explaining that “[t]he controlling rule . . . is that a trial judge has discretion to decide the form and substance of verdict-form interrogatories so long as they cover all material factual issues” and reviewing for abuse of discretion
How later courts described this case
- explaining that “[t]he controlling rule . . . is that a trial judge has discretion to decide the form and substance of verdict-form interrogatories so long as they cover all material factual issues” and reviewing for abuse of discretion
Written by the judges who cited it.
The opinion
FARRELL, Senior Judge,
concurring:
I join Judge Thompson’s excellent opinion for the court, and in particular I agree that where a Rule 59 movant alleges a discovery violation that materially impaired presentation of her case, it makes sense to look to the proof standards of Rule 60(b)(3) instead of requiring her to meet the ultimate test — ie., clear likelihood of a different outcome — for prevailing on a claim of newly discovered evidence. But see Columbia Commc’ns Corp. v. EchoStar Satellite Corp., 2 Fed.Appx. 360 (4th Cir.2001) (rejecting as without textual support a borrowing of Rule 60(b)(3)’s standards for analyzing discovery misconduct claims under Rule 59).
I write only to point out that the devil may be in the details of deciding what discovery “misconduct,” Rule 60(b)(3), justifies relieving a movant of this normal, and critical, proof requirement for a claim of newly discovered evidence. Is even an accidental, inadvertent (but avoidable) failure to produce a document in discovery “misconduct” under the rule? Similarly, is a good faith but mistaken belief that a privilege justifies withholding the document “misconduct”? Or rather, because “misconduct” is textually paired with “fraud” and “misrepresentation” by Rule 60(b)(3), is a greater showing of fault than inadvertent nondisclosure required (considering that a word is generally known by the company it keeps) before Rule 60(b)(3) may be invoked? 1 And, if not — if, as some *148 federal courts have held, even accidental (“innocent”) discovery misconduct may justify relief under Rule 60(b)(3) — whence comes the standard all these courts have applied of requiring proof by clear and convincing evidence of the misconduct? (We know, of course, that “fraud” generally requires proof by that standard, but inadvertent “misconduct” does not approximate fraud.) 2 See generally 12 Moore’s FedeRal Practioe § 60.43[4][b] at 60-148 (3d ed. 2010) (noting the “elaborate set of rules for the burden of proof on a Rule 60(b)(3) motion based on misconduct” created by the court in Anderson, supra note 2, in turn linked to the court’s holding that “even accidental [discovery] omissions” are “misconduct”). 3
I quite understand why the court does not take up these questions now, but they may well need to occupy the trial court on remand and this court down the road.
. In Summers v. Howard Univ., 374 F.3d 1188 (D.C.Cir.2004), after noting that "several circuits have held [that] failure to disclose or produce materials requested in discovery can *148 constitute ‘misconduct’ within the purview of Rule 60(b)(3),” the Circuit Court pointed out that the plaintiffs' failure to supplement their responses to an interrogatory by notifying the defense of the filing of related litigation ("Summers II”) took the form of ''engaging] in repealed, affirmative efforts to keep the filing of Summers II a secret from Howard,” id. at 1193 — actions the court had no difficulty characterizing as "misconduct.”
. And likewise, whence comes the rule, see Anderson v. Cryovac, Inc., 862 F.2d 910, 924-26 (1st Cir.1988), that prejudice is "presumed” when the misconduct has been intentional, but not otherwise?
. Moore, § 60.43[l][a], at 60-139.