Doe I et al v. Boy Scouts of America et al

Filing 476

CASE MANAGEMENT ORDER ( Jury Pool to report 5/3/2019 09:00 AM in Boise - Courtroom 3 before Judge B. Lynn Winmill. Jury Selection set for 5/6/2019 09:00 AM in Boise - Courtroom 3 before Judge B. Lynn Winmill. Jury Trial set for 5/6/2019 01:30 P M in Boise - Courtroom 3 before Judge B. Lynn Winmill. Pretrial Conference set for 4/17/2019 03:00 PM in Boise - Courtroom 3 before Judge B. Lynn Winmill.) The pretrial conference for Doe XII shall be July 16, 2019, at 1:30 p.m. The trial date shall be July 29, 2019, at 1:30 p.m.. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOHN DOES I-XIX and JOHN ELLIOTT,
Plaintiffs,
v.

Case No. 1:13-cv-00275-BLW
CASE MANAGEMENT ORDER

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.

Following a conference held with all counsel on March 22, 2019, and finding good
cause therefore, the following schedule shall govern this case:
1. Deadline for Exhibit & Witness Lists: April 3, 2019;
2. Deadline for Demonstrative Exhibits: April 11, 2019;
3. Deadline for Jury Instructions/Voir Dire: April 17, 2019;
4. Deadline for Trial Briefs: April 29, 2019;
5. Pretrial Conference: April 17, 2019, at 3:00 pm. The conference shall be inperson unless special arrangements need to be made to appear by telephone. This
conference will cover only the trial on the claims of Doe IV and XVIII – it will not
involve the claims by Doe XII.

Case Management Order – page 1

6. Jury Selection: The Court intends to have the jury pool report on Friday May 3,
2019, at 9:00 a.m. for orientation and to answer a Questionnaire regarding their
qualifications and other matters regarding the trial of Doe IV and XVIII. A
Magistrate Judge shall preside and administer the oath to the jurors before they
answer the Questionnaire. The attorneys shall not attend this proceeding. When
the jurors have completed the Questionnaire, they will be sent home and told to
report back Monday morning (May 6, 2019) at 8:30 am. The Court would intend
for the attorneys to meet in the afternoon of May 3, 2019, to review the
Questionnaire answers and attempt to agree to any jurors who should be excused
for cause. If there are any disagreements, the Court will be available by telephone
on May 3, 2019, to resolve those disputes. By the end of the day of May 3, 2019,
the Court should be able to approve those jurors to be excused for cause on the
basis of the Questionnaire answers and the Jury Administrator could call them and
avoid their having to report the next week. Trial would begin on Monday May 6,
2019, at 9:00 am with jury selection. This process will not prevent attorneys from
making additional for-cause objections during jury selection the week of May 6,
2019.
7. Jury Selection & Trial: As discussed above, jury selection shall begin Monday
May 6, 2019, at 9:00 a.m., with trial on the claims of Doe IV and Doe XVIII to
follow immediately upon selection of a jury.

Case Management Order – page 2

8. Inquiry into Religion during Jury Selection: Counsel shall attempt to reach
agreement on whether and to what extent prospective jurors can be asked about
their religious affiliation during voir dire.
9. Number of Jurors to be Empaneled: The Court will empanel 8 jurors to try the
case. There are no alternates – the jury verdict must be unanimous.
10. Peremptory Challenges: Under 28 U.S.C. § 1870, each party is entitled to three
peremptory challenges.
11. Typical Trial Day: Trial will be conducted from 8:30 am to 2:30 pm, with two
breaks (about 15 to 20 minutes each) at about 10:30 am and 12:30 pm.
12. Time Limits on Voir Dire: Each party will get 20 minutes to do their own voir
dire.
a. I would caution counsel about engaging in improper voir dire. This is a
non-exhaustive list of the types of questions I find objectionable:
i. Indoctrinating the jury on your theory of the case.
ii. Instructing the jury on the law.
iii. Asking jurors to prejudge the evidence.
iv. Probing too deeply into a juror's personal life, and particularly
asking about items posted on a juror's social media page without
prior leave from me.
v. Referring to evidence which will be presented during the trial, unless
it has been stipulated to and discussed with me in advance.
vi. Asking about the juror's attitude about litigation, generally.
Case Management Order – page 3

