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Univ. of South Carolina School of Law

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Sunday, February 24, 2008

Dr. Phil and the Runaway Jury: Court Finds Work Product Privilege Partially Applies To Jury Consulting

Hynix Semiconductor Inc. v. Rambus Inc. is a case in which manufacturers have sued Rambus Inc. on the ground that it monopolized or attempted to monopolize six technology markets.  In the case, Rambus moved to prevent opposing counsel from asking witnesses about any meetings with jury consultants, specifically regarding their meetings with jury consultants to help them prepare to testify at trial. Hynix Semiconductor Inc. v. Rambus Inc., 2008 WL 397350 at *1 (N.D. Cal 2008).

In addressing this motion, the United States District Court for the Northern District of California first noted that Federal Rule of Evidence 611(b) governs the scope of cross-examination and indicates that "[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination."  The court found, however, that Rambus was not challenging the jury consultant line of questioning unde Rule 611(b), but instead was claiming that its probative value would be substantially outweighed by its prejudicial effect, rendering it inadmissible under Federal Rule of Evidence 403.

Rambus raised two sources of unfair prejudice:  that the jury would draw improper conclusions (1) because of a negative connotation about jury consultants propagated by the media and movies like "Runaway Jury," and (2) because referencing jury consultants suggests one side's size or resources.  With regard to (1), the court found that the manufacturers did "not intend to cross-examine a witness regarding jury selection," meaning that "any prejudice from the possibility that a juror has seen a movie such as "Runaway Jury," which dealt with jury selection and jury misconduct, [wa]s too speculative to justify precluding cross-examination regarding preparation."  WIth regard to (2), the court found that the "argument f[ell] flat...because the jurors need only look at the rows upon rows of counsel and trial assistants, shelves of binders, and the admissible evidence regarding market size to know that both sides in this dispute have plenty of money and are willing to spend it."

The court also noted, however, that Rambus raised a second, "better," argument:  "that cross-examination regarding how a witness prepared to testify treads on the attorney-client privilege and work-product protection...."  The court noted that there were some difficult factual questions with regard to application of the attorney-client privilege and thus did not seem to resolve the issue.  With regard to the work product privilege, the court found only one case on point:  In re Cendant Corp. Securities Litigation, 343 F.3d 658 (3rd Cir. 2003).

In Cendant, Ernst & Young, LLP and Cendant Corp. were co-defendants in a class action; the class action was settled, by cross-claims between these two parties remained unresolved.  At a deposition, Cendant's counsel sought to ask a former Ernst & Young Senior Manager whether he met with Dr. Phillip C. McGraw, an expert in trial strategy and deposition preparation (McGraw is now better known as TV's Dr. Phil).  The discovery master determined that "the deponent could be asked whether he met with Dr. McGraw, when they met, for how long, who was present and why they met."  The discovery master, however, did not permit questions about what Dr. McGraw told the deponent, whether they practiced his testimony, and whether the deponent received any documents or notes because these questions would violate the work-product doctrine." 

The district court reversed this order, but the Third Circuit reversed the district court, finding that the discovery master's ruling was "essentially correct."  The Third Circuit first noted that the work product doctrine applied to Dr. Phil's jury consulting because (1) the work-product protection also extends to non-attorneys who assist in preparation of litigation, and (2) the litigation consultant's advice to a witness is an “opinion” that is protected under the work-product doctrine.  Thus, the “frank and open discussions” between Dr. McGraw, counsel, and the witness went “to the core of the work product doctrine” and could only be discovered under extraordinary circumstances.  At the same time, the court concluded that “[w]e believe [the witness] may be asked whether his anticipated testimony was practiced or rehearsed."

The court in Rambus came to the same conclusion, finding that "the parties may ask a witness whether he or she met with a jury consultant, the purpose of any such meeting, who was present, the duration of the meeting and whether the witness practiced or rehearsed his or her testimony. The court will not permit questioning beyond those limited points because inquiring into work-product protected materials creates unfair prejudice and doing so will lead to both confusion and delay."

To me, the balance struck by both the Third Circuit and the District Court for the Northern District of California seems appropriate, allowing for limited questioning about jury consulting while still protecting the work product doctrine.

Hat tip to University of Tennessee College of Law Professor Maurice Stucke.

-CM

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