Opinion
4:17-cv-00385
10-16-2019
MEREDITH CORPORATION, Plaintiff, v. UNITED STATES of America, Defendant.
Stephen H. Locher, Kelsey J. Knowles, Belin McCormick, P.C., Des Moines, IA, Caitlin Tharp, Pro Hac Vice, Lisa M. Zarlenga, Pro Hac Vice, Steptoe & Johnson, Robert J. Kovacev, Pro Hac Vice, Norton Rose Fulbright U.S. LLP, Washington, DC, for Plaintiff. Gregory E. Van Hoey, Martin Morris Shoemaker, U.S. Dept. of Justice, Civil Tax Division, Washington, DC, for Defendant.
Stephen H. Locher, Kelsey J. Knowles, Belin McCormick, P.C., Des Moines, IA, Caitlin Tharp, Pro Hac Vice, Lisa M. Zarlenga, Pro Hac Vice, Steptoe & Johnson, Robert J. Kovacev, Pro Hac Vice, Norton Rose Fulbright U.S. LLP, Washington, DC, for Plaintiff.
Gregory E. Van Hoey, Martin Morris Shoemaker, U.S. Dept. of Justice, Civil Tax Division, Washington, DC, for Defendant.
RULE 615 ORDER
ROBERT W. PRATT, Judge U.S. DISTRICT COURT
Before the Court is the Government's request to sequester all listed witnesses from the courtroom so they cannot hear other witnesses' testimony. ECF No. 59 at 12. The Court asked for additional briefing as to whether sequestration should apply to Plaintiff Meredith Corporation's lone expert witness, Raymond J. Prince, too. ECF No. 64. Both parties briefed the matter, ECF No. 70–71, which now is fully submitted.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case involves a dispute between Plaintiff, a magazine publisher, and the Government as to who can rightly claim a domestic manufacturing tax credit for magazines printed by third-party printers. That question involves several intricacies of tax law and the printing process.
Plaintiff has retained Raymond J. Prince of Custer, South Dakota, to testify as an expert witness at trial. ECF No. 60 at 28. Prince has worked in the printing industry for sixty years. Id. His expertise includes familiarity with printing processes as well as printing industry customs and standards. Id. Coincidentally, he previously testified as the government's expert witness in an unrelated tax case. Id. Plaintiff plans to call Prince to offer expert opinion testimony based on his own experience and "fact witness testimony" presented by Plaintiff's other witnesses during direct- and cross-examination. ECF No. 70 at 1. He is expected to opine that Plaintiff controlled the magazine production process and that it faced a greater risk of loss than third-party printers, among other things. ECF No. 36-16 at 90. In denying Plaintiff's Motion for Summary Judgment, the Court noted that it has not yet resolved these two issues. ECF No. 55 at 18–21. Prince's testimony is "expected to come late in the proceedings." ECF No. 70 at 8.
II. ANALYSIS
A. The Government's Rule 615 Request as to Plaintiff's Expert Witness
Federal Rule of Evidence 615 allows parties to move for the sequestration of witnesses when they are not testifying. Fed R. Evid. 615. The Rule's purpose is to inhibit collusion and dishonesty among witnesses as the factfinder seeks to home in on the truth. Fed R. Evid. 615 advisory committee's note to 1972 proposed rules; see also United States v. Vallie , 284 F.3d 917, 921 (8th Cir. 2002). "Sequestration of most witnesses is mandatory when requested, but the district court is granted wide latitude in implementing sequestration orders, and the standard of review is abuse of discretion." United States v. Engelmann , 701 F.3d 874, 877 (8th Cir. 2012). The Rule provides for four exemptions. Fed R. Evid. 615. The parties agree the only exemption relevant here is that the Rule "does not authorize excluding ... (c) a person whose presence a party shows to be essential to presenting the party's claim or defense." Id.
"Experts are perhaps the most likely candidates for this exemption." 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 6:109 (4th ed. 2019). This is so for two reasons. First, such a witness can help counsel understand testimony elicited by the adversary. Id. Second, "[a] strong argument can also be made for permitting the presence of an expert witness who intends to give an opinion based in part on evidence presented at trial." 1 Kenneth S. Brown, McCormick on Evidence § 50 (7th ed. 2013). As the Government notes, Rule 615 provides no per se exception for experts. ECF No. 71 at 2; see also 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 615.04 (Mark S. Brodin, ed., Mathew Bender 2d ed. 2019) (noting that allowing the expert to view testimony may be inappropriate when that expert also testifies as a fact witness). Still, courts and commentators largely agree that experts do not possess the same risk of collusion or dishonesty as lay witnesses. E.g., Morvant v. Constr. Aggregates Corp. , 570 F.2d 626, 629 (6th Cir. 1978) ("Theoretically at least, the presence in the courtroom of an expert witness who does not testify to the facts of the case but rather gives his opinion based upon the testimony of others hardly seems suspect ...."). For one, they do not need to borrow knowledge from other witnesses because they already are experts. See id. And two, at least in theory, they have no personal interest in the outcome of the litigation; regardless of how the trial comes out, the expert gets paid.
