The Admission of Government Agency Reports under Federal Rule of Evidence 803(8)(c) By John D. Winter and Adam P. Blumenkrantz

or (B) matters observed pursuant having hearsay evidence admitted under to duty imposed by law as to which Rule 803(8)(c) follow from the justifica- matters there was a duty to report, tions for adopting the rule in the first excluding, however, in criminal cases place. The hearsay exception is premised matters observed by police officers on several conditions. First, the rule as- and other law enforcement person- sumes that government employees will nel, or (C) in civil actions . . . factual carry out their official duties in an honest 2 John D. Winter Adam P. Blumenkrantz findings resulting from an investiga- and thorough manner. This assump- tion made pursuant to authority tion results in the rule’s presumption of n product liability and other tort ac- granted by law, unless the sources of reliability. Second, the rule is based on the tions, plaintiffs may seek to introduce information or other circumstances government’s ability to investigate and re- Igovernment records or documents, indicate lack of trustworthiness. port on complex issues raised in many cas- federal and nonfederal alike, to establish es, from product liability claims to section one or more elements of their claims. In This article focuses specifically on 1983 actions against government officials. this regard, plaintiffs attempt to rely on the third prong of the rule: the use of Government agencies generally possess reports or letters written by government agency records in civil actions that result levels of expertise, resources, and experi- agencies responsible for overseeing the from an agency investigation made ence, including access to information that health, safety, and consumer aspects pursuant to authority granted by law. litigants cannot replicate. For example, of the product at issue in the particular Though the language of Rule 803(8) (c) an ordinary private litigant is unable to case. As the size of the administra- is broad and courts have generally match the Federal Aviation Administra- tive state grows, the number of agency interpreted the text in that manner, there tion in conducting an investigation of the records available for this purpose is are several recognized limitations to the details of an airplane accident at the crux increasing. Such reports and letters can exception. For several of the limitations, of a lawsuit between a crash victim and be portrayed as powerful and persuasive the precise boundaries remain unclear. the air carrier or airplane manufacturer.3 evidence when described as comprehen- Therefore, parties seeking to exclude Finally, assuming that in-court testimony sive and detailed descriptions of an ac- such records from being admitted into by a government employee would equal or cident, a product, or an event. Further, evidence should closely analyze each exceed in accuracy and detail that offered because such reports are prepared by of these requirements to determine the in a report, Rule 803(8)(c) removes the a government agency, a jury will likely most effective manner of challenging the burden on the government of having its give considerable deference to the con- admission of a government report. personnel required to testify at trial about clusions in these reports or letters. Ultimately, the party seeking to the contents of the report. Government agency reports fall prevent the admission of a government An obvious and significant hurdle to within the definition of hearsay set forth record bears the burden of establish- the admission of evidence pursuant to in Federal Rule of Evidence 801(c),1 ing that the report is not trustworthy Rule 803(8)(c) is that the report or docu- but because they are explicitly not or otherwise does not fall within Rule ment be trustworthy. For those seeking statements made by a declarant testify- 803(8) (c). In other words, there is a a narrow application of the rule, the reli- ing at a trial or hearing, Rule 803(8), “presumption of admissibility” that ability of the report and a jury’s ability to enacted by Congress in 1974, provides attaches to government reports, which evaluate that reliability are major con- an exception to this general prohibition the challenging party must overcome. cerns. The narrow interpretation of Rule on the admission of such statements. Not surprisingly, district courts have 803(8)(c) asserts that (a) agencies may not The “public records” exception, as it is significant discretion in deciding which possess the expertise or qualifications to commonly referred to, states that the reports may be admitted under the rule ensure that the report is comprehensive following items are not to be excluded and which may be excluded, so litigants and reliable; or (b) the report might be bi- by the general hearsay rule: should not count on successfully appeal- ased to protect the reporting agency, sister ing trial court evidentiary decisions. Ap- agencies, or the implicated private parties. Records, reports, statements, or data pellate courts rarely find that a district The notes of the Federal Rules of compilations, in any form, of public court has abused its discretion when Evidence Advisory Committee exhibit offices or agencies, setting forth (A) ruling on these types of matters. legitimate concern over the trustworthi- the activities of the office or agency, The requirements and contours for ness of agency reports. The committee

