on notice — the Commission would have been 

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required to list, inter alia, every group or individual that ever made an independent expenditure, 

every individual that ever contributed to a group that made an independent expenditure, every 

candidate or elected official that benefited from an independent expenditure, every lobbyist who 

had advised clients about achieving access to a candidate or officeholder through contributing to 

supportive interest groups, and numerous other types of political operatives, advertising 

agencies, fundraisers, and the like. However, it would obviously have been both impracticable 

and pointless to engage in such an exercise. For legislative facts, more investigation and 

contemplation of and by a potential witness is necessary; counsel must determine whether a 

potential witness has information that will actually aid the Court, and individuals need to decide 

whether they are willing to provide sensitive First Amendment testimony despite their status as 

non-parties who may jeopardize their careers by speaking out about actual or potential corruption 

and its appearance. 

Throughout the discovery period, the Commission identified several events it found 

relevant to plaintiffs’ claims: e.g., the California FPPC’s investigation of independent 

expenditures, independent expenditures allegedly made to influence a West Virginia Supreme 

Court Justice, independent expenditures allegedly used to buy favors from Wisconsin State 

Senator Charles Chvala, and the Wyandotte Tribe’s alleged attempt to bribe Representative 

Vincent Snowbarger by offering to make an independent expenditure on his behalf. (See Initial 

Disclosures, Gall Decl., Exh. W; Supplemental Initial Disclosures (August 14, 2008), Wilson 

Decl. Exh. 14

.) The Commission then promptly disclosed documents regarding these events, 

 

4

 As part of its August 14, 2008 Supplement to Its Initial Disclosures, the FEC produced, in 

part, the following materials, listed here with their corresponding FEC Exhibit Number, where 

applicable: 

• Steven Walters and Patrick Marley, Chvala Reaches Plea Deal, Milwaukee J. 

Sentinel, Oct. 24, 2005., FEC Exh. 91; 

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generally including the names of key individuals, to plaintiffs. Id. As discussed below, the 

disclosure of these documents generally satisfied all of the Commission’s disclosure obligations. 

(See infra Section II.B.2.) Only after the Commission had contacted an individual who had 

information about these events and ascertained that he or she would indeed provide testimony, 

did the Commission take the further step of making an additional formal disclosure to plaintiffs. 

This approach to disclosure is reasonable for legislative fact witnesses and satisfies the 

requirements of Rule 26(a) and (e). 

2. The Commission’s Witnesses Were Disclosed or Made Known to the 

Plaintiffs at the Appropriate Time 

When the Commission made its initial disclosures on June 6, 2008, it had not even 

spoken to any of the witnesses at issue regarding this case. (See Wilson Decl. ¶ 7.) Accordingly, 

the issue here is the duty to supplement. Rule 26(e) provides, in relevant part: 

 

• State’s Sentencing Memorandum, Wisconsin v. Chvala, No. 02CF2451, Cir. Ct. for the 

State of Wis., Dane County (Dec. 2005). 

• Motion of Respondent Corporations for Disqualification of Justice Benjamin, Caperton v. 

Massey Coal Company, Inc., No. 98-C-192, Supreme Court of Appeals of West Virginia 

(Oct. 19, 2005), FEC Exh. 104. 

• Brian Ross and Maddy Sauer, Another Legal Victory for Tough Coal Boss, ABC NEWS, 

April 7, 2008. 

• Rick Alm and Jim Sullinger, Congressman Calls Lobbyist’s Tactics Illegal, KANSAS 

CITY STAR, Oct. 6, 1998 at B1, FEC Exh. 89. 

• Tim Carpenter, Kansas Lawmaker Alleges Bribery Try on Gaming Issues, LAWRENCE 

KANSAS JOURNAL-WORLD, Oct. 8, 1998, FEC Exh. 89. 

• California Fair Political Practices Commission, Independent Expenditures: The Giant 

Gorilla in Campaign Finance, June, 2008, http://www.fppc.ca.gov/ie/IEReport2.pdf, 

FEC Exh. 47. 

• Chris Dickerson, Company Asks Benjamin to Recuse Himself Again, this Time with Poll 

Numbers, LEGALNEWSLINE.COM, Mar. 28,2008 

http://www.legalnewsline.com/news/209989-company-asks-benjamin-to-recuse-himselfagain-this-time-with-poll-numbers), FEC Exh. 94; 

• Second Renewed Motion for Disqualification of Justice Benjamin, Massey Coal 

Company, Inc. v. Caperton, Appeal No. 33350, Supreme Court of Appeals of West 

Virginia (Mar. 28, 2008), FEC Exh. 95. 

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 (1) A party who has made a disclosure under Rule 26(a) . . . must supplement or 

correct its disclosure or response: 

(A) in a timely manner if the party learns that in some material respect the 

disclosure or response is incomplete or incorrect, and if the additional 

corrective information has not otherwise been made known to the party 

during the discovery process or in writing. 

Fed. R. Civ. P. 26(e) (emphasis added). While parties “have an obligation to seasonably 

supplement their Rule 26(a) disclosures and interrogatory responses, such amendments are 

required only in certain circumstances, such as when the additional information has not 

otherwise been made known to the other parties during the discovery process.” Gutierrez v. 

AT&T Broadband, 382 F.3d 725, 732 (7th Cir. 2004) (upholding district court’s decision not to 

exclude affidavit of undisclosed witness when witness had been mentioned during a deposition). 

If an undisclosed witness’s identity comes to light outside formal disclosures, then there is no 

violation of Rule 26(e) and no reason to exclude the witness under Rule 37(c)(1). See Brighton 

Collectibles, Inc. v. Marc Chantal USA, Inc., No. 06-CV-1584, 2008 WL 4001066, at *1 (S.D. 

Cal. Aug. 28, 2008) (rejecting argument that witnesses should be excluded because defendant 

“never disclosed [them] either in its initial disclosures under Rule 26(a)(1)(I) or in supplemental 

disclosures under Rule 26(e)(1)(A)” because the witnesses were identified in a deposition and 

“through documents produced”); Rooney v. Sprague Energy Corp. 519 F. Supp. 2d 110, 116 

(D.Me. 2007) (failure to identify a witness separately in initial and five supplemental disclosures 

did not require excluding witness when he was identified “in passing during a deposition”). 

