United States District Court, W.D. Virginia, Abingdon Division
JOHN DOE, AN INFANT, BY HIS NEXT FRIEND, REELIA WATSON, Plaintiff,
RUSSELL COUNTY SCHOOL BOARD D/B/A RUSSELL COUNTY PUBLIC SCHOOLS, ET AL., Defendants.
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
OPINION AND ORDER
P. Jones, United States District Judge
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.
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).
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).
a former employee is properly considered ‘a witness
identified with an adverse party' is an unsettled inquiry
whose resolution is often fact-dependent.”
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 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).
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 witness who was former
chief accounting officer and settling defendant, but
reserving right to determine hostility at trial).
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 ...