Bushkin Associates, Inc. v. Raytheon Co.

121 F.R.D. 5, 1988 WL 75067
CourtDistrict Court, D. Massachusetts
DecidedJuly 7, 1988
DocketCiv. A. No. 81-1101-H
StatusPublished
Cited by2 cases

This text of 121 F.R.D. 5 (Bushkin Associates, Inc. v. Raytheon Co.) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bushkin Associates, Inc. v. Raytheon Co., 121 F.R.D. 5, 1988 WL 75067 (D. Mass. 1988).

Opinion

OPINION

HARRINGTON, District Judge.

Background

This case involves a cause of action brought in 1981 by plaintiff Merle J. Bush-kin, an investment banker, and Bushkin Associates, Inc., an investment banking firm, against Defendant Raytheon Company (“Raytheon”). Plaintiffs seek to recover damages on theories of express and implied contract, in connection with their role in the merger of Raytheon with Beech Aircraft Corporation. In 1983 Judge Joseph L. Tauro granted Raytheon’s motion for summary judgment. Bushkin Associates, Inc. v. Raytheon Co., 570 F.Supp. 596 (D.Mass.1983), vacated, 760 F.2d 251 (1st Cir.1985). The Court of Appeals reversed [6]*6and certified the case to the Massachusetts Supreme Judicial Court for decisions on choice of law and other questions. Bushkin Associates, Inc. v. Raytheon Co., 393 Mass. 622, 473 N.E.2d 662 (1985). After the state court decision, there was a trial in District Court which resulted in a directed verdict for defendant on all counts. Immediately following the directed verdict, plaintiffs’ prior trial counsel requested and received the permission of the trial court and opposing counsel to question the jurors about their impressions of the case, but each of the jurors expressly declined to answer any questions. After their refusal, Judge Skinner stated, “That’s the end of it,” and he dismissed the jury. Defendant’s Memorandum in Support of Motion to Dismiss at 2-3 (quoting Trial Transcript Day Nine at 9-33 to 9-36).

The First Circuit reversed the decision of the District Court and remanded for a new. trial, scheduled for July 6, 1988. Bushkin Associates, Inc. v. Raytheon Co., 815 F.2d 142 (1st Cir.1987).

On Friday, July 1, 1988, defendant Raytheon brought a motion to dismiss or, alternatively, to disqualify plaintiffs’ counsel on the basis of their post-verdict contact with jurors from the first trial. Defendant alleged that plaintiffs’ counsel violated a rule of the District of Massachusetts which prohibits such contact. For reasons described below, the Court disqualifies plaintiffs’ counsel from further representation in this case.

Facts

On June 29,1988, plaintiffs’ counsel revealed to defendant's counsel that plaintiffs’ counsel had conducted telephone interviews of two jurors and two alternates who sat during the first trial. The telephone interviews occurred a year and a half after the first trial had ended and were conducted by attorneys who replaced the original trial counsel.

According to the affidavit of Attorney Nancy Gertner, because she and co-counsel David Fine had not been trial counsel, they believed defendant’s counsel had a considerable advantage in the upcoming trial. (Gertner Affidavit at 2). To mitigate this perceived advantage, they independently decided to contact the jurors.

Mr. Fine placed the calls, assured each juror there was no obligation or pressure to speak to him, and ultimately discussed the case with two willing jurors and two alternates. According to Mr. Fine’s affidavit, three of the four conversations were each five to ten minutes in length; the fourth was approximately fifteen to twenty minutes. (Fine Affidavit at 2). Mr. Fine submitted to the Court both his handwritten contemporaneous notes of these conversations as well as typed memoranda of them. On July 1, after defendant filed its motion to dismiss or to disqualify, the plaintiffs’ counsel offered to share these notes with Raytheon, an offer which Raytheon declined.

Raytheon asserts that these juror interviews violated the Court of Appeals ruling in United States v. Kepreos, 759 F.2d 961 (1st Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 227, 88 L.Ed.2d 227 (1985), which proscribes post-verdict contact with jurors. Defendant also claims that through these interviews Bushkin obtained an unfair advantage which jeopardizes the integrity of the retrial and the judicial system. Specifically, Raytheon claims that such information would be of critical use to plaintiffs in conducting voir dire, developing trial strategy, structuring examination of witnesses, and presenting evidence.

Kepreos involved an Assistant U.S. Attorney’s post-verdict contact of a juror after a mistrial and before the retrial. Upon disclosure of this contact to the Court during day four of the second trial, defendant Kepreos moved for a mistrial, which the District Court denied.

On appeal, the First Circuit upheld the District Court’s denial of a mistrial, but it enunciated a clearly articulated prospective rule regarding contact with jurors by attorneys.

We start with the proposition that henceforth this Circuit prohibits the post-verdict interview of jurors by counsel, litigants or their agents except under the supervision of the district court, and then [7]*7only in such extraordinary situations as are deemed appropriate. Permitting the unbridled interviewing of jurors could easily lead to their harassment, to the exploitation of their thought processes, and to diminished confidence in jury verdicts, as well as to unbalanced trial results depending unduly on the relative resources of the parties. See United States v. Moten, 582 F.2d 654, 665-67 (2d Cir.1978); Miller v. United States, 403 F.2d 77, 82 (2d Cir.1968); Rakes v. United States, 169 F.2d 739, 745-46 (4th Cir.), cert. denied, 335 U.S. 826, 69 S.Ct. 51, 93 L.Ed. 380 (1948); Commonwealth v. Fidler, 377 Mass. 192, 202-03, 385 N.E.2d 513, 519-20 (1979). Such outcomes, or even the appearance of the same, we are not willing to tolerate. Thus, future incidents like the one described above will not be countenanced. 759 F.2d at 967.

The court in Kepreos also made it clear that the First Circuit concurred in the rationale of Commonwealth v. Fidler, 377 Mass. 192, 202-03, 385 N.E.2d 513, 519-20 (1979), a Massachusetts Supreme Judicial Court decision which required that any post-verdict interviews of jurors by counsel, litigants or their agents take place under the supervision and direction of the judge. The court in Fidler warned, “Any counsel or litigant who independently contacts jurors acts at his peril, lest he be held as acting in obstruction of the administration of justice ...; [i]t is incumbent upon the Court to protect jurors from it.” (quoting Rakes v. United States, 169 F.2d 739, 745 (4th Cir.), cert denied, 335 U.S. 826, 69 S.Ct. 51, 93 L.Ed. 380 (1948)). The Supreme Judicial Court explicitly “decline[d] to permit unrestricted post-trial interviews ...” Id. 377 Mass, at 202, 385 N.E.2d 513. (emphasis added).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bushkin Associates, Inc. v. Raytheon Co.
717 F. Supp. 18 (D. Massachusetts, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
121 F.R.D. 5, 1988 WL 75067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bushkin-associates-inc-v-raytheon-co-mad-1988.