Maine Evidence and Electronic Discovery

A Useful Refresher on the Hearsay Rules

In case you missed it, Judge Woodcock issued a helpful refresher on some of the hearsay-within-hearsay principles in a recent decision, EMK, Inc. d/b/a Eaton Mtn. Ski Area v. Federal Pacific Elec. Co., Civil Action No. 08-383-B-W (D. Me. Jan. 7, 2010).

That case involved a building fire in which the issue in dispute was whether the fire was caused by a defective electric baseboard heater manufactured by the defendant, Federal Pacific.  Federal Pacific moved in limine to exclude portions of two reports prepared by the state fire marshal's office and the Skowhegan Fire Department.

The fire marshal conducted an investigation and prepared a report which, among other things, included supposed statements made by the owner of the plaintiff company.  Although Federal Pacific conceded that the remaining portions of the fire marshal's report might fall within the hearsay exclusion contained within Fed. R. Evid. 803(8)(C), it sought to exclude the references to the plaintiff's owner's statements as hearsay-within-hearsay.  Relaying upon Weinstein's evidence treatise and a fairly similar First Circuit case involving hearsay statements contained within an FBI report, United States v. Mackey, 117 F.3d 24, 28-29 (1st Cir. 1997), Judge Woodlock had little difficulty in granting Federal Pacific's motion in limine to exclude the portions of the fire marshal's report reciting statements allegedly made by the plaintiff's owner.

As far as the town fire department report was concerned, the report contained the following statement:  "Fire cause determine to be a result of faulty electric heater in bathroom in garage."  Federal Pacific argued that the statement in the report on the cause of the fire was inadmissible because it was not expressed pursuant to the fire department's statutory authority (as the fire department was not charged with, and did not, investigate the cause of the fire), thereby failing to meet the requirements for admission under Fed. R. Evid. 803(8)(B).  Federal Pacific also argued that the statement on causation was inadmissible because it was untrustworthy, so could not fall within the public report hearsay exception in Rule 803(8)(c).

The court side-stepped around the Rule 803 issues, finding that even if the statement in the report fell within one of the Rule 803 hearsay exceptions, it should be excluded as prejudicial under Fed. R. Ev. 403.  As Judge Woodlock observed:

The critical issue in this case is whether a defect in Federal Pacific's electric baseboard heater caused the January 28, 2005 fire.  As its report reveals, the Skowhegan Fire Department responded quickly to the alarm just before 9 p.m. and left the scene at 2:20 a.m. the next day.  The report was filed immediately and there is no indication that a thorough cause and origin assessment was made or that the heater was examined for defects.  Instead, the report simply states that “[f]ire cause determined to be a result of faulty electric heater in bathroom in garage.”  It does not say who made this determination, his or her qualifications to make this determination, what they did to make this determination, and what other possible sources were considered and eliminated.

Id. at 5.  The lack of any indication that the statement was supported by any investigation or evidence known to the fire department at the time the statement was made in the report was compounded by the risk that the jury might view the report as carrying "the imprimatur of municipal government," led to the risk the jury "could well place undue emphasis on its summary causation conclusion on the assumption that it reflects the considered opinion of a fire investigator, who is cloaked with governmental objectivity and expertise."  Id.  Based on the unreliability of the statement and the potential risk that it might cause mischief with the jury, the court granted the motion in limine as to that portion of the Skowhegan fire report.

Often these types of hearsay rulings occur in the midst of trial or in unwritten decisions.  So this is a useful reminder on some basic evidence issues that frequently arise but often go unnoticed.

New Maine Privilege Rules To Go Into Effect

So a year ago I reported on a new Maine Rule of Evidence 514, that codified a privilege for certain statements made during mediations, and then reported on the Maine Supreme Judicial Court's decision to withdraw the new rule for further study.

The court has again promulgated a new Rule 514, along with modifications to Maine Rule of Evidence 408, found here.  The changes go into effect on January 1, 2010.

The changes to Rule 408, which addresses offers to compromise, clarify that statements made by party in the context of settlement discussions cannot be used "to impeach a witness through a prior inconsistent statement or contradiction."  Me. R. Ev. 408(a).  The rule also has been amended to provide that statement made by a party or mediator in any court-ordered mediation, or in any mediation in which the parties and mediator have agreed in writing to confidentiality, is inadmissible except in instances of fraud and the like.  Me. R. Ev. 408(b).  Previously Rule 408(b) was limited to court ordered domestic relations mediations.

