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Home , Deposition (law), Discovery (law), Witness impeachment

Trial Tactics A Practical Approach Statements in Investigation,

By Robert L. Fanter, and Kevin M. Reynolds and John H. Moorlach

Defense counsel The term “statement” is ubiquitous in the . A witness should give careful can make a statement. An insurance investigator can thought to the take a statement from a witness, which is usually elec- ways strategy may tronically recorded. Parties can be asked to produce statements during the process. ing, obtain the person’s own previous be impacted. The Rules of and common statement about the action or its sub- law decisions determine the discoverability ject matter. If the request is refused, or non-discoverability of “statements.” A the person may move for a court order, thorough understanding of the law govern- and Rule 37(a)(5) applies to the award ing the discoverability of statements and of expenses. A previous statement is their use in the litigation process, including either: (i) a written statement that the trial, is critical for trial practitioners. person has signed or otherwise adopted or approved; or (ii) a contemporaneous, The “Law” of Statements stenographic, mechanical, electrical, or The term “statement” is defined in the Fed- other recording—or a transcription of eral Rules of Civil Procedure. Rule 26(b)(3) it—that recites substantially verbatim (C) (2008) provides: the person’s oral statement. Any party or other person may, on The “required showing” in the rule refers request and without the required show- to the burden a party would otherwise have without the statement, i.e., substantial need and undue hardship. Fed. R. Civ. P. 26(b) n Robert L. Fanter and Kevin M. Reynolds (3)(A). Also, note that the 2007 rule change are members, and John H. Moorlach is an provided a request procedure for a nonparty associate, in the Des Moines, Iowa, office witness. See Rule 23(b)(3) cmt (2007). Most of Whitfield & Eddy, P.L.C. Mr. Fanter is a state courts have a parallel procedural rule. past president of DRI (1997), and also a See, e.g., Iowa R. Civ. P. 1.503(3). past chair of its Committee (1985–1988). Mr. Reynolds, who currently How should the defense respond when serves on his firm’s Com- statements are requested in discovery? mittee, is also a past chair of DRI’s Often, the defense is served a discovery Product Liability Committee (1999– request that reads, “[P]lease produce all 2001). Mr. Moorlach is a member of statements,” but which does not define DRI and its Product Liability Commit- the term “statement.” When this occurs, tee Fire and Casualty Specialized Liti- defense counsel should refer to the defi- gation Group. nition provided in the Rules of Civil Pro-

44 n For The Defense n September 2008 © 2008 DRI. All rights reserved. cedure. The only “statement” that must of “work product .” See, e.g, Bart- product protection. See, e.g., Ashmead v. be produced is one given by the ley v. Isuzu Motors Ltd., 158 F.R.D. 165 (D. Harris, 336 N.W.2d 197 (Iowa 1983). In or the requesting party. See Fed. R. Civ. P. Colo. 1994); Bohannon v. Honda Motor Co., Ashmead, the issue was whether written 26(b)(3)(C). 127 F.R.D. 536 (D. Kan. 1989). materials prepared by a liability insurer in The mere existence of statements, how- a routine investigation were “prepared in ever, is not privileged from discovery. See, Discoverability of Statements: anticipation of litigation” within the mean- e.g., Fed. R. Civ. P. 26(b)(5)(A). This rule Hickman v. Taylor and the ing of Iowa R. Civ. P. 122(c) (the rule has applies to trial preparation materials. It Work Product Doctrine since been re-numbered 1.503(3)). Id. at provides as follows: One of the authors’ abiding memories from 198. In Ashmead, the had vol- (5) Claims of Privilege or Protection of law school is discussing Hickman v. Taylor, untarily produced statements of the plain- Trial Preparation Materials. 329 U.S. 495 (1947) in civil procedure class. tiffs, but resisted production of “all notes, (A) Information Withheld. When Hickman was the genesis for the attorney correspondence, reports, statements or a party withholds informa- work product doctrine. You will often see memoranda produced by defendant or tion otherwise discoverable by parties refer to attorney work product, cit- defendant’s insurer.” Id. at 198. The trial claiming that the information is ing Hickman v. Taylor; the correct citation court in Ashmead held that the documents privileged or subject to protec- should be to Fed. R. Civ. P. 26(b)(3), which were not subject to the privilege because tion as trial-preparation mate- forms the current basis for work product they were “routine,” but on the rial, the party must: immunity. appellate court reversed that decision. Id. at (i) expressly make the claim; A brief review of the facts of Hickman can 202. The appellate court reasoned that the and be instructive to understanding the policy materials were subject to the work product (ii) describe the nature of the basis underlying the attorney work prod- privilege and that no showing of substan- documents, communica- uct protection. In Hickman, the attorney tial need for the materials had