Here, the Commission had no obligation to make any formal supplemental disclosure 

regarding Chairman Ross Johnson or Kevin Yowell because their identities, as well as the 

subject area of any potential testimony, were made known to plaintiffs during the discovery 

process. Regarding Chairman Johnson, the Commission’s initial disclosures identified a report 

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published by the California FPPC, Independent Expenditures: The Giant Gorilla in Campaign 

Finance, which identified Chairman Johnson. (See Gall Decl. Exh. W; FPPC, Independent 

Expenditures: The Giant Gorilla in Campaign Finance, May 2008, FEC Exh. 47.) This report 

was the basis for a substantial amount of Chairman Johnson’s eventual testimony. (See, e.g., 

Ross Johnson Deposition Transcript (“Johnson Dep.,” FEC Exh. 10 at 31:18-23) (“Basically 

what I’ve said is in the report. Those are examples from the report. And it has been out and 

available, published by the commission, available not just to my fellow commissioners, but to 

the press and the public generally for months.”)) Identifying Chairman Johnson through this 

report satisfies the requirements of Rule 26(a)(1)(A). See McKesson Information Solutions, Inc. 

v. Bridge Medical, Inc. 434 F. Supp. 2d 810, 813 (E.D. Cal. 2006) (denying a motion to exclude 

witnesses not included in Rule 26 disclosures because “the challenged witnesses were identified 

in documents produced . . . during discovery,” and accordingly, there was no prejudice); Wright 

v. Aargo Security Services, No. 99 Civ. 9115, 2001 WL 1035139, at *3 (S.D.N.Y. 2001) 

(refusing to exclude witnesses pursuant to Rule 37(c)(1) when their identities had been made 

known through personnel forms produced in response to discovery requests). The Commission 

also produced on August 25, 2008, an audio transcript of an FPPC hearing regarding independent 

expenditures, beginning with substantive testimony from Chairman Johnson. (See Wilson Decl. 

Exh. 6 (Defendant FEC’s Response to Plaintiffs’ First Set of Discovery Requests, Response to 

Document Request No. 19.)) In addition, the Commission produced audio files from a February 

14, 2008 hearing conducted by the California FPPC. (FEC Attachments DR19-01.MP3 through 

DR19-20MP3.)5

 

5

 Plaintiffs apparently claim that Johnson should have been formally disclosed earlier 

based on emails between counsel for the Commission and Roman Porter, then communications 

director at the FPPC, from April 2008. However, these communications did not concern 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 17 of 42
14

 As to Kevin Yowell, the Commission produced on August 15, 2008, several news 

stories concerning the Wyandotte Tribe’s alleged attempt to bribe Representative Vincent 

Snowbarger; they repeatedly mentioned that Yowell was Rep. Snowbarger’s campaign manager 

at the time. (See Supplemental Initial Disclosures (August 14, 2008), Wilson Decl. Exh. 1, 

attaching Tim Carpenter, Kansas Lawmaker Alleges Bribery Try on Gaming Issues, 

LAWRENCE KANSAS JOURNAL-WORLD, Oct. 8, 1998, FEC Exh. 89.) While lobbyist 

Michael Bright was not identified by name, the Commission also produced materials regarding 

the subject matter of his testimony: quid pro quo arrangements based on independent 

expenditures in Wisconsin. (See Wilson Decl., Exh. 1). Accordingly, plaintiffs were on notice 

that this was a series of events on which the Commission might rely, and they were free to locate 

witnesses or further explore the details of Senator Chvala’s crimes. 

Likewise, the Commission disclosed to plaintiffs that it would be relying on the record in 

McConnell, where Rozen offered testimony very similar to that presented here. (See Wilson 

Decl. Exh. 6, Defendant FEC’s Responses to Plaintiffs’ First Set of Discovery Requests at 9, 15 

(“The Commission also relies on the record in McConnell v. FEC, 540 U.S. 93 (2003) ... The 

Commission also notes that publicly available documents include the record in the Commission’s 

 

Chairman Johnson or any potential testimony; the purpose of the commuications was solely to 

obtain the audio recording of a public hearing that the FPPC conducted regarding independent 

expenditures. The Commission appropriately produced the audio files it received from the FPPC 

on August 25, 2008 with its Responses to Plaintiffs’ First Set of Discovery Requests. (See 

Wilson Decl. Exh. 6). Roman Porter was solely an individual at the FPPC that passed along 

these files. While the Commission inadvertently failed to produce certain emails between it and 

Mr. Porter until September 30, 2008, this oversight was harmless as the emails solely concerned 

the audio files already in plaintiffs’ possession, several short documents available online from 

the FPPC or otherwise incorporated into the FPPC independent expenditure report that the 

plaintiffs already had, and finally, because plaintiffs were able to use these documents in their 

Rule 30(b)(6) deposition of the FPPC. (See Gall Decl. Exh. X.) 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 18 of 42
15

2004 Political Committee Status rulemaking, and the public filings in McConnell v. FEC, 540 

U.S. 93 (2003).”); McConnell, 251 F. Supp.2d at 472, 485, 489.) 

In any event, the Commission took the additional step of formally disclosing the 

identities of the witnesses at issue as soon as it was sufficiently clear that the witnesses would 

actually be providing testimony. These disclosures were timely. Chairman Johnson and Michael 

Bright were formally disclosed to plaintiffs on September 26, 2008, at the end of the original 

discovery period. (See Wilson Decl. Exh. 4, Defendant FEC’s Fourth Supplement to Its Initial 

Disclosures (September 26, 2008).)6 While formal supplemental disclosures regarding Yowell 

and Rozen were not sent to plaintiffs until a few days later, October 1, 2008, these disclosures 

should also be considered timely because both parties were continuing to conduct discovery and 

take depositions. As noted in the joint Amendment to Joint Scheduling Report, the parties 

agreed to take depositions until October 3, 2008. (See Wilson Decl. Exh. 8.) For example, 

plaintiffs took the depositions of Chairman Johnson, in both his individual capacity and as a Rule 

30(b)(6) witness for the FPPC, on October 1, 2008. (See Ross Johnson Deposition Transcript, 

FEC Exh. 10.) Even after the October 3, 2008 deadline, plaintiffs served subpoenas on Bright, 

Yowell, and Rozen on October 7 and 8, 2008, and the Commission did not object to the extent 

that the witnesses had relevant non-privileged documents. (Wilson Decl. Exh. 9.) Although 

unnecessary, all of the Commission’s formal supplemental disclosures were timely because they 

occurred while discovery was ongoing; thus, these witnesses’ testimony should not be excluded. 

 

6

 Plaintiffs apparently claim that these disclosures were late because they were made “after 

the close of business.” Motion at 30. If this were the appropriate standard, however, then 

plaintiffs’ Initial Disclosures, expert reports, Responses to Defendant’s First Set of Discovery 

Requests, Second Set of Discovery Requests, and rebuttal expert report, should all be ignored or 

excluded because they, too, were served or produced to the Commission after the “close of 

business.” (See Wilson Decl. ¶ 9, Exh. 7.) 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 19 of 42
16

3. If Any Commission Disclosure Was Untimely, the Error Was 

Harmless or Substantially Justified 

 Even if any of the Commission’s disclosures were technically untimely, none of the 

witnesses’ testimony should be excluded under Rule 37(c)(1) because any such failure was 

“harmless” or “substantially justified.” While plaintiffs refer to sanctions under Rule 37(c)(1) as 

“automatic,” the Court has broad discretion to decide whether to exclude witness testimony 

under this provision. See Peterson v. Hantman, 227 F.R.D. 13 (D.D.C. 2005) (“district courts 

are entrusted with broad discretion regarding whether to impose sanctions under Rule 37”; no 

sanction for alleged refusal to produce documents or respond to interrogatories); Flynn v. Dick 

Corp., 481 F.3d 824, 835 (D.C. Cir. 2007) (remanding to “the district court to exercise its 

discretion in deciding the Rule 37(c)(1) matter”) (emphasis added). The sanction is “automatic 

in the sense that there is no need for the opposing party to make a motion to compel disclosure,” 

not in the sense that a Court should exclude evidence without careful consideration. Wright and 

Miller, 8A Fed. Prac. and Proc. Civ. 2d § 2289.1. 

