Opinion
03 C 1760
December 11, 2003
ORDER
The defendants have moved in limine to bar three types of evidence at trial: (1) testimony of the plaintiffs' expert, Professor Clyde Summers; (2) testimony or argument about the defendants' removal of the plaintiffs without serving charges or holding a hearing; and (3) testimony about what Robert Joyce said he was told by the defendants.
Plaintiff's expert. The defendants' motion to bar the testimony of the plaintiff's expert on union relations is granted. The expert report provided during discovery contained opinions relevant solely to Counts 4 and 5, which the Court has dismissed. Memorandum Order of Dec. 1, 2003. The plaintiffs argue that the expert, Professor Clyde Summers, will testify that Art, IV, Section 3(j) of the IBEW constitution is not a reasonable rule under which the union can interfere with otherwise protected speech. But the reasonableness of Section 3(j) is no longer at issue; the defendants have said they do not contend that Section 3(j) is a reasonable rule that allows the International to interfere with members' speech under the proviso to 29 U.S.C. § 101(a)(2). The testimony is not relevant and is precluded on that basis. The Court is therefore not required to consider defendants' other arguments for exclusion.
Testimony or argument on lack of charges and hearing. The defendants' motion to bar testimony or argument that they removed Starr without filing charges against him or holding a hearing is denied. Although the Court already dismissed Count 7, in which the plaintiffs alleged their removal without charges and a hearing violated 29 U.S.C. § 411, Order of July 9, 2003, the way in which Starr was removed from office is relevant to his remaining counts. Starr claims that the defendants' explanation for his removal — that he had engaged in financial misconduct — is pretextual, Evidence that the defendants did not give Starr charges or a hearing but did provide such procedures to similarly situated local union leaders who were removed from office is admissible as a basis for arguing that defendants' stated reason was pretextual.
Evidence or testimony about what Robert Joyce says the defendants told him. The defendants' motion to bar evidence or testimony about what Robert Joyce says the defendants told him is denied. The defendants contend that this is inadmissible hearsay. Plaintiff's are offering Joyce's statements as admissions by an agent of a party under Fed, R. Evid. 801(d)(2)(D), but defendants argue that the statements plaintiffs want to offer cannot be used to establish the agency required as a predicate to admissibility under that Rule, The defendants' argument is untenable; if adopted, a principal would be able to have an agent do all his dirty work and then avoid liability simply by denying that he had ever told the agent to do so. The only case cited by defendants in support of their argument, a district court decision from 18 years ago, is unpersuasive in this context. See Prudential Ins, Co, v. Curl Bullock Builders, Inc., 626 F. Supp. 159 (N.D. Ill. 1985). First, the decision relies in part on Illinois agency law, which does not govern questions of admissibility under the Federal Rules, Second, it relics on earlier cases indicating that the threshold showing of agency for purposes of admissibility of a statement under Rule 801(d)(2)(D) must come from evidence other than the statement. Such evidence exists here; defendants have contended throughout this litigation that local union officials like Joyce are required to follow directives from the International. See IBEW Const., art, XV, § 12. But this is likely no longer required; the Supreme Court rejected the "independent evidence" requirement in the context of co-conspirator declarations (Rule 801(d)(2)(E)) in Bourjaily v. United States, 483 U.S. 171 (1987), and assuming such a requirement once existed under Rule 801(d)(2)(D), it likely did not survive Bourjaily, See, e.g., United States v. Richards, 204 F.3d 177, 202 (5th Cir. 2000); DCS Sanitation Mgmt., Inc. v. Occupational Safety Health Review Comm'n, 82 F.3d 812, 815 (8th Cir. 1996).