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It is a customary practice in any lawsuit to request that the opposing party produce any and all statements and/or recordings of your client(s). However, are these types of recordings and/or statements discoverable? Further, what procedural or technical hoops must the attorney jump through prior to trial in order to use such evidence? In the event that an attorney confronts these issues, the attorney should at the very least review the opinions of Ex parte Doster Construction, 772 So. 2d 447 (Ala. 2000) and Ex parte Weeks, 810 So. 2d 661 (Ala. 2001).

In Doster, the Alabama Supreme Court addressed two issues. First: Is the existence of a surveillance videotape discoverable, and if so, at what point? Pursuant to Rule 26(b)(1) and (3), the Court answered that the mere existence of the videotape is discoverable but stated that the trial court has the discretion under Rule 26(d) to control the timing of the disclosure if it would promote truthfulness by the party/claimant seeking the disclosure in a deposition and/or in responses to other discovery requests. Second: Is the actual surveillance videotape discoverable? The Court held that generally such a videotape is not discoverable pursuant to Rule 26(b)(3), because such a tape would constitute “materials prepared in anticipation of litigation or for trial.” However, such a tape would be discoverable by a showing of “substantial need and an undue hardship in obtaining the substantial equivalent by other means.” The Court said that it would be unlikely that the seeking party could satisfy the “substantial need” requirement  given that it would be difficult to establish that the party was ignorant as to what activities could have been observed. However, the Court noted that, in the event the party possessing the videotape intends to use same at trial, then, the party would be obligated to provide the opposing side a copy of the videotape within a reasonable amount of time prior to trial. This would ensure that determinations as to authenticity occur and that no manipulations of the tape were performed.

In Weeks, the Alabama Supreme Court addressed a similar issue but ruled differently. The issue in Weeks was whether the Plaintiff Weeks was obligated to disclose an audiotape of a recording between Weeks and the Defendant, Case. The attorneys for Case objected to Case being deposed prior to the Plaintiff’s attorney providing a copy of the audiotape. The trial court held that Case was entitled to a copy of the audiotape and further was entitled to same prior to sitting for his deposition. The Supreme Court affirmed the trial court decision despite the fact that the Supreme Court noted that Case did not show “substantial need.” How did the Alabama Supreme Court distinguish the facts in Weeks from Doster? First, the Court noted that Rule 26(b)(3) states that “a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party.” In other words, the audiotape in Weeks concerned a recording that was the “subject matter” of the lawsuit and/or the basis for the lawsuit whereas in Doster, the videotape footage likely involved activities that occurred well after the claim or lawsuit arose and was likely done in response to the claim/lawsuit. Secondly, the Court seemed to be motivated in favor of disclosure of the audiotape due to the stealth manner by which the Plaintiff Weeks secured the recording.

Evidence is the foundation of any successful lawsuit – a single piece of evidence can make or break an entire case. Not all evidence, however, can be presented to the jury. There are strict rules that the courts use to determine whether a specific piece of evidence will be admitted. Given the effect a single piece of evidence can have, these rules attempt to provide the appropriate balance in as many cases as possible. Courts may therefore allow a piece of evidence in one trial, but disallow that same piece of evidence in another based upon the individual factual scenarios of each trial. One area of evidence which highlights this dichotomy is the use and application of “absence evidence.”

“Absence evidence” is evidence that there are no prior documented occurrences of a certain event. Attorneys use “absence evidence” to argue that because there are no prior documented occurrences of said event, it is not likely that said event would have occurred on this occasion. One of the primary uses of absence evidence is in products liability cases. For example, manufacturers of an older product might want to show the jury that their product has not caused any accidents over the last twenty-years and thus it is less likely that their product is defective in the current lawsuit. When a party wishes to use absence evidence, particularly in these kinds of cases, the court must determine whether evidence that a prior event has not occurred is accurate and if so, is it fair to present such evidence to the jury.

1.  Does the lack of a prior occurrence accurately reflect the prior history of the occurrence?

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Everyone has seen the advertising campaigns geared against texting and driving. Moreover, numerous states have enacted legislation which makes it illegal to text on your phone while you drive. While those ads and laws have certainly helped curb distracted driving on our roads, is their focus too limited? Should we consider not only the conduct of the person receiving the text, but also the conduct of the person sending the text?

The Ruling

In a recent opinion from the New Jersey Court of Appeals, three judges agreed with the general proposition that you can be liable if you text someone who you know is driving a vehicle and that person is subsequently distracted and gets into a wreck. In September 2009 a young man was driving down the road as he and his girlfriend were exchanging text messages. The plaintiffs, a married couple, were driving in the opposite direction on their motorcycle. As the young man drove down the road, he became distracted from the flurry of text messages and he allowed his truck to drift across the double center line and hit the plaintiffs’ motorcycle head-on. Seventeen seconds elapsed from when the young man received the last text message until he dialed 911 to report the incident.