 Discretion is also essential because excluding testimony is an extreme remedy. See 

Morgenstern v. County of Nassau, No. 04-CV-0058, 2008 WL 4449335, at *1 (E.D.N.Y. 2008) 

(“[I]t is well recognized that ‘preclusion of evidence pursuant to Rule 37(c)(1) is a drastic 

remedy and should be exercised with discretion and caution.’”) (quoting Ebewo v. Martinez, 309 

F. Supp. 2d 600, 607 (S.D.N.Y. 2004)). Ultimately, in “exercising [their] broad discretion to 

determine whether a nondisclosure of evidence is substantially justified or harmless for purposes 

of a Rule 37(c)(1) exclusion analysis,” district courts should consider a wide array of factors. 

DAG Enterprises, Inc. v. ExxonMobil Corp., No. 00-CV-0182 2007 WL 4294317, at *1 (D.D.C. 

2007) (citing Southern States Rack and Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592 (4th 

Cir. 2003)). For example, courts often consider the importance of the testimony of the 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 20 of 42
17

challenged witness, the “surprise” associated with the evidence, the extent to which allowing the 

evidence would disrupt the case, the possibility of a continuance or other cure, and the nondisclosing party’s explanation. See, e.g., id.; Heartland Surgical Specialty Hospital LLC v. 

Midwest Division, Inc. 527 F. Supp. 2d 1257, 1291 (D. Kan. 2007) (refusing to exclude the 

declaration of a witness who was disclosed one day before the filing of a dispositive motion 

because the other party had time to formulate its response and there was no bad faith); Design 

Strategies, Inc. v. Davis, 228 F.R.D. 210, 213 (S.D.N.Y. 2005) (witness not disclosed until 

defendant’s pre-trial order, but was not excluded when plaintiffs were familiar with witness and 

thus suffered no harm or undue prejudice). 

 Here, the circumstances do not support excluding any of the Commission’s witnesses. 

Plaintiffs had actual notice of the witnesses or the subject of their testimony early in the 

discovery process, took advantage of the opportunity to propound discovery to the witnesses, had 

no right to their declarations, failed to seek any additional discovery, and therefore, suffered no 

harm. Additionally, the timing of the Commission’s disclosures was justified by our reasonable 

interpretation of the disclosure requirements, the expedited discovery schedule, and the 

continuing nature of discovery. 

Moreover, plaintiffs’ own actions and inactions belie their unsupported claim of harm. 

Plaintiffs served subpoenas on and received responses from nearly every challenged witness, 

deposed Chairman Johnson, and had one of their expert witnesses, Jeffrey Milyo, prepare 

testimony against the findings of the FPPC. (See Wilson Decl. Exh. 9; Johnson Dep., FEC 

Exh. 10.) Indeed, plaintiffs noticed the Rule 30(b)(6) deposition at which Johnson appeared and 

had their expert prepare a report on the subject matter of his testimony before the Commission 

formally supplemented its Rule 26(a) disclosures, thus illustrating that those disclosures were 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 21 of 42
18

superfluous. While plaintiffs chose not to do so, they were similarly able to take depositions, 

prepare expert testimony, or otherwise explore the circumstances regarding the Wyandotte’s 

alleged efforts to bribe Representative Snowbarger and the conviction of Wisconsin Senator 

Chvala, the subjects of Kevin Yowell’s and Michael Bright’s testimony, respectively. (See 

Wilson Decl. Exh. 1.) The Commission also made clear that it had no objection to plaintiffs’ 

taking the depositions of Yowell, Bright, and Rozen. (See Wilson Decl., Exhs. 10-11.) While 

plaintiffs served document subpoenas on these witnesses, it chose not to depose them. 

Nor did plaintiffs seek more time to take additional depositions or serve additional 

discovery — a failure that undermines their claim of harm. In Flynn v. Dick Corp., No. 03-1718, 

2008 WL 2410406 (D.D.C. June 16, 2008), Dick Corporation had moved to exclude a witness 

declaration and related exhibits offered by plaintiffs on summary judgment because plaintiffs had 

“withheld them from Dick during discovery despite Dick expressly requesting them from 

plaintiffs.” Id. at *2. The court refused to exclude the declaration. Ignoring the question of 

whether the declaration should have been produced, the court ruled that any error was 

“harmless” because “Dick Corporation could have moved for additional discovery pursuant to 

Federal Rule of Civil Procedure 56(f)” but failed to do so. Id. The court explained that “the 

Rules afforded Dick Corporation an adequate opportunity to take discovery on the subjects 

contained therein before filing their opposition,” but the corporation simply did not take 

advantage of them. Id. The same is true of plaintiffs, who proposed delaying the briefing 

schedule to negotiate the protective orders in this case, but never sought more time for 

depositions or discovery. (See Wilson Decl. Exh. 10).7

 

 

7

 Plaintiffs cannot reasonably claim that seeking a short extension of time for depositions 

would have prejudiced them by delaying the entire case. They have just moved to stay their 

appeal regarding their request for a preliminary injunction, stating their goal is to be “able to 

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19

 Moreover, plaintiffs cannot demonstrate harm from the timing of their receipt of witness 

declarations because they simply had no right to these declarations during the discovery process. 

The work-product privilege protects written materials lawyers prepare “in 

anticipation of litigation.” Fed R. Civ. P. 26(b)(3). By ensuring that lawyers can 

prepare for litigation without fear that opponents may obtain their private notes, 

memoranda, correspondence, and other written materials, the privilege protects 

the adversary process. 

 

In re: Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998). Declarations and draft declarations like 

the ones at issue here fall within this privilege and are not subject to disclosure until they are 

filed with the court. As stated in Tierno v. Rite Aid Corp., “verbatim witness statements are 

generally considered ordinary work product” and a witness “declaration drafted by an attorney is 

‘clearly work product right up until the moment it is filed.’” No 05-02520, 2008 WL 270589, at 

*4 (N.D. Cal. Jun. 8, 2008) (party had no duty to produce draft declaration and witness 

statements) (quoting Intel Corp. v. VIA Technologies, Inc., 204 F.R.D. 450, 452 (N.D. Cal. 

2001)); see also In re JDS Uniphase Corp. Securities Litigation, No 02-1486, 2007 WL 419504, 

at *3 (N.D. Cal. Jan. 31, 2007) (“Plaintiffs seeks to compel Defendants to produce declarations 

by confidential witnesses that are in their possession which have not yet been filed in support of 

any motion. These declarations were prepared by defense counsel and are protected work 

product unless and until they are filed.”). In fact, in the seminal Supreme Court case on the work 

product doctrine, some of the documents at issue were “oral and written statements of 

witnesses.” Hickman v. Taylor, 329 U.S. 495, 512 (1947). 

