Don't Play Perry Mason in This Court, Counsel

An incriminating secret recording, played in a deposition to contradict a defendant’s denial, can’t be used as evidence, because it wasn’t disclosed at the outset as part of the parties’ discovery obligations.

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From Black v. New England Computer Services, Inc. (D. Conn.), decided Thursday by Jeffrey Alker Meyer:

Wikipedia defines a "Perry Mason moment" to be "whenever information is unexpectedly … and often dramatically introduced into the record that changes the perception of the proceedings greatly and often influences the outcome." Counsel for the plaintiffs in this action planned a Perry Mason moment. She deposed one of the defendants about a key meeting he had with one of the plaintiffs and then surprised him with a secret tape recording that contradicted his sworn account.

But the problem is that this Court's initial discovery protocols required counsel to disclose the recording from the get-go of this lawsuit. Counsel did not do so. And so the defendants now move to preclude the recording for an obvious violation of the Court's discovery rules. I will grant their motion.

The facts:

The plaintiffs are three women—Patricia Black, Ashley Platt, and Shawn Danielson—who were employed with New England Computer Services, Inc. They worked with the company's owner and president—Chris Anatra—and they have filed this lawsuit against both the company and Anatra.

The plaintiffs' claims stem in part from a company meeting that occurred in August 2018. Anatra allegedly summoned one of the plaintiffs—Danielson—to discuss her employment status with the company. According to the plaintiffs, Anatra made false and defamatory statements about all three of the plaintiffs at this meeting, largely accusing them in vitriolic terms of lying about him and the company in discrimination complaints they had filed with the Connecticut Commission on Human Rights and Opportunities.

Unbeknownst to Anatra, Danielson secretly audio-recorded this meeting. Danielson in turn gave this recording to her counsel who later filed this lawsuit for the three plaintiffs. The lawsuit alleges several claims for unequal pay, sex discrimination, and retaliation, as well as related claims for defamation stemming from the statements allegedly made by Anatra at the secretly recorded meeting….

The secret recording would not surface until counsel for the plaintiffs sprung it on Anatra during the course of his deposition in December 2019. Counsel asked Anatra at this deposition if he had made the defamatory statements as alleged in the complaint. When Anatra denied doing so, counsel then surprised him by playing excerpts of the recording….

Great tactic, right? Not so fast:

The District of Connecticut is one among numerous federal district courts that have adopted special discovery disclosure requirements for most employment discrimination cases. These procedures are known as the Initial Discovery Protocols for Employment Cases Alleging Adverse Actions …. Their stated purpose "is to encourage parties and their counsel to exchange the most relevant information and documents early in the case, to assist in framing the issues to be resolved and to plan for more efficient and targeted discovery." …

[C]ounsel for the plaintiffs filed a Rule 26(f) report in February 2019 stating that "[t]he Court's Initial Discovery Protocols apply in this case and these disclosures will be served by March 25, 2019." That date came and went without disclosure of the secret recording. This was a clear violation of the Protocols' initial disclosure requirements. The Protocols itemize categories of "Documents that Plaintiff must produce to Defendant," a lengthy listing that includes "[a]ll communications concerning the factual allegations or claims at issue in this lawsuit between the plaintiff and the defendant." It is self-evident that an audio recording of a conversation between a plaintiff (Danielson) and a defendant (Anatra) falls within the scope of this disclosure requirement.

If a party fails to comply with a discovery disclosure requirement, a court has discretion to preclude the evidence "unless the failure was substantially justified or is harmless." See Fed. R. Civ. P. 37(c)(1)…. As the Second Circuit has recognized, the purpose of allowing a court to preclude evidence under Rule 37 is to "prevent the practice of 'sandbagging' an opposing party with new evidence." …

[Plaintiffs] rely on an "impeachment" exception to the initial disclosure requirements under [Fed. R. Civ. P.] 26(a)(1)(A)(ii) (requiring initial disclosure of documents that a party "may use to support its claims or defenses, unless the use would be solely for impeachment"). But this case is governed by the Protocols, not by Rule 26(a)…. [T]he Protocols expressly supersede the initial disclosure requirements of Rule 26(a). And the text of the Protocols plainly have no impeachment exception allowing a party to withhold communications between a plaintiff and a defendant.

