Doe v. Russell County School Board et al

Filing 126

OPINION and ORDER that the court will treat current employees of the School Board and former employees who had involvement with the events in question in the case as adverse witnesses under Rule 611(c)(2) and permit leading questions on direct examin ation. However, with respect to former employees who had little to no such involvement, the court will wait until trial to determine on an individual basis if such a witness seems hostile or uncooperative. Signed by Judge James P. Jones on 2/28/18. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
JOHN DOE, AN INFANT, BY HIS NEXT )
)
FRIEND, REELIA WATSON,
)
Plaintiff,
)
)
v.
)
)
RUSSELL COUNTY SCHOOL BOARD )
)
D/B/A RUSSELL COUNTY PUBLIC
)
SCHOOLS, ET AL.,
)
Defendants.
)

Case No. 1:16CV00045
OPINION AND ORDER
By: James P. Jones
United States District Judge

Monica H. Beck and Douglas E. Fierberg, The Fierberg National Law
Group, PLLC, Traverse City, Michigan, and Paul R. Thomson, III, The Thomson
Law Firm, PLLC, Roanoke, Virginia, for Plaintiff; Christopher S. Dadak and Jim
H. Guynn, Jr., Guynn & Waddell, P.C., Salem, Virginia, and Mary Katherine
Patton, Chafin Law Firm P.C., Lebanon, Virginia, for Defendant Russell County
School Board d/b/a Russell County Public Schools
In this civil case against the Russell County School Board ( “School Board”)
involving the molestation of a student by a school employee, the plaintiff seeks
leave to examine at trial employees and former employees of the School Board by
the use of leading questions.
Rule 611(c)(2) of the Federal Rules of Evidence allows leading questions on
direct examination “when a party calls a hostile witness, an adverse party, or a
witness identified with an adverse party.” The precise meaning of “identified with
an adverse party” has not been clearly defined. However, most courts agree that

the employee/employer relationship falls within its meaning. See, e.g., Chonich v.
Wayne Cty. Cmty. Coll., 874 F.2d 359, 368 (6th Cir. 1989) (allowing leading
questions on direct examinations of community college’s former president and
personnel director); Haney v. Mizell Mem’l Hosp., 744 F.2d 1467, 1478 (11th Cir.
1984) (finding that an employee of defendant present when the alleged malpractice
may have occurred was identified with an adverse party); Fehr v. SUS-Q Cyber
Charter Sch., No. 4:13-cv-01871, 2015 WL 6166627, at *3 (M.D. Pa. Oct. 20,
2015) (“The term ‘witness identified with an adverse party’ is intended to apply
broadly to an identification based upon employment by the party or by virtue of a
demonstrated connection to an opposing party.”) (citation omitted).
“The normal sense of a person ‘identified with an adverse party’ has come to
mean, in general, an employee, agent, friend, or relative of an adverse party.” Id.
(citation omitted); see Ratliff v. City of Chi., No. 10 C 739, 2012 WL 7993412, at
*1 (N.D. Ill. Nov. 20, 2012).
“Whether a former employee is properly considered ‘a witness identified
with an adverse party’ is an unsettled inquiry whose resolution is often factdependent.” Fehr, 2015 WL 6166627, at *3. In analyzing this question, courts
have come to differing conclusions based upon the former employee’s position and
involvement, if any, in the events giving rise to the litigation. Compare Stahl v.
Sun Microsystems, Inc., 775 F. Supp. 1397, 1398 (D. Colo. 1991) (finding former
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employee of defendant to be “identified with an adverse party” because of her
former employment and ongoing relationship with a key witnesses who attended
the trial on behalf of defendant), with Radice v. Meritor Sav. Bank, Inc., Civ. A.
No. 89-6914, 1993 WL 56044, at *2 (E.D. Pa. Mar. 2, 1993) (finding that witness,
who was a former employee and defendant in the case, was not a hostile witness
simply due to his former employment because he had been dismissed as a
defendant at summary judgment and “was not involved in the internal process” that
led to litigation).
Courts often wait until trial to make a determination concerning hostility in
order to observe whether a particular witness shows hostility or seems
uncooperative. See Fehr, 2015 WL 6166627, at *4 (finding current employee and
former executive witnesses ‘identified with an adverse party,’ but deciding to wait
until trial to determine whether former non-executive employees were hostile and
subject to leading questions); United States v. McDonnell, No. 3:14-CR-12, 2014
WL 3545206, at *1 (E.D. Va. July 16, 2014) (refusing to find family members of
defendants’ witnesses ‘identified with an adverse party’ because the record failed
to demonstrate the witnesses had shown hostility, but reserving right to reconsider
the issue at trial if witnesses showed themselves to be hostile) (citation omitted);
Sec. & Exch. Comm’n v. Goldstone, 317 F.R.D. 147, 167 (D.N.M. June 14, 2016)
(refusing to exercise its discretion to allow leading questions before trial for
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witness who was former chief accounting officer and settling defendant, but
reserving right to determine hostility at trial).
Accordingly, I will treat current employees of the School Board and former
employees who had involvement with the events in question in the case as adverse
witnesses under Rule 611(c)(2) and permit leading questions on direct
examination. However, with respect to former employees who had little to no such
involvement, I will wait until trial to determine on an individual basis if such a
witness seems hostile or uncooperative.
It is so ORDERED.

ENTER: February 28, 2018
/s/ James P. Jones
United States District Judge

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