Christensen et al v. Galliway et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Kent Christensen, et al.,
Plaintiffs,
v.
Leann Renee Galliway, et al.,
Defendants.
No. CV-23-08509-PCT-KML
ORDER
Defendants LeAnn and Carl Galliway seek to exclude the written declaration of
Roberta Christensen from trial. (Doc. 207.) Roberta submitted that declaration in July 2025
in connection with summary judgment. (Doc. 176-1.) Roberta later died on January 18,
2026. (Doc. 210 at 2.) Plaintiffs Kent and Kara Christensen, Roberta’s children, oppose
exclusion and argue the declaration is admissible under the residual hearsay exception.
(Doc. 210 (citing Fed. R. Evid. 807).) The motion to exclude is granted.
The relevant background is as follows. In May 2025, Roberta was deposed during
discovery, but Kent and Kara chose not to examine her even though they already knew she
was ill. (Docs. 207 at 1; 195 at 1–2.) On October 1, 2025, Kent and Kara moved for leave
to take a preservation deposition due to Roberta’s terminal cancer. (Doc. 191.) The court
ordered an expedited response and granted the motion two days after it was filed, on
October 3, 2025. (Doc. 195.) The court found good cause to reopen discovery because the
record indicated Roberta’s condition had worsened significantly and unexpectedly in late
summer 2025 such that preservation of her testimony for trial was appropriate. (Doc. 195
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at 2–3.) The court also made clear that, if Roberta were not alive at the time of trial, the
preservation deposition would substitute for trial testimony and the parties should elicit all
testimony they expected to use. (Doc. 195 at 3.) Kent and Kara scheduled that deposition
for October 9, 2025, but canceled it without explanation. (Doc. 207 at 2.) They now seek
to present Roberta’s written declaration at trial instead.
Kent and Kara’s response to LeAnn’s motion does not meaningfully grapple with
that procedural history. In the motion in limine, LeAnn argued that Kent and Kara declined
to examine Roberta in May 2025 and then failed to take the very preservation deposition
this court authorized after discovery had closed. (Doc. 207 at 1–2.) Yet Kent and Kara offer
no explanation for why they declined to examine Roberta in May and canceled the October
2025 deposition. Instead, they assert in conclusory fashion that LeAnn already had a full
opportunity to examine Roberta in May 2025 and state—without any further details—that
Kent and Kara merely “sought to schedule a preservation deposition” when her health
declined. (Doc. 210 at 6–7.) That is not responsive. Kent and Kara had two opportunities
to preserve Roberta’s testimony for trial and took advantage of neither.
The residual hearsay exception will not rescue a party from its own strategic
failures. The exception is narrow and applies only in exceptional circumstances. United
States v. Bonds, 608 F.3d 495, 500–02 (9th Cir. 2010); Fong v. Am. Airlines, Inc., 626 F.2d
759, 763 (9th Cir. 1980). To admit a statement under Rule 807, the proponent must
establish both that it has “sufficient guarantees of trustworthiness” and that it is “more
probative on the point for which it is offered than any other evidence that the proponent
can obtain through reasonable efforts.” Fed. R. Evid. 807(a). Kent and Kara have not made
those showings here.
First, that Roberta was a highly-interested witness undermines the trustworthiness
of her declaration. This trial concerns whether her children will recover a share of the trust
assets, giving her an obvious personal stake in the outcome. (Doc. 202 at 1, 7.)
Additionally, large portions of her declaration underscore why Rule 807 is a poor fit here:
the declaration was prepared for litigation in July 2025, after Kent and Kara declined to
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question Roberta at a deposition where defense counsel could have cross-examined her on
any topics they raised, and it contains not only Roberta’s own narrative but also layers of
alleged statements by others. (Doc. 176-1 at 4–7.) A declaration from an interested witness
that contains multiple levels of hearsay is not sufficiently reliable to satisfy Rule 807. See
Bonds, 608 F.3d at 501–02.
Second, the declaration is not more probative than other evidence obtainable
through reasonable efforts. Many of the points in the declaration may be addressed through
other witnesses, business records, correspondence, meeting notices, and other documentary
evidence. (See, e.g., Doc. 210 at 3–4.) More importantly, Kent and Kara had two clear
opportunities to preserve Roberta’s testimony in admissible form and inexplicably failed
to use either one. Rule 807 is not a mechanism to cure such a strategic failure.
Accordingly,
IT IS ORDERED the motion in limine to exclude Roberta’s declaration (Doc. 207)
is GRANTED.
Dated this 17th day of March, 2026.
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