If counsel in good faith had believed that the Protocols were subject to an impeachment exception, one might have expected counsel to say so when she made her disclosures to the defendants. But the record here shows that counsel promised to produce "[a]ll communications concerning the factual allegations or claims at issue in this lawsuit with the plaintiffs and the defendant," with nary a mention of withholding any documents for impeachment purposes.

Is there any good reason why counsel ignored the Protocols? None at all. Even after the defendants filed their motion to preclude the recording and explicitly invoked the plaintiffs' special disclosure obligations under the Protocols, counsel filed a response that does not even cite or acknowledge the Protocols—relying instead solely on the superseded terms of Rule 26(a)(1).

This suggests incompetence, evasion, or maybe both. The inference is strengthened by counsel's effort to ambush Anatra with the recording at his deposition, as well as by the months-long further delay by counsel in producing the recording even after it was requested by the defendants when it was played at the deposition.

An attorney of reasonable competence would have timely disclosed the recording just as the Protocols require. If the failure to disclose was simply an accident, then an attorney of reasonable competence and good faith would have produced the audio recording promptly when requested by the opposing party and then further consulted with opposing counsel to determine if there were remedial measures that they could agree on to remedy the accidental failure to disclose. An attorney of reasonable competence and good faith would certainly have acknowledged to the Court their obvious obligation to disclose the recording rather than altogether ignoring the Protocols and what they require. …

It is no answer to say that Anatra was not privileged to lie or misstate facts during his deposition (if that is what he did). When months or years elapse between a meeting and a sworn deposition about what was said at the meeting, a witness's account may depart from what actually occurred for reasons not evincing an intention to deceive but for lack of memory or accurate recollection. The relevant issue is that Anatra had a right under the Protocols to listen to the recording before facing interrogation at his deposition about what he had said. "A party whose conversation was secretly recorded should not be subjected to a deposition, the partial purpose of which is simply to create inconsistencies or otherwise set up impeachment in the defendants' testimony, without the defendant having had a chance to review the tapes—the same opportunity that plaintiff had prior to her deposition." Jerolimo v. Physicians for Women, P.C. (D. Conn. 2006)…..

I have also considered the possibility of lesser measures as an alternative to an order precluding the recording. The discovery period has long since closed in this action and had already closed by the time that counsel for plaintiffs got around to producing the recording. Lesser remedial measures would entail opening up discovery for new depositions and to explore the authenticity and circumstances of Danielson's creation of the recording. This would be time-consuming and costly.

And for what purpose? To enable or reward counsel's reckless or intentional disregard for the Court's disclosure rules. That makes no sense to me….

I will preclude the recording from trial as well as any reference to its creation or existence and any impeachment of any witness on grounds of any alleged discrepancy between their statements or testimony and the contents of the recording. The secret recording did not and does not exist for purposes of this trial.

NEXT: A Closer Look At The Unanimous First Opinion Tradition

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  1. Interesting question is what the defense lawyer will be comfortable ethically with his/her client testifying to at trial, and what the judge will put up with? Yes, the court ruled that the recording does not exist for purposes of the trial. But if I were the defense lawyer, I would strongly counsel my client against testifying at trial that he never said such things, since the lawyer, the client, and the judge now *know* he did (assuming the judge listened to the excluded recording). At most, I think the client can say that he doesn’t recall saying such things. Or if these unique “protocols” permit, maybe they can just introduce the denial from the depo transcript or depo video recording (if it was taped) (but that would seem pretty close to putting on a knowingly false statement, in my mind).
    I’m curious what others think. Thanks.
    (Not proofread. Sorry for any typos.)

    1. IANAL but I think the judge was right, that asking at a deposition what happened months or years before, when there was no particular need to remember what was said, is asking too much, and that using that recording to impeach the deponent is not credible. I know my memory can be faulty; my memory of one particular incident during the evacuation of Saigon is explicitly falsified by video, yet that memory is clear as a bell even now. Other similar falsified memories increase my disrespect for eye witness testimony. Maybe this president is the kind of asshole who would lie through his teeth; but that would have to come through in other ways if I were in a jury.

      It also seems like a problem exacerbated by the slowness of American trials.

      1. Totally agree with you on eye-witness testimony. It is actually quite frightening that there might be countless innocent individuals convicted of criminal offenses rotting in prison based on eye-witness testimony and false memories.