American Bar Association 1 Spring 2009

Published in Mass Torts, Volume 7, Number 2, Spring 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. listed four nonexclusive factors that bear produced by nongovernmental bod- formal findings, only those factual state- on trustworthiness: (1) the timeliness of ies to prepare their own findings and ments from the staff reports that are ap- the investigation; (2) the special skill or conclusions. In most instances, the use proved and adopted will qualify as 803(8) experience of the official; (3) whether a of such information will not in and of (c) findings.’”11 Noting that Rule 803(8) hearing was held and the level at which it itself threaten the applicability of Rule is premised on an administrative body’s was conducted; and (4) possible motiva- 803(8) (c). Invariably, courts examine findings being “assumed to be trustwor- tion problems (such as agency bias or the reliability of the outside information thy,” the Ninth Circuit found that reports motivation issues) suggested by Palmer relied upon by the agency and assess not produced by an agency do not fall v. Hoffman.4 When a party opposing ad- whether the agency adopted the outside under the rule’s exception.12 missibility challenges the trustworthiness materials without comment or additional of a particular report, courts generally analysis or instead built on the third- Factual Finding versus Legal Conclusion start their analysis with these factors. party data and materials to reach its own On its face, Rule 803(8)(c)’s coverage In addition, courts have supplemented independent conclusions.6 If the out- appears limited to those records that con- these four factors with others, including side sources are reliable and the agency tain factual findings, as opposed to other whether the report in question is final thoughtfully considered the data in the types of statements. For many years, and the extent to which the investigation course of undertaking its own investiga- there was a split among the federal courts complied with agency procedures.5 How- tion, the reports are generally admitted as to whether Rule 803(8)(c) reached ever, given the factors that courts con- if the rule’s other requirements are met.7 opinion or evaluative statements or sider when assessing trustworthiness and For example, in Sabel v. Mead Johnson,8 conclusions contained in a government the discretion they are afforded on these a letter written by a division director at report, in addition to factual findings, issues, it is often difficult to predict what the U.S. Food and Drug Administration which were clearly covered. In Beech conclusion a court will reach regarding (FDA) prepared pursuant to the agency’s Aircraft Corp. v. Rainey,13 the Supreme the admissibility of a particular report. statutory authority was admitted despite Court resolved this question in favor of Although litigants and courts fre- the letter’s recommendations being based those who broadly interpreted the phrase quently focus attention on the question “factual finding.” The Supreme Court of trustworthiness when evaluating the concluded that the rule covered not applicability of Rule 803(8)(c) to a spe- Courts are hesitant to only factual findings resulting from an cific report, the rule’s other requirements agency’s investigation, but also opinions should not be overlooked. This article treat as factual findings or evaluative statements that followed discusses these additional requirements— statements in a draft report from the factual findings.14 This conclu- more specifically, the requirement that or mere recommendations sion was based on the language of the a government report contain “factual rule, which states that reports that set findings resulting from an investigation” directed to a full agency or forth factual findings, and not just the made by an agency. a third party. findings themselves, are admissible. In addition, the Supreme Court’s conclusion Factual Findings was based on the practical difficulties The requirement that a government report largely on data collected by and received of having to distinguish between factual contain “factual findings resulting from from an outside party. The Sabel court statements and opinions in a given gov- an investigation” presents a significant found that the division director based his ernment document.15 hurdle for the party seeking to introduce conclusions on reliable published reports Nevertheless, several key limitations on the report into evidence. The factual find- in the medical literature, the same data what types of statements Rule 803(8) (c) ing requirement itself has several distinct that any expert in this field would rely covers remain. For one, the rule does not prongs, each of which applies in different upon for his or her analysis.9 The use of cover judicial or jury findings because circumstances. A party challenging the third-party materials in this case, there- neither judges nor juries are investigative admission of a government report should fore, was not problematic. bodies within the meaning of the rule. closely examine all of these individual When an agency report relies too The Advisory Notes confirm that the rule conditions before determining how best to heavily on third-party materials, however, was intended to cover executive agencies challenge the admissibility of a particular courts have excluded them. For example, rather than judicial ones. Likewise, legal report. The following are a few of the in Brown v. Sierra Nevada Memorial Min- conclusions contained within government areas for factual finding requirements. ers Hospital,10 the Ninth Circuit affirmed reports generally fall outside the scope of the exclusion of two reports sent to a the rule’s exceptions. This limitation is a Reliance on Third-Party Materials state agency by outside consultants. The nod to those concerned that a jury will Because the subjects of government Ninth Circuit stated that “where ‘a staff improperly defer to an agency’s conclu- reports often are complex and data-in- report is submitted to a commission or sions. As the court explained in Hines tensive, agencies tend to rely on materials other public agency charged with making v. Brandon Steel Decks, Inc.,16 “legal

