HEARSAY: STATEMENTS BY THE AGENT OF A PARTY-OPPONENT By Edward X. Clinton, Jr.1 The Law Offices of Edward X. Clinton, P.C.

30 North LaSalle Street, Suite 3400 Chicago, IL 60602 (312) 357-1515 Statements by an agent of a party-opponent are under certain circumstances hearsay admissions of the party-opponent. This article will describe how to introduce or resist the introduction of statements by a party's agent under Rule 801(d)(2)(D) of the Federal Rules of Evidence and will discuss the debate concerning whether the declarant must have knowledge concerning the underlying facts and the exception for statements by government agents. These issues often arise in personal injury and employment litigation. To review: Hearsay is an out-of-court statement by the declarant admitted for the truth of the matter asserted. Rule 801(c). Under Rule 801, admissions of a partyopponent are not hearsay. One type of admission by a party opponent is a statement by an agent of the party-opponent. According to Rule 801(d)(2)(D), a statement is not hearsay if it is offered against a party and was made by "the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." The rationale is that "an agent or servant who speaks on any matter within the scope of his agency or employment during the existence of that relationship, is unlikely to make statements damaging to his principal or employer unless those statements are true." Nekolny v. Painter, 653 F.2d 1164, 1172 (7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982).

Copyright 2010 1 -1-

I.

A Three Part Showing Is Required To prove that a statement is admissible a party must make a three-part showing.

The offering party must demonstrate (1) the existence of an employment or agency relationship "independent of the declarant's statement offered as evidence;" (2) that the statement was "made during the existence of the declarant's `agency or employment" and (3) that the statement concerns a matter within the scope of declarant's employment or agency relationship. Boren v. Sable, 887 F.2d 1032, 1038 (10th Cir. 1989). I will now discuss each requirement in detail. II. Is The Declarant The Agent or Servant of the Party Opponent? Under the Rule the proponent must first establish that the declarant is the agent of the party opponent. Whether Rule 801(d)(2)(D) applies depends on the relationship between the declarant and the defendant. Zaken v. Boerer, 964 F.2d 1319 (2d Cir. 1992), cert. denied, 113 S.Ct. 467 (1992). In employment litigation one employee may sue a colleague and attempt to introduce a hearsay declaration by another employee. It is not dispositive that both the declarant and the defendant work for the same employer. Id. at 1323. In Zaken, plaintiff alleged that she was fired by the defendant, the president of a corporation, on the basis of her pregnancy. She sought to introduce the hearsay statement of a company vice president that another employee was fired because she was pregnant. The declaration was admissible because the vice president was directly responsible to the defendant and was therefore the defendant's agent. Id. See also Boren v. Sable, 887 F.2d 1032, 1039 (10th Cir. 1989) (in a personal injury action against a co-employee the court excluded a statement by the shop foreman because he was not the agent of the co-employee). If the foundational requirements are met, it may not even be necessary to identify the declarant. Pappas v. Middle Earth Condominium Ass'n., 963 F.2d 534, 537-38 (2d Cir. 1992) (in slip and fall case the 2 -2-

statement by an unidentified employee was admissible to show that the defendant was aware of an icy patch on a walkway). It is possible for an attorney to be the agent of a party. See United States v. Harris, 914 F.2d 927, 931 (7th Cir. 1990) (defendant's former attorney's statements were admissible but the court noted that "the unique nature of the attorney-client relationship, however, demands that a trial court exercise caution in admitting statements that are the product of this relationship."); United States v. Brandon, 50 F.3d 464, 468 (7th Cir. 1995) (important policies "concerning the effective assistance of the counsel of one's choosing" must also be preserved). In Harris, the court found that the conflict between the attorney-client relationship and the rule was not serious because the former attorney did not represent the defendant at trial. III. Was the Statement Made During the Existence of The Agency? Next, the proponent must demonstrate that the statement was made during the existence of the agency or employment relationship. This requirement is straightforward and prevents the admission of statements made after the agency relationship terminated. See Blanchard v. Peoples Bank, 844 F.2d 264, 267 n.7 (5th Cir. 1988) (statement by former employee inadmissible because the employee was not employed by defendant when the statement was made); Corley v. Burger King Corp., 56 F.3d 709, 709 (5th Cir. 1995) (statement by manager of Burger King admissible to show he was acting within scope of employment when he was driving a car involved in an auto accident). IV. Does The Statement Concern A Matter Within The Scope of The Agency? The proponent must also demonstrate that the statement concerns a matter within the scope of the agency or employment relationship. The Rule does not require 3 -3-