  2. In my opinion, as a matter of policy, this is a bad rule. Liars are quite common, but it is often hard to prove that someone is lying. Of course, a person who is inclined to lie will shape their narrative just enough to avoid being caught if they know exactly what you know. Full disclosure before trial may make sense, but probably not before a deposition.

    At the very least, non-disclosure before a deposition should be allowed.

    I express no opinion on whether the Court here is right or wrong on the law.

    1. I was surprised how worked up there judge was. He just slammed the lawyer in a pubic way. Saying that no competent letter with make that mistake? Yikes.

      From what I can tell from the opinion, and from my experience in federal court, her actions may have been fine in any case not governed by the court’s unique protocols for employment cases. Sub rosa video of personal injury plaintiffs is routinely not disclosed and is withheld as impeachment evidence under Rule 26 (with some risk of exclusion, but not enough where it would be deemed a failure to act as a competent attorney—in fact, turning the surveillance over before the plaintiff testifies to her injuries and current disabilities at deposition may itself be bad lawyering).

      So why the arse-ripping from the judge, rather than a dispassionate ruling excluding the recording under the Protocols?

      1. Maybe someone should have mentioned the whole Rule 26 impeachment exception to the judge.

        1. Very funny. (Seems like the judge blew a gasket because the attorney relied exclusively on Rule 26, when the court’s unique Protocols for employment cases apparently applied.)
          What I find to be a mitigating factor here (but the judge clearly did not) is it does not appear that the Protocols expressly state that the impeachment exception does *not* apply. So if an attorney practicing in federal court, who always has been able to rely on the impeachment exception under Rule 26, has a case where there are some specific protocols for conducting discovery due to the case’s nature (class action or employment law or patent law, for example), it may be wrong, but I don’t think it’s obviously wrong rising to the “no competent attorney” level, to assume that such a standard background principle of discovery applies (the impeachment exception has been the law in all of the states I’ve practiced in, as well as the federal courts under Rule 26, of course).

          In any event, this lawyer’s public flogging will at least (one hopes) prevent other lawyers from making the same mistake. But I question the wisdom of the the Protocols that don’t allow for undisclosed true impeachment evidence, when such evidence has been—and is—allowed in federal and state courts every day for many, many years.

      2. You are typically allowed to withhold such surveillance video if it’s solely for impeachment. But if it’s substantive evidence of the claim, it must be disclosed.

        1. But surely the plaintiffs’ suggestion that they weren’t going to use a recording of the defendant committing the tort in their case in chief is a little implausible?

        2. Good point. Thanks. Yes, if there was video of the car accident or assault or whatever the tort was, I can see how that would be different than post-incident surveillance. And now that you put it that way, I can’t see how the recording could be withheld even under Rule 26, without the Protocols. So maybe the Protocols applying rather than Rule 26 for initial disclosures didn’t matter after all. Thanks again.

    2. At the very least, non-disclosure before a deposition should be allowed.

      Wouldn’t this logic support denying any pre-deposition discovery?

      1. . . . which is funny because you are typically taking depositions after document discovery, because you want to have all the documents in hand at the deposition.

  3. There’s a much larger issue here — Connecticut is a TWO party recording state, and hence any recording like this is a violation of Connecticut’s *criminal* statute(s). By definition, any one party recording is a criminal offense….

    Now above and beyond everything else, how do you introduce evidence obtained via a criminal violations of state statutes into a civil suit???

    IANAL but I like to think that testimony obtained from the opposing party via torture also wouldn’t be considered admissible….

    1. 1. We don’t know the meeting was in Connecticut, although that of course seems very likely.
      2. Federal courts disregard State evidentiary privileges all the time, so maybe the violation of the two-party law wouldn’t make the evidence inadmissible (but I don’t know that for sure, as maybe the criminality changes things).

      1. Federal courts shouldn’t ignore state evidentiary privileges when state law applies (e.g. diversity cases).

        On pure Federal cases, though, judges don’t “ignore” state evidence law because it doesn’t apply.

      2. Dr. Ed — and this will come as a shock to VC readers — is wrong.

        Connecticut is a one party consent state.

        Connecticut has a statute that creates a civil cause of action, but does not criminalize, one-party consent, for recording telephonic conversations only. (i.e., not all oral conversations).

        1. “Connecticut has a statute that creates a civil cause of action, but does not criminalize, one-party consent, for recording telephonic conversations only. (i.e., not all oral conversations).”

