The Impeachment Trap

You are at the end of the penultimate day of trial concerning a woman, your client, who has debilitating pain resulting from the Defendant’s negligence. The Defendant will rest in the morning, and then the parties will close. Your case went in well, and no surprises have arisen during the Defendant’s presentation, which is nearly complete. In fact, you believe the Defendant has no more witnesses, except, perhaps, a witness to authenticate certain business records. And then, while you are in the Judge’s chambers discussing the schedule for the final day of trial, counsel for the Defendant makes an announcement that hits you like an anvil to the head: the Defendant intends to call a previously undisclosed private investigator to authenticate previously undisclosed video of your client. In this video, Mr. Defense Attorney explains, your client is arguably doing things she testified—under oath—she was not able to do.

You ask the Judge for a short recess and then open your laptop. You look at the written discovery you had propounded to the Defendant early on in the case. Sure enough, as you always do, you asked the Defendant to produce any videos of your client, as well as the names of any persons with knowledge of your client’s injuries. The Defendant did not disclose the investigator or the surveillance video until this very moment. The Defendant simply responded to these discovery quests with a long string of objections, including objections based on “attorney work product.”

What now? Is a party permitted to spring an impeachment witness, and impeachment evidence, on an adversary in the middle of trial?

The answer is: it depends. What makes this circumstance tricky is that it involves two legal principles that are in tension with each other: a party’s discovery obligations and the rules regarding impeachment evidence.

The Conundrum

On the one hand, impeachment evidence undoubtedly plays an important role in furthering the truth-seeking function of courts. Obviously, impeachment evidence would have limited value if it needed to be produced before the witness to be impeached has testified under oath.

On the other hand, it is well established in Maine, as elsewhere, that candid and complete discovery responses are critical to the fair administration of justice. See St. Paul Ins. Co. v. Hayes, 2001 ME 71, ¶ 8, 770 A. 2d 611 (noting that “[t]he purpose of the discovery rules is to ‘eliminate the sporting theory of justice and to enforce full disclosure’ between the parties” ((quoting Shaw v. Bolduc, 658 A.2d 229, 235 (Me. 1995))). Rule 26 of the Maine Rules of Civil Procedure does not exempt impeachment evidence from the scope of discovery. Rather, Rule 26(b)(1) permits parties to “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” The Federal Rules of Civil Procedure do not require the automatic disclosure of impeachment evidence and witnesses under Rule 26(a)(1). Like the Maine Rules, however, the Federal Rules do not exempt impeachment evidence from the scope of discovery under Rule 26(b).

And in fact, although impeachment evidence holds less value if provided before a witness testifies, impeachment evidence that need not be produced may be overvalued. As the Supreme Court of Minnesota noted in Boldt v. Sanders, the notion that a party should be permitted to hold impeachment evidence until trial is implicitly grounded in the idea that one party—the impeacher—is an honest broker, while the other—the impeached—is not:

Defendant's entire argument [that impeachment evidence is exempt from discovery] proceeds on the premise that defendant's evidence which plaintiffs seek to elicit constitutes the unblemished truth which, if prematurely disclosed, will prevent defendant from revealing to the jury the sham and perjury inherent in plaintiffs' claims. While defendant disclaims such assumption, it is implicit in his position that witnesses whose testimony is designed to impeach invariably have a monopoly on virtue and that evidence to which the attempted impeachment is directed is, without exception, fraudulent.

111 N.W. 2d 225, 227 (Minn. 1961). In other words, absent requiring that impeachment evidence be turned over before trial, who is there to impeach the impeacher?

The Compromise

As far as we can tell, most courts that have wrestled with this issue have landed on a compromise position: they allow investigative materials to be used for impeachment to remain undisclosed until after the deposition of the relevant witness, but require their production before trial. See Donovan v. AXA Equitable Life Ins. Co., 252 F.D.R. 82, 82-83 (D. Mass. Aug. 5, 2008) (collecting cases). Once the impeached witness has testified under oath, her testimony is “frozen,” at least to a significant extent. Daniels v. AMTRAK, 110 F.R.D. 160, 161 (S.D.N.Y. 1986). Thus, this compromise “protect[s] the value of surveillance films to be used for impeachment of the plaintiff if he exaggerates his disabilities, while still serving the policy of broad discovery.” Id.

Sussing Out Impeachment Evidence

Let’s go back to our hypothetical at the beginning of this article. Mid-trial, you learn of an impeachment witness and impeachment evidence concerning your client, who has already been deposed. You have asked for surveillance video in discovery, and you never received it. What now?

You now move to keep the evidence out, arguing that the opposing party should be sanctioned for committing a discovery violation.

But you are better off if you can tee this issue up before trial, as the Court may take a different view of this than we do. Indeed, in a situation quite similar to the one described above, we moved to keep the surprise impeachment evidence out, and the Court denied our motion. Among other things, she pointed out that the defendant had responded to our written discovery by asserting a work-product privilege, and we had never followed-up those objections. We had never asked for a privilege log, and we had not asked the Court to intervene during the discovery period.

Had we forced the issue, we would have succeeded, as “[m]ost courts, both federal and state, have held that video surveillance tapes, if they plan to be used at trial, must be produced in discovery and are not considered to be protected work product.” Donovan v. AXA Equitable Life Ins. Co., 252 F.R.D. 82, 82 (D. Mass. 2008). But we didn’t follow up.

And that is how we found ourselves, on the night before the end of trial, preparing—for the first time—to impeach our client’s impeacher.

Fortunately, in our case, the surveillance footage made little, if any, impact on the jury—our client was awarded significant compensation for her injuries.

Nonetheless, we learned a valuable lesson about the importance of reviewing discovery responses carefully, and thinking carefully through what evidence might be lurking behind an objection.