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Markham Concepts, Inc. v. Hasbro, Inc.

United States District Court, D. Rhode Island

December 19, 2017

MARKHAM CONCEPTS, INC.; SUSAN GARRETSON; and LORRAINE MARKHAM, individually and in her capacity as Trustee of the Bill and Lorraine Markham Exemption Trust and the Lorraine Markham Family Trust, Plaintiffs,
v.
HASBRO, INC.; REUBEN KLAMER; DAWN LINKLETTER GRIFFIN; SHARON LINKLETTER; MICHAEL LINKLETTER; LAURA LINKLETTER RICH; DENNIS LINKLETTER; THOMAS FEIMAN, in his capacity as co-trustee of the Irvin S. and Ida Mae Atkins Family Trust; ROBERT MILLER, in his capacity as co-trustee of the Irvin S. and Ida Mae Atkins Family Trust; and MAX CANDIOTTY, in his capacity as co-trustee of the Irvin S. and Ida Mae Atkins Family Trust, Defendants.

          MEMORANDUM AND ORDER

          WILLIAM E. SMITH CHIEF JUDGE.

         This case is before the Court on Defendant Hasbro, Inc.'s, (“Hasbro”) Motion to Exclude Bill Markham's 1989 Deposition Testimony. Def.'s Mot., ECF No. 130. This testimony was given as part of prior litigation (“1989 Litigation”) involving the Game of Life (“Game”) initiated by Bill Markham against Reuben Klamer and Hasbro's predecessor-in-interest, Milton Bradley, among others. Even though Mr. Markham is now deceased, Hasbro argues that his prior deposition testimony is hearsay that does not fall under any exception, and is therefore inadmissible. The Court disagrees, finding that the testimony at issue is admissible, not under Rule 804(b)(1), but rather under Rule 807. See Fed.R.Evid. 804, 807.

         DISCUSSION

         I. Rule 804(b)(1)[1]

         Hasbro's first contention is that Mr. Markham's deposition testimony is not covered by the former-testimony exception to the rule against hearsay. Def.'s Mot. 6-10. This exception provides that where a declarant is unavailable as a witness, testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had - or, in a civil case, whose predecessor in interest had - an opportunity and similar motive to develop it by direct, cross-, or redirect examination

         is not excluded by the rule against hearsay. Fed.R.Evid. 804(b)(1).

         Hasbro concedes that Markham was a witness in the 1989 Litigation, and that Hasbro is a predecessor-in-interest to Milton Bradley. Def.' s Mot. at 6. Nevertheless, Hasbro argues, Milton Bradley did not have a similar motive to examine Mr. Markham in the 1989 Litigation. Id.

         Hasbro points out that the 1989 Litigation was a contract case that put at issue the implications of various agreements between Mr. Markham and the then-existing successors-in-interest to Link Research Corp. Id. at 2. Indeed, as Mr. Markham's complaint in that case states, he named Milton Bradley as a defendant “solely because Milton Bradley is a necessary and indispensable party to the resolution of this action, ” not because of any “wrongdoing” on the company's part. Decl. of Courtney L. Batliner Ex. A, ¶ 28, ECF No. 131.

         Milton Bradley, whose participation in the 1989 Litigation was little more than a formality, cannot then be said to have had a similar motive as the one Hasbro has here to develop and test evidence relevant to ownership of the Game's intellectual property. See United States v. Bartelho, 129 F.3d 663, 672 (1st Cir. 1997) (“[T]he similar-motive inquiry . . . requires scrutiny of the factual and procedural context of each proceeding to determine both the issue in dispute and the intensity of interest in developing the particular issue by the party against whom the disputed testimony is offered.”).

         There can be no doubt that the interest, if any, to probe Mr. Markham in 1989 as to the events surrounding the creation of the Game was not as intense as the interest the parties have in that issue here.[2] Cf. Holmquist v. Farm Family Cas. Ins. Co., 800 F.Supp.2d 305, 310-11 (D. Me. 2011) (disallowing former-testimony evidence where “there would have been little motivation to explore [the] issues [at bar] . . . in the prior proceeding (save for perhaps seeking to damage [the witness]'s credibility”).

         Mr. Markham's deposition testimony is therefore not admissible pursuant to the ...


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