Excluding Past Lawsuits Due to Lack of Relevance

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Darren Chaker discusses what the federal evidence rules lay out precisely what is meant by “relevant evidence”:

“Relevant evidence” means any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without it.”

Even if a court should find that a litigant has demonstrated some tenuous showing of relevance for the past lawsuits, a litigant argues that evidence of such lawsuits should still be excluded because of the prejudicial effect such evidence would have on a trier-of-fact.

In Outley v. City of New York, 837 F.2d 587 (2nd Cir. 1988), the Second Circuit discussed this very issue. In Outley, the plaintiff had brought a civil rights action against New York city and several individual police officers, and the defendant sought to introduce evidence of plaintiff’s past lawsuits in order to portray him as a “chronic litigant.” Outley, 837 F.2d at 591. Noting that the “charge of litigiousness is a serious one, likely to result in undue prejudice against the party charged,” the court stated:

…a plaintiff’s litigiousness may have some slight probative value, but that value is outweighed by the substantial danger of jury bias against the chronic litigant. The trial court has a duty to prevent exploitation of this prejudice. Id. at 592.

The court then looked to two federal rules of evidence for guidance. It noted that under FRE 403, a district court is provided broad discretion in making determinations under that rule. See id. It also found FRE 404(b), dealing with character evidence, to be relevant, stating that:

Litigiousness is the sort of character trait with which Rule 404(b) is concerned. Evidence that Outley had filed several lawsuits against the City, and in particular against police officers, would undoubtedly cause the jury to question the validity of Outley’s current claim.

Id. at 592-593. The court, observing that, “[t]he total impact of the evidence was to show that Outley is ‘claim-minded,’ and that the claims before the court were just two more in a long line of lawsuits,” it found the evidence of past lawsuits to be inadmissible.

Similarly, there can be no serious doubt that in the instant action the purpose of Defendant attempting to present the evidence of past lawsuits is to attack the Plaintiff’s character (or visa versa), and to portray her as a “chronic litigant,” or as “claim-minded.” However, just as in Outley, courts should find that the substantial prejudice that would result to Plaintiff should such evidence be admitted outweighs any relevance that Defendant could possibly show. Indeed, whereas the Second Circuit in Outley deemed past lawsuits against the same defendant – the City and police officers – to be inadmissible, this court should find it even easier to disallow evidence of past lawsuits due to relevance.

In the case of Mathis v. Phillips Chevrolet, Inc., 269 F.3d 771 (7th Cir. 2001), the Seventh Circuit also dealt with this issue. In Mathis, an African-American plaintiff had brought claims of age and race discrimination against the defendant. See Mathis, 269 F.3d at 773. Defendant had tried to introduce evidence that the plaintiff had sued at least six other car dealerships for discrimination, and the lower district court had deemed such evidence inadmissible. See id. at 774. The appeals court, in discussing whether the lower court’s decision was the correct one, stated:

… both the Second Circuit in Outley, and this court in Gastineau recognized that the danger of unfair prejudice from a charge of litigiousness might be minimized if the defendant could show that the plaintiff had a history not merely of filing numerous lawsuits, but of filing fraudulent ones…

Id. at 776. The court then went on to observe that defendant Phillips had indeed presented evidence that plaintiff Mathis was fabricating claims of discrimination through potentially fraudulent means, but, noting that the lower court is endowed with great discretion in deciding whether to admit evidence, the Second Circuit refused to reverse the lower court’s decision. See Compaq Computer Corp. v. Ergonome Inc., 387 F.3d 403, 408-09 (5th Cir.2004) (concluding that district court did not abuse its discretion by excluding evidence of past lawsuits against defendant because any probative value was outweighed by its prejudicial and inflammatory nature and “its tendency to confuse the jury with tangential litigation”); Yellow Bayou Plantation, Inc. v. Shell Chemical, Inc., 491 F.2d 1239, 1242-43 (5th Cir.1974) (upholding district court’s exclusion of list of prior lawsuits against defendant because evidence was “of such faint probative value and high potential for unfair prejudice”). This evidence is excluded under Rule 403 as any probative value it may have is substantially outweighed by unfair prejudice and considerations of delay and time-wasting on collateral issues.

Further, there have been numerous rulings stating that a past litigation history – sometimes involving hundreds of suits – is of little relevance when deciding whether an instant lawsuit is meritorious, or that the plaintiff is a vexatious litigant. See Wilson v. Pier 1 Imports, Inc., 2006 WL 213823, *3-*4 (E.D. Cal) (finding that fact of multiple previous lawsuit filings by plaintiff does not prove frivolousness in instant matter or that the case lacked merit); Doran v. Vicorp Restaurants, 2005 WL3577148, *3 (C.D. Cal 2005) (“Initially, the Court notes that Doran is not a vexatious litigant merely because he has filed 219 lawsuits”); Molski v. Mandarin Touch Restaurant, 347 F.Supp.2d 860, 866 (C.D. Cal. 2004) (“Clearly, raising multiple claims, by itself, is not unethical or vexatious”); Mathis v. Phillips Chevrolet, Inc., 269 F.3d 771, 776 (7th Cir. 2001) (excluding evidence of prior lawsuits because they “could also have given rise to the impermissible inference that, because [plaintiff] was given to filing frivolous lawsuits, the jury should not credit his claims in this suit”); Raysor v. Port Authority, 768 F.2d 34, 40 (2d Cir. 1985) (excluding questions about past lawsuits because plaintiffs “litigiousness may have some slight probative value, but that value is outweighed by the substantial danger of jury bias against the chronic litigant”); Bryce v. Trace, Inc., 2008 WL 906142, *1 (W.D. Oka.2008) (excluding evidence of prior lawsuit by plaintiff as irrelevant and prejudicial).

Access to our courts is a basic and vital constitutional rights which may only be curtailed under the most exigent of circumstances. In Re Oliver, 682 F.2d 443, 445 (3rd Cir. 1982). Thus, the issuance of a prefiling order restricting such access is an extreme measure which should rarely be imposed. DeLong v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). This is not to say that the Court’s inherent power to maintain the orderly and expeditious administration of justice is so neutered as to be meaningless, but in the instance of a prefiling order it must be carefully and judicially applied.

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For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, here are a few wins: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.