Mass Torts 2 Section of Litigation

Published in Mass Torts, Volume 7, Number 2, Spring 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. conclusions are inadmissible because contained the results of a partial extend to proposed findings not the jury would have no way of knowing staff investigation.19 adopted or approved by the agency. whether the preparer of the report was • In Figures v. Board of Public Utilities, • In United States v. Gray, the court cognizant of the requirements underlying the court affirmed the exclusion of affirmed the exclusion of an Inter- the legal conclusion and, if not, whether a government letter as hearsay not nal Revenue Service referral report the preparer might have a higher or lower covered under Rule 803(8)(c).20 The pursuant to Rule 803(8)(c), because standard than the law requires.” Tenth Circuit explained that the let- the report was only a tentative inter- ter could not represent the findings nal document that did not state any Assessing Finality of the agency because an affidavit factual findings by the agency.26 The last prong of the factual finding accompanying the letter specifically These cases are not entirely represen- requirement is that the report or record stated that “the conclusions con- tative of all case law addressing finality. be final and official in nature. Although tained in this draft [letter] were never Indeed, many courts treat finality as courts often assess finality in the context endorsed by the U.S. Department of only one of many factors to evaluate of the larger trustworthiness evaluation, Labor, nor was it officially signed or in the course of determining whether it is more beneficial for purposes of this sent or otherwise transmitted to the a report is trustworthy.27 In that con- analysis and perhaps more consistent Board of Public Utilities.”21 text, finality is not asine qua non for with the text of the rule to consider the • In Smith v. Isuzu Motors Ltd., the the purpose of applying Rule 803(8)(c). finality element as a separate and dis- court affirmed a decision to exclude Nevertheless, the decisions do highlight tinct requirement under Rule 803(8) (c). three memorandums prepared by that finality can be a significant hurdle Though the rule does not explicitly staff members of the National for parties seeking to admit government refer to finality, the degree to which a Highway Traffic Safety Administra- documents under Rule 803(8)(c). report is final or official affects a court’s tion (NHTSA), which supported the Although traditionally limited to the determination as to whether the report plaintiff’s position regarding liability context of draft or nonfinal reports, contains “findings resulting from an in the case.22 The Fifth Circuit found the requirement that a record contain investigation” and is a product “of a factual findings of an agency has appli- public office or agenc[y].” For example, cability in other contexts as well. There when a report is completed by em- Research suggests that is a range of documents and records cre- ployees of an agency but not explicitly ated by agencies that can be potentially adopted by the agency itself, courts are early intervention and detrimental to a litigant if admitted into more likely to conclude that the state- treatment can effectively evidence and that, by their very nature, ments do not emanate from the agency permit a child to lead a are neither a finding of an agency nor and are therefore inadmissible. Likewise, a product of an agency’s investigation. courts are hesitant to treat as factual normal life. For example, the court in Ariza v. The findings statements in a draft report or City of New York affirmed the exclu- mere recommendations directed to a full sion of portions of a police department agency or a third party. In these cases, that the memorandums did not re- report that merely “summarized the dis- courts usually conclude that the docu- flect factual findings of the NHTSA cussions” of several police officers and ment does not represent the findings of because the agency did not ultimate- made “generalized recommendations re- the implicated government agency. A ly accept the positions and opinions garding future departmental behavior.”28 number of circuit court decisions high- of the individual staff members who According to the Ariza court, the report light this point: completed the report.23 was “the product of a ‘research project’ • In The City of New York v. Pullman • In Toole v. McClintock, the court in which [23] groups of [12–15] officers Inc., the court affirmed the exclu- reversed the admission of an FDA each convened to participate in guided sion of an internal report because report under Rule 803(8)(c) because group discussions.” As such, the report the report did not even purport to the report contained, by its own did not contain the type of factual find- contain agency factual findings.17 In terms, only “proposed findings” ings based on an agency investigation reaching its conclusion, the Sec- still subject to revision and further contemplated by Rule 803(8)(c). ond Circuit attached significance study.24 In reaching its conclusion, An FDA “untitled letter” is another to the fact that the report by the the Eleventh Circuit noted that the area in which Rule 803(8)(c)’s finality Urban Mass Transit Administration FDA report contained only pro- requirement has been a limiting force. declined to state a conclusion on posed findings about the general By definition, an FDA untitled letter is the issue most relevant to the trial.18 area of products implicated in the not a formal warning to a manufacturer According to the Second Circuit, case and not the specific product of an impending agency enforcement ac- rather than embodying the findings at issue.25 According to the Elev- tion.29 Rather, the FDA uses untitled let- of the agency, the report merely enth Circuit, Rule 803(8)(c) did not ters as initial correspondence to identify

