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IN THE UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND Southern Division

RENEE NEWSOME,
Plaintiff, v.

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Case No. CBD 04-1024

PENSKE TRUCK LEASING CORPORATION,
Defendant.

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MEMORANDUM OPINION GRANTING PLAINTIFF'S ORAL MOTION TO COMPEL PRODUCTION OF DOCUMENTS To give evidence the label of "impeachment," does not always make it "impeachment evidence." In the law, we are more concerned with substance and merit, than we are with form and appearance. Plaintiff, Renee Newsome, filed this employment discrimination action against Defendant, Penske Truck Leasing Corporation ("Penske"). Plaintiff alleges she was sexually harassed in a hostile work environment, that she was constructively discharged and was unlawfully retaliated against when she complained to company officials. Before this Court is Plaintiff's oral motion to compel production of documents ("Plaintiff's Motion") and the written opposition thereto. The Court heard the arguments of counsel and set forth its ruling and rationale on the record. In addition thereto, the Court submits this written order. For the reasons below, the Court hereby GRANTS Plaintiff's Motion.

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I. BACKGROUND On the first day of trial, Defendant informed Plaintiff of its intent to use audio tapes for "impeachment" purposes. Defendant proffered that these audio tapes contained statements made by Plaintiff which were contradictory to the claims set forth in the complaint. No audio tapes were provided in discovery despite Plaintiff's request for production of documents. While Defendant conceded that the withheld audio tapes and related documents were not entitled to work-product protection, it refused to produce the material by relying in part on District of Maryland Local Rule 106(h). This rule sets forth the required contents of pretrial orders. It states that a proposed pretrial order shall contain: A listing of each document or other exhibit, including summaries of other evidence, other than those expected to be used solely for impeachment, separately identifying those which each party expects to offer and those which each party may offer if the need arises. Local Rule 106(h) (D. Md. 2004) (emphasis added). Plaintiff sought production of the audio tapes prior to Plaintiff's direct examination. Defendant did not want to produce the materials until Plaintiff's testimony in cross-examination. Defendant wanted "to preserve the impeachment value" of Plaintiff's initial reaction for observation by the jury. After an in camera review of the transcripts of the audio tapes, the Court learned that the audio tapes contained Plaintiff's prior statements under oath in unrelated domestic and Workman's Compensation proceedings. The Court is persuaded that this information is responsive to a discovery request made by Plaintiff. Defendant contends that Plaintiff's prior statements show that her claims for noneconomic damages are either overstated or completely exaggerated. Defendant expects Plaintiff's prior statements under oath to show that Plaintiff has a longstanding constellation of 2

injuries, medical conditions and treatment from a wide variety of sources. These prior statements will not be offered to merely "cast doubt" on any expected testimony, but also to show that the conduct of Defendant's employees is not the real cause of Plaintiff's claimed emotional distress. II. DISCUSSION What is impeachment evidence and, when is it discoverable? The Fourth Circuit has not addressed the issue of the discoverability of impeachment evidence in a civil case and "other federal authority is split." Dehart v. Wal-Mart Stores, East, L.P., 2006 WL 83405, *1, 2006 U.S. Dist. LEXIS 605, Civil No. 05-061 (W.D. Va. Jan. 6, 2006) (noting the absence of Fourth Circuit precedent); Chaisson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993) ("There are surprisingly few cases on the discoverability of impeachment evidence; and, until now, apparently none in the federal arena have reached the appellate level."). From a review of the applicable rules and relevant case law, the Court finds that evidence withheld as solely for impeachment evidence must be produced: (1) whenever the evidence also has a substantive purpose; and (2) if it would be responsive to a specific discovery request. A. The Distinction Between Substantive Evidence and Impeachment Evidence.

While the present dispute has its genesis in the rules of discovery, the analysis must begin with the rules of evidence. This is so because the rules of evidence govern the distinction between substantive and impeachment evidence. Black's Law Dictionary defines substantive evidence as: "That adduced for the purpose of proving a fact in issue, as opposed to evidence given for the purpose of discrediting a witness (i.e., showing that he is unworthy of belief), or of corroborating this testimony." BLACK'S LAW DICTIONARY, 1429 (6th ed. 1990).

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"Substantive evidence is that which is offered to establish the truth of a matter to be determined by the trier of fact." Chaisson, 988 F.2d at 517 (5th Cir. 1993). Substantive evidence can absolve a defendant of liability either by showing "a defect in the plaintiff's prima facie case" or in giving support to an affirmative defense by raising "matters extraneous to the plaintiff's prima facie case." Keeler Brass Co. v. Continental Brass Co., 862 F.2d 1063, 1066 (4th Cir. 1988). Conversely, impeachment evidence is offered to discredit a witness and reduce the effectiveness of her testimony. Chiasson, 988 F.2d at 517. In Behler v. Hanlon, 199 F.R.D. 553, 560 (D. Md. 2001), the Court identified six primary types of impeachment evidence: (1) impeachment by demonstration of bias, prejudice, interest in the litigation, or motive to testify in a particular fashion; (2) impeachment by contradiction; (3) impeachment by demonstration of incapacity to perceive, remember or relate; (4) impeachment by untruthful character or prior bad acts; (5) impeachment by conviction of a crime; and (6) impeachment by prior inconsistent statement. The purpose of the various types of impeachment evidence is singular; to "impair the credibility of the witness." 2 MICHAEL H. GRAHAM, HANDBOOK OF FEDERAL EVIDENCE

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