EvidenceProf Blog

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

Saturday, October 22, 2011

Can I Get A Summary?: 1st Circuit Finds No Obligation To Produce Summaries Before Trial Under Rule 1006

Federal Rule of Evidence 1006 provides that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

So, the proponent of a summary under Rule 1006 must make the originals or duplicates that are summarized available for examination and/or copying by other parties at a reasonable place and time. But what about the summary itself? Mist that also be made available? According to the recent opinion of the First Circuit in Colon-Fontanez v. Municipality of San Juan, 2011 WL 4823189 (1st Cir. 2011), the answer is "no." I disagree.

In Colon-Fontanez, Nitza I. Colón–Fontánez appealed a district court's award of summary judgment to ger employer, the Municipality of San Juan, on her claims of disability discrimination and retaliation in violation of the Americans with Disabilities Act and retaliation in violation of Title VII of the Civil Rights ActOne of the grounds for Colón–Fontánez's appeal was that the district court erred in allowing the Municipality to admit summary charts and graphs that consisted of a condensed presentation of her extensive record of work attendance over her near two-decade period of employment.

According to the First Circuit,

the charts served as an appropriate presentation of "voluminous writings" that "cannot conveniently be examined in court," as required by Rule 1006. Further, the underlying materials on which the summary evidence was based were admissible in evidence pursuant to Fed.R.Evid. 803(6), as they consisted of attendance records kept in the course of the Municipality's regularly conducted business, according to a regular procedure, and for a routine business purpose.

Colón–Fontánez, however, claimed that the district court erred in admitting the summary charts and graphs because, inter alia, they were never produced to Colón during the discovery process. The First CIrcuit disagreed, concluding that

Rule 1006 provides that only the underlying documents, not the summaries themselves, must be produced to the opposing party. See Fed.R.Evid. 1006 ("The originals [of the contents of the writings], or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place."). The circuits recognize this well-settled principle. Air Safety, Inc. v. Roman Catholic Archbishop of Boston, 94 F.3d 1, 7 & n.14 (1st Cir. 1996); see also United States v. Bakker, 925 F.2d 728, 736 (4th Cir. 1991) ("The language of [Rule 1006]...simply requires that the [original voluminous] material be made available to the other party."); Coates v. Johnson & Johnson, 756 F.2d 524, 550 (7th Cir. 1985) (Rule 1006 requires that"“only the underlying documents, and not the summaries, must be made available to the opposing party"). Thus, Colón's first argument as to the summary charts is incorrect: the Municipality had no obligation to provide the charts to Colón.

Now, technically I agree with these courts that there is nothing explicitly in the language of Rule 1006 that forces the proponent of a summary to make the summary available for examination and/or copying before trial. But shouldn't such an obligation be inferred from the purpose of the Rule? The purpose of Rule 1006 is to allow the proponent to be able to present a concise summary of voluminous writings, recordings, or photographs at trial where it wouldn't be practicable to lug in and use all of those originals at trial. 

But if we don't force a proponent to make such a summary available to the opposing party before trial, then aren't we shifting that burden to the opposing party? If the opposing party is claiming that the summary is inaccurate/unrepresentative, wouldn't that opposing party now need to lug all the originals into court and sift through them at trial so that it can support its argument? Why shouldn't courts instead force proponents to produce summaries to opposing parties before trial so that this comparison can be made before trial?



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