News & Developments
New Rule 502 of the Federal Rules of Evidence Becomes Law
On September 19, 2008 President Bush signed into law S. 2450, which provides a new Rule 502 of the Federal Rules of Evidence. The signed bill is now Public Law 110-322. The House had passed S. 2450 by voice vote on September 8, 2008 and the Senate had unanimously passed S. 2450 on February 27, 2008. Rule 502 addresses the issue of waiver of attorney-client privilege by creating a presumption for the return of inadvertently produced documents. The ABA had previously expressed its strong support for the addition of Rule 502 and had urged members of Congress to promptly pass S. 2450.
Smith v. Goodyear Tire & Rubber Co., _____ F. 3d _____ 2007 WL 22007000 (5th Cir. Aug. 2, 2007)
In this products liability action, the Court of Appeals for the Fifth Circuit upheld the District Court for the Southern District of Mississippi’s decision to exclude a polymer scientist from opining as to the cause of a tire tread separation. A rear tire on Plaintiff Smith’s pickup truck burst, causing a serious traffic collision. Smith sued Goodyear and others alleging that the defective design and/or manufacture of the tire caused its tread to separate.
Smith retained Dr. Robert B. Moore, a polymer scientist, who concluded that the tire tread separated because of “improper bonding of the rubber skim layer to the steel belts.” Dr. Moore additionally opined that the separation could have been prevented if a “nylon cap overlay” had been incorporated into the tire’s design.
Despite the fact that Dr. Moore had never worked in or studied the tire industry, had not published any articles regarding tires, nor claimed to be a tire expert or ever testified as one, Smith maintained that Moore’s opinions were simply applications of the fundamental issues of polymer science. In affirming the trial court’s rejection of Moore’s causation opinion, the Circuit Court reasoned that Smith’s argument was “true in some sense, just as it is true that asbestos, heart valves, and cupcakes can all be broken down into their basic atomic particles; but that does not mean an atomic physicist is qualified to testify regarding asbestosis, medical malpractice, or confectionary issues.” Ultimately, according to the Court, it is the science’s application to the subject matter that is paramount, and Smith’s proffered expert had no experience applying principles of polymer science to tires.
State v. Dickens, 175 Md. App. 231 (July 2, 2007)
In this criminal appeal to the Court of Special Appeals of Maryland (Maryland’s intermediate appellate court), the Court rejected Defendant’s argument that several text messages sent to the victim’s mobile telephone before her murder were not properly authenticated. Defendant John Dickens acknowledged shooting and killing his estranged wife, but claimed the act was not premeditated. The State introduced five threatening text messages sent to the victim’s cell phone to establish otherwise.
The Court ruled the State properly authenticated the text messages under Maryland Rule of Evidence 5-901 (derived from F.R.E. 901)—specifically its provisions for authentication by the testimony of a witness with knowledge, (Md. Rule 5-901((b)(1)), and by circumstantial evidence, (Md. Rule 5-901(b)(4)). For example, the victim’s mother testified that the cell number from which one of the messages was sent was the number of a cell phone that belonged to the victim, but which the victim gave to the Defendant, and was possessed by him during the time period the text was sent. The Court also observed that the substance of other text messages, which included a reference to visitation with the parties’ minor child, and a reference to the parties’ wedding vows was sufficient circumstantial evidence to permit the jury to conclude that the Defendant authored the texts.
Heron Interact, Inc. v. Guidelines, Inc., __F.R.D.__, 2007 WL 1991401 (D. Mass. July 2, 2007)
In this discovery dispute, Chief Magistrate Judge Neiman, in the United States District Court for Massachusetts, ordered the production of documents based upon application of Rule 612 of the Federal Rules of Evidence.
Chaco, Heron Interact, Inc.’s principal was designated as a Fed.R.Civ.P. 30(b)(6) witness. In preparation for his deposition, Chaco gathered, created and utilized documents and information to refresh his understanding of events and to prepare his testimony. Heron Interact, Inc. claimed that the documents used by Chaco were subject to the attorney-client privilege and the attorney work product doctrine. Guidelines moved to compel the production of the documents relied upon by Chaco in preparation of and used by him at the deposition. Heron Interact, Inc. filed a cross-motion to strike.
Magistrate Judge Neiman determined that Rule 612 of the Federal Rules of Evidence applies to deposition testimony by operation of Fed.R.Civ.P. 30(c). In applicable part, the rule provides that if a witness uses a writing to refresh memory for the purpose of testifying, either: (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. Based upon Chaco’s deposition testimony and affidavit filed in opposition to Guidelines, Inc.’s motion nine documents were clearly used by him to refresh his memory when preparing for the deposition. In the court’s opinion, all nine of the documents fell within the “writing[s]” referred to in Rule 612. Since the documents were gathered, created and utilized by Chaco in preparing his testimony, the attorney work product doctrine did not apply. In addition, the attorney-client privilege did not apply because, in part, the documents were used by Chaco to refresh recollection in connection with testimony at deposition.
Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046 (8th Cir. 2007)
The plaintiff brought suit alleging that defendant discriminated against him on the basis of his Arabic race after the September 11, 2007, terror attacks. Plaintiff’s employment began in the summer of 2001 and ended in March 2002. In April 2002, two FBI agents came to plaintiff’s home, questioned him about whether he was engaged in making bombs, and searched his house. According to plaintiff, one of the agents told him that someone from defendant’s office had called the FBI to report that plaintiff was making bombs. When plaintiff filed suit in October 2002, he attempted to obtain the FBI informant’s identity to show defendant’s racial animus against Arabs. His attempts included: (1) a letter requesting that the FBI send him the records of his investigation; (2) a subpoena demanding the records and the FBI agent’s testimony; (3) a motion to compel production; and (4) an administrative appeal. When all proved unsuccessful, plaintiff served a 30(b)(6) subpoena for the files, specifically demanding to learn the identity of the informant and whether he or she was employed by defendant. The FBI objected, citing the common law confidential informant privilege and Department of Justice regulations. The magistrate judge reviewed the unredacted files in camera and denied plaintiff’s second motion to compel, holding that the FBI did not abuse its discretion in refusing to disclose the material on the basis of the confidential informant privilege where the files showed that the informant had been assured confidentiality and plaintiff’s need for the informant’s identity was speculative. Finally reaching plaintiff’s substantive claims, the district court granted summary judgment to defendant on all counts. The court rejected plaintiff’s argument that discrimination could be based on his evidence that an employee of defendant’s provided a false tip about him to the FBI, finding that all of plaintiff’s attempts to obtain the identity of the informant had been unsuccessful, and that his only evidence was what he was allegedly told by the FBI agent, which was inadmissible hearsay. On appeal, plaintiff argued that the FBI agent’s statement should have been admitted through exceptions to the hearsay rule in Federal Rules of Evidence 804(b)(3) and 807. The court held that the FBI agent was not “unavailable” as required for the Rule 804(b)(3) statement against interest exception, because plaintiff had not made a good faith attempt to locate and subpoena the witness. Plaintiff’s lone subpoena had been returned undelivered and he had made no other efforts to locate the FBI agent apart from his motion to compel the FBI to disclose his location. The court also found that plaintiff had not shown the FBI agent’s statement had the circumstantial guarantees of trustworthiness as required for the Rule 807 residual exception. Thus, the Eighth Circuit affirmed the lower court in full.
Owen v. General Motors Corp., No. 06-4067, 2007 WL 1101194 (W.D. Mo. April 12, 2007)
This putative class action arose out of a windshield wiper malfunction on plaintiffs’ 1999 Chevrolet Tahoe, which was manufactured by defendant General Motors (GM). In 1997, several years prior to the filing of the suit, the National Highway Traffic Safety Administration (NHTSA) had investigated reports of wiper failure in seven 1995 GM vehicles. GM had also performed its own investigation and, in the course of doing so, retained Dr. Michael Pecht to determine the cause of the wiper failure. Dr. Pecht’s contract entailed planning for GM’s case with the NHTSA and called for any documents GM considered confidential to be marked as such. Dr. Pecht and CALSE, his consulting group, were paid in part by GM and in part by the wiper manufacturer. After the consulting work ended in 1999, Dr. Pecht did not perform additional work for GM. When the present lawsuit was filed, GM unsuccessfully attempted to contact him about his possible retention as an expert. Plaintiffs subsequently named Dr. Pecht as an expert witness. The district court denied GM’s motion to disqualify Dr. Pecht, finding GM’s argument that it expected the information disclosed to Dr. Pecht to remain confidential lacking in credibility due to: (1) GM’s failure to mark documents given to Dr. Pecht as confidential and (2) GM’s failure to require all members of the task force to execute a confidentiality agreement. Also factoring into the court’s decision were public policy considerations as well as the fact that Dr. Pecht would be subject to cross examination, thus revealing any bias he might have for or against GM.
