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Doe I-XIX v. Boy Scouts of America

United States District Court, D. Idaho

March 15, 2019

BOY SCOUTS OF AMERICA, a congressionally chartered corporation authorized to do business in Idaho; CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a foreign corporation sole registered to do business in Idaho; and CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS AND SUCCESSORS, a foreign corporation registered to do business in Idaho, Defendants.


          B. Lynn Winmill U.S. District Court Judge


         The Court has before it three motions in limine filed by the Church and BSA to exclude the contents of the Ineligible Volunteer files (IV files). The motions are fully briefed and at issue. For the reasons described below, the Court will deny the motions.


         Defendants ask the Court to exclude from evidence the contents of the IV files. While their arguments overlap to a great extent, they diverge on one important point. The Church argues that it was unaware of the IV files maintained by BSA, and that the files should be completely excluded for all purposes; the BSA concedes that the existence and purpose behind the IV files might be relevant, but argues that the contents of the files are irrelevant, contain inadmissible hearsay, and are unduly prejudicial. After reviewing some background information, the Court will consider separately the arguments of the Church and BSA.

         The IV files contained records of individuals “who have in the past been deemed ineligible to participate in BSA-designated programs.” See Second Declaration of Johnson (Dkt. No. 377) at ¶ 3. A person may be deemed ineligible by BSA due to criminal behavior, sexual abuse of minors, financial wrongdoing, and bad leadership skills, among other reasons. Id. at ¶ 5. The contents of the IV files include “basic information about the particular individual, letters describing events, perceptions or suspicions suggesting the individual should be deemed ineligible to participate in Scouting, and supporting documents, if provided, including youth or adult notes and newspaper articles.” Id. at 10.

         As an example, the IV file for Clyde Brock contains a BSA form entitled “Confidential Record Sheet Division of Personnel B.S.A.” dated April 1, 1968. See Exhibit 1 to Vaughn Declaration (Dkt. No. 418-1). The form contains personal information about Brock, a notation that he has been awarded BSA's Silver Beaver award, and an explanation that his file was created because he was “taking nude pictures of his Scouts.” The file also contains two letters dated March 25 & 28, 1968, from Guy P. Miller who describes himself as a “Scout Executive.” Id. The earlier letter is addressed to Brock, stating that Miller has taken statements from two boys that “charge[] you with relationships with them as well as other members of the troop over the past few years that cannot be condoned by the [BSA].” The letter goes on to explain that “you have been called to task at least twice previously for unseeming conduct in taking pictures of your Scouts in the nude and exhibiting around your home where Scouts have been invited [to view] these pictures plus others of both nude men and women.” Id.

         Miller calls on Brock to either resign immediately or face a more detailed investigation in which Miller will be “requesting statements from at least ten additional boys whose names have been included . . . .” Id. Brock agrees to resign, and Miller then writes to the local troop leader urging him to accept the resignation, but also noting that

I can see no reason why he [Brock] shouldn't be recognized at the 50thanniversary celebration if you and the committee see fit. Of course he may not want to participate, but from his point of view it would help to ally questions about his retirement from the troop. I am sure there are key members of the troop committee that need to know the story, but the less it is discussed among adults and boys I am sure the better it will be.

Id. Earlier in this litigation, the Court ordered BSA to produce in discovery the IV files - whenever created - that contained reports of sexual abuse of scouts occurring prior to 1983, the last date of plaintiffs' abuse, at that time. Since that time, several plaintiffs have settled their cases and so the date of 1983 is no longer valid - of the three remaining plaintiffs, the last date of abuse is 1977. The IV files include files for two of the perpetrators in this case, Larren Arnold and James Schmidt.


         The Court will consider first the motion filed by BSA and then turn to the motion filed by the Church.