          Look, schmuck, I live in the real world where whatever a police officer thinks is illegal *IS* illegal, regardless of what David Nieporent may wish to pontificate about it. If all the published authorities state that Connecticut is a two-party state, then reality is that it *IS* a two party state, again, regardless of what David Nieporent may wish to pontificate.

          Maybe David Nieporent can bring down 30 “white shoe” lawyers at 2 AM so as to be able to enjoy the niceties of statutory vocabulary, but I can’t. I’ve had to personally deal with statutes being ignored so egregiously that I really don’t much even care what they say anymore — it’s what the people enforcing them think they say that matters.

          As an aside,I’ve been out in harm’s way, after midnight, more times than I care to think about — and I’m not so sure about David Nieporent…

          So here’s what the lawyer (real CT lawyer) hired by the Connecticut Legislature to tell them what the law actually is, says in this regard: https://www.cga.ct.gov/PS99/rpt%5Colr%5Chtm/99-R-0987.htm

          The relevant sentence is: “[u]nder Connecticut law, it is illegal for a person to record a telephone conversation without the knowledge of all parties to the conversation (CGS § 52-570d).” Now I may be hopelessly “old school” but the word “illegal” has a specific meaning to me, particularly when it includes the citation of a statute — and is made by what I believe to be a competent Connecticut Attorney.

          (Perhaps David Nieporent wishes to file a complaint of incompetence against the author with the CT Bar?!?)

          Reality is that I once had a DA threaten to throw me into jail, without bail, if I printed the name of the student who had filed a fake rape allegation — and this was *after* the university had admitted that the allegation was fake. Like I said, I live in the real world — and not that of “white shoe” lawyers.

          And no, I am not making this stuff up…

          1. Look, schmuck, I live in the real world where whatever a police officer thinks is illegal *IS* illegal, regardless of what David Nieporent may wish to pontificate about it.

            There are about 700,000 police officers in the US, so I’m willing to concede that there might be a couple who are as dim-witted and mendacious as you, and might either be stupid enough to think that this recording was illegal, or deceitful enough to pretend to. I’m not sure what bearing you think that has on whether or not a federal judge is likely to exclude it.

            The relevant sentence is: “[u]nder Connecticut law, it is illegal for a person to record a telephone conversation without the knowledge of all parties to the conversation (CGS § 52-570d).” Now I may be hopelessly “old school” but the word “illegal” has a specific meaning to me, particularly when it includes the citation of a statute — and is made by what I believe to be a competent Connecticut Attorney.

            What do the words “record a telephone conversation” mean, you illiterate baboon?

            Reality is that I once had a DA threaten to throw me into jail, without bail, if I printed the name of the student who had filed a fake rape allegation — and this was *after* the university had admitted that the allegation was fake. Like I said, I live in the real world — and not that of “white shoe” lawyers.

            No, you didn’t.

            And no, I am not making this stuff up…

            Yes, you are.

          2. Reality is that I once had a DA threaten to throw me into jail, without bail, if I printed the name of the student who had filed a fake rape allegation — and this was *after* the university had admitted that the allegation was fake. Like I said, I live in the real world — and not that of “white shoe” lawyers.
            And no, I am not making this stuff up…

            Of course you are. It’s what you do. Every story you tell is a lie.

            Now I may be hopelessly “old school” but the word “illegal” has a specific meaning to me,

            It’s not because you’re hopelessly old school, but because you’re hopelessly stupid. “Illegal” and “criminal” are not synonyms.

            Now, perhaps because I am trained as a lawyer, when I want to know what the law is I read the actual statutes. Then if necessary I read cases to see how those statutes have been interpreted. Here’s what I don’t do: make up some false anecdote about what police might do or what happened on a college campus 30 years ago, and then google something.

            So, CGS § 52-570d

            a) Applies to telephone conversations only, which is why it says, “No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication ”

            b) Creates a civil cause of action only, which is why it’s in Title 52 of the Connecticut General Statutes. Title 52 is entitled (wait for it) … “Civil Actions.” And that’s perhaps why the statute does not say, “Violation of this statute is a class a misdemeanor” (or class d felony) or the like, but instead says, “(c) Any person aggrieved by a violation of subsection (a) of this section may bring a civil action in the Superior Court to recover damages, together with costs and a reasonable attorney’s fee.”