been made tions, or tangible things not hired by the defendant tugboat owners took as required by the rule. Id. at 202. produced or disclosed— statements from the four surviving crew Defense counsel should always beware and do so in a manner that, members in an admiralty case involving of a possible breach of the work product without revealing infor- the inexplicable sinking of a tugboat. The privilege by an opponent’s “showing that mation itself privileged or plaintiff sought production of these survi- the party seeking discovery has substantial protected, will enable the vor statements in discovery to no avail. Not need of the materials in the preparation of other parties to assess the only did the district court grant the mo- his case and that he is unable without undue claim. tion to compel, but it took the further step hardship to obtain the substantial equiva- If the statements are withheld based on of holding the defense counsel and tugboat lent of the materials by other means.” Fed. the attorney work product privilege, a priv- owners in contempt, ordering them im- R. Civ. P. 26(b)(3). Courts have broad dis- ilege log must be provided for those with- prisoned for failing to comply. Hickman, cretion in determining whether this show- held materials. Id. 329 U.S. at 500. To the relief of the tugboat ing of need for requested materials has owners and their attorney, the Third Cir- been met. See 4 Moore’s Federal Practice, Obtain discovery of your client’s cuit reversed. Id. Eventually, the Supreme ¶26.64[3] at 26-416 to 26-439 (1979). For documents held by the plaintiff’s counsel Court upheld the ’ position and example, witness statements have been In “pattern”—or repetitive litigation—or ruled that such matters were not discover- held to be discoverable when they were suits dealing with the same subject mat- able without a showing by the requesting taken shortly after an event and a lapse of ter, a plaintiff’s counsel may have obtained party—now familiar language—of “neces- time precluded the movant from obtain- your client’s documents from a different sity or any indication or claim that denial of ing the information through alternative source in another case. In any case where such production would unduly prejudice the means. See McDougall v. Dunn, 468 F.2d this might be a possibility, defense coun- preparation of petitioner’s case.” Id. at 509. 468, 474 (4th Cir. 1972); Hamilton v. Canal sel should ask the plaintiff to “[I]dentify Although the qualified or limited protection Barge Co., 395 F. Supp. 975 (E.D. La. 1974); any and all documents in your possession, of case materials codified in Rule 26(b)(3) Teribery v. Norfolk & Western Railroad, 68 custody or control that you contend con- is most often referred to as attorney work F.R.D. 46 (W.D. Pa. 1975); see also Berg v. stitute a statement or of the De- product privilege the scope of the privilege Des Moines General Hosp. Co., 456 N.W.2d fendant.” It is important for a defendant to offers much broader protection; it also pro- 173 (Iowa 1990). know that his or her previous statements tects the work product of the agents and em- Hickman offers a perfect example of the against interest and business records either ployees of counsel or the party. As stated in kind of case-by-case analysis courts must are not considered or are subject the rule, the immunity protects “materials undergo when determining the scope of to an exception to the hearsay rule and can prepared in anticipation of litigation or trial the attorney work product privilege. The therefore, be admitted into . See by or for a party or that party’s representa- Supreme Court in Hickman forbade the Fed. R. Evid. 801(d)(1) and 803(6). Fed- tive.” See Fed. R. Civ. P. 26(b)(3). production of attorney memoranda and eral courts have upheld this type of dis- In some situations, statements are taken witness statements because (1) the plain- covery request against a blanket assertion routinely, and if so, they retain their work tiff had access to prior sworn statements of

For The Defense n September 2008 n 45 Trial Tactics many of the same persons examined in a ies of these statements to the client, the cli- so forth. Just as in the case of an in-court prior agency hearing; (2) the availability of ent was surprised and asked, “[H]ow did demonstration, of course, extreme caution the was unimpaired; and (3) the you get these?” to which defense counsel is advised. This strategy can be used to pre- plaintiff had obtained answers to interrog- stated, “[I] just asked for them.” serve evidence and document the particu- atories from the defendant tugboat owners. On the other hand, if your own wit- lar actions of the plaintiff as witnessed by Hickman, 329 U.S. at 508–509. In Berg, also ness has given a prior statement that hurts some other person. Before committing the instructive, hospital nurses in a medical your client’s case, you should give careful account to video, have the witness dem- malpractice case gave statements shortly thought to whether you want the witness to onstrate for you what he or she saw at the after the events. During the trial, they review the statement before deposition. For time of the accident. Based on the