Friday, October 8, 2010

Evidentiary Standards for Preliminary Injunction Hearings in the Sixth Circuit

A preliminary injunction is a temporary court order issued at the beginning of a case, which prevents a party from pursuing a particular course of conduct until the conclusion of a trial on the merits.  Rule of Civil Procedure 65 governs the issuance of preliminary injunctions.  Rule 65 states that a preliminary injunction "shall not be issued without notice to the adverse party.”  Fed. R. Civ. P. 56(a)(1).  Therefore, a party against whom a preliminary injunction is sought must be given an opportunity to appear at a hearing to argue that the injunction should not be granted.  A preliminary injunction is regarded as extraordinary relief.  In order for injunctive relief to be granted, the party requesting the injunction must show that there is a likely chance that they will succeed on the merits of their claims and that there is a substantial likelihood that they will be irreparably harmed unless an injunction is granted immediately.

The preliminary injunction hearing itself is much more informal than a regular trial. Since the hearing is held before a judge, many evidentiary issues, that normally arise in the presence of juries, are no longer that big of a deal.  To paraphrase a judge in a recent hearing that I attended, “I am a big boy and can figure out what value to assign the evidence.” This means that normal evidentiary objections that evidence is hearsay, a question is leading, a response or question is argumentative, or piece of evidence is irrelevant or prejudicial, just doesn’t matter as much because a judge isn’t going to be as affected as a normal layperson.  Indeed, “there is generally a reduced evidentiary standard in preliminary injunction motions.” Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1154 (C.D. Cal. 2002) cited by United States v. Standring, 2005 U.S. Dist. LEXIS 41330, at *5 (S.D. Ohio March, 2006) (applying a “reduced evidentiary standard" for authentication of websites and screen shots).

Therefore, it is customary for Courts in the Sixth Circuit to relax the standard of what is admissible evidence at preliminary injunction hearings.  For example, while the Court of Appeals for the Sixth Circuit has not explicitly stated whether hearsay evidence may be considered in the context of a preliminary injunction hearing, In re De Lorean Motor Co., 755 F.2d 1223, 1230 n.4 (6th Cir. 1985) (“The parties assume that the Federal Rules of Evidence are fully applicable to a hearing on a motion for preliminary injunction. We express no opinion on this question.”), district courts have readily admitted and considered such evidence during hearings.  See Toledo Area AFL-CIO Council v. Pizza, 898 F. Supp. 554, 558-59 (N.D. Ohio 1995)(“[A] Court…may give even inadmissible evidence some weight…Therefore, all affidavits submitted by all parties will be received for whatever value each may add to these proceedings”);  United States v. O’Brien, 836 F. Supp. 438, 441 (S.D. Ohio 1993) (“The Federal Rules of Evidence do not apply at preliminary injunction hearings....”); Family Trust Found., Inc. v. Wolnitzek, 345 F. Supp. 2d 672, 699 n.10 (E.D. Ky. 2004) (court admitted and gave some weight to hearsay evidence); Performance Abatement Servs. v. Lansing Bd. of Water & Light, 2001 U.S. Dist. LEXIS 2891, *5 (W.D. Mich. Mar. 6, 2001) (“the district court may consider inadmissible evidence in ruling on motions for preliminary injunction.”);  FTC v. Nat’l Testing Servs., LLC, 2005 U.S. Dist. LEXIS 46485, *5 (M.D. Tenn. August 18, 2005) (“A district court may rely on affidavits and hearsay materials....”).

Since there is typically little time to gather materials and prepare for a preliminary injunction hearings, it is a good thing to know that what little time is available to prepare, does not need to be spent worrying as much about evidentiary and  admissibility issues.  For more information on the admissibility and proper authentication of web pages, screen shots, and e-mails in the Sixth Circuit see my post previous post.