Across jurisdictions, courts thus “consider draft affidavits and communications with 

counsel relating to affidavits as covered by the attorney work product doctrine.” Randleman v. 

Fidelity Nat’l Title Ins. Co., No 06-7049, 2008 WL 2944992, at *6 (N.D. Ohio, July 25, 2008) 

 

make and accept contributions above the limits in the 2010 election season.” (See Wilson Decl. 

Exh. 12.) 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 23 of 42
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(draft affidavits and counsel communications were opinion work product and thus protected from 

discovery). See, e.g., Ideal Elec. Co. v. Flowswerve Corp., 230 F.R.D. 603, 608-09 (D.Nev. 

2005) (draft affidavits protected by the work product doctrine); Chalimoniuk v. Interstate Brands 

Corp., No 01-0788, 2002 WL 1048826, at *4 (S.D. Ind. 2002) (same); Business Integration 

Services, Inc., v. AT&T Corp., No 06-1863, 2007 WL 254107, at *2 (S.D.N.Y. 2007) (same); 

Tuttle v Tyco Electronics Installation Services, Inc., No. 06-cv-581, 2007 WL 4561530, at *2 

(S.D. Ohio 2007) (creation of affidavit subject to attorney work product privilege).8 

After interviewing the contested witnesses, counsel for the Commission, as is customary, 

drafted the initial version of their declarations. (See Wilson Decl. ¶ 15.) The declarations thus 

revealed counsel’s thoughts, impressions, and litigation strategies. See Tierno, 2008 WL 

2705089, at *4 (ruling that declarations drafted by attorneys “could easily reveal the same 

thought processes as a summary or memorandum of a statement.”). Accordingly, the 

Commission withheld the documents pursuant to the work product rule and candidly informed 

plaintiffs of this position in a series of privilege logs. (See Wilson Decl. Exh. 13.) Plaintiffs then 

chose not to file a motion to compel that might have challenged this position. Plaintiffs’ claim 

that they were harmed by not receiving Chairman Johnson’s declaration in advance is especially 

incredible as they were admittedly able to discuss the substance of the declaration with Chairman 

Johnson at length during his deposition. (See Johnson Dep. at 20:3 – 30:16, 32:3-17, 34:18-23, 

 

8

 Although some courts have required draft witness declarations to be produced in 

discovery, those cases involve circumstances different from those presented here or fact-specific 

applications of the work-product balancing test. See, e.g., Judicial Watch, Inc. v. U.S. Dept. of 

Commerce, 196 F. Supp. 2d 1, 6-7 (D.D.C. 2001) (assuming for the sake of argument that 

witness declarations fell within the work product privilege, but requiring them to be produced 

when a party had “demonstrated a sufficiently important need for the two documents and an 

inability to obtain the information contained therein”). Plaintiffs do not even attempt to argue 

that the legislative facts presented in the witness declarations are the kind of information critical 

to their case that could not be obtained elsewhere. 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 24 of 42
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35:18 – 36:6; 1st Mot. at 10.) Finally, regarding witness declarations, plaintiffs are in the exact 

same position as the Commission, which had to respond to several new declarations it had never 

seen until they were filed by plaintiffs with their own proposed findings of fact. (See 

Declarations of Scott Burkhardt, Edward Crane, Brad Russo, David Keating, and Fred Young in 

Support of Plaintiffs’ Proposed Findings of Fact, October 28, 2008.) 

 Even if plaintiffs could demonstrate that they suffered some small amount of harm, the 

challenged testimony should still not be excluded because any action by the Commission was 

“substantially justified” under Rule 37(c)(1). This case has an expedited schedule because 

certification of the constitutional questions and findings of fact are to be made swiftly under 

2 U.S.C. § 437h. Mindful of this requirement, the parties negotiated a very compressed 

discovery and briefing schedule. After June 6, 2008, when the parties submitted their Joint 

Scheduling Order, the parties each served and responded to two rounds of requests for 

documents, requests for admissions, and interrogatories; briefed the constitutional questions to 

be certified to the en banc Court of Appeals; identified expert witnesses and produced expert 

reports; served third-party subpoenas; located witnesses with knowledge of independent 

expenditures and explored their testimony; prepared for and then conducted numerous 

depositions; briefed the contested issue of protective orders; otherwise compiled substantial 

amounts of documentary information; and, in the case of the Commission, researched and 

commissioned a poll. 

Given this schedule and workload, it is surprising how little the original discovery and 

briefing deadlines have changed. Both parties served numerous third-party subpoenas in the 

final weeks of the original discovery period, and both sides prepared for and conducted more 

than ten depositions in the last two weeks of the original discovery period and the following 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 25 of 42
22

week. (See FEC Exhs. 7-19.) The Commission formally supplemented its initial disclosures 

throughout the discovery period, even in circumstances when it was not required, continuing into 

the final week that depositions were still being taken. (See Wilson Decl. Exhs. 4-5.) Even after 

all other discovery had concluded, plaintiffs sent subpoenas and received responses from the 

Commission’s witnesses. (See Wilson Decl. Exh. 9.) The timing about which plaintiffs 

complain was a justified part of an unusual, fast-paced discovery process that presented 

challenges for both parties in this very important case. 

 Therefore, even if the Court were to find that any of the Commission’s disclosures were 

untimely, the Commission’s actions and interpretation of the law are “substantially justified,” so 

exclusion of the Commission’s evidence is unwarranted. “According to the Supreme Court, a 

party meets the ‘substantially justified’ standard when there is a ‘genuine dispute’ or if 

‘reasonable people could differ’ as to the appropriateness of the motion. A party’s actions are 

substantially justified if the issue presented is one that ‘could engender a responsible difference 

of opinion among conscientious, diligent, but reasonable advocates.’” Peterson v. Hantman, 227 

F.R.D. 13, 16 (D.D.C. 2005) (internal citations omitted). Finally, if the Court were to find that 

any remedy is appropriate, the Court should exercise its discretion to allow plaintiffs to conduct 

additional discovery. Giving additional time to depose an undisclosed witness, for example, is 

an appropriate remedy, especially where the testimony is part of an important case with broad 

ramifications and where no discovery violations were made in bad faith. See Brighton 

Collectibles, 2008 WL 4001066, at *3 (refusing to strike witnesses challenged for lack of formal 

disclosure but allowing additional depositions to take place). 

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III. Michael Calogero’s Testimony Should Not Be Excluded 

A. Mr. Calogero’s Declaration Consists of Lay Testimony 

Plaintiffs seek to exclude the declaration of P. Michael Calogero and the survey 

accompanying his declaration. Plaintiffs argue that surveys “must be presented through expert 

witnesses” and therefore the survey must be excluded because Calogero has not been designated 

as an expert in this case. 1st Mot. at 5. While survey evidence is frequently introduced through 

expert testimony, here there are several reasons why Calogero’s lay testimony is adequate and 

the Court should consider the survey. 

 The survey in question is evidence of a legislative fact rather than an adjudicatory fact. 

