Timing Key to Impeachment Material

Each year an increasing number of complex lawsuits are filed in federal court, which contain issues beyond the “keen” of most lay people. As a result, the “expert witness” profession has become a burgeoning $6 to $8 billion industry, according to newspaper reports.

As the need for expert witnesses in civil cases has increased, so too has the need to insure that your expert has not said anything in the past that will undermine his or her credibility or otherwise hurt your case. One way to do that is to find out with material your opponent plans to use to impeach that expert, i.e., prior to trial or deposition testimony, publications, speeches, etc. But does your opponent have an obligation to turn such material over to you?

In the criminal context, a prosecutor’s obligation under Brady v. Maryland, 373 U.S. 83(1963) to disclose information to the defense extends to both exculpatory evidence and potential impeachment material of the prosecution’s witnesses. United States v. Curry, 2003 WL21947106 at 2 (N.D.Ill.2003). that obligation exists even in the absence of a specific request by the defendant (see United States v. Agurs, 427 U.S. 97, 110-11 (1976)), and a prosecutor’s failure to meet that obligation may result in a new trial (see Brady, 373 U.S. at 87)).

For civil cases in federal court, the obligation to disclose and produce intended impeachment material is less clear. See Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 2 516 (5th Cir. 1993) (noting that “there are surprisingly few cases on the discoverability of impeachment evidence”).

For instance, Federal Rule of Civil Procedure Rule 26(a)(1)(B) requires a party to initially disclose to the other side, even without a specific request, all documents in that party’s possession or control that it intends to use “to support its claims or defenses, unless solely for impeachment.”  FRCP Rule 26(a)(1)(B) (emphasis added). Likewise, Rule 26(a)(3) mandates that before trial a party must provide to the other side and promptly file with the court certain information “regarding evidence it may present at trial other than solely for impeachment.” FRCP Rule 26(a)(3)(emphasis added)). Based upon these sections of Rule 26, one could argue that there is never a basis for a court to order one side to disclose or produce to her opponent impeachment material that she intends to use at trial.

Some courts have found that such an obligation exists where material has both impeachment and substantive value and, thus, could not be characterized as evidence used “solely for impeachment.” See e.g., Klonoski b. Mahlab, 156 F.3d 255, 266-68 (1st Cir. 1998) (emphasis added); but see DeBlasio v.Illinois Grand Central R.R., 52 F.3d 678, 686(7th Cir.1995) (finding the trial court erred in excluding previously undisclosed impeachment material that also had some substantive value). This analysis, however, has been criticized as causing an “erosion of evidence capable of warranting the impeachment designation.” Halbash v.Med-Data Inc., 192 F.R.D. 641, 649 (D.Or.2000). in other words, the critics contend that requiring the disclosure of that material eviscerates the “impeaching” or “credibility-lessening” nature of that evidence by allowing the witness an opportunity to “explain” the evidence, thereby deadening its impact on the finder of fact.

Several recent cases have taken a different approach, finding that an obligation to produce impeachment material exists not because of any potential substantive component the material may have, but because opposing counsel made a specific written request for that material. See Stevens v. City of Red Bluff, 2007 WL184816 at 2 (E.D.Cal. 2007); Newsome v. Penske Truck Leasing Corp., 437 F.Supp.2d 431, 436-37 (D.Md. 2006); Gutshall v. New Prime Inc., 196F.R.D 43, 45 (W.D. Va. 2000). In doing so, these courts have focused on two rationales for that obligation.

First, they look to the broad scope of Rule 26(b)(1), which requires the disclosure of “any matter, not privileged, which is relevant to the subject matter in the pending action.” FRCP Rule 26(b)(1). Rule 26 (b)(1), they note, accords no special status to impeachment evidence. See Stevens, 2007 WL 184816 at 2; Newsome, 437 F.Supp.2d at 437; Gutshall, 196 F.R.D. at 45.

Second, they rely upon the overarching goal of the federal discovery rules (and Rule 26 in particular) of eliminating trial-by-ambush. See Newsome, 437 F. Supp2.d at 437 (recognizing goal of federal rule is to make “a trial ‘less of a game of blind man’s bluff and more of a fair contest’”), quoting United States v. Proctor & Gamble Co., 365 U.S. 677, 682 (1958); see also Blount v. Wake Elec. Membership Corp. 162 F.R.D. 102, 104 (E.D.N.C. 1993) (noting “the purposes of Rule 26 are to eliminate secrets and surprises at trial, clarify and delineate the issues, and facilitate equitable settlements”). Even where evidence has no substantive value, these courts found an obligation to disclose of impeachment material where a specific written request is made pursuant to Rule 26(b).

In order to preserve the value of that impeachment material, some courts have delayed the timing of disclosure to after the witness has testified under oath, typically at a discovery deposition. See e.g., Tripp b. Severe, 2000 WL 708807 (D.Md. 2000) (since party had been deposed, the impeachment materials should be produced unless the withholding party did not intend to use that evidence at trial); Blount V. Wake Elec. Membership Corp., 162 F.R.D. 102(E.D.N.C.1993) (delaying the timing of disclosure to preserve the impeachment value of the evidence until after the party’s deposition). So if you want to know what the other side plans to use to discredit your expert, you may have to wait until after the expert’s deposition, but all you have to do is ask.