Chatelain v. Akin, et al, No. 2:2015cv05747 - Document 79 (E.D. La. 2018)
Court Description: ORDER AND REASONS re 72 Motion to Seal Impeachment Exhibits. ORDERED that Defendant motion is DENIED IN PART. Defendants may not use the documents as impeachment evidence at trial. FURTHER ORDERED that Defendants' motion be unsealed and filed on the record. FURTHER ORDERED that Defendants' motion is GRANTED IN PART. Defendants may use the documents in order to refresh the recollection of witnesses at trial. Signed by Judge Susie Morgan on 3/7/2018. (clc)
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Chatelain v. Akin, et al Doc. 79 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A N AZAREN E CH ATELAIN , Plain tiff CIVIL ACTION VERSU S N O. 15-574 7 J EFFERY P. AKIN , ET AL., D e fe n d an ts SECTION : “E” ORD ER AN D REAS ON S Before the Court is a m otion for leave to file im peachm ent exhibits under seal by Defendants J effery P. Akin, Markel Insurance Com pany, and Rockin B Wireless (collectively, “Defendants”). 1 Defendants wish to introduce court docum ents— specifically, a J oint Pre-Trial Order, 2 a Post-Trial Mem orandum , 3 and the J udgm ent of the Trial Court 4 —from a 1998 Louisiana state court case involving the Plaintiff Nazerene Chatelain. 5 According to Defendants, these filings dem onstrate (1) the Plaintiff was injured in a m otor vehicle accident in 1996 that resulted in injury to her back; (2) she obtained MRIs and m edical treatm ent following that accident, and (3) the Louisiana state court found in her favor and awarded her dam ages. 6 Defendants argue these facts are inconsistent with Plaintiff’s deposition testim ony in the present m atter, in which she stated she could not recall whether an MRI had been taken, and could not recall whether the trial judge had produced a written opinion in her favor that discussed any injuries to her back. Defendants seek to introduce these docum ents to im peach the credibility of the 1 R. Doc. 72. R. Doc. 72-3 at 3 R. Doc. 72-3 at 4 R. Doc. 72-3 at 5 R. Doc. 72-2 at 6 Id. at 2-3. 2 9. 35. 53. 2. 1 Dockets.Justia.com Plaintiff. In the alternative, Defendants request the Court’s perm ission to use the docum ents to refresh the Plaintiff’s recollection during trial. 7 I. Im p e ach m e n t In deciding this m otion, the Court m ust decide whether the eviden ce is im peachm ent eviden ce or is, at least in part, substantive eviden ce. 8 In Chiasson v. Zapata Gulf Marine Corp., the Fifth Circuit analyzed the distinction between im peachm ent eviden ce and substantive eviden ce. 9 The court held that evidence which is useful solely for im peachm ent purposes need not be disclosed prior to trial, but eviden ce that is “at the very least in part substantive” m ust be disclosed. 10 “Substantive evidence is that which is offered to establish the truth of a m atter to be determ ined by the trier of fact.” 11 “Im peachm ent evidence, on the other hand, is that which is offered to ‘discredit a witness . . . to reduce the effectiveness of [his] testim ony by bringing forth evidence which explains why the jury should not put faith in [his] or [her] testim ony.”12 The Louisiana state court filings subm itted by Defendant m ay have som e value as im peachm ent evidence, as they exhibit facts that are inconsistent with Plaintiff’s deposition testim ony. For exam ple, Plaintiff testified that she could not rem em ber having an MRI taken prior to the accident at issue in this case, but if she had, “it wasn’t related to m y back. It was related to m y colon and m y abdom en.”13 In contrast, the 1998 J oint 7 R. Doc. 72-2 at 5. See, e.g., Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993); W illiam s v. Gaitsch, No. 5:0 8-cv-0 772, 20 11 WL 2223813, at *2 (W.D. La. J une 8, 20 11). 9 Chiasson, 98 8 F.2d at 517– 18. 10 Id. 11 Id. at 517. 12 Id. 13 R. Doc. 72-3 at 8 . 