March 1, 2008
When Dolphins Attack: Court Applies Version of Rule 408 That Conflicts With Its Legislative History
Back in 1987, Jonathan E. Smith, an animal trainer at Sea World, was attacked by two killer whales at a Sea World in San Diego. One of the members of the audience at the Sea World whale show had a camcorder and recorded a five minute video of the attack. The man later visited Smith in the hospital, gave him a copy of the video, and assigned him the copyright. See Smith v. NBC Universal, 2008 WL 483604 (S.D.N.Y. 2008). Smith subsequently registered the video with the U.S. Copyright Office. See id. Smith thereafter licensed the video for broadcast on two occasions: (1) in 1987, for $300, he licensed the video to Channel 39, a local ABC affiliate in San Diego, which broadcast the attack on-air; and (2) in 1988, for $500, he licensed the video to the Fox Broadcasting Company program A Current Affair and granted an interview in connection with the program.
Thereafter, in 1994, MG Perin distributed a segment of the television series "The Extraordinary" containing several portions of the Fox interview and 37 seconds of the video. Consequently, Smith filed a copyright lawsuit, and the case was settled in September 1996 for $40,000, with Fox and MG Perin agreeing never to duplicate or distribute the video again without a license from Smith. MG Perrin, however, just couldn't resist the temptation to keep airing the video, leading to re-airings in 1997 and 1999 and settlements in the amounts of $100,000 and $20,000. See id.
In August 2003, MG Perin strayed from its agreement again, by accepting $200,000 from Universal Television Networks to license 10 segments of "The Extraordinary" including one containing portions of Smith's video. Smith thus sued NBC Universal, MG Perrin, and several other defendants for copyright infringement. See id. In a pre-trial motion in limine, the defendants, inter alia, sought to prevent Smith from informing the jury of the values of the settlement payments pursuant to Federal Rule of Evidence 408, "which prohibits the admission of settlements to demonstrate the value or amount of the underlying claim." Id. The District Court for the Southern District of New York, however, rejected this portion of the motion, finding that the phrase “the claim” in Federal Rule of Evidence 408 "refers only to the claim whose amount is in dispute. Facially, the Rule does not bar the introduction of a settlement in any action except the one that was resolved by that settlement." Id.
With due respect to the court, this decision is directly contradictory to the legislative history behind Rule 408. As I've written before, in 1972, when Rule 408 was first proposed, the Advisory Committee noted: "While the rule is ordinarily phrased in terms of offers of compromise, it is apparent that a similar attitude must be taken with respect to completed compromises when offered against a party thereto. This latter situation will not, of course, ordinarily occur except when a party to the present litigation has compromised with a third person." In 2006, Rule 408 was amended, and the Advisory Committee noted that the amendment it made to Rule 408 "makes clear that Rule 408 excludes compromise evidence even when a party seeks to admit its own settlement offer or statements made in settlement negotiations." This is because Rule 408 protects both parties to the negotiation, so one party to the negotiations cannot unilaterally waive the protections of Rule 408.
Thus, the 1972 Note tells us that Rule 408 covers "third party" situations like the fact pattern in Smith, and the 2006 Note tells us that Rule 408 is applicable in this "third party" situation, regardless of whether the party to the settlement negotiations is offering the evidence or having the evidence offered against him. The court's decision in Smith is thus an erroneous application of Rule 408.
February 29, 2008
The Third Man: Maryland Court Of Appeals Find Government Attorneys Are Servants Of A Party Opponent For The Purposes Of The Admissions Rule
The Maryland Court of Appeals' recent opinion in Bellamy v. State, 2008 WL 382938 (Md. 2008), is a case with two interesting evidentiary rulings. In Bellamy, Joseph Nathan Bellamy was convicted of first degree murder and use of a handgun in the commission of a crime of violence in connection with the shooting death of Jermaine "Jay" Carter. The prosecution's theory of the case was that Bellamy shot Carter twice, once in the back of the head and once in the right shoulder, near a Gaithersburg elementary school in July 2003. Among the evidence presented at Bellamy's trial was (1) a witness' testimony that on the night of the murder, Bellamy, Calvin "Southside" Welch, and Andre Saunders accompanied Carter to a park behind the school, and (2) a witness' testimony that on the night of the murder, she saw Bellamy, Welch and Saunders running from the park to Welch's apartment after hearing two gunshots.
