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WESTMORELAND v. CBS INC.

December 12, 1984

GENERAL WILLIAM C. WESTMORELAND, Plaintiff, against CBS INC., et al., Defendants.


The opinion of the court was delivered by: LEVAL

OPINION AND ORDER

PIERRE N. LEVAL, U.S.D.J.:

 CBS objects on numerous grounds to the receipt in evidence of the Benjamin Report. The motion is granted for reasons explained below -- in particular that the Report is largely irrelevant to the issues before the jury and consists in great part of opinion and hearsay of varying degrees of remoteness. Various facts asserted by the Report may nonetheless be received.

 The history of the Report in brief is as follows: CBS broadcast its documentary -- The Uncounted Enemy: A Vietnam Deception -- on January 23, 1982. Three days later General Westmoreland held a new conference challenging the broadcast, and in May 1982, TV Guide carried a cover article criticizing it.

 Thereupon Van Gordon Sauter, President of CBS News, asked Burton Benjamin, a Senior Executive Producer of CBS News, to undertake a study of the preparation of the broadcast in the light of the criticisms leveled by the Westmoreland press conference and the TV Guide article. Benjamin delivered his report in writing on July 8, 1982. Sauter shortly thereafter on July 15, 1982 issued a public statement summarizing briefly the contents of the Benjamin Report and stating that CBS stood by its broadcast.

 Plaintiff initially stated that the entire report would be offered in evidence. CBS responded with a lengthy memorandum setting forth numerous objections, including the argument that the Report contained many instances of double and triple hearsay and inadmissible repetitions of charges from the TV Guide article.

 Plaintiff's counsel then deleted certain hearsay portions of the Report from his offer.Also, where the Report quoted charges from the TV Guide article, plaintiff reworded the Report to eliminate reference to TV Guide and to put the issue rather in terms of questions: Whether CBS had done so-and-so in the preparation of the broadcast. The retyped and amended version of the Report offered by plaintiff runs 64 pages after deletions.

 1. Report Not Excluded as a Subsequent Remedial Measure Under Rule 407.

 CBS contends that receipt of the Report is barred by Rule 407, Fed.R.Evid. and judge-made doctrine to the effect that subsequent remedial measures may not be received as an admission of prior culpable conduct. The doctrine, however, does not go as far as CBS would push it. The fact that subsequent remedial measures are excluded as admissions of fault does not mean that competent evidence resulting from an internal investigation of a mishap must also be excluded. CBS argues: (1) honest self-examination and self-policing should be encouraged; (2) a rule permitting the discovery and the use in evidence of reports of such self-investigations will discourage potential defendants from doing it; therefore, (3) the rule of law should exclude such evidence. The logic of the argument parallels that which underlies Rule 407. See Advisory Committee Note.

 The fault of the argument is not in its logic but in that it goes too far and fails to credit the social value of making available for trial what is often the best source of information. CBS" argument really goes beyond the issue of the admissibility of the investigative report; its logic addresses as well the admissibility of the facts uncovered by the investigation. If the internal investigator uncovered the "smoking gun," it is often a cosmetic matter whether this evidence is received as a part of the investigative report or in some other manner.The question of social policy raised by CBS is whether in order to encourage such investigations, their fruits should be shielded from use by adverse claimants. There is, however, no such doctrine either as to the internal investigative report or as to facts revealed by it. In industrial and railroad accident litigation, for example, it is commonplace that such reports, or at least the facts revealed by them, are used by the injured to establish the liability of the company that conducted the investigation in spite of CBS" arguments. Wright v. Farmers Coop of Arkansas & Oklahoma, 681 F.2d 549 (8th Cir. 1982); Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980); United States v. Lykes, 432 F.2d 1076 (5th Cir. 1970); Southern Ry. Co. v. Lanham, 403 F.2d 119 (5th Cir. 1968); Pekelis v. Transcontinental & Western Air, Inc., 187 F.2d 122, 128-129 (2d Cir.), cert. denied, 341 U.S. 951, 95 L. Ed. 1374, 71 S. Ct. 1020 (1951); see also Gillman v. United States, 53 F.R.D. 316 (S.D.N.Y. 1971). To establish a rule forbidding such use would deprive injured claimants of one of the best and most accurate sources of evidence and information. *fn1"

 CBS relies further on certain special rules formulated by courts, such as the rule shielding the findings of special hospital inquiry boards. See Gilman, supra at 319 (Report shielded but not statements revealed in course of investigation); Bredice v. Doctors Hospital, 50 F.R.D. 249 (D.D.C. 1970). It is sufficient answer that these authorities state exceptions to the general rule and not the rule itself.

 2. Report not Excluded in its Entirety as Hearsay Statement of Benjamin.

 Although, as defendants argue, out-of-court statements offered to prove the truth of what is asserted in them are generally barred as hearsay (absent a prevailing exception), I agree with plaintiff that his offer of Benjamin's statement against CBS is not heresay since the statement is "offered against a party [CBS] and is . . . a statement by [its] agent [Benjamin] concerning a matter within the scope of his employment. . . ." Rule ...


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