Commercial Litigation and Arbitration

What Were They Thinking? — Post-Trial Copying of Juror Notes Made During Deliberations.

Is it permissible to copy notes left by jurors in plain sight after they have been discharged? Plaintiffs lost a products liability trial against Ford, in Thomas v. Ford Motor Co., 2007 U.S. App. LEXIS 18723 (4th Cir. Aug. 7, 2007). After the jury was discharged, the courtroom clerk asked counsel for both parties to assist in removing exhibits from the jury room. On an easel in the jury room, in plain sight, was a flip chart reflecting the jurors' views on the evidence presented in the case. Plaintiffs’ counsel copied the notes on the flipchart for personal, educational and professional purposes, not to attack the verdict. The District Judge found this sanctionable, under a local rule prohibiting contact with jurors after trial absent Court consent, under Fed.R.Evid. 606(b), under 28 U.S.C. § 1927 (for causing the post-trial proceedings) and under the inherent power of the court. The District Court viewed the copying of the jury's notes as an improper invasion of the jury's deliberations. The Fourth Circuit reversed. It held that the neither the local rule nor Fed.R.Evid. 606(b) was, by its terms, violated. The former prevents contact with jurors, and the latter merely limits what jurors may testify to. ‛Not only was no juror contacted, but it is doubtful that any juror ever knew what transpired.“ The § 1927 and inherent power sanctions were reversed for lack of bad faith on the part of plaintiffs’ counsel. It concluded:

The district court also viewed the attorneys' actions as an invasion of the sanctity of the jury room and the jury's deliberations. We cannot agree. The jury had finished its deliberations, reported its verdict, been discharged, and left the building. No effort was made by the jurors to obliterate anything written on the easel or to otherwise conceal or destroy the information recorded thereon. The notes were left where anyone coming into the jury room could have seen and read them. We have found no rule or law that makes sanctionable the viewing or copying of jurors' notes after the case has ended, nor are we aware of any authority that confers per se confidentiality upon discussions in a jury room.

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