In United States v. Conners , the defendant appealed his conviction of various financial crimes. 894 F.2d 987, 989 (8th Cir. 1990). He challenged, among other things, the district court's decision to allow a Federal Deposit Insurance Corporation examiner to sit at the government counsel's table throughout trial. Id. at 991. The Eighth Circuit held the district court did not abuse its discretion in declining to sequester the witness. Id. This was because (1) the expert's presence during the trial was "essential to his ability to effectively testify" regarding information presented to the jury; (2) the defendant did not demonstrate "substantial prejudice," a requirement for abuse of discretion; and (3) the district court found the expert's testimony was "particularly not susceptible to being tempered or shaped by what he sees or hears in the courtroom." Id. As the Eighth Circuit has noted since, "the decision whether to allow an expert witness to remain throughout trial to hear other testimony ‘is within the discretion of the trial judge and should not normally be disturbed on appeal.’ " United States v. Sykes , 977 F.2d 1242, 1245 (8th Cir. 1992) (quoting United States v. Burgess , 691 F.2d 1146, 1157 (4th Cir. 1982) ).
Much of the same can be said here. First, Plaintiff persuasively argues that Prince's ability to testify requires him to opine on what Plaintiff's fact witnesses say during direct- or cross-examination. Without prejudging any issues for trial, both Plaintiff and the Government may elicit various facts that may go to who controlled the magazine production process and who bore the risk of loss. See ECF No. 55 at 18–21. Prince's ability to opine on those matters, to some extent, may hinge on knowing what fact witnesses said on the stand.
As the Government notes, it is not calling any live witnesses at trial. ECF No. 71 at 4. It then argues that this removes one of the classical justifications for not sequestering experts—that they can explain to counsel the jargon of adverse experts. Id. The Court is not persuaded that Plaintiff's case-in-chief should be penalized because the Government decided not to call any experts of its own.
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The Government suggests that Prince had time plenty to learn Plaintiff's case and, presumably, will not be hearing its facts for the first time at trial. ECF No. 71 at 4. Fair enough. But even in a bench trial, neither the parties nor the Court can predict with certainty what facts will be elicited from various witnesses. Nor is the Court willing to mandate that each expert witness—who presumably has other duties—must memorize each detail of the record prior to taking the stand.
The Government also makes no claim that allowing Prince to observe trial will somehow color his testimony. Rather, given Prince's sixty years of experience in the industry, the Court is trusting that his views on the industry cannot so easily be reshaped by something heard at trial. Finally, there is no evidence to suggest Prince has any untoward bias in favor of Plaintiff or against the Government. Indeed, in an unrelated case involving printers and the same tax credit, he served as an expert witness for the government. ADVO, Inc. v. Comm'r , 141 T.C. 298, 309 (2013) (summarizing Prince's expert report in that case). For the foregoing reasons, the Court's sequestration order will not apply to Prince, who is permitted to sit at Plaintiff's counsel table during trial.
B. The Government's Rule 615 Request as to Other Witnesses
The remainder of the Government's Rule 615 request is less controversial. First, the Government requests the remaining listed witnesses also be excluded from the courtroom except when testifying. ECF No. 59 at 12. Plaintiff does not object to this request, and it is granted.
Second, the Government requests that "counsel may not directly or indirectly provide transcripts of trial testimony (or the substance thereof) of other witnesses to any listed witness prior to the listed witness's testimony." Id. Plaintiff protests that this request—particularly the word "indirectly"—is overbroad because it would "require the Court to police counsel's discussions with witnesses to determine whether a stray comment may have ‘indirectly’ concerned the ‘substance’ of testimony." ECF No. 70 at 11–12.
Plaintiff's concern is taken but hyperbolic. First, it is well understood that if Rule 615 is to mean anything, "sequestration violations are not limited to situations where a witness is present in the courtroom while another witness is testifying." Engelmann , 701 F.3d at 878. District courts can also prevent witnesses from (1) discussing the case with each other; (2) reading transcripts of the trial; and (3) otherwise being briefed on the substance of other witnesses' testimony. Mueller & Kirkpatrick, supra , § 6:108 ("[A] lawyer who conveys to witnesses the substance of the testimony of others or who reads or shows daily trial transcripts to excluded witnesses has clearly undercut the order of exclusion and thwarted its purpose."). A lawyer can still prepare his or her witnesses to take the stand without giving them a debrief of a previous witness's testimony. Id. ; see also United States v. Calderin-Rodriguez , 244 F.3d 977, 984–85 (8th Cir. 2001) (distinguishing between a lawyer speaking with a witness before testimony and "unethical coaching"). The Court trusts Plaintiff's able counsel knows how to keep witness preparation within these bounds and does not intend to "police counsel's discussions with witnesses" for "stray comments." ECF No. 70 at 12. For these reasons, the Government's Rule 615 request with respect to witnesses other than Prince is granted to the extent it conforms with the language printed at the bottom of this Order.
III. CONCLUSION
The Government's Rule 615 request as to Plaintiff's expert witness Raymond J. Prince is DENIED. The request as to all other witnesses is GRANTED to the extent it conforms with the following:
A witness who may testify at trial will not be permitted to hear the testimony of any other witness before testifying and is excluded from the courtroom during the trial or hearing until after the witness has completed his or her testimony unless exclusion of the witness is not authorized by Federal Rule of Evidence 615 or unless the Court orders otherwise. A witness excluded from the courtroom pursuant to this Order also is prohibited from reviewing a verbatim record of the trial testimony (or the substance thereof) of any other witness prior to that witness's own testimony.
IT IS SO ORDERED.