Government Reports: Evidence or Hearsay at a Civil Trial?

8/29/2016

Government investigations have recently consumed the media's attention as well as flooded civil dockets with private lawsuits based upon these investigations. The private suits typically target the individuals, companies, or industries that are subject to the government inquiries. Parties to these suits need to look beyond the surface to determine how to best deal with the negative (or positive) findings and conclusions.

An article published in the Summer 2016 issue of the ABA's publication Litigation details the ways in which attorneys can utilize government reports in civil suits. Lawyers use these reports as foundations for lawsuits against the subjects of investigations. The underlying evidence disclosed with the reports - emails, memos, chat transcripts, etc. - may bolster civil suits and may also implicate entities beyond the government's targets. Reports generally contain names, dates, and other specific information that can serve to direct discovery efforts. This information can also be useful at both depositions and trials.

The courts recognize the power and influence these reports may have over jurors, and thus are hesitant to allow the information to be admitted during trials. Under the Federal Rules of Evidence, government reports are considered hearsay, as the findings are out of court statements admitted for the truth of the matter asserted. However, they may be admissible under an evidentiary public records exception, as long as the reports are final and contain "factual findings" created "pursuant to legal authority."

Even if these elements are proven, the reports can still be inadmissible if the document is "untrustworthy." Courts consider four factors in determining whether reports are "untrustworthy:" (1) the timeliness of the investigation, (2) the expertise and skill of the investigator, (3) the potential biases of the investigator, and (4) the extent to which the investigation included a hearing. The reports may also be excluded from trials if their contents are substantially more prejudicial than probative under the Rules of Evidence. Reports are prejudicial when they misrepresent or misinterpret the truth of an investigation or inordinately skew a jury's perception of the facts.

Government reports can be powerful tools for litigators. Their repercussions are numerous and varied, and therefore using them in litigation requires exceptional skill and knowledge. If you have any questions about this or other issues, please contact David Governo (dgoverno@governo.com) or Vincent DePalo (vdepalo@governo.com).