holding that to obtain relief from judgment under Rule 60(b)(2), the movant “must show the evidence (1) existed at the time of the trial, (2) could not have been discovered through due diligence, and (3) was ‘of such magnitude that production of it earlier would have been likely to change the disposition of the case’” (quoting Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th Cir. 1987))
How later courts described this case
- holding that to obtain relief from judgment under Rule 60(b)(2), the movant “must show the evidence (1) existed at the time of the trial, (2) could not have been discovered through due diligence, and (3) was ‘of such magnitude that production of it earlier would have been likely to change the disposition of the case’” (quoting Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th Cir. 1987))
- stating that a party may prevail on a Rule 60 motion by showing, inter alia, that the nonmoving party “knew, or was charged with knowledge, of the missing document, and had constructive (if not actual) possession of it”
- holding that the district court properly admitted challenged testimony over the objection that the testimony was supposedly “untrue” since the objection “goes to the weight of the testimony, not its admissibility”
- noting that relief under Rule 60(b)(2) is warranted if a movant presents newly discovered evidence that is “of such magnitude that production of it earlier would have been likely to change the disposition of the case.”
Written by the judges who cited it.
The opinion
EDWARD C. REED, Jr., Chief District Judge,
dissenting:
I respectfully dissent. A full jury trial has been conducted in this case. After what were presumably careful deliberations, the jury returned a finding of “no defect” in the Curb 20. To challenge this verdict, and request a new trial, plaintiff should be required to make some showing beyond mere rhetoric. I agree with the majority that under Rule 60(b)(3), and hence Rule 59, the plaintiff must (1) prove by clear and convincing evidence that the verdict was obtained through fraud, misrepresentation, or other misconduct, and (2) establish that the misconduct prevented the plaintiff from fully and fairly presenting her case. However, I am not convinced that plaintiff has demonstrated the ability to do either.
I. Clear and Convincing Evidence of Misconduct
Plaintiff must establish misconduct by clear and convincing evidence. To be entitled to a hearing on the issue, plaintiff must at least make some preliminary showing, which, if believed, would show her ability to demonstrate misconduct.
Plaintiff does not appear to have made such a showing with respect to defendant’s failure to produce Smith’s letters. Despite the majority’s reading of Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir.1988), as defining misrepresentation (and hence misconduct) very broadly, misrepresentation still retains at least some requirement of fault. Indeed, the Anderson court apparently considered only those discovery responses “so ineptly researched or lacka- *881 daisieal” as qualifying as misrepresentations. Id. at 923 .
Plaintiff has not demonstrated the ability to prove by clear and convincing evidence that defendant had Smith’s letters in its possession. Plaintiff resorts to an inference that those who write letters normally keep copies. This may often be true. However, Smith, who wrote the letter, has since left the company. Even if he originally had a copy, one can only speculate that it was retained. The inference is thus weakened. As it hardly seems that plaintiff can prove even possession of the letters by clear and convincing evidence, plaintiff cannot prove, under the same standard, that failing to produce the letters upon discovery request was misconduct.
However, interrogatories 11 and 46 also asked defendant to describe all efforts to prevent accidental discharge of the Curb 20 and all documents relating to the design of the Curb 20. The case here is closer, for perhaps defendant should be charged with knowledge of these letters, even if it did not possess them. Plaintiff has not demonstrated that it can prove by clear and convincing evidence that defendant knew of these letters yet failed to describe them. Plaintiff only points to defendant’s failure to call Smith as evidence that defendant knew of the letters and was trying to hide them. Again, plaintiff relies on a very weak inference — far from clear and convincing evidence.
It might perhaps be inferred in certain circumstances that defendant should have known of these letters. However plaintiff cannot prove that defendant even had the letters. Furthermore, Smith, the author, the only employee plaintiff can show knew of the letters, had left the company. Plaintiff has not demonstrated an ability to show by clear and convincing evidence that defendant should have known about the letters. In fact, plaintiff offers no real evidence that defendant did know, or should have known, other than cavalier assertions that defendant attempted to hide the letters.
Therefore, since plaintiff does not appear able to demonstrate any misconduct, even merely ineptly researched or lackadaisical discovery responses, by clear and convincing evidence, the district court did not abuse its discretion in failing to hold a hearing after a request based merely on such unsupported allegations.
II. Substantial Interference with Ability of Plaintiff to Fully and Fairly Present Her Case
As the majority recognizes, substantial interference may be demonstrated by showing either “the material’s likely worth as trial evidence or by elucidating its value as a tool for. obtaining meaningful discovery.” Anderson, 862 F.2d at 926 .
A. Likely Worth as Trial Evidence
Even if misconduct occurred, plaintiff does not deserve a new trial merely to get the opportunity to present cumulative evidence. As the court in Anderson , described it,
[Cjoncealed evidence may turn out to be cumulative, insignificant, or of marginal relevance. If that be the case, retrial would needlessly squander judicial resources. The solution, we believe, is that before retrial is mandated under Rule 60(b)(3) in consequence of discovery misconduct, the challenged behavior must substantially have interferred with the aggrieved party’s ability fully and fairly to prepare for and proceed at trial. 862 F.2d at 924 (emphasis in original).
Here, the district court, after observing the entire trial, concluded that the letters were of de minimis value, and merely corroborated plaintiff’s expert. Thus their “likely worth as trial evidence” has already been found to be minimal. This ruling hardly seems to be one that this Court is in a position to conclude is an abuse of discretion. In fact, despite the majority’s disagreement with the district court on this issue, the majority does not really claim that it knows better than the trial judge how helpful the letters would have been in the trial as it occurred.
B. Value as Discovery Tool
Instead, the majority apparently believes that the letters’ value would have been as a *882 “tool for discovery” and would have affected plaintiffs preparation and changed the theory of defect that plaintiff argued. It is hard to see how. I agree with the majority: the letters show knowledge by defendant “of a potential design problem.” Yet that is too general. If the letters had described fading paint on the unit, that too would be a design problem. However, the design problem must be relevant to a new theory of liability in this case. The precise problem that the letters describe is that the unit fired too easily in the “fire” position.
On the one hand, plaintiff in fact claims she already argued this theory. Thus, according to plaintiff, this evidence does not open up any new theory.
Yet, on other hand, it is hard to see how this “defect” would be relevant to any theory of liability in this case. The majority has not offered any examples of such a theory. Indeed, defendant readily admitted that the unit would fire in the “fire” position. Thus, it is hard to see how plaintiff would have been assisted by these letters — they were not relevant to any possible theory of liability.
The letters had little value as trial evidence or as a tool for discovery. Even if plaintiff was denied them as a result of misconduct, their absence did not substantially interfere with plaintiffs ability to fully and fairly prepare for and proceed at trial.
I conclude, therefore, that plaintiff has not demonstrated the ability to show misconduct by clear and convincing evidence. Furthermore, since plaintiff cannot establish that its ability to fully and fairly present its case was hampered, I see no reason to require the district court to hold a hearing on misconduct. Therefore, I would affirm the district court's ruling.