Judge Mark V. (Vittorio Emanuele”) Holmes is a truly human judge. He has sympathy for a couple industry-standards fact witnesses who, he rightly finds, have suffered enough, collateral casualties of the Dixieland Boondockery wars.
“Each has already testified before in more than one conservation-easement trial. Their testimony is always about their own experience in the quarrying industry. Their testimony is remarkably the same from case to case. And they are all fact witnesses – not adequately compensated for the time and expense of repeatedly getting subpoenaed to testify in other peoples’ cases.” Order, at p. 1.
These poor dudes are first-round draft picks in Wilkes Rock North LLC, Wilkes Investments North LLC, Tax Matters Partner, et al., Docket No. 10736-20, filed 10/11/24. The Wilkes Rockstars are one of nine (count ’em, nine) conjoined alleged dodges, all to be found in the vicinity of Gretsch Stone. I haven’t blogged Gretsch because nothing noteworthy has yet happened therein; Gretsch is one of the aforementioned nine.
But, like brave fighters in the past, the fact witnesses are ready to go again. “(t)hey “will assuredly cooperate if subpoenaed.” Order, at p. 1.
The Wilkes Rockstars move in limine to let in transcripts of their testimony from two (count ’em, two) previous trials.
The Wilkes Rockstars obviously want that testimony to prove the truth thereof. The transcripts, of course, are hearsay (declarant not in the courtroom or on the Zoom); can’t cross-examine a piece of paper or a bunch electrons (this is Judge Holmes, after all).
The Wilkes Rockstars want FRE 807(a)(2) to bail them out. Even if neither FRE 803 nor 804 lets the transcripts in, FRE 8078(a)(2) lets into evidence hearsay “more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.” Order, at p. 2. (Emphasis by the Court).
No go, says Judge Holmes.
“As sympathetic as we are with the witnesses, our analysis begins and ends with the italicized parts of the quoted Rule. Transcripts on paper are not more probative than live testimony. And witnesses who can and will appear if subpoenaed yet again are witnesses whose live testimony can be obtained through reasonable efforts.” Order, at p. 2.
Rule 807(a)(2) is far more honored in the breach than in th’ cliché. Most courts reject attempts to slide hearsay unshriven by FRE 803 or 804 under the tag. But Judge Holmes quarries deeper than most.
“We did find one case that did admit prior testimony of a witness under Rule 807. In State v. Hamilton, 308 Ga. 116, 126-128 (2020)*, the Georgia Supreme Court reasoned that the phrase ‘reasonable efforts’ did not require a party to resubpoena nearly 30 fact witnesses who had already testified before the same judge in the same criminal matter about the same facts when more than eight years had passed between a criminal trial and a hearing.
“But though our conservation-easement cases are approaching this odyssey-like journey through the trial system, they are not there yet.” Order, at p. 2.
Taishoff says, they’re gettin’ there. These dodges are going to keep this blogger going into his golden years, ya betcha!
Taishoff Law 
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