United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER ON MOTION TO CONTACT
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
federal jury found that The Charter Oak Fire Insurance
Company (Charter Oak) breached its contract with Plaintiff
Laura Dziadek (Dziadek) and committed the tort of deceit.
Doc. 300. The jury awarded Dziadek over $750, 000 in
compensatory damages and $2.75 million in punitive damages.
Docs. 300, 305. Charter Oak has now moved under Local Rule
47.2 for permission to contact the jurors in this case. Doc.
Local Rule 47.2, entitled "RESTRICTION ON INTERVIEWING
JURORS, " states: "No one may contact any juror
before or during the juror's service on a case. The
parties, their lawyers and anybody acting on their behalf
must seek and obtain permission from the district judge who
tried the case before contacting a juror after the juror
served on the case." D.S.D. Civ. LR 47.2. District
courts have wide discretion when deciding whether to allow
litigants to contact jurors after trial. United States v.
Booker, 334 F.3d 406, 416 (5th Cir. 2003); McCabe v.
Macaulay, No. 05-CV-73-LRR, 2008 WL 5070706, at *1 (N.D.
Iowa Nov. 25, 2008); 3 Jack B. Weinstein & Margaret A.
Berger, Weinstein's Federal Evidence §
606.05[C] (2d ed. 1997). As a general rule, federal courts
disfavor post-trial interviews of jurors. See
United States v. Self, 681 F.3d 190, 199 (3d Cir.
2012); United States v. McDougal. 47 F.Supp.2d 1103,
1104 (E.D. Ark. 1999); Weinstein & Berger, supra,
§ 606.06 ("The federal courts are notoriously
reluctant to permit either informal post-verdict interviews
with or testimony from discharged jurors."). The reasons
for this disfavor include protecting jurors from harassment,
preserving jurors' freedom of deliberation, preventing
jury tampering, and increasing the certainty of verdicts.
Pall v. Coffin, 970 F.2d 964, 972 (1st Cir. 1992);
Wilkerson v. Amco Corp., 703 F.2d 184,
85-86 (5th Cir. 1983);Weinstein & Berger, supra,
same reasons form the basis of Federal Rule of Evidence
606(b), which generally precludes the admission of juror
testimony to impeach a verdict. Fed.R.Evid. 606(b) advisory
committee's note to 1972 proposed rules (explaining that
the "values sought to be served" by excluding
evidence received for the purpose of invalidating a verdict
"include freedom of deliberation, stability and finality
of verdicts, and protection of jurors against annoyance and
embarrassment"). Rule 606(b) provides:
(b) During an Inquiry Into the Validity of a Verdict or
(1) Prohibited Testimony or Other Evidence. During an inquiry
into the validity of a verdict or indictment, a juror may not
testify about any statement made or incident that occurred
during the jury's deliberations; the effect of anything
on that juror's or another juror's vote; or any
juror's mental processes concerning the verdict or
indictment. The court may not receive a juror's affidavit
or evidence of a juror's statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought
to the jury's attention;
(B) an outside influence was improperly brought to bear on
any juror; or
(C) a mistake was made in entering the verdict on the verdict
Fed. R. Evid. 606.
typically deny a litigant's request to interview jurors
post-verdict absent a threshold showing of an outside
intrusion into the jury process. United States v.
Wright, 506 F.3d 1293, 1303 (10th Cir. 2007) ("This
court has held that a trial judge is well within his
discretion in denying leave to inquire of jurors where there
was no claim of external interference with the
process."); Booker, 334 F.3d at 416 ("A
trial court's decision to deny an attorney's request
for post-trial interviews is reviewed for abuse of
discretion. Only when there is a showing of illegal or
prejudicial intrusion into the jury process will the court
sanction such an inquiry.") (internal citations
omitted); McElroy by McElroy v. Firestone Tire & Rubber
Co., 894 F.2d 1504, 1511 (11th Cir. 1990) (holding that
denial of post-verdict motion to interview jurors was not an
abuse of discretion where moving party did not allege that
any prejudicial information or outside influence was brought
to bear on the jury); McCabe, 2008 WL 5070706, at *2
(denying motion to interview jurors because moving party did
not make a preliminary showing that members of the jury
either learned of any extraneous prejudicial information or
that outside influences were brought to bear upon them);
Allen v. United States, No. 4:07CV00027 ERW, 2008 WL
80061, at *1 (E.D. Mo. Jan. 4, 2008) (same); Economou v.
Little, 850 F.Supp. 849, 852 (N.D. Cal. 1994)
("Most federal courts deny requests to conduct
post-verdict interviews of jurors unless there is a proper
preliminary showing of likely juror misconduct or witness
incompetency."); see also United States v.
Eagle, 539 F.2d 1166, 1170 (8th Cir. 1976) (holding that
defendant had no right to subpoena jurors after trial when he
had not made "specific allegations that any of them
engaged in overt improper acts susceptible of proof). Mere
'"fishing expeditions' carried out by losing
attorneys interested in casting doubt on the jury's
verdict" are not allowed. Journal Pub. Co. v.
Mechem. 801 F.2d 1233, 1236 (10th Cir. 1986).
Charter Oak has not made any preliminary showing that there
was an outside intrusion into the jury process. Instead,
Charter Oak states that the "purpose behind the
requested [juror] contact is educational in nature for
Counsel, the Defendant and Defendant's witnesses."
Doc. 312. Denying Charter Oak's motion to interview the
jury for educational purposes would not be an abuse of
discretion. See Haeberle v. Texas Int'l
Airlines, 739 F.2d 1019 (5th Cir. 1984) ("The
first-amendment interests of both the disgruntled litigant
and its counsel in order to satisfy their curiosity and
improve their advocacy are limited. We agree with the
district court's implicit conclusion that those interests
are not merely balanced but plainly outweighed by the
jurors' interest in privacy and the public's interest
in well-administered justice."); McDougal, 47
F.Supp.2d at 1105 (declining government's motion to
interview jurors after mistrial where stated purpose of
interview was to determine whether to retry case); Olsson
v. A.O. Smith Harvestore Prods.. Inc.. 696 F.Supp. 411,
412 (S.D. Ind. 1986) ("Absent a showing of evidence of
juror impropriety, an attorney is not permitted to invade the
province of the jury room for the purpose of improving his
skills as a trial lawyer by ascertaining from the jurors
which facets of the trial influenced their verdict.").
Nevertheless, this Court may allow Charter Oak some contact
with the jury, provided that Charter Oak does not intend to
engage in a "fishing expedition" designed to gin up
some basis for a new trial. To that end, Charter Oak should
submit to this Court the questions it plans on asking the
jurors. Charter Oak ...