            Nothing in the link you provided contradicts what I just said; you simply misunderstood what the word “illegal” meant. And moreover it doesn’t have anything to do with the discussion in the first place, since the topic wasn’t recording a phone conversation, but rather an in-person conversation.

            1. I suppose I am making this up too: https://commonwealthmagazine.org/courts/a-reckoning-for-prosecutors-in-drug-lab-scandal/

              Yes, Anne Kaczmarek and Kris Foster, two former MA AAGs, aren’t facing disbarment proceedings. Why don’t you call the BBO and tell them that I’m making this up? And as to the aforementioned DA — 21 years ago and not 30, she proceeded to spectacularly implode on some unrelated matters.

              My understanding is that courts tend to defer to the dictionary meaning of words, i.e Merriam/Webster, which defines “illegal” as “not according to or authorized by law : unlawful, illicit.”

              And if Press Law lawyers say that Connecticut is a 2-party state, I’m inclined to believe them. You can instead chose to live dangerously…

              1. Yes, Anne Kaczmarek and Kris Foster, two former MA AAGs, aren’t facing disbarment proceedings. Why don’t you call the BBO and tell them that I’m making this up?

                What the f does the Massachusetts drug lab scandal have to do with this discussion?

                My understanding is that courts tend to defer to the dictionary meaning of words, i.e Merriam/Webster, which defines “illegal” as “not according to or authorized by law : unlawful, illicit.”

                Your understanding is, of course, an oxymoron.

                And if Press Law lawyers say that Connecticut is a 2-party state, I’m inclined to believe them.

                Well, you’re an idiot. I’d tell you to read the statute, but that wouldn’t help, because, you know, you’re an idiot.

              2. Which “Press Law lawyer” said that making the recording at issue in this case was a crime? (You’ll perhaps recall that that was your original claim.)

          3. “No you didn’t”
            “No they haven’t”
            No that never happened”

    2. On the other hand, unless the person legitimately forgot what they said, they’re committing perjury, which is *also* a criminal offense.

    3. I don’t know CT law, but California is a two party state, and the way this works is that if you make an illegal recording (which is not any one-party recording, things like expectation of privacy matter), you are subject to civil statutory penalties, criminal prosecution, and exclusion as affirmative evidence. But you CAN use the tape as impeachment, onthe theory that the Court’s interest in avoiding perjury is greater than the party’s privacy interest.

      Not sure it’s the best route, but it’s ours.

      1. Do you have a citation for that? Cal. Penal Code § 632(d) seems to apply to any evidentiary use of the recording.

        1. Sure. An entry point is Frio v Superior Court (1988) 203 Cal.App.3d 1480

    4. Connecticut’s two-party consent law only applies to phone calls, and also doesn’t appear to contain an exclusionary rule.

  4. I have no idea if this is a legally correct decision or even a morally correct decision. But wouldn’t it be nice if police officers were held to this same standard instead of qualified immunity?

    1. Police officers aren’t lawyers, nor do they have the opportunity to do a thorough review of the case law before making decisions in the field.

      So why should they be held to a lawyer’s standard in regards to legal liability?

      1. What’s a “criminal justice” degree for?
        They have been taught case law, both in college and by their departments. They are taught a lot more than you might think.

      2. Surely the conceit of qualified immunity is that police officers are following the relevant developments in the case law?

      3. So why should they be held to a lawyer’s standard in regards to legal liability?

        To mis-quote Uncle Ben: “With great power, comes great responsibility”

        Or put another way… If you’re going to empower someone to shoot at people without a conviction of a death-penalty crime, it’s not unreasonable to expect them to know what the frack they’re doing.

      4. Two reasons. First, the law holds non-LEOs to a higher standard regarding knowledge of the law. And two, QI lets police officers get away with crap up to and including killing innocent people by claiming that their specific incident was not exactly like some previous case.

    2. But wouldn’t it be nice if police officers were held to this same standard instead of qualified immunity?

      I’m not following what “standard” you think is being applied here, or how you think it’s less generous than what police officers get.

      1. Plaintiffs’ counsel is expected to know these protocols apply instead of the more usually applied rules of procedure. Cops are expected to know the Bill of Rights which has been around for over 200 years.

        Yes, attorneys should know court procedures. But cops should also be expected to know that violating basic rights is wrong.