8 2 Pre-Trial Order subm itted by Defendants shows that Plaintiff underwent an MRI of the lum bar spine on Mary 31, 1996, which revealed injuries to her back. 14 In this case, the exten t of Plaintiff’s injuries and the degree to which they were caused by the accident with Defendant J effery Akin in 20 14 are disputed issues of fact to be determ in ed by the jury. 15 Accordingly, “evidence which would tend to prove or disprove” these issues m ust be considered substantive.”16 The docum ents subm itted by Defendants for in cam era review contain evidence of the Plaintiff’s past accidents and m edical history, and therefore speak to whether, and to what extent, Plaintiff’s current injuries were caused by Defendants. Accordingly, these docum ents are substantive in nature, and should have been disclosed to opposing counsel and listed as exhibits in the proposed pre-trial order. 17 Defendants will not be perm itted to use the docum ents as im peachm ent evidence at trial. II. Re fre s h in g Re co lle ctio n In the alternative, Defendants request that they be perm itted to use the Louisian a state court docum ents to refresh Plaintiff’s recollection at trial. Federal Rule of Evidence 612 governs the use of a writing to refresh a witness’s m em ory. 18 Rule 612 does not require that a writing or docum ent used to refresh a witness’s m em ory be disclosed prior to trial or listed as an exhibit in the parties’ proposed pre-trial order. Indeed, courts have recognized that writings used to refresh a witness’s recollection are n ot exhibits, and need 14 R. Doc. 72-4 at 15. See R. Doc. 65 at 12-13 (Proposed Pre-Trial Order). 16 Chiasson, 98 8 F.2d at 517. 17 Chiasson, 988 F.2d at 517 (“Because the [evidence] is, at the very least in part substantive, it should have been disclosed prior to trial, regardless of its im peachm ent value.”). 18 F ED . R. E VID . 612. 15 3 not be disclosed in advance of trial. 19 Nevertheless, while Rule 612 does not require disclosure of writings that are intended to be used to refresh a witness’s recollection in advance of trial, sound policy suggests that Rule 612 was not intended as an avenue for parties to conceal such docum ents until they are needed to refresh a witness’s recollection at trial. 20 To avoid surprise at trial, the Court will require advance disclosure of any docum ents the parties wish to use to refresh a witness’s recollection at trial. If either party intends to use any writings or docum ents not listed in the proposed pre-trial order 21 to refresh a witness’s recollection, the writings or docum ents m ust be subm itted both to the Court and opposing counsel no later than Th u rs d ay, March 8 , 2 0 18 , at 11:0 0 a .m . Those docum ents will not be adm itted into eviden ce. Accordingly; IT IS ORD ERED that Defendants’ m otion is D EN IED IN PART. Defendants m ay not use the docum ents as im peachm ent evidence at trial. IT IS FU RTH ER ORD ERED that Defen dants’ m otion be unsealed and filed on the record. 19 See, e.g., Davis v. Lakeside Motor Co., Inc., No. 3:0 -CV-40 5J D, 20 14 WL 1316945, at *11 (N.D. Ind. Mar. 31, 20 14) (notin g that “[a]n y exhibit not identified [in the Pre-Trial Order] will be excluded from trial for all purposes other than im peachm ent or refreshing recollection”); Jones v. Sheahan, No. 99-C-3669, 0 1-C1844, 20 0 3 WL 2250 8171, at *11 (N.D. Ill. Nov. 4, 20 0 3) (“[T]he Court m ade it clear that while the letters could not be used as m arked exhibits (since they were not listed on the pretrial order), they could be used to refresh recollection or to im peach the witn ess if there first was established a basis to do so.”); D.L.B. v . Cabinet for Health and Fam ily Servs., 418 S.W.3d 426, 431– 32 (Ky. Ct. App. 20 14) (“Yet, nothin g in KRE 612 states that the writing used to refresh the witness's m em ory m ust be turned over in advance of trial as an exhibit....Indeed, case law has established that the writin g used to refresh is n ot to be considered as an exhibit.”). 20 See, e.g., G.J.B. & Assocs., Inc. v. Singleton, 913 F.3d 824, 831 (10 th Cir. 1990 ) (“Adm ittedly, Fed. R. Evid. 612 requires only that such writin gs be produced at the hearing. But nothin g in the rule suggests that an attorney m ay conceal the writings until ready to spring them on the court and opposing counsel in the m idst of a witness’s direct exam ination .”). 21 R. Doc. 65. 4 IT IS FU RTH ER ORD ERED that Defendants’ m otion is GRAN TED IN PART. Defendants m ay use the docum ents in order to refresh the recollection of witnesses at trial. N e w Orle a n s , Lo u is ian a, th is 7th d ay o f March , 2 0 18 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 5
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