Bellamy's defense counsel argued at his trial that it was Welch, not Bellamy, who murdered Carter, and they called Welch and Saunders as witnesses. Both Welch and Saunders, invoked the Fifth Amendment privilege against self-incrimination. Bellamy, however, attempted, inter alia, to get into evidence the state's factual proffer from Saunders' plea hearing. You see, before Bellamy's trial, the state reached a plea agreement with Saunders under which he pleaded guilty to being an accessory after the fact to the murder. During the plea hearing, the state proffered facts, based upon Saunders' statements to authorities. The proffered facts which Bellamy sought to introduce were the facts that Bellamy initiated the physical attack on Clark, assaulted Clark, and then physically restrained Clark so that Welch could attack him, but that it was Welch who shot Clark while Bellamy was restraining him.
The state objected that this proffer constituted inadmissible hearsay, and the trial judge agreed and ruled it inadmissible. On appeal, the first interesting question addressed by the Maryland Court of Appeals was whether the state's proffer constituted an admission by a party opponent under Maryland Rule of Evidence 5-803(a)(2). Under this rule, a statement that is offered against a party and which is a statement of which the party has manifested an adoption or belief in its truth is not excluded by the hearsay rule. Defense counsel's argument was that the State manifested its “adoption or belief in ... [the] truth” of Saunders's statement when, inter alia, the Assistant State's Attorney stated at the plea hearing, “And it is our belief, based on our investigation and review of everything, is that he's been truthful."
In answering this question, the court had to resolve a question that has sharply divided state and federal courts across the country: In a criminal prosecution, are government attorneys considered servants of a party-opponent for the purposes of the admissions rule? The Maryland Court of Appeals came to the conclusion that they are, rejecting the arguments that government attorneys cannot manifest a belief in a defendant's statement and are traditionally unable to bind the sovereign. Instead, the court found that
-the Assistant State's Attorney unequivocally manifested an adoption of or belief in Saunders' statement when he said, “And it is our belief, based on our investigation and review of everything, is that he's been truthful;"
-the prosecutors acted as authorized agents of the State of Maryland at Saunders' plea hearing because the judge presiding at Saunders's plea hearing accepted the representations made by the prosecutors as a sufficient substantive basis for Saunders' plea; and
-there are many opportunities for a prosecutor to bind the government in the course of a criminal trial.
I think that all of these arguments hold water, and I thus fall in line with those courts holding that government attorneys in criminal prosecutions are servants of a party-opponent for the purposes of the admissions rule.
However, once the court decided that the factual proffer should have been admissible, it still had to determine whether its exclusion constituted harmless error, precluding reversal. And the court did find that this was a case of harmless error because Saunders's statement indicated that Bellamy initiated the physical attack on Carter, assaulted Carter, and then physically restrained Carter so that Welch also could attack. According to the court, that evidence, on its own, would be sufficient for a reasonable jury to convict Bellamy of aiding and abetting Carter's murder.
To me, this decision makes no sense. The prosecution's theory of the case was that Bellamy shot and killed Careter. Saunders' statements directly contradicted the prosecution's theory because he claimed that Welch was the shooter. It also directly supported Bellamy's theory of the case, which, again, was that Welch was the shooter. Now, it's true that if the jury believed the entirety of Saunders' testimony, it still could have convicted Bellamy based upon his aiding and abetting. But it's just as true that the jury could have believed that Welch was the shooter but disbelieved that Bellamy aided in the shooting. Or maybe the simple fact that Saunders' testimony directly contradicted the prosecution's theory of the case would have led the jury to disbelieve the prosecution's case in general. Based upon the court's ruling, however, no jury will get that chance.
February 28, 2008
Me Too: Supreme Court Reverses Tenth Circuit Ruling In Sprint Age Discrimination Case
In Sprint/United Management Co. v. Mendelsohn, 2008 WL 495370 (U.S. 2008), the United States Supreme Court concluded that "[r]elevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules." Ellen Mendelsohn worked in the Business Development Strategy Group for Sprint from 1989 through 2002, when Sprint terminated her as a part of an ongoing company-wide reduction on force. Mendelsohn subsequently sued Sprint in the District Court for the District of Kansas under the Age Discrimination in Employment Act of 1967 (ADEA), claiming that she was fired based on her age. As support for her claim, Mendelsohn sought to introduce testimony by five other former Sprint employees who claimed that their supervisors had discriminated against them because of age, but none of these other employees worked in the Business Development Strategy Group with Mendelsohn, nor had any of them worked under the supervisors in her chain of command.
