Judge Refuses To Reopen Discovery

In Lufthansa Cargo AG v. Total Airport Services, 12 CV 4869 (E.D.N.Y. Oct. 24, 2014), Magistrate Judge Roanne L. Mann granted defendant’s motion for reconsideration to the extent of deferring decision on the admissibility of evidence and denied reconsideration of the motion to reopen discovery. Magistrate Judge Mann had denied defendant’s motion to reopen fact discovery after defendant had fortuitously discovered new evidence during a court-ordered inspection of an aircraft outside the bounds of the authorized inspection and five months after the close of discovery.

Defendant argued that it should be allowed to reopen discovery because plaintiffs’ Rule 30(b)(6) witness, Dieter Hammer, had testified that Lufthansa did not fly with repaired aircraft, but admitted that he was not knowledgeable about structural damage or related repairs. A subsequent 30(b)(6) witness, Andreas Grubert, gave testimony that appeared to contradict Hammer. The newly discovered evidence indicated that Lufthansa may indeed have flown aircraft following structural repairs.

Magistrate Judge Mann refused to reopen discovery because defendant had not been diligent in pursuing additional information from plaintiffs following the contradictory testimony given by Hammer and Grubert. A court-ordered scheduling order may be modified under Federal Rule of Civil Procedure 16(b)(4) only for “good cause,” and “good cause depends on the diligence of the moving party.” Slip op. 6. Here, defendant did not seek documents and answers to interrogatories concerning other repairs for structural damage to plaintiffs’ fleet of aircraft before discovery closed, thus a fortuitous finding during a post-discovery inspection did not demonstrate adequate diligence to convince the court to reopen discovery long after it ended.

Concerning the admissibility of the fortuitous evidence gathered during the inspection of the aircraft, the court concluded:

that the balancing of the probative value of such evidence as against any prejudice resulting from its admission is more appropriately deferred until the time of trial; the presiding judge will then be in a position to consider the testimony already adduced at trial in assessing the admissibility of the proof in question.

Slip op. 10.

Defendant Gets New Trial When Someone Tries to Bribe a Juror to Find in His Favor

On October 8, 2014, the Second Circuit issued a decision in United States v. Morrison, 13-4737-CR, affirming the grant of a new trial to a defendant where an unknown person had attempted to bribe a juror to find for the defendant.

In Morrison, the defendant was convicted by a jury in the EDNY of illegal possession of a firearm as a convicted felon. After the trial,

the government learned that, during the jury’s deliberations, an unidentified individual had attempted to bribe the jury foreperson . . to induce him to return a verdict favorable to the defendant, and he had failed to disclose the attempt. The government opened a grand jury investigation, and . . . informed the district court and the defendant of the incident. [The defendant] moved to vacate his conviction. After three days of evidentiary hearings . . . the district court found that the government had not successfully rebutted the presumption of prejudice that applies when a juror is exposed to extrajudicial influence,

and granted the defendant a new trial. (Internal citations omitted). The Second Circuit affirmed, explaining:

Guided by the standards outlined in Remmer[ v. United States, 350 U.S. 377 (1956)], it expressly acknowledged that its task was to determine whether the government had rebutted the presumption of prejudice by coming forward with information that the extraneous influence was harmless. In making that determination, the court was required to apply an objective test, assessing for itself the likelihood that the influence would affect a typical juror. It found that [the juror] was, like the juror in Remmer, a disturbed and troubled man from the date of the contact until after the trial, as a result of the bribe attempt and because of his fear of significant sanction should his abhorrent conduct later be uncovered. The court further concluded that the typical or hypothetical juror would react just that way. As a result, the district court held that the contact had not been harmless in this case.

(Internal quotations and citations omitted). The logic of the Remmer rule is clear, but it nonetheless seems odd that the as a consequence of someone trying to bribe a juror to acquit the defendant, the defendant gets a new trial.