Saverson v. Levitt

162 F.R.D. 407, 47 Fed. R. Serv. 1252, 33 Fed. R. Serv. 3d 904, 1995 U.S. Dist. LEXIS 10845, 1995 WL 452511
CourtDistrict Court, District of Columbia
DecidedJuly 28, 1995
DocketCiv. A. No. 95-0890 (CRR)
StatusPublished
Cited by3 cases

This text of 162 F.R.D. 407 (Saverson v. Levitt) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Saverson v. Levitt, 162 F.R.D. 407, 47 Fed. R. Serv. 1252, 33 Fed. R. Serv. 3d 904, 1995 U.S. Dist. LEXIS 10845, 1995 WL 452511 (D.D.C. 1995).

Opinion

ORDER

CHARLES R. RICHEY, District Judge.

Before the Court in the above-entitled case is the Plaintiffs Motion to Revise the Court’s June 14,1995 Scheduling Order. Upon careful consideration of the Plaintiffs Motion, the entire record herein, and the law applicable thereto, the Court shall DENY the Plaintiffs Motion.

The Court’s Scheduling Order directs that
in preparation for trial and pursuant to Rule 16 of the Federal Rules of Civil Procedure, Federal Rule of Evidence 611(a), and Local Rule 209, counsel for the Plaintiff and the Defendant shall prepare all of the direct testimony of the witnesses they intend to call in their case-in-chief that are in their control in written narrative form and shall serve the same upon opposing counsel ... that counsel shall confer in person and discuss and resolve any eviden-tiary objections, and then file the final versions, on three-hole punched paper, together with a witness list, with the Clerk of the Court and with Chambers ... [that] any portion of the direct testimony which remains in dispute shall be filed separately, and the Court shall resolve these disputes, if any, prior to the trial ... that the above-ordered direct testimony shall be by way of declaration, pursuant to 28 U.S.C. § 1746, or sworn written affidavit ... [and] in lieu of the usual question-and-answer form of direct examination, although full cross examination shall be permitted at trial____

Scheduling Order at 2. Plaintiff requests in her Motion to revise the Court’s Scheduling Order to permit full direct testimony in the usual question-and-answer form of all parties and witnesses.

Plaintiff claims that requiring direct testimony by way of declaration or sworn affidavit “runs afoul of Federal Rule of Civil Procedure 43(a) and Federal Rule of Evidence 611(c) and would deprive the jury of the ability to observe the demeanor of witnesses and make essential credibility determinations.” Plaintiffs Memorandum of Law in Support of Motion to Revise Scheduling [408]*408Order, at 1. Plaintiff argues that “[i]n contrast to the authorities rejecting the use of direct testimony by declaration, plaintiffs research has uncovered no precedent supporting this type of trial procedure.”

As a threshold matter, the Court admonishes Plaintiffs counsel for mischaracterizing the existing case law on this subject. Had counsel merely Shepardized the eases he cites in his Memorandum in Support of the Motion to Revise the Scheduling Order, he would have discovered that In re Burg, 103 B.R. 222 (9th Cir. BAP 1989), one of the cases upon which he relies for the proposition that requiring direct testimony by way of declaration or sworn affidavit is improper, was explicitly rejected by the United States Court of Appeals for the Ninth Circuit in Adair v. Sunwest Bank, 965 F.2d 777, 780 (9th Cir.1992) (per curiam).

In Adair, the appellants challenged the bankruptcy court’s standard procedure requiring that direct testimony be presented by written declaration. Id. at 779. Under this procedure the parties were required to submit written narrative testimony of each witness they expect to call for purposes of direct evidence; witnesses then testified orally on cross-examination and on redirect. Id. Like the Plaintiff in the instant case, the appellants argued that this procedure violated Federal Rules of Civil Procedure 43 and Federal Rules of Evidence 611 by allegedly frustrating necessary credibility determinations. The Court of Appeals rejected the appellant’s contentions.

The Court of Appeals found the bankruptcy court’s procedure consistent with Federal Rule of Evidence 611(a), which allows the court to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, [and] (2) avoid needless consumption of time____” Fed.R.Evid. 611(a). It accordingly held that the bankruptcy court’s procedure is a permissible “mode” of presenting direct testimony under Rule 611(a). Id.

As the Court of Appeals observed, “[t]he use of written testimony ‘is an accepted and encouraged technique for shortening bench trials.’ ” Id. (citing Phonetele, Inc. v. American Tel. & Tel. Co., 889 F.2d 224, 232 (9th Cir.1989) (citing Malone v. United States Postal Serv., 833 F.2d 128, 133 (9th Cir.1987)), cert. denied, 488 U.S. 819, 109 S.Ct. 59, 102 L.Ed.2d 37 (1992). The Court of Appeals further noted that it had previously held that “a district court did not abuse its discretion in accepting only declarations and exhibits on a particular issue where the parties were afforded ‘ample opportunity to submit their evidence.’ ” Id. (citing Vieux v. East Bay Regional Park Dist., 906 F.2d 1330, 1342 (9th Cir.), cert. denied, 498 U.S. 967, 111 S.Ct. 430, 112 L.Ed.2d 414 (1990)).

The Court of Appeals similarly rejected the appellants’ contention that the bankruptcy court’s procedure violated Federal Rule of Civil Procedure 43(a). Rule 43(a) states that “[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an Act of Congress or by these rules, the Federal Rules of Evidence, or other rules adopted by the Supreme Court.” Fed.R.Civ.P. 43(a). Observing that “[t]he primary purposes of Rule 43(a) are to ensure that the accuracy of witness statements may be tested by cross-examination and to allow the trier of fact to observe the appearance and demeanor of the witnesses.” Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brooks v. Rosebar
District of Columbia, 2023
Kuntz v. Sea Eagle Diving Adventures Corp.
199 F.R.D. 665 (D. Hawaii, 2001)
Fasa Corp. v. Playmates Toys, Inc.
912 F. Supp. 1124 (N.D. Illinois, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
162 F.R.D. 407, 47 Fed. R. Serv. 1252, 33 Fed. R. Serv. 3d 904, 1995 U.S. Dist. LEXIS 10845, 1995 WL 452511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saverson-v-levitt-dcd-1995.