United States District Court, D. South Dakota, Southern Division
SIOUX FALLS KENWORTH, INC., d/b/a ISUZU TRUCKS OF SIOUX FALLS, Plaintiff,
ISUZU COMMERCIAL TRUCK OF AMERICA, INC., Defendant.
OPINION AND ORDER ON MOTION TO CONTACT
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
November 2, 2016, after a jury trial, the jury in this case
returned a verdict for Plaintiff Sioux Falls Kenworth, Inc.
(Sioux Falls Kenworth) and against Defendant Isuzu Commercial
Truck of America, Inc. (Isuzu) on one count of violation of
SDCL § 32-6B-45 and awarded damages of $1, 600, 000.00
on that count. The jury also returned a verdict for Sioux
Falls Kenworth and against Isuzu on one count of breach of an
implied covenant of good faith and fair dealing and awarded
damages of $76, 000.00 for certain unpaid warranty work done
by Sioux Falls Kenworth on Isuzu trucks. The jury found in
favor of Isuzu on one count of breach of contract involving
termination of a franchise agreement and on a question of
whether Isuzu violated South Dakota law by failing to pay
Sioux Falls Kenworth a 58% markup on parts used in warranty
repairs. Doc. 135. Isuzu has now moved under Local Rule 47.2
for permission to contact the jurors in this case. Doc. 140.
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. Weinstem & 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); Weinstem & 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 m entering the verdict on the verdict
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).
Isuzu has not explained why it seeks to interview the jurors,
let alone made any preliminary showing that there was an
outside intrusion into the jury process.l This
Court presumes that Isuzu wants to interview the jurors for
educational purposes, but such a request would be within this
Court's discretion to deny. 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 Isuzu some contact with
the jury, provided that Isuzu does not intend to engage in a
"fishing expedition" designed to gin up some basis
for a new ...