13. Opening Statements:
a. I will not put restrictions on counsel but simply notes the marked drop-off
in juror attention spans after listening to about 20 minutes of an opening
statement. I do request that counsel notify me if either party expects
opening statements to exceed 30 minutes.
14. Trial Procedures:
a. During trial, the jury will be in the box hearing testimony the entire trial
day between 8:30 a.m. and 2:30 p.m., except for the standard fifteen- to
twenty-minute recesses.
b. During the time the jury is in the jury box, no argument, beyond onesentence evidentiary objections, shall be allowed to interrupt the flow of
testimony. If somewhat more extensive argument is needed, I may call for a
sidebar. If the matter cannot be resolved at sidebar, counsel will be directed
to avoid the objectionable subject and continue on a different line of
questioning so that the objection can be argued and resolved at another
time, either after 2:30 p.m. or before 8:30 a.m.
c. Counsel shall have enough witnesses ready to ensure a full day of
testimony. If witnesses are unavoidable delayed, counsel shall promptly
notify opposing counsel and me.
15. Notice of Next-Day Witnesses:
a. The parties agree that witnesses will be identified as to when they will
testify by 5:00 p.m. the day before the witnesses will testify. The
Case Management Order – page 4

notification to the opposing party will include a list of any demonstrative
exhibits to be used by said witnesses.
16. Examination & Objections
a. When you announce the name of your witness, either the courtroom deputy
or I will summon them forward to be sworn, the courtroom deputy will
administer the oath and, after the witness is seated, ask the witness to state
their name and spell their last name for the record. I will then indicate to
counsel that they may inquire of the witness.
b. Please do not address parties or witnesses (including your own) by her or
his first name unless such familiarity is clearly appropriate and is not likely
to be offensive to the witness or any juror.
c. In case of doubt, don't.
d. Your clients and your witnesses should be instructed that they should
always refer to you and opposing counsel by their last names.
e. Objections and motions before the jury should be very spare.
f. Examples of improper objections: "I object to that question, Your Honor,
because I am sure that Charlie Witness didn't read that document very
carefully before he signed it"; or, "I object, Your Honor, because Charlene
Witness has already testified that she can't remember".
g. Obviously these "speaking objections" would suggest an answer.
h. While bench conferences can be distracting and are discouraged, they are
preferable to statements such as those cited above. Almost all objections
Case Management Order – page 5

should be stated in one to three words ("hearsay", "asked & answered",
"irrelevant", etc.).
i. I never send the jury out of the courtroom to hear arguments of counsel. If
necessary, but only if necessary, counsel can raise an issue at a sidebar
conference. However, even those interruptions in the flow of the evidence
will only be permitted if absolutely necessary.
17. Contact with Jurors:
a. You are responsible to advise your clients, your witnesses and everyone
associated with your client to avoid all contact with the jurors. This
prohibition includes seemingly innocuous behavior like riding on an
elevator with a juror, saying hello to a juror, or even acknowledging the
juror's presence.
18. Jury Instruction Conferences:
a. I try to conduct at least 2 or 3 informal jury instruction conferences off the
record to try and resolve most differences by agreement. Those sessions
will be held at the end of the trial day and may stretch into the evening. At
the end of those sessions, we will have refined the issues of contention so
that I can give you a set of my final instructions and you can state your
objections on the record.
19. Review of Admissibility of IV Files:
a. In about a week, the plaintiffs will submit to the Scouts the IV files they
intend to use at trial. The parties will then attempt to reach an agreement
Case Management Order – page 6

on admissibility and refer any disagreement to the Court by the April 17,
2019, pretrial conference.
20. Protective Order re Names:
a. It appears to be unavoidable that parties and witnesses will need to use their
real names during these proceedings. To protect their confidentiality
outside of the courtroom proceedings, counsel shall work together to draft a
proposed protective order for the Court’s approval.
21. Pretrial Conference & Trial Date for Doe XII:
a. The pretrial conference for Doe XII shall be July 16, 2019, at 1:30 p.m.
The trial date shall be July 29, 2019, at 1:30 p.m.

DATED: March 22, 2019
_________________________
B. Lynn Winmill
U.S. District Court Judge

Case Management Order – page 7