run- instance, sometimes damaging statements through, you can decide whether to pre- are given to adjusters before litigation coun- serve the account. A videotaping strategy sel is involved. Having the witness review can also be employed to take a deposition Hickman offers a perfect a statement before deposition opens up the of a plaintiff. See Getting a possibility that the statement will be no- Witness to Walk the Line: Accident Dem- example of the kind of ticed when opposing counsel asks, “[W]hat onstrations at Videotaped Discovery Dep- have you reviewed?” ultimately resulting in ositions, 30(3) Am. J. of Trial Advocacy case-by-case analysis an order for production. Keep in mind that 487–538 (Spring 2007). the mere existence of a statement is likely a A statement has many advantages over courts must undergo proper subject of discovery, and existence a deposition. A statement may be infor- of statements is not privileged. mal and off-the-record, and, unlike a dep- when determining the osition, no formal need be given to Should I Take a Statement your opponent. An informal atmosphere scope of the attorney or Deposition? may help you to build rapport with the wit- Some lawyers often focus on the Rule 30 ness. If facts unfavorable to your client are work product privilege. deposition—or the state court equivalent reported, you can explore them in detail, rule—as the primary technique for learn- without dangerously highlighting them ing and documenting what a particular for opposing counsel. It is important to be testified that they lacked memory about witness’ may be at trial. In many in a position to make these decisions early the events. In the Berg context, the court situations, taking a witness statement may in a case. Locating and identifying wit- ordered production of the statements. be preferable, and if so, defense counsel nesses early gives you a broader spectrum Also, if you posses beneficial witness should employ specific techniques to pro- of choices about whether and how to cap- statements, as part of your litigation strat- tect that statement from disclosure. ture witness testimony. Sometimes, there egy you can voluntarily produce copies of Before taking either a statement or sched- is an added bonus. One of the authors once these statements to opposing counsel. Even uling a deposition, consult your common interviewed a third-party witness thought though the discovery rules say they may sense. What is this person going to say? to be neutral, by all accounts. After the be protectable work product, this does not Do I expect this person to be less friendly interview, the witness called the author mean you cannot produce them in discov- in 30 days, for example, after he or she has out of concern because he had been con- ery, if you think it is in the best interest of been terminated? Do I really want to doc- tacted by opposing counsel, and he won- your client. Often, by the time a case is filed, ument what he or she has to say if it could dered what he should say! Of course, the two years have passed. One of the authors be harmful to my client’s cause? Before was, “the truth.” But by building had a case several years ago which involved audio or videotaping a witness statement, rapport early with a witness, he or she can a catastrophic injury—quadriplegia—in try an off-the-record, dry run to determine begin—even subconsciously—to identify an automobile accident where a crash-wor- whether the testimony will be favorable. If with your client. thiness suit had been filed against the vehi- the statement is favorable, you may want to A statement taken of a witness other cle manufacturer. The plaintiff’s counsel formally record it, either in audio or video than of a party to the case is not required conducted a full and complete investiga- format. If it is unhelpful, or downright to be produced in discovery if it is pro- tion of the incident right after the accident, harmful, you may choose to forego taking tectable under the “work product” immu- which included taking witness statements. a statement altogether. In any event, you nity. But, remember, any person—even Defense counsel simply asked opposing can make notes of your conversation, and a nonparty witness—is entitled to their counsel if he would produce those state- those will generally be protected as attor- own prior statement, no matter who took ments, as long as counsel mutually agreed ney work product. it. Fed. R. Civ. P. 23(b)(3). If counsel or to exchange such materials. The plaintiff’s Another strategy is to “statement-ize” a counsel’s agent, such as a legal assistant counsel agreed, and the defendant was a witness by creating a videotape record or private investigator, takes the statement able to obtain copies of critical, eyewitness of the witness demonstrating how a prod- of a witness, opposing counsel must make statements of the accident and relevant uct was used, where he or she was standing the requisite showing of “substantial need issues. When the defense counsel sent cop- when he or she witnessed an accident, and and undue hardship” for the statement to