American Bar Association 3 Spring 2009

Published in Mass Torts, Volume 7, Number 2, Spring 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. possible violations that an agency com- John D. Winter is a partner at Patterson Belknap when submitted through the appropriate U.S. agency, pliance official believes the recipient may Webb & Tyler LLP; he focuses his practice on the as a report of a department or agency of the United have committed. An untitled letter: defense of pharmaceutical and medical device cases. States.” Id. at 627 (quoting United States v. Lykes • can be issued by “any” FDA Adam P. Blumenkrantz is an associate in the litigation Bros. S.S. Co., 432 F.2d 1076, 1077 (5th Cir. 1970)). “compliance officer” department of Patterson Belknap Webb & Tyler LLP. 8. 737 F. Supp. 135, 140–42 (D. Mass. 1990). • does not threaten to release adverse 9. Id. at 142–43. information to other federal agencies Endnotes 10. 849 F.2d 1186, 1189–90 (9th Cir. 1998). • “does not include a warning state- 1. Federal Rule of Evidence 801(c) defines 11. Id. at 1189 (quoting Zenith Radio Corp. v. ment that failure to take prompt hearsay as “a statement, other than one made by Matsushita Elec. Ind. Co., 505 F. Supp. 1125, 1145 correction may result in enforce- the declarant while testifying at the trial or hearing, (E.D. Pa. 1980)). ment action” offered in evidence to prove the truth of the matter 12. Id. at 90. Rule 803(8)(c) does not extend to • does not require “mandated district asserted.” documents that do not contain any agency-produced follow-up” 2. See Bradford Trust Co. v. Merrill Lynch, factual findings, such as when a report contains only • merely “requests (rather than re- Pierce, Fenner and Smith, Inc., 805 F.2d 49, 54 (2d a transcript of statements or information provided by quires) a written response”30 Cir. 1986). a third party. See United States v. Ortiz, 125 F.3d 630, Accordingly, the degree to which the 3. See Note, The Trustworthiness of Government 632 (8th Cir. 1997). agency has undertaken a factual investi- Evaluative Reports under Federal Rule of Evidence 13. 488 U.S. 153 (1988). gation to reach its decision to send a letter 803(8)(c), 96 Ha r v . L. Re v . 492, 495 (1982). 14. Id. at 170. is questionable. The letter is submitted to 4. 318 U.S. 109 (1943). 15. Id. at 168. the F DA’s Office of Chief Counsel prior 5. See Zenith Radio Corp. v. Matsushita Elec. 16. 886 F.2d 299, 303 (11th Cir. 1989). to issuance for the purpose of reviewing Indus. Co., 505 F. Supp. 1125, 1147 (E.D. Pa. 1980) 17. 662 F.2d 910 (2d Cir. 1981). its legal sufficiency and consistency with (listing seven criteria, including several that refine 18. Id. at 914. agency policy, but it does not necessar- the Advisory Committee’s criteria, which the court 19. Id. at 915. ily receive FDA’s full imprimatur. These considered as part of its trustworthiness evaluation). 20. 967 F.2d 357, 360 (10th Cir. 1992). factors make the agency’s letter less of a 6. A similar scenario will arise when the agency 21. Id. at 360. “determination” than a recommendation record contains statements that are themselves 22. 137 F.3d 859, 862–63 (5th Cir. 1998). to the recipient.31 As such, it is question- hearsay. This creates the familiar problem of having 23. Id. at 862. able whether an untitled letter satisfies the hearsay within hearsay. Although Rule 803(8)(c) 24. 999 F.2d 1430, 1434–35 (11th Cir. 1993). requirements of Rule 803(8)(c). provides an exception for the report itself, the party 25. Id. at 1434. seeking admission often is required to offer a second 26. 