The commentary to Rule 408 provides that the rule "is designed to encourage parties to speak openly and freely in mediation by assuring them that their statements will not be usable against them in the case being mediated or in any other case between the same parties with the same subject matter."  Interestingly, the comments also state that the new Rule 408(b) is not intended to "insulate statements in mediation from civil discovery."  Arguably, then, the drafters may be envisioning a situation where a party can conduct discovery into what was said in another mediation, although whether such statements are admissible is a separate question.

The new Rule 514 adopts a new mediator's privilege.  The new rule provides that "All memoranda and other work product ... prepared by a mediator shall be confidential and not subject to disclosure in any subsequent judicial or administrative proceeding involving any of the parties to any mediation in which the materials are generated; nor shall a mediator be compelled to testify in any subsequent judicial or administrative proceeding concerning a mediation or to any communication made between him or her and any participant in the mediation process in the course of, or relating to the subject matter of, any mediation."  Me. R. Ev. 514(b).  There are exceptions in instances of misconduct, or in order to prove that the parties actually reached a settlement agreement at the mediation, or in stances of criminal activity and such. 

The commentary makes clear that the "privilege only applies to mediation proceedings conducted by a neutral mediator.  Thus, when a party’s lawyer, a guardian ad litem, or other person with a particular point of view to represent attempts to function as 'mediator' in settlement or other discussions, the privilege is not applicable.  The privilege also does not apply to conferences with “settlement judges” or other judicial officials who may be acting in a meditative capacity because of the importance of transparency of public justice institutions."

Notably, the "privilege belongs to mediators, not mediating parties," so the rule "does not empower a party to prevent a mediator from testifying if the mediator chooses to do so."

Justice Alexander issued a separate statement of non-concurrence, based on the comments provided by the Maine Attorney General, who requested additional privilege exceptions to allow testimony about threats or statements of intention to inflict other types of harm beyond bodily injury, and to permit the use of testimony about events occurring at mediations in protection from abuse proceedings.  It is unclear why the Attorney General's requests were not acted upon by the majority of the court.

Maine Supreme Judicial Court Puts Hold on New Evidence Rule 514

In my post of October 29, 2008, I reported on a new Me. R. Ev. 514 that had been adopted by the Maine Supreme Judicial Court, effective as of January 1, 2009.  The new Rule 514 would recognize a privilege for certain statements made during mediations.

Since then, the new Rule 514 has been the subject of some criticism and concerns about how it might interact (or even conflict) with existing Me. R. Ev. 408, which already provides protection for certain communications made in the context of offers to compromise.  See, e.g., Jonathan A. Reitman, ADR:  Bumps in the Road of Maine's New Rule of Evidence 514, Maine Lawyers Review, vol. 16, no. 22, at 16 (Nov. 20, 2008).

Perhaps heeding some of those concerns, the Supreme Judicial Court has now issued 2009 Me. Rules 3, effective as of December 12, 2008, which states simply that "the effective date of the rules amendment in 2009 Me. Rules 1, adding Rule 514 to the Maine Rules of Evidence, is stayed until June 1, 2009, to permit further review and consideration of Rule 514."

So we will have to see what changes are made to the proposed Rule 514 next spring.

Update on New Federal Rule of Evidence 502

As discussed in my posting on September 9, 2008, both houses of Congress had passed S. 2450, which created a new Rule of Evidence 502 addressing waiver of the attorney-client privilege and work product protection. 

President Bush signed the bill on September 19, 2008, which became Public Law 110-322.  So the new Rule 502 will now be in effect.

As an aside, some may be wondering why Congress had to enact a law to add the new rule of evidence, rather than following the normal path where the Supreme Court simply proposes amendments to the federal rules of practice, procedure, and evidence that take effect automatically unless Congress acts affirmatively to modify, defer, or reject the proposed changes.  That's because, under the Rules Enabling Act, "[a]ny such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress." See 28 U.S.C. § 2074(b).

Maine Supreme Court Adopts New Privilege Rule for Certain Communications in Mediations

On October 22, 2008, the Maine Supreme Judicial Court issued order 2009 Me. Rules 1, which amends the Maine Rules of Evidence by adopting a new Rule 514 that addresses privileged communications during mediations.  The rule is modeled on, although different from, the Uniform Mediation Act, which has not been adopted in Maine.  The new rule will be effective as of January 1, 2009.

