EvidenceProf Blog

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

Friday, May 27, 2011

Refreshment. SImply Delivered: Plaintiff's Attorney Properly Uses Rule 612 In DIscrimination Suit Against DHL

Federal Rule of Evidence 612 indicates that

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

And, if you want a textbook example of a party properly utilizing Rule 612, you need look no further than the recent opinion of the First Circuit in Aponte-Rivera v. DHL Solutions (USA), Inc., 2011 WL 2027977 (1st Cir. 2011).

In Aponte-Rivera, Julissa Aponte–Rivera sued her former employer, DHL Solutions, Inc., claiming gender-based discrimination and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and Puerto Rico law. Specifically, Aponte-Rivera changed that the atmosphere at DHL changed in 2004, after Enrique Frias was named regional manager and became Aponte's supervisor.

While Aponte-Rivera testified at trial, her lawyer sought to establish that she received commendations at work prior to Frias's supervision beginning in 2004. To refresh her recollection of the commendations, her lawyer showed her documents dating from 2001 to 2004.

After the jury returned a verdict in favor of Aponte-Rivera and awarded her emotional distress damages, DHL appealed, claiming, inter alia, that the district court abused its discretion in allowing the Aponte-Rivera's attorney to use the documents to refresh her recollections. The First Circuit disagreed, finding that

Consistent with the requirements of Fed R. Evid. 612, the court ensured that DHL had copies of the documents, assured the documents were relevant to the case, allowed DHL to cross-examine Aponte regarding the recollections recorded, and instructed Aponte to testify to her own recollections and not hearsay. Aponte's counsel instructed her, "Don't read the documents. Just read the documents for yourself, and if that refreshes your recollection, tell the jury what....did you do to receive the commendations?" Aponte then described what she did to receive a commendation in each instance.



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