  5. I would think you don’t even need special local rules for this. It’s hard to imagine the recording would not have been responsive to some sort of discovery request anyway.

    1. I am certain there will come a day when a deep fake will become evidence used to convict a person. While it was Sci-Fi in the movie Running Man, the Arnold Scharzenneger (sp) character was convicted based on a deep fake. We are rapidly approaching a time when the possibility for this exists.

  6. I enjoy watching Perry Mason to watch the lifestyle, the clothes, the cars. Thugs wore suits and ties.

    Every episode with the real killer being harried by Mason, in cross examination, and spilling the beans. This is as fantastical as Star Wars.

    Objection, Your Honor. That question is incompetent, irrelevant, and immaterial.

    1. I watch it regularly as well.

    2. We tend to think of Perry Mason as a lawyer show when in fact the show was a detective story. I very much doubt that most trials are conducted as is seen in the show. Or that most cases have the amount of ambiguity shown. I suspect that in most cases the prosecutor has the right person and its more a matter of can you prove the charge. The exception here is likely the poorest clients, who don’t get Perry Mason, but rather a public defender. As good as the public defender might be they are likely looking at getting their client the best deal and not acquitted.

  7. In New York state court, discovery deadlines are a joke. Most judges would allow the recording. Something like that has actually happened to me at trial. The best defendant can hope for is a continuance of a day or two so as to prepare the witness further, but that’s counterproductive because it will increase the jury’s wariness toward the witness.

    1. In Perry Mason, the defendant never testifies, before the real killer breaks down under questioning and confesses in a hysterical manner. Juries are offended and suspicious of a defendant’s not testifying. An innocent person usually loudly protests a false accusation, the jury reasons.

      1. Yes that’s true. But we’re talking here about a civil case.

        1. Please, remember the fifth element of a tort, no unforeseen intervening cause.

          The elements of torts were OK in 1275 AD. First, foretelling the future is a supernatural poer. In the catechism of that time, it was attributed to God, never to man. All tort claims violate the Establishment Clause and are ridiculous.

          The modern view of mishaps is that multiple factors, an average of 12, come together in one place and time. Preventing one prevents the accident. Many are withe plaintiff. The defendant should not pay for them.

          It is also the duty of the defense to destroy the lives of all the parties on the plaintiff side, including the plaintiff, the law firm, the experts. Add the judge after the first adverse decision. Report every instance of misconduct by the lawyers and by the judge. Don’t threaten to report. Report. Do ediscovery on all personal devices. Post the content to the web. Report embedded child porn to the FBI. This is part of the zealous representation duty. To deter.

          1. People unfamiliar with history or law might think, “Hmm, that sounds weird. Could it possibly be true?”

            To those people I say: “No. Behar is batshit crazy.”

            1. I’m glad he’s never going to be my witness. Would be impossible to control on the stand.

            2. That comment would be rejoindered by the judge. I would request sanctions from personal assets for all costs after a mistrial is called.

            3. David. You believe in future forecasting, mind reading, and standards of conduct set by a fictitious character with a mental disorder. You, a lawyer, have nerve calling anyone, crazy. Instead of weak name calling, try an argument of fact or of logic, for a change of pace. You destroy $millions in economic value, every year you breathe.

            4. I don’t remember seeing “batshit crazy” in the DSM V. (Or the DSM IV for that matter…)

              Perhaps David Nieporent can provide us a citation?

              Now as to DaivdBehar, his sentence structure is a fire siren in the night for some other things that *are* in there, but I digress….

            5. “Behar is batshit crazy.”

              Or perhaps it’s just really bad satire. This latest post seems to be from the Twilight Zone.

              1. So far only insults. No real rebuttals. You people are jealous of the kid in Life Skills class with more common sense and savvy.

  8. The recording may not exist for purposes of the civil lawsuit but it most certainly does exist for purposes of the US attorney bringing a perjury prosecution, and for the bar association bringing attorney discipline proceedings if defense counsel suborns perjury. So even if it’s not coming in, it will still serve a deterrent effect.

    1. And surely it would have served a similar deterrent effect if the plaintiffs had simply disclosed it as required?

      1. Of course it should have been disclosed. I’m not disputing that. Merely pointing out that it still has some value, albeit significantly reduced value.

  9. Since the recording is the best available evidence of the conversation, which was central to the discrimination claim, why didn’t the plaintiffs use it in their case in chief? Why use it solely as impeachment evidence?