As discussed (see FEC Reply Mem. Section I), courts have long relied on legislative facts in 

deciding the kind of legal questions at issue here, including the consideration of polls in other 

cases involving challenges to FECA. In FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652, 

2667 n.6 (2007), Chief Justice Roberts cited a national survey that was neither introduced 

through expert testimony nor even submitted to the lower court. See also Republican Nat’l 

Comm. v. FEC, 487 F. Supp. 280, 297 n.15 (S.D.N.Y. 1980) (admitting objected-to poll that 

“measure[d] various forms of citizen participation in political campaigns since 1952”), judgment 

aff’d, 445 U.S. 955 (1980); Florida Bar v. Went for It, Inc., 515 U.S. 618, 628 (1995) 

(responding to dissenters’ criticism of lack of information about a survey, the Court stated that 

“we do not read our case law to require that empirical data come to us accompanied by a surfeit 

of background information”). In contrast, every one of the cases cited by plaintiffs regarding the 

admissibility of survey evidence dealt with adjudicatory facts, not legislative ones. 

Like most cases involving surveys, the ones plaintiffs rely on are trademark cases. In 

such cases, the surveys are intended to determine the central adjudicative factfinding decision in 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 27 of 42
24

the litigation — whether customers would be confused — and thus play a critical, irreplaceable 

role. The surveys must be introduced through expert testimony because their design must be 

carefully prepared to best replicate market conditions. Ordinary polls in which calls are placed 

and questions are simply asked are in many circumstances inadequate to satisfy the specialized 

needs of a trademark survey. For example, in Constellation Brands, Inc. v. Arbor Hill Assocs., 

Inc., cited by plaintiffs, a consumer survey was excluded because it “provides no indication of 

public reaction under actual market conditions.” 535 F. Supp. 2d 347, 368-69 (W.D.N.Y. 2008) 

(quoting Beneficial Corp. v. Beneficial Capital Corp., 529 F. Supp. 445, 451 (S.D.N.Y.1982)). 

The court was also troubled because the party offering the survey “did not submit an affidavit 

from the individual(s) who conducted the pilot survey.” Id. at 368 n.18. The complexity and 

difficulty in conducting such surveys thus typically require the analysis and testimony of an 

expert. But see Bic Corp. v. Far Eastern Source Corp., 23 Fed. Appx. 36, 39, 2001 WL 

1230706, at * 3 (2d Cir. Oct. 12, 2001) (affirming district court’s decision to allow a lay witness 

to testify about a consumer survey that she designed and interpreted). 

In this case, the survey is accompanied by the Calogero declaration, which states clearly 

how the survey was conducted. The survey asked simple questions without any special need to 

replicate market conditions, as in a trademark case. Mr. Calogero certainly possesses expertise 

in administering surveys, but no special analysis is needed here to understand the results. 

Although his declaration could have included expert analysis and become expert testimony, his 

actual testimony is limited and more in the nature of an authentication declaration. (See supra

Section II.A.: Fed. R. Evid. 701 distinguishes between expert and lay testimony, not expert and 

lay witnesses.) In contrast, in other cases pollsters have gone beyond introduction of their survey 

results to provide expert analysis of the results. See, e.g., Wisconsin Right to Life, 127 S Ct. 

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25

at 2688 (quoting expert testimony that in “‘public opinion research it is uncommon to have 

70 percent or more of the public see an issue the same way. When they do, it indicates an 

unusually strong agreement on that issue.’”). 

Furthermore, the parties all agree that “a trial will likely not be necessary in this case.” 

Jt. Scheduling Rept. at 6 (Docket No. 27). As even the cases cited by plaintiffs acknowledge, the 

standard by which the Court should exclude evidence is significantly different when there is no 

jury that might be misled or confused. See, e.g., Simon Prop. Group L.P. v. mySimon, Inc., 104 

F. Supp. 2d 1033, 1039 n.3 (S.D. Ind. 2000) (“[for injunction hearings and bench trials,] the 

safest course for the trial judge is to admit the evidence and to treat the criticisms as going to the 

weight of the evidence ...”); Johnson v. Big Lots Stores, Inc., No. 04-3201, 2008 WL 1930681, 

at *2 (E.D. La. Apr. 29, 2008) (citing numerous cases for the proposition that the court’s 

gatekeeping function is diminished when there is no concern about jury confusion). The Court 

should admit the survey evidence and give it the weight it deserves. 

 B. Mr. Calogero Was Timely Identified as a Witness 

Because the Court can accept the survey results through lay testimony, the expert 

disclosure deadline is not determinative. As a lay witness, Calogero was disclosed at the 

appropriate time and his testimony should not be excluded pursuant to Rule 37(c)(1). The 

Commission informed plaintiffs that Calogero may testify in this case and produced his 

declaration and the survey through a supplement to its initial disclosures on September 17, 2008. 

(See Wilson Decl. Exh. 3.) Unlike with Johnson and Rozen (1st Mot. at 11-12, n.5), plaintiffs do 

not claim that Calogero’s testimony should be excluded if he is considered a lay witness. 

Furthermore, there was no harm to plaintiffs as they had an opportunity to propound discovery 

regarding Calogero but simply chose not to do so. In fact, after Calogero was disclosed, 

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26

plaintiffs noted and conducted depositions of other witnesses and served several third-party 

subpoenas. (See Wilson Decl. Exh. 15.) The Commission informed plaintiffs that it would 

accommodate them if they needed more time for scheduling depositions, but they did not request 

any more time, either from the Commission or the Court. (See Wilson Decl. Exh. 13.) See 

Flynn, 2008 WL 2410406 at *2 (holding that lack of disclosure was harmless and refusing to 

exclude testimony when party “could have moved for additional discovery pursuant to Federal 

Rule of Civil Procedure 56(f)” but failed to do so). Finally, plaintiffs did not suffer any harm 

because their expert witness, Jeffrey Milyo, already prepared a report discussing, inter alia, 

public perception of contribution limits and the appearance of corruption. (See Declaration of 

Jeffrey Milyo (“Milyo Decl.”) ¶ 61 (discussing a study Milyo had co-authored “examin[ing] the 

effects of campaign contribution limits on the appearance of corruption.”).) In this sense, if 

Calogero’s declaration and survey must be considered expert testimony, it could have served as 

rebuttal expert testimony disclosed within 48 hours of the rebuttal expert disclosure deadline, a 

non-prejudicial delay. For all of these reasons, the disclosure of Calogero’s declaration and the 

survey was proper or did not harm plaintiffs, and accordingly, the evidence should be admitted. 

 Plaintiffs argue (1st Mot. at 7) that the Commission could have had the final poll results 

ready to produce to them on August 4, 2008, but their perspective is obviously from outside the 

Commission. While the Zogby firm sent the Commission an estimate and statement of its 

methodology and services on July 30, 2008, this was just the start of the process. (See Gall Decl. 

