Wednesday, August 08, 2007

No Sanctions for Peeking at Jurors Notes, Fourth Circuit Rules

Two attorneys who copied notes left by jurors in the jury room after the verdict should not have been sanctioned, the Fourth Circuit ruled yesterday in an unpublished opinion, reversing an award of $14,655.40 in sanctions. Thomas v. Shatz, No. 06-1175 (4th Cir. Aug. 7, 2007) (unpublished) (PDF).

Following a defense verdict in a civil jury trial, the courtroom clerk asked counsel for both parties to assist in removing exhibits from the jury room. (Mistake #1)

Apparently, the bailiff broke the cardinal rule to always empty the trash from the jury room after the trial is over. (Mistake #2)

On an easel in the jury room in plain view was a flip chart reflecting the jurors’ views on the evidence presented in the case. One of the defense attorneys asked the other to copy the notes from the flip chart for assistance in future cases. (Who could resist, right?)

Three days later, U.S. District Judge Frederick Stamp was advised by his law clerk that she saw someone copying notes from the jury’s flip chart in the jury room after trial, but that she did not know who he was. Judge Stamp was not pleased. He issued an order directing the parties to identify the person in the jury room and his affiliation with the parties, and scheduled a hearing “to determine what action, if any, should be taken.”

After a hearing, the judge reprimanded and censured the two attorneys for improper conduct in the jury room after the jury had been discharged, and ordered them to pay the fees and costs incurred by plaintiffs in responding to the court’s order and attending the hearing, $14,655.40.

The district court found that the attorneys had committed three violations:

(1) the attorneys had violated "the spirit, if not the letter, of Local Rule 47.01," which prohibits an attorney from “communicat[ing] or attempt[ing] to communicate with any member of the jury regarding the jury’s deliberations or verdict without obtaining an order allowing such communication.” N.D. W. Va. Local R. Gen. P. 47.01.

(2) by reading and copying the jury’s notes on the easel, the attorneys violated Federal Rule of Evidence 606(b), which generally prohibits the use of juror testimony about matters occurring during deliberations to challenge a verdict; and

(3) by intentionally copying the notes, the two acted in "bad faith," engaged in professional misconduct, and breached their professional responsibilities, which he found sanctionable under his inherent authority and 28 U.S.C.A. § 1927 (West 2006).

The attorneys appealed the order, and the Fourth Circuit reversed. The attorneys did not violate Rule 47.01 or FRE 606(b) because no juror was contacted or harassed, nor did the attorneys attempt to challenge the verdict on the basis of what the jurors wrote. The court also found no bad faith motive on the part of the attorneys:

"The notes were left where anyone coming into the jury room could have seen and read them. We have found no rule or law that makes sanctionable the viewing or copying of jurors’ notes after the case has ended, nor are we aware of any authority that confers per se confidentiality upon discussions in a jury room."
* * *
"We cannot fault the lawyers for seeing what was in front of them and remembering what they had seen. Any error, therefore, would have to be in peeking under the top sheet and in copying that information, and in this we simply can find no grievous harm."
* * *
"... the evidence is uncontradicted that the lawyers were motivated by a desire for general professional development rather than any purpose related to this particular case. Consequently, the district court committed clear error..."


In closing, the Court noted that the whole episode could have been avoided "had the clerk of court properly performed his responsibility of retrieving the evidence and exhibits from the jury room and returning them to the attorneys in the courtroom."

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