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June 25, 2001


The opinion of the court was delivered by: Haight, Senior District Judge:


Plaintiffs Nancy Cocconi, Susan Green, Marilyn Roberts, and Gloria Trujillo brought this action against the Pierre Hotel for gender-based discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a), Section 296 of the New York State Human Rights Law, and Section 8-107(a) of the New York City Human Rights Law. The case was tried before a jury from February 6 to February 15, 2001, and the jury returned a verdict in defendant's favor on all claims. Plaintiff Nancy Cocconi now moves the court to set aside the judgment and grant a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure on the ground that the jury received extraneous information that was highly prejudicial to plaintiff. For the reasons that follow, plaintiffs motion is denied.


At trial, plaintiffs endeavored to prove that the Pierre Hotel did not hire them as banquet servers because of their gender. In late summer of 1998, the Pierre Hotel interviewed 37 applicants, 30 men and 7 women, for six banquet waiter positions. From that group, six men were hired. Plaintiffs presented evidence at trial intended to show that the Pierre Hotel had hired very few women as banquet servers in the past, that plaintiffs were treated differently in their interviews and were evaluated by different standards than their male counterparts, and that plaintiffs had significantly more experience as banquet servers than the male applicants who received job offers. Defendant presented evidence purporting to show that plaintiffs were treated similarly to male applicants in their interviews, that the successful applicants presented themselves better than plaintiffs did in their interviews, and that the interviewer generally gave great weight to prior experience at the Pierre Hotel, even in positions other than banquet server. At the end of the trial, the jury returned a verdict for defendant.

Following the verdict, counsel for plaintiffs and counsel for defendant approached the jurors and talked with some of them. Juror Number 1 and Juror Number 6 told counsel for plaintiffs that Juror Number 9, characterized by counsel as a "corporate travel consultant," communicated her personal knowledge of the New York hotel industry to the jury. In particular, they said that Juror Number 9 told the jury that the hotels in which Cocconi had worked, including the Roosevelt Hotel, the Algonquin Hotel, and the Hilton Hotel, were not of the same quality as the Pierre Hotel. The jurors also discussed with counsel for plaintiffs their level of familiarity with the hotel industry and the extent of their reliance on the information communicated by Juror Number 9.*fn1

Counsel for plaintiff called these events to the Court's attention in a letter. Upon learning of counsels' conversations with jurors, the Court on February 28, 2001, ordered the parties to refrain from further contact with jurors without special permission from the Court. In its order, the Court withheld judgment as to whether any post-verdict relief would be warranted. Soon thereafter, plaintiff Cocconi filed this motion to set aside the verdict and grant a new trial on the grounds that extraneous, prejudicial information was communicated to the jury. Plaintiff's motion was filed within ten days of the entry of judgment, as required by Rule 59(c).


Courts have the responsibility to ensure that parties to litigation are afforded a fair trial, with a verdict based only on properly admitted evidence. See Bulger v. McClay, 575 F.2d 407, 408 (2d Cir. 1978) ("[O]ne of the precepts of our system is that the "conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print."'), quoting Patterson v. Colorado, 205 U.S. 454, 462 (1907) (Holmes, J.). Courts are ordinarily reluctant, however, to probe a jury's deliberative process to examine the basis for a jury's verdict. See Ohanian v. Avis Rent A Car System, Inc., 779 F.2d 101, 110 (2d Cir. 1985) (noting that courts should not "make what was intended to be a private deliberation, the constant subject of public investigation"), quoting McDonald v. Pless, 238 U.S. at 264, 267-68 (1915); United States v. Moon, 718 F.2d 1210, 1234 (2d Cir. 1983)("It hardly bears repeating that courts are, and should be, hesitant to haul jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences."); see also United States v. Shakur, 723 F. Supp. 925, 935-36 (S.D.N.Y. 1988) (Haight, J.), aff'd, 888 F.2d 234, 237 (2d Cir. 1989).

