United States District Court, Southern District of New York
April 10, 2001
BANK BRUSSELS LAMBERT, ET AL., PLAINTIFFS,
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
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
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.
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
purposes and that, I guess, would be included in the
reviewing, correcting and editing.
(Id. at 41.) Corrections were made in instances where the English was not
exactly correct. (Id. at 90-91.)
Mr. Luke was questioned as to particular portions of the Disputed
Excerpt. As to a number of those portions his recollection did not extend
to the specific words of the questions and answers. (See id. at 55, 60,
61-62, 63, 87.) Overall, Mr. Luke characterized the Disputed Excerpt as
"not verbatim, but it is 100 percent accurate. . . . The essence of it,
the gist of it, the flow of it, the relation of this subject was
discussed before that subject, that's all absolutely as it happened."
(Id. at 88-89.)
In light of the editing process as described by Mr. Luke and the
instances in which he was unable to state that the Disputed Excerpt
what was said, the Disputed Excerpt cannot be regarded as a transcript of
that portion of the Rogers & Wells interview of Ms. Harrison that is
reflected in the Disputed Excerpt. The situation is thus different from
that in United States v. Maxwell, 383 F.2d 437, 441-43 (2d Cir. 1967),
where there was testimony that a transcript "accurately represented" a
recording. 383 F.2d at 442.*fn5
The Second Circuit has held that "a `third party's characterization' of
a witness's statement does not constitute a prior statement of that
witness unless the witness has subscribed to that characterization."
United States v. Almonte, 956 F.2d 27, 29 (2d Cir. 1992) (per curiam)
(quoting United States v. Leonardi, 623 F.2d 746, 757 (2d Cir.), cert.
denied, 447 U.S. 928, 100 S.Ct. 3027, 65 L.Ed.2d 1123 (1980)). See also
United States v. Schoenborn, 4 F.3d 1424, 1427 (7th Cir. 1993).
In both Almonte and Leonardi, the prior statement of the witness was
sought to be introduced as a prior inconsistent statement to impeach the
witness. Almonte, 956 F.2d at 29; Leonardi, 623 F.2d at 756. In
Schoenborn, the prior statement of the witness was sought to be
introduced under Fed.R.Evid. 803(5) (recorded recollection). 4 F.3d at
Plaintiffs argue that Leonardi (and, by implication, Almonte) are not
relevant because Leonardi "concerned the use of prior inconsistent
statements under Fed. R.Evid. 801(d)(1)(A), which does require the former
statement to have been made under oath." (Bank Brussels Lambert ("Bank
Brussels"), et al., Mem. at 22 n. 26.) However, in neither Almonte nor
Leonardi was the evidence offered a "statement . . . given under oath
subject to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition." Fed.R.Evid. 801(d)(1)(A). In Almonte, the
document in question consisted of notes by an Assistant United States
Attorney of a debriefing of a Drug Enforcement Administration agent, see
956 F.2d at 28-29, and in Leonardi the evidence offered was a memorandum
of an interview prepared by a Federal Bureau of Investigation ("FBI")
agent. See 623 F.2d at 756. In Schoenborn, also, the evidence in question
was a report by an FBI agent. See 4 F.3d at 1426.
What is significant here, in the first place, is the discussion in
Almonte, based on Fed.R.Evid. 901(a) and 104(b), of the requirements for
admission of the document at issue in that case. The court said, first,
that "[t]he burden of proving that notes reflect the witness's own words
rather than the note-taker's characterization falls on the party seeking
to introduce the notes." 956 F.2d at 29 (citing Fed.R.Evid. 901(a),
104(b)). Then the court, after quoting id. 104(b), went on to say that "a
judge may disallow the introduction of conditionally relevant evidence
unless its proponent presents evidence sufficient to support a finding
that the condition — for our purposes, the identification of a
third party's notes as a verbatim transcript of a witness's prior
statement — is fulfilled." Almonte, 956 F.2d at 30.
In the present case, plaintiffs have not sustained the burden of
evidence sufficient to support a finding that the Disputed Excerpt is a
verbatim transcript of Ms. Harrison's statements. Mr. Luke's testimony
makes that clear. The Disputed Excerpt has not been authenticated as
representing the statements of Ms. Harrison, and cannot be admitted on
Plaintiffs also argue that the Disputed Excerpt should be admitted as
"other evidence of the contents of a . . . recording . . . [a]ll
originals [of which] have been destroyed." Fed.R.Evid. 1004(1).*fn6 This
argument, however, adds nothing to plaintiffs' position because, for
reasons already discussed, the Disputed Excerpt no more demonstrates what
is said by Ms. Harrison on the lost tape than it demonstrates what Ms.
