Sioux Falls Kenworth, Inc. et al v. Isuzu Commercial Truck of America, Inc.
Opinion and Order granting in part 140 Motion to Contact Jurors. Signed by U.S. District Judge Roberto A. Lange on 12/15/2016. (JLS)
UNITED STATES DISTRICT COURT
"K 1 5 2016
DISTRICT OF SOUTH DAKOTA
SIOUX FALLS KENWORTH, INC., d/b/a
ISUZU TRUCKS OF SIOUX FALLS,
OPINION AND ORDER GRANTING IN
PART MOTION TO CONTACT JURORS
This Court previously entered an Opinion and Order on Motion to Contaet Jurors, Doc.
141, and repeats much of that ruling here in granting in part that motion. The jury in this ease
returned a verdict for Plaintiff Sioux Falls Kenworth, Inc. (Sioux Falls Kenworth) and against
Defendant Isuzu Commercial Truck of America, Inc. (Isuzu) on one count of violation of SDCL
§ 32-6B-45 and awarded damages of $1,600,000.00 on that count. The jury also returned a
verdict for Sioux Falls Kenworth and against Isuzu on one count of breach of an implied
covenant of good faith and fair dealing and awarded damages of $76,000.00 for certain unpaid
warranty work done by Sioux Falls Kenworth on Isuzu trucks. The jury found in favor of Isuzu
on one count of breach of contract involving termination of a franchise agreement and on a
question of whether Isuzu violated South Dakota law by failing to pay Sioux Falls Kenworth a
58% markup on parts used in warranty repairs. Doc. 135. Isuzu has moved under Local Rule
47.2 for perrnission to contact the jurors in this ease. Doc. 140. In a prior Opinion and Order on
that motion, Doc. 141, this Court deferred ruling pending submission of a list of proposed
questions. Isuzu then filed such a list of questions. Doc. 143.
Civil Local Rule 47.2, entitled "RESTRICTION ON INTERVIEWING JURORS,"
states:"No one may eontaet any juror before or during the juror's service on a case. The parties,
their lawyers and anybody acting on their behalf must seek and obtain permission from the
district judge who tned the ease before contaeting a juror after the juror served on the case."
D.S.D. Civ. LR 47.2. District courts have wide diseretion when deciding whether to allow
litigants to eontaet jurors after trial. United States v. Booker. 334 F.3d 406, 416 (5th Cir. 2003);
MeCabe v. Macaulav. No. 05-CV-73-LRR, 2008 WL 5070706, at *1 (N.D. Iowa Nov. 25,
2008); 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidenee § 606.05[C]
(2d ed. 1997). As a general rule, federal eourts disfavor post-trial interviews of jurors. See
United States v. Self. 681 F.3d 190, 199(3d Cir. 2012); United States v. MeDougal. 47 F. Supp.
2d 1103,1104(E.D. Ark. 1999); Weinstein & Berger, supra. § 606.06("The federal courts are
notoriously reluetant to permit either informal post-verdiet interviews with or testimony from
diseharged jurors."). The reasons for this disfavor include protecting jurors from harassment,
preserving jurors' freedom of deliberation, preventing jury tampering, and increasing the
certainty of verdicts. Dall v. Coffin, 970 F.2d 964, 972 (1st Cir. 1992); Wilkerson v. Amco
Corp.. 703 F.2d 184, 85-86(5th Cir. 1983);Weinstein & Berger, supra. § 606.06.
These same reasons form the basis of Federal Rule of Evidenee 606(b), whieh generally
precludes the admission ofjuror testimony to impeach a verdict. Fed. R. Evid. 606(b) advisory
committee's note to 1972 proposed rules (explaining that the "values sought to be served" by
exeluding evidenee reeeived for the purpose of invalidating a verdiet "inelude freedom of
deliberation, stability and finality of verdicts, and protection of jurors against annoyance and
embarrassment"). Rule 606(b) provides:
(b) During an Inquiry Into the Validity of a Verdict or
(1) Prohibited Testimony or Other Evidence. During an
inquiry into the validity of a verdict or indictment, a juror may not
testify about any statement made or incident that occurred during
the jury's deliherations; the effect of anything on that juror's or
another juror's vote; or any juror's mental processes concerning
the verdict or indictment. The court may not receive a juror's
affidavit or evidence of a juror's statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A)extraneous prejudicial information was
improperly brought to the jury's attention;
(B)an outside influence was improperly brought to
bear on any juror; or
(C) a mistake was made in entering the verdict on
the verdict form.
Fed. R. Evid. 606.