Exh. G.) As plaintiffs acknowledge (1st Mot. at 17), it takes time to choose the questions to be 

asked and have the calls placed. It was only upon receiving this information from Zogby that the 

Commission could begin officially selecting it as a contractor and obligating funds, a legally 

required step before a federal agency can enter into a contract for any services. (See Declaration 

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27

of Kevin Deeley in Support of Response to First Motion in Limine (“Deeley Decl.”), Exh. 168 at 

¶ 3.) The contract was not finalized by the Commission’s procurement officer until August 11, 

2008. (Id.) At the same time, the Commission was also selecting the questions that it wanted to 

ask the public. (See Deeley Decl. ¶ 5.) It was thus reasonable to give Zogby final approval to 

run the survey and receive the results by August 25, 2008. (See Gall Decl. Exh. I.) 

Plaintiffs also fault the Commission for not turning over the poll results that day, but 

plaintiffs lack information regarding the Commission’s contemporaneous intentions. The 

Commission had originally considered retaining an expert witness that would provide expert 

analysis of additional poll results, including possibly as a rebuttal witness, and had intended only 

to use Zogby International as a non-testifying consultant to assist in that effort. (Deeley Decl. 

¶ 6.) Plaintiffs thus were not entitled to information regarding Zogby under Rule 26(b)(4)(B)(2), 

a point the Commission made clear in its discovery responses. (Id. ¶ 7.) Based on a continuing 

assessment of the needs and ongoing developments of the case, including the resources and 

effort involved in retaining another expert, the Commission ultimately did not pursue this route. 

(Id. ¶ 8.) Instead, the Commission chose to simply place into the record the survey results with a 

lay declaration from Calogero that authenticated the documents and explained how the survey 

was conducted. (See id. ¶ 9; Declaration of P. Michael Calogero, FEC Exh. 97.) This change in 

litigation strategy explains why the survey was properly disclosed on September 17, 2008, and as 

discussed above, should not be excluded by the Court. 

IV. The Affidavits and Declarations from McConnell v. FEC and Massey v. 

Caperton Are Admissible 

 A. The Declarations are Admissible as Legislative Facts 

The sworn declarations from prior cases are admissible in this case because they are 

offered to prove legislative facts. (See FEC Reply Mem. Section I.) Plaintiffs contend (see 

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28

1st Mot. at 21-30) that the testimony in these declarations should be excluded because they 

contain hearsay, but none of the prior declarations has been offered for the purpose of 

establishing any adjudicative facts. The declarations are not offered to prove anything regarding 

plaintiffs. Rather, they are offered for broad points regarding how the campaign finance system 

functions. The Court may therefore rely on this material “as it might read anything for purposes 

of ascertaining ‘legislative’ facts.” Mail Order Ass'n of America v. US Postal Service, 2 F.3d 

408, 434 (D.C. Cir. 1993) (citing Federal Rule of Evidence 201(a), Notes of Advisory 

Committee on 1972 Proposed Rules) (emphasis in original). Accordingly, with respect to the 

prior case declarations, plaintiffs’ motion should be denied for this reason alone. 

B. The Sworn Testimony from Other Cases Is Admissible Evidence 

Even if these declarations had been submitted in support of adjudicative facts, they can 

be considered by the Court because they are sworn statements. “An interview given under 

penalty of perjury may, however, be treated as a declaration — and therefore may be considered 

in ruling on a summary judgment motion, Fed R. Civ. P. 56(e) — even though Rule 32(a) 

prevents its use as a formal deposition.” SEC v. Phan, 500 F.3d 895, 913 (9th Cir. 2007) (citing 

Hoover v. Switlik Parachute Co., 663 F.2d 964, 966 (9th Cir. 1981)); SEC v. Am. Commodity 

Exch., Inc., 546 F.2d 1361, 1369 (10th Cir. 1976) (holding that transcripts from an SEC 

investigation may be considered in ruling on summary judgment as the equivalent of a 

declaration)). Since these statements were executed under oath and plaintiffs received ample 

notice that the Commission intended to rely on them, there is no reason to exclude them here. 

(See Wilson Decl. Exh. 6 (Defendant FEC’s Response to Plaintiffs’ First Set of Discovery 

Requests, Response to Document Request No. 19.)) Moreover, sworn statements from different 

cases are admissible in a statement of material facts in opposition to summary judgment motion. 

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See, e.g., Lloyd-El v. Meyer, No. 87-C-9349, 1989 WL 88371, at *1 n.1 (N.D. Ill. 1989) (denying 

motion to strike seeking to exclude deposition from unrelated action and allowing deposition in 

as a affidavit). “They were sworn statements, and could be used to impeach witnesses or a party 

opponent at trial. Accordingly, they could also be used on summary judgment.” Burbank v. 

Davis, 227 F.Supp. 2d 176, 179 (D.Me. 2002); Tobacco & Allied Stocks v. Transamerica Corp., 

16 F.R.D. 545, 547 (D.Del. 1954) (deposition admitted from prior litigation involving different 

parties on related issues). 

 Plaintiffs’ objections are particularly weak because the bulk of the proposed facts 

plaintiffs seek to strike were included in findings of fact in the McConnell litigation. In each 

instance in which the Supreme Court has already resolved the challenged fact, this Court does 

not need to revisit the issue and may simply adopt the finding already made. Once resolved by 

an appellate court, issues of legislative fact need not be relitigated in lower courts each time they 

arise. See Carhart v. Gonzales, 413 F.3d 791, 800-01 (8th Cir. 2005) (legislative fact addressed 

by the Supreme Court need not be relitigated); A Woman’s Choice v. Newman, 305 F.3d 684, 

689 (7th Cir. 2002) (same).9

 

9

 Plaintiffs’ First Motion in Limine (at 28-29) seeks to exclude facts based on portions of 

the Wilcox report that rely upon declarations from the McConnell litigation of Senator John 

McCain and Gerald Greenwald, former chairman of United Airlines. These declarations are not 

exhibits in this case. Apparently plaintiffs are objecting to the parentheticals explaining that 

Professor Wilcox relied on these declarations in reaching the conclusions in his report. There is 

no basis to exclude Wilcox’s testimony because his publicly-available sources are listed in 

parentheticals. Both sworn statements were relied upon by the Supreme Court for the very 

propositions from which the Wilcox report draws support. They thus have greater force because 

the Supreme Court has already noted them with approval. McConnell, 540 U.S. at 150 

(testimony of Senator McCain regarding promises made by tobacco industry); id. at 147-48 n.46 

(testimony of Greenwald regarding union donations providing access to members of Congress). 

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 1. The Beckett Declaration 

The Beckett Declaration supports the Commission’s Proposed Finding of Fact ¶ 209 that 

“candidates often appreciate the help that these interest groups provide, such as running attack 

ads for which the candidate has no responsibility.” (Beckett Decl., McConnell, ¶ 16, FEC. Exh. 

35.) Plaintiffs’ argument that such statement is without foundation (1st Mot. at 26) lacks merit. 

One of the judges in McConnell has previously relied on the Beckett Declaration in reaching this 

same factual finding. McConnell, 251 F. Supp. 2d at 555 (Kollar-Kotelly, J.) (citing ¶ 16). 

Indeed, the Supreme Court cited portions of the district court opinion referring to the Beckett 

Declaration on numerous occasions. See, e.g., McConnell, 540 U.S. at 126 n.16, 193. 

