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Doe I-XIX v. Boy Scouts of America

United States District Court, D. Idaho

June 11, 2019

JOHN DOES I-XIX, and JOHN ELLIOTT, Plaintiffs,
v.
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.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL U.S. DISTRICT COURT JUDGE

         INTRODUCTION

         The Court has before it a motion to exclude the testimony of John Rumel filed by the Church and joined by BSA. The motion is fully briefed and at issue. For the reasons expressed below, the Court will grant in part and deny in part the motion.

         BACKGROUND

         Professor Rumel teaches law at the University of Idaho Law School. Plaintiffs intend to call him as a “summarization witness under Federal Rule of Evidence 1006 and/or 611.” See Exhibit C (Dkt. No. 403). Plaintiffs explain that he will not offer expert testimony but will instead be asked to summarize documentary evidence that

tends to prove or support Plaintiffs' claims of constructive fraud against Defendants. Mr. Rumel may be asked to summarize or identify documentation tending to prove that Defendants represented that scouting was safe from the danger of child molestation. He may be asked to summarize and/or identify documents that tend to prove that scouting was not safe because of the danger of child molestation. He may be asked to summarize or identify documents that tend to prove that Defendants knew that scouting was not safe because of the danger of child molestation. He may be asked to summarize or identify documents that tend to prove that Defendants promoted, encouraged and helped create a relationship of trust and confidence between scoutmaster and scout. The documents Mr. Rumel may summarize and/or identify for the jury include the documents identified in Exhibit 1, attached hereto, and any document produced or described in any discovery by any party to this litigation.

Id. at p. 2 (emphasis added). The documents listed in Exhibit 1 include three IV Files - those of Arnold, Schmidt, and Empey. But plaintiffs expand that list in their responsive brief to this motion, asserting that Professor Rumel will be asked “to point out among the thousands of pages of IV Files instances where BSA said things, in writing, that show it was intentionally covering up child molestation in Scouting . . . .” Plaintiffs' Brief (Dkt. No. 469) at pp. 6-7. Indeed, plaintiffs will attempt through Professor Rumel to introduce into evidence “hundreds (nearly a thousand or more) IV Files containing thousands of pages of documents . . . .” Id. at p. 7.

         In addition to these IV Files, plaintiffs will also introduce through Professor Rumel “hundreds, if not thousands of pages of other documents produced by defendants.” Id. There documents include BSA Handbooks, BSA Charters & Bylaws, BSA Rules & Regulations, BSA Annual Reports to Congress, BSA promotional material including videos, Church Handbooks, and documents regarding the relationship between the Church and BSA. See Exhibit 1 (Dkt. No. 403).

         Professor Rumel's testimony, defendants argue, is not admissible under either Rule 611 (a) or Rule 1006, because his testimony is not a summary contemplated by these Rules but instead contains legal opinions. Defendants also point out that plaintiffs have never identified what portions of the thousands of documents Professor Rumel will rely upon in his summary testimony.

         LEGAL STANDARD

         Rule 1006 permits “use [of] a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” Because Rule 1006 is limited to voluminous “writings, recordings, or photographs, ” it does not allow a witness to summarize previously admitted oral testimony. U.S. v. Baker, 10 F.3d 1374, 1411 (9th Cir. 1993), overruled on other grounds, U.S. v. Nordby, 225 F.3d 1053 (9th Cir. 1995). But Baker did allow a summary of oral testimony under Rule 611(a), which authorizes the court to “exercise reasonable control over the mode . . . of . . . presenting evidence so as to (1) make these procedures effective for determining the truth, [and] (2) avoid wasting time . . . .” To support that ruling, Baker cited to the leading treatise on evidence. See 5 Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence, ¶ 1006[03] (1993) (stating that a summary “prepared by a witness from his own knowledge to assist the jury in understanding or remembering a mass of details . . . is admissible, not under Rule 1006, but under such general principles of good sense as are embodied in Rule 611(a)”).

         Since Baker “[t]here is no legitimate dispute that the Ninth Circuit allows the use of non-expert summary witnesses.” U.S. v. Singh, 2017 WL 4700042 at *3 (E.D. Ca. Oct. 19, 2017). But Baker cautions that this use should be limited to “exceptional cases, ” and is “generally the purpose and province of closing argument . . . .” Baker, 10 F.3d at 1412.[1]

         ANALYSIS

         The Court begins by addressing that portion of Professor Rumel's testimony where he intends to simply read from selected documents; the Court will address later in this decision his intent to comment on what the document “tends to prove.” The sheer mass of documentation in this case warrants some type of summary witness. There are thousands of pages of underlying documents that ...


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