Courts typically deny a litigant's request to interview jurors post-verdict absent a
threshold showing of an outside intrusion into the jury process. United States v. Wright. 506
F.3d 1293, 1303 (10th Cir. 2007) ("This court has held that a trial judge is well within his
discretion m denying leave to inquire ofjurors where there was no claim of external interference
with the process."); Booker. 334 F.3d at 416 ("A trial court's decision to deny an attomey's
request for post-trial interviews is reviewed for abuse of discretion. Only when there is a
showing of illegal or prejudicial intrusion into the jury process will the court sanction such an
inquiry.")(internal citations omitted); McElrov bv McElrov v. Firestone Tire & Rubber Co.. 894
F.2d 1504, 1511 (11th Cir. 1990)(holding that denial of post-verdict motion to interview jurors
was not an abuse of discretion where moving party did not allege that any prejudicial
information or outside influence was brought to bear on the jury); McCabe. 2008 WL 5070706,
at *2 (denying motion to interview jurors because moving party did not make a preliminary
showing that members of the jury either learned of any extraneous prejudicial information or that
outside influences were brought to bear upon them); Allen v. United States, No. 4:07CV00027
ERW,2008 WL 80061, at *1 (E.D. Mo. Jan. 4, 2008)(same); Economou v. Little. 850 F. Supp.
849, 852(N.D. Cal. 1994)("Most federal courts deny requests to conduct post-verdict interviews
of jurors unless there is a proper preliminary showing of likely juror misconduct or witness
incompetency."); see also United States v. Eagle. 539 F.2d 1166, 1170 (8th Cir. 1976)(holding
that defendant had no right to subpoena jurors after trial when he had not made "specific
allegations that any of them engaged in overt improper acts susceptible of proof). Mere
'"fishing expeditions' carried out by losing attorneys interested in casting doubt on the jury's
verdict" are not allowed. Joumal Pub. Co. v. Mechem. 801 F.2d 1233, 1236(10th Cir. 1986).
Here, Isuzu has not explained why it seeks to interview the jurors, let alone made any
preliminary showing that there was an outside intrusion into the jury process. This Court
presumes that Isuzu wants to interview the jurors for educational purposes, but such a request
would be within this Court's discretion to deny. See Haeberle v. Texas Int'l Airlines. 739 F.2d
1019 (5th Cir. 1984) ("The first-amendment interests of both the disgruntled litigant and its
counsel in order to satisfy their curiosity and improve their advocacy are limited. We agree with
the district court's implicit conclusion that those interests are not merely balanced but plainly
outweighed by the jurors' interest in privacy and the public's interest in well-administered
justice."); McDougal. 47 F. Supp. 2d at 1105 (declining government's motion to interview jurors
after mistrial where stated purpose of interview was to determine whether to retry case); Olsson
V. A.O. Smith Harvestore Prods.. Inc.. 696 F. Supp. 411, 412 (S.D. Ind. 1986) ("Absent a
showing of evidence ofjuror impropriety, an attorney is not permitted to invade the province of
the jury room for the purpose of improving his skills as a tnal lawyer by ascertaining from the
jurors which facets of the trial influenced their verdict."). Nevertheless, this Court expressed a
willingness to allow Isuzu some contact with the jury, provided that Isuzu does not intend to
engage in an "fishing expedition" designed to gin up some argument for a new trial. Doe. 141 at
Isuzu has now submitted proposed jury interview questions. Some of Isuzu's proposed
questions are appropriate while others are not. If Isuzu still wants to interview the jurors, they
must adhere to the following script and may only ask the questions listed below:
. My name is
, and I'm calling about the case Sioux
Falls Kenworth, Inc. d/b/a/ Isuzu Trucks of Sioux Falls vs. Isuzu Commercial Truck of Amenca,
Inc., in which you served as a juror. We are eontaeting all of the jurors from the ease. This
interview is for educational purposes only and is being conducted on behalf of the defendant
Isuzu and its attorneys. The Judge has permitted this survey, but wants you to know that
partieipation is voluntary. I would like to interview you over the telephone, at your convenience.
Would you be willing to participate? If at any time you want to stop or terminate the interview,
just let me know.
What is the one thing that stands out in your mind as the most persuasive argument or
piece of evidence presented by the plaintiff Sioux Falls Kenworth in this case?
What IS the one thing that stands out in your mind as the most persuasive argument or
piece of evidence presented by the defendant Isuzu in this ease?
What did you think about Isuzu's overall presentation?
What did you think about Isuzu's lawyers' presentation?
What did you think about the overall presentation of plaintiff Sioux Falls Kenworth?
What did you think about Sioux Falls Kenworth's lawyers' presentation?
What did you think about Isuzu's witnesses in general and in particular?
What did you think about Sioux Falls Kenworth's witnesses in general and m particular?
What did you think about the appearance of Isuzu's witnesses, including expert witnesses
(e.g., should the witnesses have wom suits?)?
What did you think about Isuzu's attorneys not being from Sioux Falls?
What did you think about one of Sioux Falls Kenworth's attorneys not being from Sioux
What did you think about Isuzu's witnesses not being from Sioux Falls?
What did you find convincing about Sioux Falls Kenworth's case?
What did you find convincing about Isuzu's case?
What do you think the lawyers for Isuzu should have done differently?
For good cause, it is hereby
ORDERED that Isuzu may proceed to contact the jurors using the script set forth above.
It is further
ORDERED that Isuzu's Motion for Leave to Contact and Interview Jurors, Doc. 140, is
granted to that extent.
DATED this 15th day of December, 2016.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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