the burden is on the party opposing admission to rebut the presumption of trustworthiness. As to the report of the OECD, defendants argue that there is insufficient evidence of the source of the data. In response, plaintiffs note that the data was compiled by a panel of experts who, while not identified in these materials, represented a number of countries and who discussed and agreed to the final report. There is no reason to suspect, and defendants have not presumed to suggest, any motivational problems on the part of these experts.
As to the data compilation prepared by the Statistical Office of the United Nations, defendants object that the report does not indicate that "the source of the data was ever confirmed." While we are not altogether sure what is meant by this statement, we believe that as it stands it is insufficient to impugn the sources of the information and thus the presumed trustworthiness of the document.
Relatively little time was devoted to these documents, at least in comparison to the matters discussed earlier in this opinion, and defendants did not martial much in the way of objection. While we cannot be sure what would emerge from more searching scrutiny, we conclude that as to these two documents, defendants have failed to show that "the sources of information or other circumstances indicate lack of trustworthiness." Thus, DSS #'s 46 and 47 are admissible as 803(8) exceptions to the rule against hearsay.
This opinion has analyzed in great detail, through a series of evidentiary layers, the documents contained in DSS #'s 1-26, as well as Judge Higginbotham's 1975 findings and certain miscellaneous documents containing statistical data. For the reasons set forth, we find admissible only the documents described in Part VII, supra, and will exclude the others from consideration in connection with the motions for summary judgment on plaintiffs' conspiracy and other affirmative claims, and in connection with our preliminary (Rule 104) determination as to whether plaintiffs have come forward with sufficient independent evidence of the existence of the conspiracy they have charged among the defendants to go forward with those conspiracy claims.
Had this been an ordinary case, it would have been unnecessary for us to have approached the problems presented through so many evidentiary layers. It would have been enough, for example, to exclude the evidence had we found it to be hearsay and not subject to the 803(8)(C) exception, without considering the other grounds of objection. We have addressed all potential evidentiary questions for two reaons. First, given the magnitude of the case and its history to date, there is a certainty of appellate review, and we think it important to "touch all bases" and analyze the issues from every relevant direction for the ultimate benefit of the parties and the Court of Appeals and so that there can be no remand because of a failure to address particular questions. Second, and of more immediate application, it is necessary that all evidentiary objections be decided because of the impact on the case of F.R.E. 703.
As will appear in bold relief when we write about the admissibility of plaintiffs' opinion evidence, a subject we will address in the third opinion in this evidentiary series, (the second opinion will deal with all the items listed at 5-7, supra, and not considered herein), Rule 703 provides that the facts or data upon which an expert bases an opinion or inference need not be admissible in evidence so long as they are of a type "reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." We dwelt extensively upon the expert opinions during the course of our evidentiary hearings and have read the expert reports and can thus state that many of the matters we have excluded and many matters which will be excluded in our next opinion are relied upon heavily in the reports of plaintiffs' experts. Plaintiffs announced during the hearings that they believe that the experts, may properly rely on the excluded material, citing Rule 703. Thus the basis on which the evidence was excluded becomes extremely important. For instance, if a document was excluded for some technical reason, perhaps the expert may still rely upon it if Rule 703 is otherwise met. If, however, it was excluded because it was untrustworthy, perhaps he may not. As we have ofttimes observed during the course of these hearings, where the point was demonstrated again and again, the F.R.E. are a veritable "seamless web."
Because our rulings are all subsumed within the foregoing opinion, a separate Pretrial Order is unnecessary; this opinion will constitute P.T.O. No. 283.
APPENDIX DOCUMENTARY SUBMISSION SHEET
I. DOCUMENT IDENTIFICATION
A. PARTY OFFERING EVIDENCE:
B. DOCUMENT IDENTIFICATION:
1. Document Number:
2. Brief Description:
3. FPS Reference (s):
4.Description of Documents of a Similar Type:
C. (PARTYS) AGAINST WHOM OFFERED:
II. OBJECTOR POSITION
Lacks Authenticity (F.R.E. 901):
Not Business Record (F.R.E. 803(6)):
Not Public Record or Report (F.R.E. 803(8)):
Other Hearsay (F.R.E. 802):
Irrelevant (F.R.E. 402):
III. PROPONENTS' REPLY
Authentic (F.R.E. 901):
Authentic (F.R.E. 902):
Admission (F.R.E. 801(d)(2)):
Business Record Exception (F.R.E. 803(6)):
Public Record or Report Exception (F.R.E. 803(8)):
Other Hearsay Exception: