October 23, 2015 Top Story

Getting a New Trial May Be Easier under One Rule Than Another

Discovery misconduct warrants new trial under Rule 60 but not Rule 59

Caitlin Haney

Failing to produce documents requested in discovery constitutes misconduct warranting a new trial under Fed. R. Civ. P. 60(b)(3), but does not meet the requirements for a new trial under Fed. R. Civ. P. 59Simoneaux et al. v. E.I. du Pont de Nemours & Co.highlights the significant difference in threshold requirements for a new trial under each rule.

The Documents Discovered Post-Trial

In Simoneaux, whistleblowers filed suit in the U.S. District Court for the Middle District of Louisiana for violations of the False Claims Act, alleging the defendant withheld evidence of chemical leaks from federal regulators. The plaintiff requested documents regarding those leaks, including documents provided to or received from the Occupational Safety and Health Administration. The defendant produced some, but not all documents related to leak calculations, and withheld documentation of OSHA citations.

At trial, the defendant argued that “the dose makes the poison” and the plaintiffs had not submitted evidence of the quantity or concentration of the alleged leaks. The jury returned a defense verdict. Following the trial, the plaintiffs learned of the withheld documents, which were subsequently produced in a separate lawsuit.

The Post-Trial Motions

The plaintiffs renewed their motion for judgment as a matter of law under Rule 50(b) and moved for a new trial pursuant to Rule 59 and Rule 60. The court denied the plaintiffs’ motion for judgment as a matter of law, finding sufficient evidentiary basis for the jury’s verdict. A motion under Rule 50 is granted only if a reasonable jury lacks a “legally sufficient evidentiary basis to find for the party on that issue.”

The court also denied plaintiffs’ motion for a new trial under Rule 59. The court rejected arguments that the verdict went against the great weight of the evidence, and that the newly discovered evidence probably would have resulted in a different verdict. Under Rule 59, a new trial on the grounds of newly discovered evidence requires the moving party to essentially show that the introduction of the new evidence would likely produce a different result at a new trial.

The court concluded certain leak repair documents introduced at trial were immaterial and irrelevant to the ultimate question of whether the defendant knew that the leaks posed a substantial risk of injury to health or environment. However, the court found the leak calculation documents provided significantly more quantifiable information regarding the leak quantity, concentration, duration, and capture rates and were material to the ultimate issue. Lacking any fact or expert testimony to interpret those results, the court ruled the new evidence insufficient to establish the probability of a different verdict and denied the motion.

By contrast, the court granted the plaintiffs' motion for a new trial under Rule 60(b)(3), which provides relief from a judgment that resulted from fraud, misrepresentation, or misconduct by an opposing party. Significantly, the rule does not require a showing that the withheld information would have altered the outcome of a case, as its purpose is remedial. Rather, the moving party must establish by clear and convincing evidence that the misconduct prevented it from fully and fairly presenting its case. Admissibility of the withheld evidence is a relevant factor in determining fairness, but is not dispositive.

The court held that the defendant committed discovery misconduct warranting a new trial. Specifically, it found the defendant’s failure to produce the leak calculation documents precluded a fair trial, as did its failure to disclose five OSHA citations issued two weeks after the plaintiffs’ request for supplemental responses, and two months before trial. The court rejected defense arguments that withholding was proper because the requests were overbroad, the citations were common knowledge and inadmissible hearsay that had no bearing on the outcome. Instead, the court reasoned that the violations were material to the “suitability” and “efficacy” of the defendant’s systems for capturing leaks, and without the withheld evidence, meeting the plaintiffs’ burden of proof was “an exercise in futility. “

“The court found the Rule 60 argument more persuasive because the burden for relief under Rule 59 is far greater than the burden for relief under Rule 60,” observes Andre’ B. Caldwell, Oklahoma City, OK, former vice chair of the ABA Section of Litigation’s Trial Evidence Committee. “Moreover, Rule 60 is liberally construed,” he adds.

The court declined to reach the plaintiffs’' alternative motion for relief from the jury verdict under Rule 60(d)(3). That provision requires a showing of a fraud on the court, such as fabrication of evidence, which was not established. “For conduct to rise to that level, it must be particularly egregious, and there must be some pretty specific evidence that the non-movant was acting intentionally to mislead the court,” notes Elizabeth T. Timkovich, Charlotte, NC, cochair of the Section of Litigation’s Communications Committee and former cochair of the Commercial & Business Litigation Committee.

Advice to Litigators

Although the defendant was not separately sanctioned for its discovery misconduct, the order of a new trial “is likely unsettling enough in and of itself given the expense of trial and the ultimate zero sum result” to deter this type of conduct in the future, according to Caldwell.

“This case should serve as a reminder to litigators to supplement discovery responses all the way up until trial, should new, relevant documents come to light,” advises Timkovich. While it can be hard to keep up with all the moving parts of litigation in preparing for trial “it’s absolutely important to remain mindful of discovery obligations and their continuing nature, because one mistake may unravel a significant amount of work,” agrees Caldwell.

Caitlin Haney is an associate editor for Litigation News.

Keywords: discovery, civil procedure, new trial

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