Sprint thereafter brought a motion in limine to exclude this "me too" testimony on the ground that it was irrelevant under Federal Rule of Evidence 401 because the only relevant testimony could come from employees who were “similarly situated” to Mendelsohn in that they had the same supervisors. It also argued that even if this testimony had probative value, that value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, and undue delay, making it inadmissible under Federal Rule of Evidence 403. In a minute order that did not explain its ruling in great detail, the district court granted the motion in limine. On Mendelsohn's appeal, the Tenth Circuit treated the minute order as the application of a per se rule that evidence from employees with other supervisors is irrelevant to proving discrimination in an ADEA case. The Tenth Circuit then disagreed with this alleged conclusion, engaged its own weighing of the testimony's relevance and prejudice, determined that the testimony was admissible, and thus reversed and remanded for a new trial.
The Supreme Court subsequently granted certorari, and on Tuesday, it determined in a unanimous opinion that the Court of Appeals erred in conducting its own weighing of the testimony's relevance and prejudice after concluding that the District Court applied a per se rule. The Supreme Court found that, had the district court applied a per se rule excluding the evidence, the Court of Appeals would have been correct to conclude that it had abused its discretion because "[r]elevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules." According to the Supreme Court, however, even if this were the case, the Tenth Circuit should merely have remanded the case because questions of relevance and prejudice are for the district court to determine in the first instance because it is virtually always is in the better position to assess the admissibility of the evidence in the context of the particular case before it. The Supreme Court, however, concluded that there was no evidence that the district court applied a per se rule, but because the basis for the district court's opinion was unclear, it remanded the case with instructions to have the district court clarify the basis for its evidentiary ruling.
In the wake of the ruling, a number of articles boasted headlines such as "Ruling May Aid Those Charging Age Bias" and "Court ruling helps ex-employee." In actuality, however, on the one hand, the Supreme Court actually struck down the Tenth Circuit opinion deeming Mendelsohn's "me too" testimony admissible, harming her cause and the cause of those charging age bias. On the other hand, the Court's ruling said nothing specifically about "me too" testimony except for that, as with most testimony, its relevance/prejudice cannot be decided on a per se basis.
February 27, 2008
My Daddy Was A Bankrobber: Seventh Circuit Makes Several Interesting Evidentiary Rulings in Chicago Bankrobber Case
The Seventh Circuit's recent opinion in United States v. Price, 2008 WL 426463 (7th Cir. 2008), is the rare case where a court has found a business record to be inadmissible under Federal Rule of Evidence 803(6) because it was insufficiently trustworthy. In Price, inter alia, Cornelius Price appealed his conviction for robbing a Chicago bank and carrying a firearm during the robbery. Price was actually allegedly involved in 2 Chicago bank robberies:
-(1) the October 2, 2002 robbery of a Federal Savings Bank on Western Avenue; and
-(2) the March 11, 2003 robbery of a Bank Chicago on South Torrence Avenue.
The 2002 heist was allegedly completed by Price, Cleve "Hollywood" Jackson, and brothers Eddie and Michael Hill. The robbery was apparently completed just as the bank was opening, with Price, wearing a black stocking mask and gloves, approaching the assistant branch manager with a gun as he opened the bank, getting him to disable the alarm and open the safe, and having him fill a laundry bag with money. According to evidence presented in the case, "[i]n the two days after the heist, with the cash apparently burning a hole in their pockets, all four men purchased rather pricey used cars. Eddie Hill bought a Jaguar, Michael Hill bought a Lincoln Navigator, Jackson bought a Lincoln Navigator in the name of his more credit-worthy uncle (John V. Brown), and Price bought a Ford Expedition."
The 2003 robbery was apparently completed solely by Price. Again, as the bank was opening, Price, wearing a ski mask and gloves, approached a teller with a gun as she opened the bank, got her to disable the alarm and open the safe, and had her fill a laundry bag with money. This time, however, the police caught Price in a foot chase soon after the robbery and found a gun and car keys with an attached keyless entry remote. According to the Seventh Circuit, "With the remote, using the kind of police work that would make McNulty and 'The Bunk' of The Wire proud, the officers walked around, continually pressing the 'unlock' button around cars parked in the vicinity of the bank. Eventually, the remote found its mate: a 1997 black Ford Expedition, the one purchased by Price a day after the October 2002 robbery. The police also recovered the take from the the bank-$31,983."