    More drama? Arousing more visceral dislike of the defendant?

    Also agree that because the local rule didn’t explicitly say the impeachment exception in the general rules doesn’t apply, the situation isn’t as obvious as the judge said it was. The judge could have ruled against the plaintiffs without the drama and without the “no competent attorney” slam-down.

    1. I think they were hoping for exactly what happened.

      The defendant would lie and the recording would come in and show the defendant was a lair.

      Always in these cases I wonder about the backstory. Had the Plaintiffs or their attorneys already done something to irritate the judge?

      1. But then why do it at a deposition? Why not wait ’til trial for the full Perry Mason effect, rsteinmetz (if that is your real name….).

        I too am scratching my head as to why plaintiff wasn’t playing that tape for all to hear from Day 1.

        1. My posting history here is a matter of record.
          What is your history?

          On the other hand what I posted was both accurate and reasonable.

          What is your problem with that or what is your agenda?

          1. I was responding to a comment that seemed to have vanished.

  10. I would be more impressed with the Court’s reasoning if they applied the same requirements to police interrogations. After all it’s entirely legal for police officers to not only withhold evidence, but actively lie to suspects about what police knows. A key strategy for police interrogations to to get suspects to answer questions *before* they know what the police know, and then confront them with the evidence later.

    1. Seems like that would be workable if the suspects were also required to give a sworn statement about the offense, although I’m not sure it would operate to the benefit of criminal defendants.

  11. What bothers me about this decision is that the plaintiff clients suffer for their lawyer’s misconduct. The clients were presumably unaware of the discovery requirements and so have no responsibility for what happened. The clients can now presumably sue their lawyer for malpractice and recover monetary damages, but that will not get them the vindication that a trial verdict in their favor would, not any non-monetary compensation that might be possible. I wonder whether in cases like this a mistrial or other form of re-do might not be fairer.

    1. What bothers me about this decision is that the plaintiff clients suffer for their lawyer’s misconduct.

      It works both ways; if the lawyer comes up with a brilliant (permissible) legal strategy and a successful argument, the plaintiff clients benefit from their lawyer’s conduct.

      Principals are bound by the authorized acts of their agents, for good or ill.

    2. I’m not sure what a “mistrial” would mean in this context, but I tend to agree that substantial monetary sanctions on the attorney, perhaps combined with exclusion of the deposition testimony, would be a more just remedy than the exclusion of highly relevant evidence.

    3. “What bothers me about this decision is that the plaintiff clients suffer for their lawyer’s misconduct. ”

      Yes, the Supreme Court set that as the rule some time ago. If that were not the case, it would be very hard to litigate anything. Anyone could always say, my lawyer screwed up, I want a do over. That is never done in civil cases, and rarely in criminal ones.

  12. Two thoughts:

    (1) Rule 83 of the FRCP provides that ” A local rule must be consistent with—but not duplicate—federal statutes and rules adopted under 28 U.S.C. §§2072 and 2075.”

    Rule 26(a) of the FRCP clearly and expressly excludes documents and things “used solely for impeachment” from initial disclosure requirements. The Advisory Committee notes make clear that this was deliberate.

    The judge here nevertheless construed the local rule as requiring disclosure of all such evidence, even if used solely for impeachment. Doesn’t that make the local rule inconsistent with the federal rule, and hence void?

    (2) A few people mentioned here the issue of one-party and two-party consent for recordings. Most states are one-party rule states, as is federal law. But a minority of states, including California, have a two-party consent rule.

    What always bothered me is why should California get to impose its rule where there is a communication between it and a one-party state? If there is a phone call between CA and NY, for example, then it would seem to me that federalism requires following the federal rule, which is one-party consent.

    Don’t know if this has ever been litigated. I have not researched this, but just wanted to throw out the thought.

    1. Depending on how a phone call is routed, it is entirely possible for an *intrastate* California phone call to cross state lines and be interstate.

      This came up in a different context back when AOL was still a BBS, and while both users were in the same state, and while AOL had local servers, there was Federal jurisdiction because the traffic could have gone all the way to Reston, VA, i.e. interstate.

    2. The two party rule always seemed to me to allow people to say one thing then be able to lie about it with impunity.

  13. Alternate title: “In which a judge denies reality while clutching pearls”.

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