Disposing Of Multiple Evidence Theories

In a civil rights claim regarding location of a church-related building, the work product doctrine could not bar admission of the bishop’s letter critical of the daycare center on church property which would go into the building as 1) the author of the letter had no legal training or expertise, 2) the letter was written just prior to the initiation of the litigation, and 3) the bishop had no role in the decision to proceed with the litigation; but even if the work product doctrine applied, it was waived when the plaintiff produced the letter to the city during discovery, in Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. June 20, 2006) (No. 03-8060)

If evidence gets in, or if it is excluded, no harm is done by trying any evidence rule that might support or defeat its admission? This can often be a creative use of pre-trial time if there are few other priorities in a case. But use of a multiplicity of evidence theories, "throwing even the kitchen sink" at a problem to see if it will go away, is no barrier to a court making short work of the multiplicity of possible ways the evidence could be treated. Examination of a 2006 Tenth Circuit case illustrates some of the challenges in using a multiple of evidence theories.

In the case, plaintiff Grace United Methodist Church sued the defendant City of Cheyenne for denying the church a license to open a daycare center on property it owned in the city. Before the federal district court, the church lost a summary judgment motion on its civil rights claims regarding this matter. At trial, the jury ultimately ruled against the church on claims under the Federal Religious Land Use Act, as well.

During the trial, the court admitted a letter that the church had produced in discovery. In the letter, the United Methodist Bishop for the region opined that the daycare center did not have an important religious function. The Bishop expressed his fear that it seemed more of a commercial venture, justifying the city's denial of a permit. Before trial the church filed a motion in limine to exclude the Bishop's letter, maintaining the Bishop "was not a spokesman or a representative" of the church and consequently the letter's contents were not admissible as a statement of a party opponent. The trial court disagreed and denied the motion to exclude the Bishop's letter because he was the "superintending authority" of the church. The trial court admitted the letter as an “admission against interest,” but did not cite to a specific rule of evidence to support its decision. At trial, the church then played the Bishop's videotaped deposition during its case-in-chief. Grace United Methodist Church, 451 F.3d at 664-65.

The plaintiff church argued that if FRE 801(d)(2) was applicable, the letter was still inadmissible since the bishop was "a representative of and authorized to speak for the Church for purposes of Rule 801(d)(2), the statements in his letter constitute[d] protected work product." On appeal, the circuit discounted this argument on several grounds.

The circuit concluded that the work product doctrine did not apply. "[W]ork product protection only applies to attorneys' or legal representatives' mental impressions, conclusions, opinions, or legal theories authored in anticipation of litigation," the circuit noted. The bishop was not an attorney or communicating in a legal capacity -- "[i]t is uncontroverted that Bishop Brown has no legal training or expertise. Consequentially, he is entirely unqualified to pontificate on legal questions, and statements he made to that effect constitute irrelevant hearsay." Grace United Methodist Church, 451 F.3d at 669.

But even had the bishop was an attorney or legal representative, the work product privilege was not applicable -- "[t]he Bishop's letter was drafted more than a year prior to the initiation of the instant litigation by an individual who insists that he had no role in the decision to proceed with this litigation." Accordingly, the work product doctrine did not apply to exclude the bishop's letter. Grace United Methodist Church, Grace United Methodist Church, 451 F.3d at 669 (citing Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495, 510-11 (1947); Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir.1995) ("The party asserting a work product privilege as a bar to discovery must prove the doctrine is applicable.... A mere allegation that the work product doctrine applies is insufficient.")))

Alternatively, if the letter was work product, "any work product objection was waived" by the plaintiff when it produced the letter during discovery. Grace United Methodist Church, Grace United Methodist Church, 451 F.3d at 668(citing Simmons, Inc. v. Bombardier, Inc., 221 F.R.D. 4, 8 (D.D.C. 2004) ("The work-product privilege may be waived by the voluntary release of materials otherwise protected by it."); Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 704 (10th Cir. 1998) ("[A] litigant cannot use the work product doctrine as both a sword and shield by selectively using the privileged documents to prove a point but then invoking the privilege to prevent an opponent from challenging the assertion.").

The Grace United Methodist Church case is interesting in the sense that a variety of theories for exclusion of the Bishop's letter are advanced at trial, but so expeditiously disposed of by the circuit on appeal.


Federal Rules of Evidence