This is not a legal malpractice case, but it is worth considering. The Fifth Circuit affirmed a $1000 sanction against two lawyers for the defendant who failed to disclose three audio recordings to the plaintiff. The lawyers were sanctioned because they certified that their initial Rule 26 disclosures were complete.
The case arose out of an alleged sexual assault at a private prison. The plaintiff sued and alleged that she had been assaulted by a prison employee. The lawyers representing the defendants obtained three audio tapes of recorded phone calls from the plaintiff to family members. The recordings could be construed to cast doubt on the plaintiff’s version of events.
At her deposition the lawyers for the defendants played the tapes and questioned plaintiff about them. Plaintiff then filed a motion for Rule 37 sanctions against the lawyers for failing to disclose the audio tapes. The district court sanctioned each lawyer $1000.
The lawyers appealed. They argued that the tapes were used solely for impeachment purposes so that sanctions were not appropriate. The district court rejected this argument as did the Fifth Circuit. The Fifth Circuit concluded that the audio recordings were both substantive and offered for impeachment and that they should have been disclosed. The Fifth Circuit explained its ruling:
Appellants first argue that they used the recordings solely to impeach Olivarez’scredibility; therefore, they were not required to disclose the recordings under Rule 26(a)(1), which specifically states evidence need not be disclosed if “the use would be solely for impeachment.” Appellants contend the district court abused its discretion by announcing a novel standard under Rule 26(a)(1) and then sanctioning them for not complying with that novel standard. But contrary to Appellants’ contentions, the district court’s decision was firmly grounded in this Court’s precedent.
“Substantive evidence is that which is offered to establish the truth of a matter to be determined by the trier of fact.” Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993). “Impeachment evidence, on the other hand, is that which is offered to `discredit a witness . . . to reduce the effectiveness of [her] testimony by bringing forth evidence which explains why the jury should not put faith in [her] or [her] testimony.'” Id. (quoting John P. Frank, Pretrial Conferences and Discovery—Disclosure or Surprise?, 1965 Ins. Law J. 661, 664).
This Court has made clear that some evidence serves both substantive and impeachment functions and thus should not be treated as “solely” impeachment evidence. Id.; see also Baker v. Canadian Nat’l/Ill. Cent. R.R., 536 F.3d 357, 368-69 (5th Cir. 2008) (acknowledging that surveillance videos contradicting testimony from plaintiff’s witnesses were of a substantive nature, regardless of their impeachment value). Other courts have taken similar approaches. See Searles v. Van Bebber, 251 F.3d 869, 877 (10th Cir. 2001) (“If, as the judge saw it, the evidence was really more than mere impeachment evidence, then the witnesses should have been disclosed.”); Wilson v. AM Gen. Corp., 167 F.3d 1114, 1122 (7th Cir. 1999) (holding that witnesses who provided impeachment testimony should have been disclosed prior to trial because the testimony was part of defendant’s “primary line of defense”); Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998)(holding that evidence was not introduced “solely for impeachment purposes” where the evidence was “both impeaching and substantive”). Rule 26(a)(1)’s automatic disclosure requirement “was adopted to end two evils that had threatened civil litigation: expensive and time-consuming pretrial discovery techniques and trial-by-ambush.” Standley v. Edmonds-Leach, 783 F.3d 1276, 1283 (D.C. Cir. 2015) (quoting Hayes v. Cha, 338 F. Supp. 2d 470, 503 (D.N.J. 2004)). “A too expansive reading of the impeachment exception `could cause a resurgence of these evils.'” Id. at 1283-84 (quoting Hayes, 338 F. Supp. 2d at 503).
In Chiasson, a local rule required “each party to list the exhibits to be presented at trial,” but if a party had “good cause not to disclose exhibits to be used solely for the purpose of impeachment,” the party was permitted to request an ex parte conference with the court to explain why the exhibits should not be disclosed prior to the trial. 988 F.2d at 515. The district court ruled that a video surveillance tape could be shown to the jury during trial, even though it was not previously disclosed pursuant to the local rule. Id. at 513. In doing so, the district court implicitly found that the video, which showed the plaintiff “sweeping [a] carport, working under a car, entering a store, and buying food,” was being used at trial solely to challenge the credibility of the plaintiff’s testimony that she was “unable to carry on daily activities without pain.” Id. at 513, 515-17. On appeal, however, this Court pointed out that the evidence tended to establish the truth of “key issues” to be determined by the jury, namely “the severity of [the plaintiff’s] pain and the extent to which she ha[d] lost the enjoyment of normal activity.” Id. at 517. This Court held that “[b]ecause the tape is, at the very least[,] in part substantive, it should have been disclosed prior to trial, regardless of its impeachment value.” Id. at 517-18.
In the instant case, the recordings of Olivarez’s phone calls likely had some impeachment value because they were at least arguably inconsistent with Olivarez’s testimony during the deposition regarding her conversations with her mother and her friend Juan. But the recordings also had substantive value because they seemed to suggest that Olivarez may have consented to the sexual encounters with Valladarez. The recordings tended to establish the truth of a key issue Defendants raised as a defense in the case—that Olivarez had “initiated consensual sex” with Valladarez. Accordingly, the recordings were, at the very least, in part substantive, and the district court did not abuse its discretion in concluding that Appellants were required to disclose the recordings under Rule 26(a)(1).
Sanctions are becoming more common for lawyers who fail to disclose materials in discovery.
Edward X. Clinton, Jr.