46 n For The Defense n September 2008 become discoverable. However, in practice, vation and later use of the testimony should (previously discussed) or as a prior incon- requesting counsel may simply contact the the witness later become unavailable. sistent statement for impeachment pur- witness and ask, “[D]o you have a copy of poses. See Fed. R. Evid. 801(d)(2) (if the the statement that you gave?” If the answer Using a Statement as a witness is a “party”); 804(b)(3) (“[S]tate- is yes, counsel merely requests a copy from ment against interest”) (applies to all wit- the witness, muttering something to the A witness statement may be used at a dep- nesses). The statement itself can be entered effect, “[Y]ou know, to be fair, both sides osition or trial as a recorded recollection, as evidence upon a proper , or to the suit should have access to the same which is a recognized exception to the hear- it can be entered as evidence through the information.” If the answer is no, counsel say rule. See Fed. R. Evid. 803(5). Under testimony of another witness, typically the then asks, “[W]ould you like to have one, the rule, before a memorandum or record person who took the statement. to refresh your memory or help you pre- can be used, you must establish that the pare for deposition or trial?” At this point, witness previously had knowledge of cer- Using a Statement with the witness can request a copy of the state- tain events, but in the moment has “insuf- Your Own Witness ment from the party who took it. Again, the ficient recollection to enable the witness to The use of a statement that one of your statement cannot be withheld because the testify fully and accurately.” See 1972 note own witnesses has given depends on the rules provide that any witness is entitled to (explaining this requirement helps to avoid factual context. It is important to consider a copy of their own statement. Once a wit- professionally drafted statements for pur- whether the facts and information in the ness possesses a copy of their statement, poses of litigation). When you invoke this prior statement are favorable or unfavor- opposing counsel typically requests it and rule, the memorandum or record is not able to your case. circuitously gets a copy. Of course, plain- admitted into evidence directly. Instead, For example, if your own witness pro- tiff attorneys don’t monopolize this tech- “the memorandum or record may be read vided a statement that is very favorable to nique, which can just as effectively be used into evidence but may not itself be received your client, before deposing that witness by defense counsel. as an exhibit unless offered by an adverse you will want to have him or her study Normally, a witness is deposed with a party.” Id. It is preferable for the live wit- the previous statement. Exercise caution court reporter present. If counsel takes a ness to testify at trial based on their mem- here. In a deposition, most thorough plain- statement, he or she has more flexibility. ory. However, the Rule 803(5) procedure tiff’s counsel ask, “[W]hat did you review The statement may consist merely of coun- may be your “Plan B” to get the evidence before the deposition today?” If the witness sel’s or a legal assistant’s interview notes. before the if the witness on the stand reviewed a previous statement in before Counsel can write the statement during at trial testifies to a lack of memory. providing testimony, the statement may the interview, have the witness review it, very well become discoverable by your and have the witness sign and date it. The Using a Statement to Refresh opponent. By the same token, as defense witness may be interviewed orally, and the a Witness’ Memory counsel, you should always ask the plaintiff interview can be audiotaped or videotaped. A witness’ statement can also be used and the plaintiff’s witnesses, “[W]hat did Finally, the witness can write their own to refresh the witness’ memory at trial you review before the deposition?’ If a wit- statement on a blank sheet of paper, and so that the witness will testify based on ness identifies a prior recorded statement, sign and date it. that refreshed memory. If this strategy is move for production of the statement. This By the same token, statements have employed, the statement itself will not be is particularly important if the witness has certain disadvantages, when compared entered into evidence. First, the witness testified to any lack of memory. You may with depositions. Normally, the witness must testify that he or she lacks memory even want to keep the record open on the is not under oath when providing a state- regarding a certain subject matter. Next, deposition until you have had a chance to ment, although if a legal assistant or pri- the statement is handed to the witness, and review that statement and examine the wit- vate investigator is a , you the witness is asked to review it. The state- ness about it. can have the oath administered to the wit- ment is not read aloud in court, or marked As discussed above, statements of your ness. If a sworn statement is taken and the as an exhibit to be offered into evidence, own witnesses given to you or your inves- witness later becomes unavailable, it will but rather, it is reviewed by the witness. tigator, are subject to work product protec- not qualify under