United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge.
matter is before the Court as to Intervening Plaintiff Cameo,
LLC's Objection to Defendant ITW Deltar IPAC's
Witness List. [R. 267.] Specifically, Cameo objects to Steve
Spain testifying at trial as a witness for the Defendant ITW.
Id. at 1. ITW filed an initial Response to
Cameo's Objection on October 10, 2019. [R. 281.] At the
Final Pretrial Conference held on October 11, 2019, this
Court ruled on certain other objections filed in the record
but directed counsel to submit supplemental briefing on the
present issue. [R. 282.] As directed, ITW has filed a
Supplemental Response [R. 283] and Cameo has filed a Reply
[R. 284] to ITW's Responses. After reviewing the case law
and filings, and for the reasons that follow, the Court finds
that Steve Spain should be allowed to testify and
OVERRULES Plaintiff Cameo's Objection.
2017 trial on this matter, ITW designated Steve Spain as its
corporate representative. [See R. 281 at 2-3; R. 284
at 2.] Leading up to the upcoming trial, ITW has named a new
corporate representative to attend trial, its assistant
general counsel John Hayes. [See R. 283 at 3.] ITW
now lists Mr. Spain only as a potential witness at trial in
their Witness List. [R. 259 at 1.]
objects to Mr. Spain testifying at this trial on three bases.
First, Cameo argues that Mr. Spain cannot testify because he
was “present for the entire first trial of this
matter.” [R. 267 at 1.] In support of this assertion,
Cameo points to the fact that in the 2017 trial this Court
provided, pursuant to Rule 615, that lay witnesses were not
allowed to attend any portion of the trial and then later
testify. Id. Second, Cameo contends that, by
proffering Mr. Spain's testimony on corporate affairs and
decisions, ITW is impermissibly attempting to have two
corporate representatives present at trial. [R. 284 at 1.]
Lastly, Cameo argues more broadly that, even if Mr.
Spain's testimony is not barred for either of the above
reasons, good cause exists to exclude him from testifying, as
he may improperly tailor his testimony. Id. at 3.
Rule of Evidence 615 governs the exclusion of witnesses from
the courtroom. Rule 615 provides that “[a]t the request
of a party the court shall order witnesses excluded so that
they cannot hear the testimony of other witnesses . .
..” This rule serves the twin purposes of (1)
preventing witnesses from tailoring testimony to that of
other witnesses; and (2) aiding in detecting false testimony.
See United States v. Green, 305 F.3d 422, 428 (6th
Cir. 2002) (citation omitted). Notably, this rule does
not authorize exclusion of “an officer or employee
of a party which is not a natural person designated as its
representative by its attorney . . ..” Fed.R.Evid.
attempt to exclude Mr. Spain's testimony, Cameo argues
that he was covered by the Rule 615 exclusion in the 2017
trial that prevented lay witnesses that attended trial from
later testifying. The breadth and inclusiveness of the Rule
615 exclusion in the 2017 trial is a focal point in the
parties' respective briefing. [See R. 267 at 1;
R. 282 at 2-5.] However, given the clear language of Rule
615, it is unnecessary to revisit the specifics of any Rule
615 exclusion. Each party acknowledges that Mr. Spain
attended the 2017 trial as ITW's designated corporate
representative. [See R. 281 at 2; R. 284 at 2.]
Thus, necessarily, as Rule 615 explicitly “does not
authorize excluding” a designated corporate
representative, any Rule 615 exclusion in the 2017 trial
would not have applied to Mr. Spain. Fed.R.Evid. 615(b).
Spain's presence as corporate representative in the 2017
trial is clear in the record. Given the straightforward
provisions of Rule 615(b), Cameo did not object to Mr.
Spain's presence as the designated corporate
representative throughout the 2017 trial. Further, as noted
by ITW, counsel for Cameo indicated in open court that he
believed Mr. Spain would be testifying. [See R. 281
at 3; Trial Transcript, Day 4, 7:1-3.] Given that Mr. Spain
was not subject to any Rule 615 exclusion, it is unnecessary
to consider whether the Rule 615 exclusion from the 2017
trial would re-apply in a subsequent re-trial. For the above
reasons, Cameo's argument that Mr. Spain was subject to
Rule 615 exclusion in the 2017 trial and therefore is
prohibited from testifying in the upcoming trial is rejected.
there is no clear authority on the matter, this Court
construes Federal Rule of Evidence 615(b) to in most
circumstances allow for only one designated corporate
representative at a civil trial. The Sixth Circuit has
interpreted Rule 615(b) to limit the government in the
criminal context to one designated representative to attend
trial. See United States v. Pulley, 922 F.2d 1283,
1285-1286 (6th Cir. 1991); U.S. v. Phibbs, 999 F.2d
1053, 1072 (6th Cir. 1993). The Court of Appeals reached this
conclusion based primarily on the singular phrasing of the
exception in 615(b). Pulley, 922 F.2d at 1286
(“‘A' representative, like ‘a'
natural person, ‘a' police officer, and
‘an' officer or employee, is singular.”). As
relevant in the present civil case, the plain language of
Federal Rule of Evidence 1101(b) provides that each of the
Federal Rules of Evidence “apply in civil cases and
proceedings” in addition to “criminal cases and
proceedings.” Fed.R.Evid. 1101(b); see also James
R. Snyder Co. v. Associated Gen. Contractors of Am., Detroit
Chapter, Inc., 677 F.2d 1111, 1117 (6th Cir. 1982)
(citing Fed.R.Evid. 1101(b)) (“Except as constitutional
considerations or statutes otherwise require, the same rules
apply to civil and criminal cases.”). Given the above
authority, it is evident that the limitation to one
designated representative in the Rule 615(b) context applies
to both criminal and civil trials.
this limitation, Cameo argues that Mr. Spain cannot testify
as he is effectively present and testifying as ITW's
corporate representative, when ITW has already named a new
corporate representative, assistant counsel John Hayes.
[See R. 284 at 1-2.] Cameo claims that “[t]he
named corporate representative is the only one allowed to be
present and testify at the trial of this matter about
corporate matters pursuant to FRCP [sic] 615.”
Id. at 2. As a practical matter, ITW notes that Mr.
Hayes is not expected to testify as he “had no
involvement in the underlying events and is not listed by any
party as a witness.” [R. 283 at 3.] As such, there is
no perceived advantage to ITW in having John Hayes serve as a
designated corporate representative in a trial where Mr.
Spain is no longer serving as corporate representative but,
instead, will be testifying. Relatedly, Cameo has not
provided any convincing policy arguments to support the
assertion that an individual should not be allowed to testify
at trial solely because they served in a previous trial as
corporate representative and have been replaced in that role.
the text of Federal Rule of Evidence 615 does not provide
authority for Cameo's assertion. Rule 615 does provide
that a witness shall be excluded during testimony
upon the request of any party, unless the party falls under
one of the designated exceptions to exclusion. However, the
present objection relates not to Mr. Spain's presence
during other witnesses' testimony at the upcoming trial
but, instead, whether he can testify at ...