EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, October 19, 2010

Discovery Channel: Eastern District Of California Notes That Rules Of Evidence Don't Govern Discovery

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

So, what happens if a party seeks information relating to the opposing party's subsequent remedial measure(s) during discovery? Does the opposing party have to respond to such a discovery request? Well, as the recent opinion of the United States District Court for the Eastern District of California in Bernat v. City of California, 2010 WL 4008361 (E.D. Cal. 2010), makes clear, the answer is likely "yes" because the Federal Rules of Evidence merely govern the admissibility of evidence and do not control pretrial discovery.

In Bernat, John Bernat brought an action against, inter alia, the City of California City, the California City Police Department, Officer Standish Knowlton, and Lieutenant Eric Hurtado, claiming that he was subjected to excessive force by defendants Knowlton and Hurtado. During discovery, Bernat propounded a request for documents upon City seeking information that is contained within Knowlton's and Hurtado's personnel records. The City indicated that it refused to produce some of these documents because they contained evidence of subsequent remedial measures, which is inadmissible under Federal Rule of Evidence 407.

In rejecting this argument, the United States District Court for the Eastern District of California noted that Federal Rule of Evidence 407, like other Federal Rules of Evidence, merely "governs the admissibility of evidence; is does not control pretrial discovery." Instead, the scope of pretrial discovery is governed by Federal Rule of Civil Procedure 26(b)(1), which provides that

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

Based upon this standard, it is easy to see why evidence of subsequent remedial measures will often be discoverable even if it is not admissible at trial. Let's say that there are orders in Knowlton's and Hurtado's personnel records confining them to desk duty. These orders would clearly be subsequent remedial measures inadmissible under Federal Rule of Evidence 407. But it would be just as clear that some type of internal investigation against Knowlton and Hurtado regarding their actions against Bernat likely led to these orders. And the results of such an investigation would like be admissible. Thus, the discovery of evidence of these subsequent remedial measures would be calculated to lead to the discovery of admissible evidence and be proper under Federal Rule of Civil Procedure 26(b)(1).



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Thanks for the informative post and for actually replying to your readers’ comments. That’s something I don’t see very many blog owners doing and that makes me frustrated. Keep up the good work and I’ll continue coming back here to learn more....

Posted by: ian | Oct 22, 2010 7:21:37 PM

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