Under the new rule, certain types of communications between parties and mediators will be deemed privileged.  The rule provides:

A mediating party has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made between the mediating party or a representative of the mediating party and a mediator.

Me. R. Ev. 514(b).  A “confidential communication” is defined to mean “a statement, whether oral or written, between a mediating party or representative of a mediating party and a mediator made outside the presence of others during the course of mediation proceedings and that is not intended to be disclosed to third persons.”  Me. R. Ev. 514(a)(4).  Thus, it does not include communications between a party and the mediator made in the presence of the opposing party or other third-parties. 

In that respect, the new Rule 514 differs from the Uniform Mediation Act, which defines essentially all communications made during a mediation as privileged.  The advisory committee notes explain that the rule “is meant to bring those communications made in private or ‘caucus’ sessions with the mediator under the coverage of the party’s privilege but to keep communications made with all parties present outside of it.”  Me. R. Ev. 514 adv. comm. notes (2008).  The advisory committee rejected the broader coverage for all communications during a mediation contained in the uniform act “as artificial and inconsistent with the fundamental concept of a truly confidential communication between a single interest and a trusted confidant as is protected in the other privileges incorporated in the Rules of Evidence.”  Id.

The new Rule 514 defines a broader privilege for mediators, as opposed to the parties involved in the mediations.  Under the rule:

All memoranda and other work product, including files, reports, interviews, case summaries, and notes, prepared by a mediator shall be confidential and not subject to disclosure in any subsequent judicial or administrative proceeding involving any of the parties to any mediation in which the materials are generated; nor shall a mediator be compelled to disclose in any subsequent judicial or administrative proceeding any communication made between him or her and any participant in the mediation process in the course of, or relating to the subject matter of, any mediation.

Me. R. Ev. 514(d).  In other words, a mediator will be protected from being compelled to disclose basically any documents prepared by the mediator, or any communications involving the mediator, even if those communications do not fall within the definition of “confidential communications.”  The broader scope of the mediator’s privilege was intentional, and was based on the advisory committee’s conclusion that the “individual mediator and the mediation profession have an interest in maintaining their neutrality that transcends any particular dispute.”  Me. R. Ev. 514 adv. comm. notes (2008).  “The mediator’s privilege includes not only those communications made in private caucus but also those made with others present and all other communications.”  Id.

There are a number of exceptions to the rule.  For instance, the rule does not encompass information about “administrative aspects of the mediation. This includes, for example, whether the mediation has occurred or has terminated, whether a settlement was reached, and attendance by the parties,” because that type of information does not qualify as a “confidential communication” at all.  Me. R. Ev. 514 adv. comm. notes (2008).  The rule lists several other specific instances where the privilege will not apply, including:  for evidence in the form of a written agreement related to the mediation itself; if the statements were made in furtherance of a crime or fraud or to inflict harm; in disputes about alleged mediator, party or counsel misconduct; for communications impacting the welfare of a child; or where disclosure is necessary to avoid manifest injustice.

As the advisory committee notes also explain, the rule is only intended to apply to situations where the mediator is truly a neutral mediator, and does not apply to any communications made during judicial settlement conferences. 

The privilege only applies to mediation proceedings conducted by a neutral mediator. Thus, when a party’s lawyer, a guardian ad litem, or other person with a particular point of view to represent attempts to function as “mediator” in settlement or other discussions, the privilege is not applicable. The privilege also does not apply to conferences with “settlement judges” or other judicial officials who may be acting in a mediative capacity because of the importance of transparency of public justice institutions.

Me. R. Ev. 514 adv. comm. notes (2008). 

Although the rule does not specifically address waiver, the advisory committee notes make clear that under existing Rule 510, the protections of Rule 514 can be waived in the same manner as other privileges.

New Federal Rule of Evidence 502 Addressing Waiver of Privilege

On September 8, 2008, the U.S. House of Representatives passed a bill entitled “A bill to amend the Federal Rules of Evidence to address the waiver of the attorney-client privilege and the work product doctrine,” S. 2450, which previously had passed in the Senate in February 2008.