 Even standing alone, the Beckett Declaration provides ample foundation for its 

testimony. It details Beckett’s twenty-five years of work on political campaigns, including three 

presidential campaigns, three Congressional campaigns and numerous state and local campaigns. 

(Beckett Decl., McConnell, ¶¶ 2-6, FEC. Exh. 35.) Her background was also explained in 

McConnell, 251 F. Supp. 2d at 445 n.16 (Kollar-Kotelly, J.). Beckett explains why candidates 

appreciate advertising from independent groups — because it gets a message out in a manner in 

which the campaign cannot be held accountable. (Beckett Decl., McConnell, ¶ 16, FEC 

Exh. 35.) In any event, the factual statement in ¶ 209 is supported by both the Beckett 

Declaration and the Wilcox Report. The Wilcox Report provides independent foundational 

support for this fact. (Wilcox Rept. at 19, FEC Exh. 1.) 

 2. The Bumpers Declaration 

The Bumpers Declaration supports the Commission’s Proposed Finding of Fact ¶ 211 

that “[c]andidates whose campaigns benefit from these ads greatly appreciate the help of these 

groups” and will be more favorably disposed to these groups when they later seek access to 

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discuss pending legislation. (Bumpers Decl., McConnell, ¶ 27, FEC Exh. 64.) Plaintiffs’ 

argument that such statement is without foundation (1st Mot. at 26) lacks merit. Indeed, one 

judge in McConnell adopted the paragraph the Commission relies upon. Bumpers Declaration 

¶ 26 (showing that candidates appreciate help provided by interest groups). McConnell, 251 

F. Supp. 2d at 556, 876-77 (Leon, J.). 

At any rate, the declaration itself provides ample foundation, including Senator Bumpers 

experience of nearly 30 years in elected office, first as Governor of Arkansas, then as a Senator 

for 23 years, and most recently as a lobbyist. (Bumpers Decl., McConnell, ¶¶ 2-3, FEC Exh. 35.) 

This foundational background was explicitly noted by Judge Leon in McConnell, 251 F. Supp. 

2d at 821 n.155. Bumpers was deposed by the plaintiffs in McConnell who had a similar motive 

to examine the declarant’s testimony regarding the influence of interest groups. McConnell v. 

FEC, 02-582 (D.D.C. 2002) (Dkt. # 199). Finally, the proposed finding of fact is also supported 

by both the Bumpers Declaration and the Wilcox Report, which provide additional support for 

the Commission’s proposed finding of fact. 

 3. The Simpson Declaration 

The Simpson Declaration supports the Commission’s Proposed Finding of Fact ¶ 212 that 

“[t]hese ads are very effective in influencing the outcome of elections” and that members realize 

how effective these ads are and express that gratitude to the groups that run them. (Simpson 

Decl., McConnell, ¶ 13, FEC Exh. 65.) Plaintiffs’ claim that Senator Simpson was just 

“guessing how others might feel” and offered opinion testimony without evidence is without 

merit. Senator Simpson explains his 19 years of experience in the Senate legislating, 

fundraising, and campaigning. (Simpson Decl., McConnell, ¶¶ 2-3, 8-9, 11-14, FEC Exh. 65.) 

He describes specific conversations with legislators regarding campaigning. Id. ¶¶ 10-11. He 

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then explains — based on his experience campaigning, interacting with the public and other 

members of Congress — his understanding that this advertising by interest groups is effective 

and can influence elections and that, in his experience, members realize how effective these ads 

are and may express gratitude. Id. ¶ 13. These statements do not constitute “guessing,” but 

rather direct testimony by an individual who experienced and participated in the campaign 

finance system for a long time. Senator Simpson was cross-examined on his statements in this 

declaration in a deposition in the McConnell case. McConnell v. FEC, 02-582 (D.D.C. 2002) 

(Dkt. # 199). 

Indeed, the Supreme Court in McConnell relied on the Simpson Declaration. 540 U.S. 

at 149 (citing 251 F. Supp. 2d at 481 (Kollar-Kotelly, J.) (quoting Simpson Decl. ¶ 10, App. 

811); 251 F. Supp. 2d at 851 (Leon, J.) (same). The McConnell district court extensively relied 

upon the Simpson Declaration. See, e.g., 251 F. Supp. 2d at 406-07, 471 n.45, 473 476, 481 

(Kollar-Kotelly, J.). 

 4. The Pennington Declaration 

The Pennington Declaration supports the Commission’s Proposed Findings of Fact 

¶¶ 213, 230, and 276, which show that interest group advertising is helpful in supporting 

candidate campaigns and used to help try to create a sense of appreciation or obligation from the 

candidate to the group. Plaintiffs claim (1st Mot. at 27) that Pennington does not provide any 

“basis for his conclusion” and that his statements are generalizations not supported by personal 

knowledge. In McConnell, however, one judge relied on the Pennington declaration and his 

experience in the 2000 Congressional Race in Florida’s Eighth Congressional District to 

conclude that interest group advertising effected elections. 251 F. Supp. 2d at 518, 550, 558, 581 

(Kollar-Kotelly J.). The Supreme Court relied upon portions of the district court opinion that 

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were supported by Pennington’s testimony on numerous occasions. See, e.g., 540 U.S. at 126 

n.16, 127-28, 177 . Pennington’s declaration describes in detail the personal knowledge upon 

which his statements are based. Pennington is a Republican general political consultant with 

more than twenty-five years of political experience. He described, inter alia, interest groups’ use 

of videotaped interviews with candidates so that groups are able to remind candidates of the 

content of their statements after the election. 

 5. The Chapin Declaration 

The Chapin Declaration supports the Commission’s Proposed Findings of Fact ¶¶ 217 & 

310 regarding how federal candidates appreciate interest group advertising and how interest 

groups attempt to influence candidate’s positions on issues with offers of support. Plaintiffs 

acknowledge that Chapin had personal knowledge of her own appreciation of support from 

interest groups, but claim any generalization regarding other candidates is without support. One 

of the judges in the district court in McConnell found the same fact the Commission asks this 

Court to find in ¶ 217, 251 F. Supp. 2d at 556 (Kollar-Kotelly, J.). Because plaintiffs essentially 

concede that the Chapin declaration is admissible for the proposition it is cited, this Court should 

rely on it and make the finding urged by the Commission. 

 6. The Drake Affidavit 

 The Drake Affidavit supports the Commission’s Proposed Finding of Fact ¶ 328 

regarding how more than two-thirds of West Virginia voters doubted that a West Virginia 

Supreme Court Justice could be fair and impartial regarding a particular case in light of money 

spent on his behalf during his election campaign.10 Plaintiffs claim that this declaration should 

 

10 This response assumes plaintiffs intended to cite (1st Mot. at 29) the Commission’s 

Proposed Findings of Fact ¶ 328 and not ¶ 325. Paragraph 325 is not supported by the Drake 

Affidavit. 