While in custody, Price admitted that he owned the Ford Expedition and that he had committed the robbery of the Bank Chicago; however, he maintained that it was his first and only heist. Subsequently, in 2005, Price said he would “cooperate” with the FBI by providing details about the October 2002 robbery (including the names of those involved).
In his appeal, Price raised three arguments:
-(1) the trial court improperly precluded him from introducing his statement of prior innocence to police in 2003 under Federal Rule of Evidence 106 when the prosecution introduced his "cooperation" statement from 2005;
-(2) the trial court improperly allowed the prosecution to present evidence relating to the 2002 robbery as evidence of modus operandi under Federal Rule of Evidence 404(b); and
-(3) the prosecution improperly proved that Eddie Hill purchased a Jaguar two days after the 2002 robbery through records that didn't qualify for admission under Federal Rule of Evidence 803(6).
The easiest argument for the court to address was the first one. Under Federal Rule of Evidence 106, the rule of completeness, "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." The Seventh Circuit rejected Price's argument and "agree[d] with the district judge that Price's March 2003 statement was not necessary to explain the admission he made nearly two years later."
The second argument was more difficult. The court noted that there were some differences between the two robberies, such as the fact that the first was allegedly committed by four people and the second was allegedly committed solely by Price, making it difficult to argue that Price had a modus operandi or common plan or scheme that was provable pursuant to Federal Rule of Evidence 404(b). At the same time, the court found that the general way in which the banks were robbed and their proximity (they were 5.4 miles apart) allowed for the admission of evidence about the prior bank robbery under Federal Rule of Evidence 404(b). I'm not sure that I agree with the court on this point. While the two robberies appear somewhat similar, I simply don't see how a crime committed by four people and a crime committed by one person can be considered part of a common plan or scheme.
The third argument was the only one accepted by the court. Eddie Hill allegedly purchased his Jaguar from the American Car Exchange (ACE), and the prosecution introduced into evidence an ACE purchase order with Eddie Hill's name to prove the purchase. Price, however, introduced evidence that at the request of the buyer, ACE employees "would inaccurately designate on the purchase order someone who had accompanied the buyer to the store as the 'purchaser' of the vehicle. Second, the employee sometimes underreported the vehicle's purchase price and the purchaser's down payment." The trial court admitted the purchase order under Federal Rule of Evidence 803(6), which states, inter alia, that records kept in the course of regularly conducted business activity are admissible if certain conditions are "shown by the testimony of the custodian or other qualified witness...unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness."
The Seventh Circuit, however, found that Price's evidence showed that the method or circumstances of preparation of the ACE purchase orders indicated lack of trustworthiness and thus found that the trial court erred in admitting the purchase order. The court, however, found that this was a harmless error because there was significant other evidence of Price's guilt.
February 26, 2008
The Moment Of Truth: New Mexcio Is The Only State That Finds Polygraph Results Presumptively Admissible
Justin Black's murder trial for his alleged strangulation of Deanna L. Crawford is the latest trial to end in a mistrial after a prosecution witness made reference to a polygraph examination taken by the defendant. This was going to lead me to write that all states have deemed polygraph results inadmissible unless both parties agree before the test that the results will be admissible at trial, but I wanted to make sure that such a statement was accurate. It turns out that it is not because New Mexico does allow for the admission of polygraph results.
In 1973, the Supreme Court of New Mexico found in State v. Dorsey, 539 P.2d 204 (N.M. 1975), that polygraph results are admissible as long as (1) the polygraph operator is competent, (2) the procedure used is reliable, and (3) the “tests made on the subject” are valid. In 1983, New Mexico then codified the admissibility of polygraph results with Rule of Evidence 11-707, which states, inter alia, that
"Subject to the provisions of these rules, the opinion of a polygraph examiner may in the discretion of the trial judge be admitted as evidence as to the truthfulness of any person called as a witness if the examination was performed by a person who is qualified as an expert polygraph examiner pursuant to the provisions of this rule and if;
-(1) the polygraph examination was conducted in accordance with the provisions of this rule;
-(2) the polygraph examination was quantitatively scored in a manner that is generally accepted as reliable by polygraph experts;
-(3) prior to conducting the polygraph examination the polygraph examiner was informed as to the examinees's background, health, education and other relevant information.