         BSA - Relevance

         The content of the IV files is relevant to the case against BSA for three purposes. First, the contents tend to show the extent of sexual abuse of scouts by Scout leaders, which is important to the issue of the falsity of BSA's statements that Scouting was safe. When introduced for this purpose, the IV files are not being introduced to show BSA's knowledge of the abuse - this Court has previously held that BSA's knowledge is not necessary to show falsity. The IV files would be introduced to show the extent of sexual abuse in scouting regardless of whether BSA knew about it or not. See Memorandum Decision (Dkt. No. 336) at p. 5 (holding that “so long as plaintiffs establish the requisite relationship [of trust and confidence between scout and adult leader], they could allege a claim for constructive fraud even if they had no evidence that [BSA or the LDS Church] knew about the abuse in scouting”). The contents of the IV files - not just their existence - “may help plaintiffs establish the extent of the sexual abuse problem in Scouting, so as to establish that alleged representations regarding the safety of Scouting were false.” See Memorandum Decision (Dkt. No. 336) at p. 7.

         The IV files are also relevant for a second purpose, which does pertain to BSA's knowledge. Another element of constructive fraud is that plaintiffs had a special relationship of trust and confidence in their BSA leaders. This relationship could be created by a combination of a plaintiff's youth and the BSA's superior knowledge of sexual abuse, triggering a duty on the part of the BSA to disclose the danger of abuse. Tom Doe v. Presiding Bishop, 2012 WL 3782454 at *10 (D. Idaho Aug. 31, 2012). The contents of the IV files - not just their existence - may help plaintiffs show BSA's superior knowledge of sexual abuse committed by adult leaders sufficient to establish that special relationship, triggering a duty of disclosure.

         A third reason the contents of the IV files are relevant is that those contents may tend to show a cover-up by BSA. For example, Brock's IV file shows a Scout Executive stating that the less this sexual abuse is discussed “the better it will be.” Evidence that BSA was covering up the sexual abuse is relevant to punitive damages and to whether the economic cap on damages should be applied.

         BSA argues, however, that the IV files contain only allegations and that no professional investigation was ever conducted by BSA to confirm the allegations. But the Brock IV file, for example, contains more than just unsubstantiated allegations - it shows that a BSA executive investigated the allegations and found credible the accounts of two scout that Brock had an inappropriate relationship with them. The BSA had enough information not just to form a suspicion but to reach a conclusion and force Brock's resignation. Certainly there may be other files that are thin by comparison. But that is why it is crucial for the jurors to examine the contents of the IV files - the contents will reveal whether there was a critical mass of evidence of predators in BSA's ranks during the relevant time frame that BSA's statements of safety were false and its silence a constructive fraud that warrants punitive damages.

         BSA argues that plaintiffs are using the IV files to establish a negligence case even though there is no negligence claim in this case. The Court disagrees. To show that they were deceived, plaintiffs must show that sexual abuse was so prevalent in Scouting that the BSA's statements that its program was safe were false. The IV files are directly relevant to the prevalence of abuse in Scouting. The jurors can sift and weigh the allegations and determine whether they are so thin they should be disregarded or so substantial they should be actionable.

         BSA argues that if there is any relevance in the IV files it lies in the number of accounts of abuse not in anything in the contents beyond sheer numbers. But the Court rejected this argument in Tom Doe and is not convinced that the decision should be reconsidered. Tom Doe, 2012 WL 3782454 at *31 (declining to find that a plaintiff need establish that there was a particular risk of sexual abuse in Scouting, or that the risk was greater than in society at large).

         BSA argues that any allegations of abuse committed outside Idaho are not relevant. But the Court has previously found relevant such allegations:

The relevance of such files is not limited to persons involved in Scouting in Idaho. Sexual abuse in Scouting was not limited to Idaho, and Plaintiffs' claims are based on misrepresentations made about a national program. Plaintiffs allege that BSA failed to warn Plaintiffs of a nationwide, program-wide, and longstanding problem in Scouting. Thus, the Court will not limit production to a specific regional area on relevance grounds.

See Memorandum Decision (Dkt. No. 225) at p. 7.

         For all these reasons, the Court finds the IV files relevant under Rule 402 as against BSA.

         BSA - Scope of ...

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