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BANK BRUSSELS LAMBERT v. CREDIT LYONNAIS

April 10, 2001

BANK BRUSSELS LAMBERT, ET AL., PLAINTIFFS,
V.
CREDIT LYONNAIS (SUISSE) S.A., ET AL., DEFENDANTS. THE CHASE MANHATTAN BANK, N.A., PLAINTIFF, V. CREDIT LYONNAIS (SUISSE) S.A., DEFENDANT.



The opinion of the court was delivered by: McKENNA, District Judge.

MEMORANDUM AND ORDER

1.

Defendant Credit Lyonnais (Suisse) S.A. ("Credit Lyonnais") moves for an order "barring any party from introducing as evidence at trial (i) any portion of an 18-page excerpt from an `edited, non-verbatim non-final' draft transcript of an interview conducted by Rogers & Wells of Kikka Harrison on January 18-20, 1994 (the "Disputed Excerpt") or (ii) any testimony of Ms. Harrison concerning the Disputed Excerpt." (Notice of Motion at 1-2.)*fn1 The motion is granted in part and denied in part, as follows.*fn2

2.

Ms. Harrison's statements during the Rogers & Wells interview are, by definition, not hearsay if offered by a plaintiff, since they are either "statement[s] by a person authorized by the party to make a statement concerning the subject," Fed.R.Evid. 801(d)(2)(C), or "statement[s] by the party's [i.e., Credit Lyonnais'] agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Id. 801(d)(2)(D). Ms. Harrison's statements might, obviously, be proved by the testimony of persons who heard her make the statements.

3.

Plaintiffs, however, seek to prove Ms. Harrison's statements through the introduction of the Disputed Excerpt. Most of the briefing on this motion is devoted to the question whether the Disputed Excerpt can be authenticated as representing the statements of Ms. Harrison.

The nature of the Disputed Excerpt must be considered. On the days in question two Rogers & Wells lawyers — Donald F. Luke and Kenneth L. Miller — interviewed Ms. Harrison in Geneva and tape recorded the interview.*fn3 Upon their return to the United States members of the Rogers & Wells secretarial staff transcribed the tapes made in Geneva. According to Mr. Luke, "Mr. Miller then reviewed, corrected, and edited the draft transcripts." (Luke Decl. ¶ 9.) The resulting document is described as follows in a privilege log served by Rogers & Wells: "Edited, non-verbatim transcript of tape-recorded interview of K. Harrison between 1-18-94 and 1-20-94, with documents organized by counsel attached to some copies (22344-67 and 11951-56 are excerpts)." (Harrison Aff. Ex. C at 51.) The Disputed Excerpt is a portion of the document so described. The tapes have been destroyed, and, as far as the Court has been informed, the Roger & Wells secretarial staff transcriptions are no longer available.

Ms. Harrison was not asked by Rogers & Wells to correct, at any stage of its preparation, the document from which the Disputed Excerpt is taken, and she states that "[i]t is impossible at this point in time to reconstruct what actually was said. It is clear to me that the Disputed Excerpt contains numerous errors and statements that can easily be taken out of context." (Harrison Aff. ¶ 13.)*fn4

Mr. Luke was deposed with respect to the Disputed Excerpt. (See LaSala Decl. Ex. B [Transcript of Luke deposition, Aug. 8, 2000].) He testified to, among other things, Mr. Miller's editing. He testified that

Mr. Miller had a written draft transcript, sort of first draft if you will, first rough copy in hard copy. He would look at that, listen to the tapes and try to fill in portions where there were — where it was inaudible to the operator, the person in the typing pool or where there were words that were heard by the typist incorrect.

(Id. at 40.) He also testified that

there were times when my asking Miss Harrison a question would get off to a rough start and we would go back and finally get the question right the way I wanted to articulate it and some of that lead in would be deleted because what we wanted was a transcript that was accurate and easily read for our notetaking ...

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