852 F.2d 136, 139 (4th Cir. 1988). Conclusion exception to cover the individual hearsay statements 27. See, e.g., Hawa Abdi Jama v. INS, 334 F. A party challenging the admission in the report. See, e.g., United States v. Mackey, 117 Supp. 2d 662, 680–81 (D.N.J. 2004) (“In this case the of a government report or record in F.3d 24, 28–29 (1st Cir. 1997) (“In line with the advi- findings of the Interim Report are sufficiently firm for a product liability or other civil ac- sory committee note to Rule 803(8), decisions in this the Report not to be untrustworthy under the rule. tion has several routes to consider. In and other circuits squarely hold that hearsay state- The fact that they may have been in some respects addition to asserting that the report is ments by third persons . . . are not admissible under preliminary findings, that further investigation of the untrustworthy using the multifactor [Rule 803(8)(c)] merely because they appear within same set of facts may have been contemplated, does test that many courts have adopted for public records.”). In other instances, courts assess the not by itself require a finding that they are unreli- that analysis, the party also may argue reliability of the hearsay statements within the report able.”). that it does not contain “factual find- as a means of determining whether the report should 28. 139 F.3d 132, 134 (2d Cir. 1998). ings resulting from an investigation” be admitted. 29. For additional information about FDA by the agency. This line of argument 7. An agency also may delegate its duty to report untitled letters, see U.S. Fo o d a n d Dr u g Ad m i n i s - may be promising for exclusion if the on matters under its care to third parties without t r a t i o n Re g ul a t o r y Pr o c e d u r e s Ma n u a l , ch. 4, record at issue is not final in nature or forfeiting the right to have its final report admitted as Advisory Actions, § 4-2 (2008), available at www.fda. does not represent the reasoned and evidence pursuant to Rule 803(8)(c). In United States gov/ora/compliance_ref/rpm/default.htm. evaluative judgment of the full agency. v. Central Gulf Lines, 974 F.2d 621 (5th Cir. 1992), 30. See id. § 4-2-1 (Untitled Letters – Policy), Moreover, if the agency has merely ad- the court affirmed a decision to admit quarantine cer- available at www.fda.gov/ora/compliance_ref/rpm/ opted information or conclusions from tificates kept by the Commodity Credit Corporation chapter4/ch4-2.html. a third party, one may contest whether as public records under Rule 803(8)(c) even though 31. Schering-Plough Healthcare Products, Inc. v. the agency’s conclusions are actually a the records were prepared by foreign port authorities Schwarz Pharma, Inc., 547 F. Supp.2d 939, 946–47 product of the agency’s own investiga- who were not public agencies authorized to report. (E.D. Wis. 2008). See also Summit Technology, Inc. tive efforts. Each of these arguments The Fifth Circuit noted that the “duty to prepare v. High-Line Medical Instruments Co., 933 F. Supp. represents an important limitation on the report can be delegated, under government 918, 934 & n.9 (C.D. Cal. 1996); Kociemba v. G.D. the admissibility of reports pursuant to regulations, to an independent agency or to a foreign Searle & Co., 683 F. Supp. 1582, 1584 (D. Minn. Rule 803(8)(c). government without the report losing its character 1988).

Mass Torts 4 Section of Litigation

Published in Mass Torts, Volume 7, Number 2, Spring 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.