the “former testimony” After the witness’ review, the examiner tion and need not be produced unless the exception to the hearsay rule and will be asks the original question, referring to the requisite breach to the qualified immu- admitted into evidence See Fed. R. Evid. review of the statement, “[D]id your review nity is shown. See Fed. R. Civ. P. 26(B) 804(b)(1) (requiring an opportunity by the of that statement or document refresh your (3). Thus, even if production of such state- party against whom the statement is being memory on this subject?” If the answer ments is requested in written discovery, offered an “opportunity and similar motive is yes, the statement is removed, and the and you anticipate that your witnesses will to develop the testimony by direct, cross, or witness proceeds to testify based on their review the helpful statements before their ”) (emphasis added). refreshed memory. If the witness answers depositions, as a matter of strategy, do not Thus, if a witness is aged or in ill health, a no, proof of the information contained produce your witnesses’ previously given formal deposition with notice to opposing within the statement can be entered as evi- statements. Opposing counsel may forget counsel is the best way to guarantee preser- dence either as past-recollection recorded to ask what your witness reviewed prior to

For The Defense n September 2008 n 47 Trial Tactics testifying, or counsel may ask and fail to come discoverable. However, since the state- or other proceeding, or in a deposition.” follow up with a request for the statement. ment was very beneficial to the defendant Fed. R. Evid. 801(d)(1)(A). Under Rule If opposing counsel fails to ask for a state- anyway, this concern was unwarranted. 801(d)(1)(B), a prior consistent statement ment or to make the required showing of may be used to rebut an “express or implied necessity and hardship, you are not obli- Impeachment at Deposition or Trial charge of recent fabrication or improper gated to produce a copy of a statement for To the extent that a prior statement is incon- influence or motive.”Id. your opponent. sistent with testimony given at a deposi- Prior statements of a witness can also be One of the authors recently had a situ- tion or trial, you can use it to impeach the considered admissions by a party-opponent ation where a former store employee was credibility of the testifying witness. Other and not hearsay under Fed. R. Evid. 801(d) related issues may be less clear. For exam- (2) if made by a party to the case under cer- ple, if you use a prior statement to impeach tain circumstances. If one of the follow- the credibility of a witness, will a writ- ing circumstances exist, a prior statement The mere existence of a ten copy of the out-of-court statement be can be an admission by a party-opponent: entered into evidence? Is the prior incon- (1) the statement is one of the party’s own statement is likely a proper sistent statement read into evidence? What statement, in either an individual or repre- is the most effective way to impeach a wit- sentative capacity; (2) the statement is one subject of discovery, and ness with a prior inconsistent statement? To of which the party has manifested an adop- what extent is impeachment on a so-called tion of or believe in; (3) the statement is by existence of statements “collateral matter” impermissible? a person authorized to make a statement Several matters concerning the subject; (4) the statement is not privileged. are legally well-established. The credibility is by the party’s agent or servant concern- of any witness may be impeached by any- ing a matter with the scope or agency or one, including the party who called the wit- employment, made during the existence to be deposed by a plaintiff’s attorney in ness to testify. Fed. R. Evid. 607. You can of the relationship; or (5) the statement is a premises liability personal injury case. impeach your own witness to guard your a statement of a co-conspirator of a party The employee had previously given a tape- case if your witness completely “goes off the during the course and in furtherance of the recorded statement over the telephone to reservation” with his or her testimony. The conspiracy. Many times conspiracy alle- an adjuster working on the claim, before authors suggest it is better to spend more gations are made in civil cases, as almost the case was in suit and sent to counsel. In time in witness preparation than in wor- throwaway allegations, but defense coun- the statement, the employee said that just rying about how to impeach a witness that sel should be mindful of the possibility that before the accident she had heard three you have called to the stand and has given statements made by alleged co-conspir- girls talking in the next aisle, discussing surprising testimony. ators, which might otherwise be exclud- the “staging” of a “phony” slip and fall acci- A witness may be examined about a able on hearsay grounds, may be admitted dent on a wet floor. They created a wet con- prior statement, whether written or oral, under Fed. R. Evid. 801(d)(2)(E). dition on the floor by intentionally spilling and the statement need not be shown nor We are all familiar