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.
OPPNION AND ORDER GRANTING IN PART MOTION TO CONTACT
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Court previously entered an Opinion and Order on Motion to
Contact Jurors, Doc. 141, and repeats much of that ruling
here in granting in part that motion. 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 moved under Local Rule 47.2 for
permission to contact the jurors in this case. Doc. 140. In a
prior Opinion and Order on that motion, Doc. 141, this Court
deferred ruling pending submission of a list of proposed
questions. Isuzu then filed such a list of questions. 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
(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
(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).
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. 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. Lad. 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 expressed a willingness to allow
Isuzu some contact with the jury, provided that Isuzu does
not intend to engage in an "fishing expedition"
designed to gin up some argument for a new trial. Doc. 141 at
has now submitted proposed jury interview questions. Some of
Isuzu's proposed questions are appropriate while others
are not. If Isuzu still wants to interview the jurors, they
must adhere to the ...