The bill, if signed by the president, will create a new Rule 502 of the Federal Rules of Evidence designed to limit the waiver of the attorney-client privilege through the inadvertent production of privileged materials in discovery.  The new rule will provide, in part:

When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

The rule also attempts to address the interplay between federal state proceedings, to eliminate the odds of having different waiver results occur depending on whether a proceeding is in federal or state court within the same jurisdiction.  As cited above, the rule expressly provides that – if the the inadvertent disclosure was made to a federal office or agency, and the specified criteria are met, then the disclosure will not operate as a waiver either in a federal or state proceeding.  The new rule also contains language providing that if “the disclosure is made in a State proceeding and is not the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure:  (1) would not be a waiver under this rule if it had been made in a Federal proceeding; or (2) is not a waiver under the law of the State where the disclosure occurred.”

The new rule is intended to “apply in all proceedings commenced after the date of enactment of this Act and, insofar as is just and practicable, in all proceedings pending on such date of enactment.”  Thus, potentially, the new rule will impact pending litigation, as well as future lawsuits filed after the date of enactment.

The Senate report, Report 110-264, that accompanies the bill explains that the new rule is a response to the “costs of discovery [which] have increased dramatically in recent years as the proliferation of email and other forms of electronic record-keeping have multiplied the number of documents litigants must review to protect privileged material.”  As the report further explains,

though most documents produced during discovery have little value, lawyers must nevertheless conduct exhaustive reviews to prevent the inadvertent disclosure of privileged material.  In addition to the amount of resources litigants must dedicate to preserving privileged material, the fear of waiver also leads to extravagant claims of privilege, further undermining the purpose of the discovery process.  Consequently, the costs of privilege review are often wholly disproportionate to the overall cost of the case.

There's no doubt the costs of discovery can dwarf the amount at stake in many cases, if not properly controlled and limited as necessary.  We will have to see how effective this new rule is in curbing those costs.

Maine Court Rules Transcripts of Internet Chat Postings Admissible

In a recent decision, the Maine Supreme Judicial Court affirmed the trial court's ruling that paper transcriptions of on-line chat postings were admissible to prove the contents of the postings, without the need to present the actual postings themselves in electronic format.

In Maine v. Nicholas Webster, 2008 ME 119, -- A.2d --, the state prosecuted Webster for attempted gross sexual assault, as a result of a series of on-line communications he had with a woman pretending to be a 13 year old, acting undercover in cooperation with the South Portland Police.  At the heart of the case was evidence of the previous on-line communications between Webster and the woman.  The court didn't describe the precise form of the communications, other than to describe them as "on-line communications" that "took place in real time," presumably a form of instant messaging.  Id. at ¶ 2.

At trial, the court admitted hard copy transcripts of the messages into evidence, apparently in lieu of any electronic versions or evidence of the actual chat postings themselves.  On appeal, Webster argued, among other things, that the lower court erred in allowing evidence of the content of the messages to come in by way of the transcripts alone.

The Law Court did not set forth the exact scope of Webster's objections, but addressed only the authentication aspect of the transcript evidence.  As the court noted, at trial, the woman who corresponded under cover with Webster testified that the transcripts were "a true and accurate representation of the chat logs as they occurred on-line," and explained the method by which the instant messages had been stored prior to their transcription.  According to the Law Court, that testimony sufficiently authenticated the transcripts, and the conviction was affirmed.

Maine Rule of Evidence 503 Amended to Broaden Privilege

On July 7, 2008, the Maine Supreme Judicial Court adopted 2008 Me. Rules 10, amending the Maine Rules of Evidence effective as of August 1, 2008.  Among other things, the court amended Maine Rule of Evidence 503.

Rule 503 previously established a privilege for communications between a patient and a physician or psychotherapist.  As the advisory committee notes explain, the rule originally was drafted narrowly to limit the scope of the privilege to only those communications that occurred between patients and licensed physicians, psychologists and psychological examiners.  Other types of counselors and mental health professionals, who provide a wide range of counseling and treatment, were beyond the scope of the privilege.

Rule 503 has now been amended to expand the reach of the privilege to licensed physician's assistants, licensed nurse practitioners, licensed clinical social workers, licensed clinical professional counselors, licensed marriage and family therapists, and licensed pastoral counselors. 

According to the advisory committee, since Rule 503 was originally codified in 1975, the number and scope of mental health professionals has increased greatly, and in other jurisdictions the trend has been toward an equally increasing scope of comparable evidentiary privileges. 

The key factor in the revised rule is whether the mental health professional is licensed.  "Valid and complete licensure would be a prerequisite for the privilege."  Me. R. Ev. 503 adv. comm. notes (July 2008).  The expanded privilege does not apply to communications with unlicensed mental health professionals or other specialized types of counselors, like guidance counselors.  See id.