-(4) at least two (2) relevant questions were asked during the examination; and
-(5) at least three (3) charts were taken of the examinee."
Up until the Supreme Court of New Mexico's 2004 decision in Lee v. Martinez, 96 P.3d 291 (N.M. 2004), however, the Court had not yet determined whether polygraph results met the standard for the admissibility laid out in Daubert in 1993 and subsequently incorporated into the New Mexico Rules of Evidence. As applied in New Mexico, the test asks whether (1) whether the theory or technique “can be (and has been) tested”; (2) “whether the theory or technique has been subjected to peer review and publication”; (3) “the known potential rate of error” in using the particular scientific technique “and the existence and maintenance of standards controlling the technique's operation”; and (4) whether the theory or technique has been generally accepted in the particular scientific field." State v. Anderson, 881 P.2d 29, 36 (N.M. 1994).
With regard to (1), the court found that the control question polygraph examination can be tested based upon a National Academy of Sciences Report. With regard ro (2), the court noted that the NAS report included 102 studies deemed to be of sufficient quality. With regard to (3), the court noted that "a number of polygraph validation studies have been conducted and subsequently published. A review of those studies revealed that the median accuracy index of the polygraph in laboratory studies is 0.86 with an interquartile range of 0.81 to 0.91. Finally, with regard to (4), the court found that "[t]he American Polygraph Association (APA), the leading polygraph professional association, has developed protocol standards for the polygraph similar to those contained in Rule 11-707.
Even with the data reported by the Supreme Court of New Mexico, I'm still not quite convinced that polygraph results are reliable enough to be admitted to jurors, who might overvalue those reults. That said, I would be very interested in studies looking at convcition rates, later reversals basd upon DNA evidence, etc. in New Mexico compared to those rates in other states. Such data might leave me a skeptic or turn me into a true believer.
February 25, 2008
Contempt: Proposed California Law Would Prohibit Entry Of Contempt Orders Against Non-Testifying Domestic Violence Victims
Under a proposed California state shield law, judges would not be able to hold domsetic violence victims in contempt for refusal to testify against their alleged attackers. The proposed law mimics an existing California law for sexual assault victims and was prompted by a 2005 San Mateo County case in which a woman was threatened with jail for not cooperating with prosecution of her ex-boyfriend.
Advocates of the law want to prevent domestic assault victims from being re-traumatized by being held in contempt when they are unable to go through with their testimony. Opponents counter that pulling a victim’s testimony from a domestic violence trial undercuts the ability to prosecute in some cases and will play a role in deciding whether to even file charges. They also worry that so tying the hands of domestic violence prosecutors might leave accused abusers free to escalate their attacks.
The advocates counter that a solid case can be won even without a victim's testimony. They also claim that the bill is not meant to dissuade prosecutions and, in fact, may aid them because if victims fear having to testify or face imprisonment they may be less likely to even come forward and report incidents of domestic violence.
I think that there are good arguments on both sides, and I won't attempt to resolve the disagreements. I do, however, want to inject a couple of points into the argument. First, "in California, judges are [currently] only allowed to sentence a victim to up to seventy-two hours of battering counseling or up to seventy-two hours of community service for the first finding of contempt in a domestic violence prosecution." R. Michael Cassidy, Reconsidering Spousal Privileges After Crawford, 33 Am. J. Crim. L. 339, 373 (2006).
Second, as noted in Renee L. Rold, All States Should Adopt Spousal Privilege Exception Statutes, 55 J. M. B. 249, 251 (1999), "[o]ne study of the no-drop policy in the San Diego City Attorney's office found that, between the years of 1988 and 1993, only eight arrest warrants were issued for contempt. In addition, the study found that only two victims were actually jailed overnight out of the 400-500 cases their office prosecutes monthly."
What these two points seem to indicate to me is that the proponents of the California case may be overstating the case that victims are subject to renewed trauma from being held in contempt, but the opponents may be overstating the case that domestic violence prosecutions will be hindered by the new law. Instead, it appears that in the vast majority of cases, either domestic violence victims in California choose to testify or judges choose not to hold them in contempt.
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.