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Hearsay Evidence Should Be Weighed for Preliminary Injunctions

By Theresa A. Vitello, Litigation News Associate Editor – August 18, 2016


A federal appellate court reversed a district court's decision to deny a preliminary injunction sought by a transgender high school student wanting to use a restroom at a public high school, which did not correspond to the student's biological sex. The case was remanded to the district court after the U.S. Court of Appeals for the Fourth Circuit found that was an abuse of discretion for the U.S. District Court for the Eastern District of Virginia to exclude, on hearsay grounds, two declarations filed in support the student's complaint. The decision of the Fourth Circuit in G.G. v. Gloucester County School Board sided with seven other circuits which permit district courts to rely on hearsay evidence for the limited purpose of determining whether to award a preliminary injunction.

The Legal Standard for a Preliminary Injunction
Following its earlier opinion in League of Women Voters of N.C. v. North Carolina, the Fourth Circuit indicated that to win a preliminary injunction, a plaintiff must demonstrate (1) likelihood of success on the merits; (2) irreparable harm if the injunction is not granted; (3) the balance of hardships weighs in favor of granting the injunction; and (4) the injunction is in the public interest. In G.G., the Fourth Circuit found that the district court only analyzed the third factor—the balance of the hardships—while neglecting the other three aspects of the test.

Denying the student's motion for a preliminary injunction, the district court found that the student failed to demonstrate that the balance of hardships weighed in his favor. On appeal, the Fourth Circuit faulted the district court for failing to consider two proffered declarations supporting the motion—one from the student and the other from a medical expert, which contained hearsay evidence.

According to the appellate court, the district court incorrectly rejected the student's proffered evidence on hearsay grounds indicating that it would be inadmissible at trial. The appellate court concluded that this was a clear error in judgment which rose to an abuse of the district court's discretion.

Less Strict Rules of Evidence May Allow for the Consideration of Hearsay
The Fourth Circuit reasoned that a movant on a motion for preliminary injunction should not be held to the same strict evidentiary standards that apply at trial. Rather, following the standard articulated by the U.S. Supreme Court in Univ. of Tex. v. Camenisch, the appellate court indicated that at the preliminary injunction stage procedures are less formal than at trial because they are aimed at preventing irreparable harm. Therefore, hearsay evidence may be considered in preliminary injunction proceedings. And, the nature of the evidence as hearsay does not warrant its exclusion but simply means that it may carry less weight than non-hearsay evidence. In reaching this conclusion, the Fourth Circuit aligned with seven other circuit courts that permit the use of hearsay evidence at preliminary injunction hearings.

Did the District Court Abuse its Discretion?
Citing Morris v. Wachovia Sec., Inc., the Fourth Circuit stated that a district court abuses its discretion when its decision is guided by clearly erroneous legal principles or rests upon a clearly erroneous factual finding. While section leaders agree that a lower evidentiary standard may apply on a motion for preliminary injunction, there is some disagreement as to whether district court abused its discretion by excluding some of the student's evidence on hearsay grounds. "Just because hearsay evidence may be considered, does not mean that it has to be considered," says James A. King, Columbus, OH, cochair of the ABA Section of Litigation's Trial Evidence Committee. "It is not an abuse of discretion to disregard hearsay evidence that the court does not find to be reliable," King adds. In sum, the district court had the discretion to decide to exclude the declarations as unreliable hearsay and did so.

Others align more clearly with the Fourth Circuit's holding that the district court committed a clear error by excluding the declarations. "The district court seemed to wholly exclude the declarations as hearsay. At a preliminary injunction hearing, this type of testimony should not be excluded from consideration," says J. Dalton Courson, New Orleans, LA, cochair of the ABA Section of Litigation's Civil Rights Litigation Committee.

Using Hearsay Evidence to Support a Preliminary Injunction
While a district court is free to consider hearsay evidence when deciding a motion for preliminary injunction, section leaders agree that it should be used in a thoughtful manner. "The use of hearsay evidence is not recommended, but if it's unavoidable it needs to have some hint of reliability," says King. "It should be clear that while the evidence may not be in an admissible form now, it will be post-discovery and once the matter is heard on the merits," he adds. Courson agrees, "The evidence may be considered but it will not be given the same weight because it is hearsay."

Combatting the Use of Hearsay Evidence in Support of a Preliminary Injunction
Section leaders also agree that the best way to attack a plaintiff's use of hearsay evidence in support of a motion for a preliminary injunction is to question its credibility. "The better argument is to attack the credibility of the declaration with countervailing evidence," says Courson. King suggests the best course is to argue that the court not consider the evidence because "if it is inadmissible now, it will not become admissible in the future."

Keywords: hearsay, preliminary injunction, declarations, transgender

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