Rule 606(b) of the Federal Rules of Evidence strikes a balance between the responsibility to ensure a fair trial and the policy against interference with jury deliberations. A court may consider testimony from trial jurors "on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." Fed. R. Evid. 606(b). Furthermore, if a court is aware of clear evidence that the jury was exposed to extraneous prejudicial information, the court can authorize limited investigations or hearings to confirm exactly what information was communicated to the jury so that it may determine whether a new trial is warranted. Moon, 718 F.2d at 1234 ("[A] trial court is required to hold a post-trial jury hearing only when. . . . there is clear, strong, substantial and incontrovertible evidence, that a specific non-speculative impropriety has occurred which could have prejudiced the trial of a defendant.")(citations omitted). On the other hand, trial jurors may not testify as to "the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict . . . or concerning the juror's mental processes in connection therewith," nor may evidence from any other sources on that point be considered. Fed. R. Evid. 606(b). If it is shown that extraneous information was brought to jurors' attention, the court assesses the prejudicial impact of the information by an objective standard. Bibbins v. Dalsheim, 21 F.3d 13, 17 (2d Cir. 1994)("Where an extraneous influence is shown, the court must apply an objective test, assessing for itself the likelihood that the influence would affect a typical juror.") (citation and internal quotation marks omitted); see also United States v. Greer, 223 F.3d 41, 55 (2d Cir. 2000)(finding that extrinsic information would not have influenced "hypothetical average juror").

Therefore, I will consider evidence submitted by plaintiff regarding information communicated by Juror Number 9 to the jury, but I will not consider evidence submitted by plaintiff regarding the effect of that information on the mental processes of other jurors. See Bibbins, 21 F.3d at 18 ("Petitioner argues that a finding of no actual prejudice is incompatible with Mr. Urban's affidavit, which expressly states that he was swayed by the introduction of extraneous information. This argument is necessarily grounded in state evidentiary rules, as the Federal Rules of Evidence preclude consideration of a juror's mental processes."). Plaintiff necessarily presents hearsay evidence, the affidavit of counsel, because the Court did not give her permission to contact the jurors again to obtain affidavits. Since I find that the extraneous information that plaintiff alleges reached the jury was not prejudicial, there is no need to hold a hearing or otherwise obtain direct testimony from jurors to confirm plaintiffs allegations.

The determination whether to grant a new trial because of the jury's exposure to extraneous information depends not on "the mere fact of infiltration of some molecules of extra record matter. . . but the nature of what has been infiltrated and the probability of prejudice." United States ex rel. Owen v. McMann, 435 F.2d 813, 818 (2d Cir. 1970); see also Bibbins, 21 F.3d at 17; Greer, 223 F.3d at 55*fn2 The assessment of prejudice is highly dependent on the particular facts of the trial at issue, but decisions in prior cases offer some guidance. See Moon, 718 F.2d at 1234 ("Although the circumstances in the decided cases are instructive, each situation in this area is sui generis.").

The opinion in Owen v. McMann, written by Judge Friendly, is frequently cited on the subject of extraneous information in the jury room. In that case, several jurors were familiar with the reputation of one of the defendants and shared their knowledge with the other members of the jury. The court summarized the extraneous information communicated to the jury as follows:

In substance, the jurors or some of them were told by other jurors during the trial and the deliberations: that the defendant had been in trouble all his life; that he had been suspended from the police force in connection with the unauthorized use of a prowl car; that he had been involved in a fight in a tavern; that one of the juror's husband was an investigator and that he knew all about plaintiffs background and character, which was bad; and that petitioner's father was always getting him out of trouble.

435 F.2d at 815. The court noted that while the modern juror must reach a verdict based on evidence presented at trial, the traditional role of the juror as the voice of the community still has some validity, and due process would not be violated just because "jurors with open minds were influenced to some degree by community knowledge that a defendant was 'wicked' or the ...

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