Doe I et al v. Boy Scouts of America et al
Filing
579
MEMORANDUM DECISION AND ORDER. The motion to exclude Rumel summary (docket no. 401 ) is GRANTED IN PART AND DENIED IN PART. Signed by Judge B. Lynn Winmill. (alw)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOHN DOES I-XIX, and JOHN
ELLIOTT,
Case No. 1:13-cv-00275-BLW
MEMORANDUM DECISION AND
ORDER
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.
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
Memorandum Decision & Order – page 1
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
Memorandum Decision & Order – page 2
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)”).
Memorandum Decision & Order – page 3
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 would overwhelm
and confuse jurors unless counsel could work with a witness to read from certain
documents.
Such summaries are governed by either Rule 1006 or Rule 611(a), and plaintiffs
offer Rumel’s testimony under both Rules. The Court finds that Rule 611(a) is a better fit
than Rule 1006 for several reasons. First, Rule 1006 contemplates admitting into
evidence a summary of documents too voluminous to be introduced into evidence
themselves, but here plaintiffs intend to offer into evidence the underlying documents.
See Trust v. Apple Inc., 2013 WL 12094821 at *11 n. 13 (S.D.Ca. May 7, 2013) (quoting
While Baker involved a summary of trial testimony, its analysis applies with
equal strength here.
1
Memorandum Decision & Order – page 4
3 Saltzburgh, et al., Federal Rules of Evidence Manual 611 (10 ed., 2011) (stating that
“Rule 611(a) is much more apt authority [than Rule 1006] for summaries of evidence that
has already been presented at trial”).
Second, Rule 1006 contemplates that the summary be admitted into evidence yet
the “summary” here will be the testimony of Professor Rumel reading selected portions
of the documents. He is not an expert, and his testimony is not evidence in itself – the
evidence is the document from which he will read. Rule 611(a), unlike Rule 1006, treats
Professor Rumel’s testimony as mere demonstrative evidence requiring a limiting
instruction warning jurors that he is not testifying as an expert, that his testimony is not
evidence, and that the jurors will be the final judges of what the documents mean. U.S. v.
Wood, 943 F.2d 1048, 1053 (9th Cir. 1991).
For these reasons, the Court will allow Professor Rumel to read from certain
documents, admitted into evidence, pursuant to Rule 611(a). In allowing that limited
testimony, however, the Court will exclude any evidence concerning Professor Rumel’s
career, qualifications, or personal background. If the jury hears that he is a law professor,
they will give his testimony weight it does not deserve. Instead, Professor Rumel will
function as a document reader, simply reading portions of documents identified by
counsel.
The Court will address next his intent to comment on the documents he reads
from, and to discuss what the document “tends to prove.” For example, plaintiffs will ask
Professor Rumel “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
Memorandum Decision & Order – page 5
in Scouting . . . .” Plaintiffs’ Brief (Dkt. No. 469) at pp. 6-7. As another example,
plaintiffs will have him testify that “Scoutmaster’s Handbooks encourage the
Scoutmaster to spend time alone with the boys for ‘personal growth conferences,’ thus
giving the child molester cover for wanting to spend time alone with his victim.” Id.
In these representative examples, Professor Rumel will be going beyond just
reading from documents but will also be commenting on what the documents “tend to
prove” – that is, offering his opinion concerning how specific documents satisfy various
elements of constructive fraud. This testimony is nothing but an expert legal opinion
rendered by a witness who has not been designated as an expert. Such testimony is
inadmissible. See Nationwide Transport v. Cass Information, 523 F.3d 1051, 1058 (9th
Cir. 2008) (excluding opinion testimony in the form of legal conclusions).
For the same reasons, counsel for Doe XII cannot include in their questions to
Professor Rumel any commentary on the relevance of a document to the elements of
constructive fraud. To illustrate the scope of the Court’s ruling, the Court sets forth two
contrasting questions below, one allowed, the other prohibited:
Prohibited Question: “Professor Rumel, in your review of the documents,
did you find documents showing that the Boy Scouts had knowledge of
abuse?”
Allowed Question: “Professor Rumel, please read the second full
paragraph on page 5 of Exhibit X.”
These examples should make clear that Professor Rumel will function simply as a
document reader. See U.S. v. Safavian, 435 F.Supp.2d 36, 42 (D.D.C. 2006) (allowing
Memorandum Decision & Order – page 6
FBI agent as a summary witnesses to read from admitted emails but excluding “any
testimony beyond the bare fact of what words appear on a particular e-mail”).
Plaintiffs complain that these random readings without explanation will confuse
the jury. That underestimates jurors’ capability and is temporary in any event. Any
confusion will last no longer than closing argument when counsel has an opportunity to
explain how the passages read by Professor Rumel satisfy the elements of constructive
fraud. Baker, 10 F.3d at 1412 (stating that a summary of testimony is “generally the
purpose and province of closing argument”).
Finally, the Court will address defendants’ concern that plaintiffs have not
revealed the passages that Professor Rumel will read during his testimony. The
substantive trial date for Doe XII has not yet been set and awaits the result of the trial on
the settlement issue. If that jury finds that Doe XII did not settle his constructive fraud
claim, and a trial date is set to resolve that claim, the Court will require that thirty days
after that jury verdict, Doe XII shall provide to defendants a list of the documents that
Professor Rumel will read from as part of his summary and identify the passages in those
documents that he intends to read. The defendants will be under the same deadline if
they elect to use a witness to testify in a similar manner.
Conclusion
In conclusion, the Court will grant in part and deny in part the motion to exclude
Professor Rumel’s testimony. The Court will deny that part of the motion that seeks to
exclude testimony from Professor Rumel where he is simply reading from an admitted
Memorandum Decision & Order – page 7
document. The Court will grant that part of the motion seeking to exclude any testimony
(or questions from counsel) regarding the following matters:
1. Professor Rumel’s career, profession, education, or personal background;
2. Any commentary or opinion about the documents from which he reads or
what they tend to prove.
3. Any questions from counsel directed to Professor Rumel characterizing in
any way the document that counsel wants him to read.
ORDER
In accordance with the Memorandum Decision above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to exclude
Rumel summary (docket no. 401) is GRANTED IN PART AND DENIED IN PART,
based on the decision above.
DATED: June 11, 2019
_________________________
B. Lynn Winmill
U.S. District Court Judge
Memorandum Decision & Order – page 8
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