Fresh Enough: Western District Of Wisconsin Finds Statement Created Months After Harassment Qualifies As Recorded Recollection

Federal Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.

My post yesterday addressed two important aspects of this "recorded recollection" exception to the rule against hearsay: (1) When does a witness have insufficient recollection, and (2) When does a witness need to adopt a memorandum/record? My post today, and the recent opinion of the United States District Court for the Western District of Wisconsin in Vorwald v. 3M Co., 2009 1970694 (W.D. Wis. 2009), both address a third aspect: When is a matter fresh in a witness' memory?

In Vorwald, Lori Vorwald worked at 3M Company's manufacturing facility in Menomonie, Wisconsin from December 2005 until July 2007, when she went on medical leave. She contended that 3M violated Title VII of the Civil Rights Act of 1964  by first subjecting her to a hostile work environment because of her sex and because she complained about harassment and then making conditions so unbearable that she was forced to take medical leave.

3M subsequently moved for summary judgment, and the problem for Vorwald was that "she [wa]s unable to recall the date of nearly any incident of harassment." To overcome this problem, however, Vorwald cited a statement she created dated November 19, 2007 in which she did provide dates for incidents of harassment. 3M countered that this statement was inadmissible, but the Western District of Wisconsin disagreed, finding that the statement was admissible under Federal Rule of Evidence 803(5). And in finding that the incidents of harassment were fresh in mind when Vorwald created the statement, the court concluded that she "created the document shortly after she took medical leave, when the events of the previous year would have been much fresher in her mind" and that the Seventh Circuit had found in United States v. Green, 258 F.3d 683 (7th Cir. 2001), that a "statement may be admissible under Rule 803(5) even if it was made several months after [the] incident."

-CM