Ahlberg v. Chrysler Corp., 481 F.3d 630 (8th Cir. 2007)
A decedent’s estate brought suit alleging negligence, fraudulent concealment, strict products liability, and emotional distress against Chrysler Corporation. The claims arose when the decedent was killed while attempting to stop a 1999 Dodge Ram truck from rolling down a driveway. The decedent’s grandson had been left alone in the cab and had shifted the truck from park into neutral or reverse. The core of the estate’s claim was that Chrysler did not equip the truck with a brake-shift interlock device, which requires the user of a vehicle to depress the brake pedal before shifting out of park. After the jury returned a verdict for Chrysler on all counts, the estate appealed, challenging several evidentiary rulings made by the trial court. Among other things, the estate argued that the trial court’s exclusion of fact witness testimony on hearsay grounds was improper because the statements should have been admitted under the rule of completeness. The witness would have testified that during a 1994 meeting, members of a Chrysler minivan safety-leadership team stated that vehicles manufactured without brake-shift interlock devices were unreasonably dangerous and that Chrysler vehicles should have been equipped with brake-shift interlock devices. The Eighth Circuit disagreed with the estate, holding that the rule of completeness applies to writings or recorded statements, not to conversations. Furthermore, the court noted that whilethe rule of completeness allows only the settingof contextand clarification ofanswers given on cross-examination, the estate was instead attempting to admit hearsay statements consistent with its fact witness’s own statements. Finding no abuse of discretion, the Eighth Circuit affirmed.
Lorraine v. Markel, 241 F.R.D. 534 (D. Md. 2007)
The Lorraines’ brought action in the District Court of Maryland to enforce a private arbitrator’s award finding that certain damages to their yacht, Chessie, was caused by a lightning strike that occurred on May 17, 2004, while the yacht was anchored in the Chesapeake Bay. Markel American Insurance Company counterclaimed to enforce the arbitrator’s award, which, in addition to concluding that certain damages to Chessie’s hull was caused by lightning, also concluded that the damage incurred was limited to an amount of $14,100, plus incidental costs. Following discovery, the parties filed cross-motions for summary judgment wherein the parties sought to confirm and enforce the arbitrator’s decision. The Chief Magistrate Judge denied both parties without prejudice because the parties had not complied with various federal rules of evidence.
Hicks v. Charles Pfizer & Co., 466 F. Supp. 2d 799 (E.D. Tex. 2005)
In a personal injury action against the manufacturers of a polio vaccine, alleged to be the cause of the plaintiff’s brain tumors, the defendants moved for summary judgment on the grounds that the plaintiff could not establish that the defendants’ products had caused her injury. Plaintiff offered four newspaper articles from 1962 as evidence to link the defendants to the particular doses of the vaccine she was given as a child during a public health campaign to vaccinate the public against polio. In response to defendants’ argument that the relevant statements from these articles consisted of double hearsay, the plaintiff sought application of two exceptions to the hearsay rule to render the articles admissible—the “ancient documents exception” and the “residual exception.”
In order to give effect to Rule 805, which requires each level of hearsay to conform to an exception to the hearsay rule in order to be admissible, the ancient documents exception found in Rule 803(16) would only permit statements that were made by the author of the articles and could not excuse the double hearsay problem. The plaintiff’s alternate theory for admissibility rested on Rule 807, the residual hearsay exception, which provides that if a statement is not specifically covered by Rule 803 or 804 it may still be admissible if the court finds that it satisfies the prerequisites of (1) trustworthiness, (2) notice, (3) necessity, and (4) materiality, and the court determines that the purposes of the rules and justice will be served by admission of the evidence. With regard to trustworthiness, the court noted that the statements significantly predated the present controversy, any inaccuracies would have likely been identified at the time they were made, multiple publications by different sources corroborated their credibility, and the contemporaneous timing of the writings and the occurrence of the events in question also established their reliability. The court similarly reviewed each of the other requirements and found that the statements satisfied Rule 807 and the articles were therefore admissible. Because the articles were sufficient to raise a material issue of fact with regard to the identity of the manufacturer responsible for the vaccine ingested by the plaintiff, the defendants’ motion for summary judgment was denied.
Committee Forwards Proposed New Evidence Rule 502 to Judicial Conference
Consistent with our goal to identify and report on emerging issues relating to the rules of evidence, we update our previous report on the status of proposed new Federal Rule of Evidence 502 regarding the attorney-client privilege. At its June 11-12, 2007 meeting, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States approved the recommendations of the Advisory Committee on Evidence Rules and approved proposed new Evidence Rule 502. The Committee also approved a letter to Congress accompanying proposed new Evidence Rule 502 and a report to Congress on creating a harm-to-child exception to marital privileges.
The Committee will transmit proposed new Evidence Rule 502 to the Judicial Conference with a recommendation it be approved and transmitted to the United States Supreme Court. The language of proposed new Evidence Rule 502 will be available shortly and will be posted online.
ABA Adopts Standards for DNA Evidence
At the 2006 ABA Annual Meeting in Honolulu, Hawaii, the ABA House of Delegates adopted a new set of Criminal Justice Standards on DNA Evidence (the Standards). The Standards establish standardized procedures for collection, retention, and access to DNA evidence in criminal cases. In the Spring 2007 issue of Proof, the Trial Evidence Committee’s newsletter, Ky Fullerton explores these standards.
