United States District Court, D. Rhode Island
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,
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.
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.
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
excluded by the rule against hearsay. Fed.R.Evid. 804(b)(1).
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.
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.
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.”).
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. 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”).
Markham's deposition testimony is therefore not
admissible pursuant to the ...