with the plaintiff’s a product and staged an accident. After the its contents disclosed to the witness. How- answer to an interrogatory that certain suit was filed, this former employee was ever, upon request, the statement must be facts are “[U]nknown, but our investiga- deposed. Since she was a former employee shown or disclosed to opposing counsel. tion is continuing.” Under the rules of evi- and potentially hostile, the associate attor- Fed. R. Evid. 613(a). In addition, “extrin- dence, this is a statement. Consider a final ney assigned to the case neglected to give sic evidence of a prior inconsistent state- anecdote from a product liability case, for her an opportunity to review the transcript ment by a witness is not admissible unless which one author served as defense coun- of the earlier telephone interview and previ- the witness is afforded an opportunity to sel, illustrating how a seemingly innocuous ously made statement. In a later deposition, explain or deny the same and the opposite statement can be used to impeach a wit- the former employee testified that two girls party is afforded an opportunity to inter- ness. The plaintiff was on the witness stand talked about and took part in the scheme, rogate the witness thereon, or the inter- explaining in explicit detail exactly how the instead of three girls. Although the case ests of justice otherwise require.” Fed. R. accident happened. He was really “laying it was resolved shortly later for a nominal Evid. 613(b). Subparagraph (b) of Rule on thick,” including remarks such as, “[I] amount, if the former employee had been 613 “does not apply to the admissions of a will never forget this as long as I live.” The given a chance to review her prior state- party-opponent as defined in Rule 801(d) testimony was emotion-laden and the ju- ment, opposing counsel would not have (2).” Id. rors were paying attention. The case was had the potential to impeach this critical Under the rules of evidence, prior state- at a crossroads. What could the defense do witness by having knowledge of the exis- ments of a witness are not defined as “hear- to get the case back on an even keel? Upon tence of a prior inconsistent statement. say.” See Fed. R. Evid. 801(d)(1). This part cross-examination, defense counsel chose The associate attorney likely thought that of the rule includes prior inconsistent state- to address the witness’ questionable and if she had the witness review the statement ments that were “given under oath subject unbelievable testimony as follows: prior to the deposition, it might then be- to the penalty of perjury at a trial, hearing, Statements, continued on page 89

48 n For The Defense n September 2008 Statements, from page 48 on the jury here, how it is that today, serve. A statement can be used to impeach Q: You have testified here today in great nearly five years after the accident, a witness even if the statement itself is not detail about what happened at the that you know every little detail a grand admission. The careful attorney time of the accident, correct? about the accident, but when we should analyze every statement in the case A: Yes, of course. asked you the same question three record. In the mundane or pedestrian state- Q: Do you remember that shortly after years ago, and closer to the acci- ment, a spectacular result could await. you filed this , some three dent date, we asked you for your years ago, we sent you a set of “inter- answer under oath, that you didn’t Conclusion rogatories” or questions for you to know how it happened and said “our Witness statements can be helpful or hurt- answer under oath? investigation is continuing?” ful, depending upon how they are used. De- A: Umm, yes, I guess I recall that. A: Umm, I don’t know what happened fense counsel should give careful thought to Q: And do you remember Question No. there. the ways in which witness statements may 2, which I have right here and will Q: Let me ask you this—before you impact defense strategy in a particular case. show you, and I will show it to the took the stand to give testimony in If witness statements exist, they will always jury on the overhead projector here, this trial today, did you speak with be a critical aspect of discovery. Locating where we asked: “[P]lease state in your lawyers? and obtaining statements should be at the detail how the accident happened?” A: Yes. top of every lawyer’s discovery checklist. A: Umm, yes, I guess I remember that. Q: Have you ever heard of the phrase What’s more, being the early bird—the first Q: And do you remember that your “wood shedding a witness?” attorney to establish rapport with a witness answer at that time was “[U]n­known (Sounds of the jury snickering in —can provide a real advantage in litigation at this time, our investigation is the background.) and allow that attorney to choose from sev- continuing?” Besides being a powerful reminder to sup- eral options regarding that witness’ state- A: Yes, I guess so. plement discovery responses, the above story ment that would have been foreclosed later Q: And can you explain for the folks illustrates the critical role statements can in the life of the dispute.

For The Defense n September 2008 n 89