The opinion of the court was delivered by: Signed by Royce C. Lamberth, Chief Judge,
Before the Court is plaintiffs' Motion  for Leave to Re-Open the Record and to Admit Additional Exhibits. Having carefully considered the motion, defendants' objections, plaintiffs' reply, the entire record in this case, and the applicable law, the Court will grant in part and deny in part plaintiffs' Motion for Leave to Re-Open the Record. Specifically, the Court will admit exhibits nos. 227--238 and 240 into evidence. Defendants' objections to plaintiffs' exhibits nos. 239 and 241 are sustained and that evidence will be excluded.
As is fully explained in a prior opinion of this Court, DL v. District of Columbia, 274 F.R.D. 320, 321--23 (D.D.C. 2011), during (and after) discovery, defendants had quite a bit of trouble responding to plaintiffs' discovery requests in a timely manner, and were producing thousands of responsive e-mails both immediately prior to the April 6--7, 2011 trial and following the trial itself. The production of documents post-trial was a new one for this Court, and needless to say it put plaintiffs and the Court in a terrifically awkward position when it came time to determine the merits of the case at the April 2011 trial. On the first day of trial, the Court granted plaintiffs' oral motion to compel defendants to produce at last the remaining responsive documents within a week following the trial. DL, 274 F.R.D. at 322. To expedite production of these documents, the Court also held that the District had waived all privileges and objections with respect to the yet-to-be-produced e-mails. Id.; see also Order  1, Apr. 7, 2011.After ordering defendants to produce responsive e-mails to plaintiffs' counsel on or before April 14, 2011, the Court invited plaintiffs to move to re-open the record to admit these e-mails. Order  1.
Plaintiffs have accordingly moved to re-open the record and admit exhibits numbers 227-- 241. Pls.' Mot. Leave  2--5, Jun. 3, 2011. On June 6, 2011, defendants filed their Objections  to Plaintiffs' Exhibits Submitted After Trial, challenging the admissibility of most of these e-mails. Defs.' Objections  1--2, Jun. 6, 2011. Plaintiffs relied upon nearly all of the e-mails attached to their Motion  for Leave in their Proposed Post-Trial Findings of Fact and Conclusions of Law , Jun. 3, 2011, which was filed the same day. However, defendants, after plaintiffs filed their Motion  for Leave, never sought leave themselves to challenge plaintiffs' new evidence with contrary evidence. On the assumption that this failure to seek leave on the part of defendants was a mere oversight, and in the interests of justice, the Court will give defendants an opportunity to seek leave to re-open the record and to admit any contrary evidence they may have in their possession.
II.PLAINTIFFS' PROPOSED EXHIBITS NOS. 227--241
Defendants did not object to plaintiffs' exhibit 227 and it shall be admitted into evidence.
Defendants object to the admission of plaintiffs' exhibit 228 on the basis of relevance, vagueness, and hearsay. Defs.' Objections  1. Defendants' objection is overruled. As an initial matter, this e-mail was produced post-trial yet was in defendants' possession for nearly a year. Therefore, per the Court's April 2011 Order , all objections are deemed waived.
However, this exhibit would be admissible in any case. The statements contained in this e-mail chain are relevant to the issue of whether plaintiffs are entitled to injunctive relief because they indicate that the District's Child Find policies and procedures were related to this litigation. Defendants' vagueness challenge is overruled because it goes to the weight of the evidence, not its admissibility. As to hearsay, the email chain and the included statements are admissible hearsay under the exception for "records of regularly conducted activity" of Rule 803(6) of the Federal Rules of Evidence.
Defendants object to the admission of plaintiffs' exhibit 229 on the basis of hearsay, speculation, personal knowledge, and relevance. Id. Defendants' objection is overruled. As with the preceding exhibit, this e-mail was produced post-trial yet was in defendants' possession for nearly a year. Per the Court's Order , all objections are deemed waived. Even without the effect of that Order, however, the exhibit is admissible. As to hearsay, the e-mail chain and statements therein are admissible hearsay under the exception for "records of regularly conducted activity" of Rule 803(6) of the Federal Rules of Evidence. As to speculation, that objection is overruled as it goes to the weight of the evidence, not its admissibility. As to defendants' "personal knowledge" objection, defendants do not explain how the statements in the e-mail are outside the personal knowledge of any declarant, and in any case such an objection goes to the weight of the ...