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not be considered by the Court because it was submitted in another case and is being offered as 

substantive evidence from an undesignated expert. 1st Mot. at 29-30. However, such evidence 

can be offered to support legislative facts, and the Drake affidavit is also sworn testimony that 

the Court may consider independently. In addition, the existence of the declaration and its 

coverage in the media (FEC Exh. 94) is evidence of the appearance of corruption, which is 

separate and apart from the substantive accuracy of the polling. 

V. The Documents Challenged by Plaintiffs Are Admissible to Demonstrate 

Legislative Facts, and Many Are Not Hearsay 

Plaintiffs also challenge on evidentiary grounds other documents cited by the 

Commission, primarily that they allegedly contain inadmissible hearsay. (1st Mot. at 34-40.) 

Plaintiffs’ arguments, however, are misplaced because these documents were not cited by the 

Commission to establish adjudicative facts regarding the particular plaintiffs in this litigation. 

As explained (see FEC Reply Mem. Section I), the documents were cited to establish legislative 

facts related to the important governmental interests that support the Act’s contribution limits 

and disclosure provisions. The D.C. Circuit’s ultimate decision in this case on the 

constitutionality of the Act’s contribution limits and disclosure provisions will have an impact 

far beyond the specific interests of the named plaintiffs, and the Commission is entitled to rely 

on legislative facts that go beyond plaintiffs’ carefully crafted test case. Because courts, 

including the Supreme Court, routinely rely on legislative facts in constitutional challenges, 

similar hearsay objections were recently dismissed by one court as “almost frivolous.” Indiana 

Democratic Party v. Rokita, 458 F. Supp. 2d 775, 845 (S.D. Ind. 2006), aff’d sub nom. Crawford 

v. Marion County Election Bd, 472 F.3d 949 (7th Cir. 2007), aff’d, 128 S. Ct. 1610 (2008). 

 Even if the documents that plaintiffs object to on hearsay grounds are not considered 

legislative facts (and therefore are analyzed under the Federal Rules of Evidence applicable to 

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35

adjudicative facts), many of the documents are still admissible for matters other than “the truth of 

the matter asserted.” Fed. R. Evid. 801(c). Many of the documents also help to demonstrate the 

widespread public appearance of corruption that arises from contributions in excess of the 

existing federal limits. It is well established that “[o]ut-of-court statements constitute hearsay 

only when offered in evidence to prove the truth of the matter asserted.” Anderson v. United 

States, 417 U.S. 211, 219 (1974). In many instances, the fact that the challenged statements were 

made, reported, or published helps to demonstrate an appearance of corruption. For that purpose, 

those statements are not hearsay. Anderson, 417 U.S. at 220 n.8 (“Of course, evidence is not 

hearsay when it is used only to prove that a prior statement was made and not to prove the truth 

of the statement”) (citations omitted)). 

Mariani v. United States, 80 F. Supp. 2d 352, 363 (M.D. Pa. 1999), one of the cases 

relied upon by plaintiffs, explicitly overruled nearly identical objections to newspaper and 

magazine articles “to the extent that the articles have not been offered for the truth of the matter 

asserted, but instead to demonstrate the appearance of corruption created by soft money 

contributions.” 

“The hearsay evidence rule does not bar . . . the admissibility of . . . authenticated 

news reports when used to show public perceptions of corruption, rather than 

corruption in fact.” 

Id. at 362 (quoting Democratic Party v. National Conservative Political Action Comm., 

578 F. Supp. 797, 829 (E.D.Pa. 1983), aff’d in part, rev’d in part, 470 U.S. 480 (1985) 

(“NCPAC”)). Thus, the documents plaintiffs object to on hearsay grounds are admissible to 

show the appearance of corruption, i.e., the fact that events were reported reflect such an 

appearance, regardless of the truth of the individual matters asserted in the documents. 

In addition, a number of the statements to which plaintiffs object are admissible under 

various exceptions to the hearsay rule. The Commission notes, for example, that the press 

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releases issued by the Commission and the White House (see FEC Facts ¶¶ 247, 278-279, 281) 

are admissible under Fed. R. Evid. 803(8)(A) as public records and reports. Mueller v. First Nat. 

Bank of Quad Cities, 797 F. Supp. 656, 657 (C.D. Ill. 1992) (citing FEC and White House press 

releases). Similarly, documents cited by the Commission for the proposition that an author 

believed the facts, whether or not they were true, are admissible under Fed R. Evid. 803(3) as 

reflecting a witness’s state of mind. 

VI. Copies of Secondary Authorities Cited in Expert Reports Need Not Be Filed 

With The Court

Plaintiffs also claim that approximately three dozen proposed facts citing Professor Clyde 

Wilcox’s expert report should be rejected because the Commission did not file copies of the 

sources Professor Wilcox cited in his report with the Court (1st Mot. at 35), but this argument is 

frivolous. The Commission is not required to submit copies of such authorities, and all are 

available as published sources should consultation be required. Plaintiffs’ objections are all to 

instances where the Commission cited Professor Wilcox’s expert report and the Commission’s 

citation includes a parenthetical identifying the authorities Professor Wilcox relied upon,11 or, in 

one instance, to a fact with the parenthetical “citations omitted” (1st Mot. at 35 (objecting to 

FEC Facts ¶ 218)). Thus, the documents that are the subject of plaintiffs’ objections are only 

secondary authorities referenced in Professor Wilcox’s report, which independently supports the 

Commission’s facts. The Commission included these explanatory parentheticals for the Court’s 

convenience. 

Thus, the only issue is whether, when parties cite expert reports in proposed findings of 

fact and their citations include parentheticals identifying secondary authorities (or state “citations 

 

11 (See 1st Mot. at 35 (criticizing FEC Facts ¶¶ 80, 81, 92, 100, 117, 118, 119, 126, 127, 

133, 134, 137, 143, 144, 218, 219, 227, 228, 251, 309, 315 and 365).) 

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omitted”), copies of all the referenced documents also must be provided for the court. Here 

again, plaintiffs provide no legal authority for their proposition which, if adopted, would 

dramatically increase the already large number and volume of exhibits in this case. Plaintiffs’ 

criticism of the Commission’s failure to include all exhibits cited by its expert is particularly 

surprising since plaintiffs themselves did not file with the Court all authorities cited by their 

experts, which were considerably fewer than Professor Wilcox’s sources. 

CONCLUSION 

For the foregoing reasons, the Commission’s evidence is admissible, and none of the 

arguments raised in plaintiffs’ first motion in limine justify the exclusion of any of the 

Commission’s evidence or the proposed findings of fact based on that evidence. 

Respectfully submitted, 

Thomasenia P. Duncan 

(D.C. Bar No. 424222) 

General Counsel 

David Kolker 

(D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 41 of 42
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Robert Bonham 

(D.C. Bar No. 397859) 

Senior Attorney 

_/s/ Graham M. Wilson________ 

Vivien Clair 

Greg J. Mueller (D.C. Bar No. 462840) 

Graham M. Wilson 

Attorneys 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: December 12, 2008 (202) 694-1650 

Case 1:08-cv-00248-JR Document 63-2 Filed 12/12/2008 Page 42 of 42