Harrison said at the interview. Cases like United States v. Gerhart,
538 F.2d 807 (8th Cir. 1976) (see Bank Brussels, et al. Mem. at 14), do
not suggest a contrary view. In Gerhart, the issue was the admissibility
of a photocopy of a photocopy of a check over a best evidence objection,
and the court noted that "the Government was merely required to
demonstrate preliminarily, to the satisfaction of the court, that the
original photocopy was lost, that the proffered photocopy was what it
purported to be and that it accurately represented the contents of the
original photocopy." 538 F.2d at 809-10. Here, plaintiffs have not shown
that the Disputed Excerpt is a transcript of Ms. Harrison's statements
nor that it accurately represents the contents of the transcript as far
as what Ms. Harrison said.
Plaintiffs also argue that the Disputed Excerpt is a non-hearsay
vicarious admission as "a statement by [a Rogers & Wells lawyer as]
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).
It is, of course, true, that "[s]tatements made by an attorney
concerning a matter within his employment may be admissible against the
party retaining the attorney." United States v. Margiotta, 662 F.2d 131,
142 (2d Cir. 1981), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77
L.Ed.2d 282 (1983) (citing Fed.R.Evid. 801(d)). Here, however, plaintiffs
are not seeking to introduce the statements of the Rogers & Wells
attorneys. The attorneys' statements during the portion of the interview
reflected in the Disputed Excerpt are "not offered `to prove the truth of
the matter asserted.' Fed.R.Evid. 801(c). Rather, they are offered to
make Harrison's statements intelligible to the jury and recognizable as
admissions." (Chase Manhattan Bank, N.A. ("Chase") Mem. at 7 n. 5.)
Plaintiffs seek to introduce what the Disputed Excerpt says Ms. Harrison
said. Those portions of the Disputed Excerpt, however, are not
"statement[s]" i.e., "assertion[s]," Fed.R.Evid. 801(a), of Mr. Luke or
Mr. Miller, and so do not come within Rule 801(d)(2)(D).*fn7
Plaintiffs also argue that the Disputed Excerpt is admissible under
Fed.R.Evid. 803(5) (recorded recollection).
Under Rule 803(5), "[a]dmissibility should be determined question by
question rather than by viewing the witness's testimony as a whole." 5
Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence
§ 803.10 at 803-49 (2d ed. 2000). For any portion of the Disputed
Excerpt to be admitted, the witness would have to show "(1) that his
memory of the events detailed in [it] is sufficiently impaired; (2) that
he checked [it] when the events were fresh in his memory; (3) that at the
time he checked [it], he knew that [it] correctly reflected his knowledge
of the events." Fincher v. County of Westchester, 979 F. Supp. 989, 1005
(S.D.N.Y. 1997). Here, the "events," id., in question are what Ms.
Harrison actually said.
Mr. Luke's deposition leaves the Court in substantial doubt whether
portions of the Disputed Excerpt can be admitted under Rule 803(5) through
him. Nevertheless, that does not mean that plaintiffs cannot make an
attempt (outside of the hearing of the jury in the first instance) to
show that one or more portions of the Disputed Excerpt can be admitted
pursuant to Fed.R.Evid. 803(5).
Even if the Disputed Excerpt were, as a matter of evidence law,
admissible, the Court would exclude it pursuant to Fed.R.Evid. 403,
except such portions as qualify for admission under Rule 803(5).
Extensive briefing on substantive issues has made it quite clear that, to
the extent anything that Ms. Harrison said during that portion of the
interview that is reflected in the Disputed Excerpt is relevant, it is
exactly what she said that is relevant. The Disputed Excerpt, for reasons
already discussed, is not trustworthy evidence of exactly what she said.
Thus, the Disputed Excerpt's "probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, [and]
misleading the jury." Fed.R.Evid. 403.
Credit Lyonnais' motion also seeks exclusion of testimony of Ms.
Harrison concerning the Disputed Excerpt. The parties have not
meaningfully briefed this issue, to the extent it is an issue separate
from that of the admissibility of the Disputed Excerpt. The issue, if
there is one, will be addressed at trial.