Hearsay Strikes Back

Aero Rubber Co. v. United States is a short decision on a motion to strike evidence from the record. The ultimate question is the classification of printed silicone rubber bands that are larger than the wristbands you often see on teenagers and Stephen Colbert.

These are larger and appear to be used to bind or secure various items while providing space for branding or advertising. I don't know that for certain, but this image from the Aero Rubber website gives an idea of sizes and at least one use.

The classification of these goods depends on whether the printing is "not merely incidental to the primary use of the goods." If the printing is incidental, the goods are classified as articles of plastic in Chapter 39. If the printing is not merely incidental, the goods are classified as printed products of Chapter 49. 

As evidence of the primary use of the goods and, presumably, how the printing impacts that the use of the bands, plaintiff sent questionnaires to customers and attached those questionnaires to its brief. Citing CIT Rule 12(f), the Department of Justice moved to strike the questionnaires.

The Court initially noted that 12(f) is not really applicable to this dispute as it relates to pleadings and not to briefs in support of motions. On top of that, striking matter submitted by a party in support of its claims is an extraordinary remedy that judges should only employ where there has been a flagrant disregard of the rules. That is not the case here.

On the other hand, evidence submitted in support of or against a motion for summary judgment must be in a form that would be admissible in court. CIT Rule 56(c)(2). According to the Government, the questionnaires are inadmissible both because they are irrelevant and because they are hearsay.

The hearsay argument is easier to deal with, so let's start there. Hearsay is an out of court statement used as evidence to prove the truth of that matter. It is generally inadmissible under the Federal Rules of Evidence. We have discussed hearsay recently, so I will not rehash it hear. Go read this if you are unfamiliar with the concept. 

In the context of a motion for summary judgment, the Court is permitted to consider a hearsay statement if the statement could be reduced to admissible evidence at trial or reduced to admissible form. Presumably, Aero could call as witnesses the people who completed the questionnaire. The Court left it at that and moved on to relevance.

Aero claims that the questionnaire responses are "obviously relevant to the plaintiff's continuing assertion that 'printing is indeed important to all of Aero's customers.'" The bands are, after all, fundamentally advertising. The question is whether anything a customer has to say about its particular use of a particular band is relevant to the resolution of this case. 

Evidence is relevant where it has any tendency to make a fact more or less probable than it would be without the evidence and that fact has consequences to the outcome of the case. 

To judge the relevance of the questionnaires, the Court pointed to Section VII, Note 2. The Note reads:

Except for the goods of heading 3918 or 3919, plastics, rubber and articles thereof, printed with motifs, characters or pictorial representations, which are not merely incidental to the primary use of the goods, fall in chapter 49.

According to the Court, this indicates that "the inquiry regarding whether printing is incidental turns on an assessment of the specific merchandise in question, not the feedback of customers who purchased distinct merchandise from the manufacturer. Accordingly, questionnaires providing customer feedback on entirely separate silicone bands do not make any material facts 'more or less probable than it would be without the evidence.'" Thus, while the Court did not strike the questionnaires, it held that it would not consider them when deciding the merits.

I have questions and thoughts.

First, how would this have come out if the questionnaires had been directed specifically to the customers who purchased the very bands at issue? Is the actual purchaser's use of the product and interest in the writing more relevant than that of purchasers of similar bands? Intuitively, I think the answer is yes. That would be evidence of the impact of the printing that has a tendency to make the importance of the printing more or less probable. It may not be much evidence and may not be enough to sway the outcome, but it seems to me to get past the relevancy bar.

Next, if that is true, why is evidence from users of apparently similar but not identical bands irrelevant? Let's say the merchandise covered by the customs entries before the Court was printed with the words "Customs Law Blog." Let's further assume I purchased them to use as advertising swag at trade shows and wrap them around copies of my book. [See what I did there?] Fine, my goods are technically at issue. I guess I could testify as to why I wanted the bands to be printed.

Assume Jill down the street runs Java Jill's coffee roaster and she puts a band around each gift box she ships. Each band is printed with the words "Java Jill" and a web address. Is her use and the printing any less relevant? Yes, it is less relevant. But, is it irrelevant?

Use is usually determined not on the basis of the use of the specific product but on the use of the class or kind of the product. This is not a use provision, but use is relevant to determining whether the printing is more than incidental. If 10 people say the printing on large rubber bands is not incidental (or, for that matter that it is incidental), that strikes me as relevant to the question before the Court.

My other question has to do with the nature of the Court of International Trade and classification cases. The reason for the hearsay rule is to prevent unreliable evidence from coming before the trier of fact. The Federal Rules of Evidence probably assume that will usually be a jury of lay people. That is not the case here. It seems to me that the relevance bar should be very low where there is no jury and the fact finder is a judge with specialized expertise in classifying merchandise. It seems to me that there is little prejudice to letting this in with the judicial caveat "for what, if anything, it is worth."

Of course, this is entirely theoretical. I have no idea what evidence there is before the Court on the merits. Samples of the merchandise will be very powerful witnesses. So will Aero's advertising, which indicates what it expects people are doing with these bands. In other words, the impact on the outcome of the case may be minimal.