that the declarant "have authority to bind its employer," because few employers will authorize employees to make binding admissions in litigation. Big Apple BMW Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1372 (3d Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993); see also Advisory Committee Note to Rule 801(d)(2)(D); Woodman v. Haemonetics Corp., 51 F.3d 1087, 1094 (1st Cir. 1995) (same). Courts analyzing this requirement apply a common sense approach to the scope of employment. In Nesbit v. Pepsico, Inc., 994 F.2d 703 (9th Cir. 1993), plaintiffs alleged that they had been terminated because of their age. At trial, plaintiffs introduced a statement by the defendant's senior vice president of personnel that: "We don't want unpromotable fifty-year olds around." Id. at 705. The district court held the statement inadmissible because plaintiffs failed to show that the vice president was acting within the scope of his employment. The Ninth Circuit conceded that the ruling was error, but found the error harmless because "the statement was very general and did not relate in any way, directly or indirectly, to the terminations of Nesbit or Selby." Id. It is readily apparent that a personnel manager's duties include hiring and firing. Thus, the manager's comments were within the scope of employment. See also Woodman v. Haemonetics Corp., 51 F.3d 1087 (1st Cir. 1995) (in ADEA claim, statements by a supervisor that new management wanted to bring in younger employees were admissible because the statements concerned matters within the scope of the supervisor's employment); EEOC v. Watergate At Landmark Condominium, 24 F.3d 635, 640 (4th Cir. 1994) (comments of members of condominium committees concerning age of employee were admissible in ADEA action because the members had input in the decisional process). Where the declarant has nothing to do with employment decisions, the court will exclude the hearsay statement. In Staheli v. University of Mississippi, 854 F.2d 121 4 -4-

(5th Cir. 1988), the court excluded statements by a colleague of a professor who was denied tenure because the colleague was not involved in the tenure decision. At trial, the plaintiff sought to testify that an accounting professor told him that the university's chancellor was unhappy about an incident involving laboratory animals. The accounting professor's statements were excluded because he had nothing to do with the denial of tenure. The statement had no relationship to the scope of his duties for the school. Id. at 127. What about the comments of an agent of a subsidiary? Can those statements be held to be admissions of the parent corporation? In Big Apple BMW, the court found that statements by an employee of BMW credit and leasing could be attributed to the parent corporation because the parent dominated the activities of the subsidiary. 974 F.2d at 1373. V. Must The Declarant Have Personal Knowledge? Courts disagree on whether the declarant must have personal knowledge concerning the events described, but it appears that most courts do not require that the proponent demonstrate that the declarant had personal knowledge. In Brookover v. Mary Hitchcock Memorial Hospital, 893 F.2d 411 (1st Cir. 1989), plaintiff was injured when he fell from a hospital bed. Plaintiff's father sought to testify that nurses told him that his son should have been placed in restraints to prevent him from getting out of bed. Defendant argued that the statement should not be admitted because plaintiff had not shown that the nurses had personal knowledge concerning his son's situation. The First Circuit held that there is no requirement that the declarant have personal knowledge. Id. at 418. See Mahlandt v. Wild Canid Survival, etc., 588 F.2d 626, 63031 (8th Cir. 1978) (same holding); United States v. Ammar, 714 F.2d 238, 254 (3rd Cir.), cert. denied, 464 U.S. 936 (1983) (personal knowledge not required); United States v. 5 -5-

Goins, 11 F.3d 441, 443-44 (4th Cir. 1993), cert. denied, 114 S.Ct. 2107 (1994) (holding that the personal knowledge requirement contained in Rule 602 does not apply to declarations of a co-conspirator under Rule 801(d)(2)(E)). But see Mitroff v. Xomox Corp, 797 F.2d 271, 276 (6th Cir. 1986) (holding that proponent must lay a foundation that the statement was within the personal knowledge of the declarant). VI. Exception For Statements By Agents of the Government The rule does not apply to government employees. United States v. Prevatte, 16 F.3d 767, 778 (7th Cir. 1994). According to the Seventh Circuit, the rationale for this exception is that "no individual can bind the sovereign." Id. at 779. In United States v. Kampiles, 609 F.2d 1233, 1246 (7th Cir. 1979), cert. denied, 446 U.S. 954 (1980), the court explained that "because the agents of the Government are supposedly disinterested in the outcome of a trial and are traditionally unable to bind the sovereign, their statements seem less the product of the adversary process and hence less appropriately described as admissions of a party." This reasoning seems formalistic. One commentator has criticized this exception. See Edward J. Imwinkelreid, "Of Evidence and Equal Protection: The Unconstitutionality of Excluding Government Agents' Statements Offered as Vicarious Admissions Against the Prosecution," 71 Minn. L. Rev. 269 (1986). However, there appears to be no effort in the courts or in Congress to abolish the exception. VII. Conclusion In sum, Rule 801(d)(2)(d) is relatively straightforward and easy to apply to most factual situations. However, a party hoping to introduce a hearsay admission by an agent of a party-opponent should make sure that it can satisfy all three foundational requirements. It is also important to research whether the court will require that the declarant have personal knowledge of the underlying events. As I have noted, Rule 6 -6-

801(d)(2)(D) can be of great significance in employment litigation, where employees may comment on a termination, and in personal injury suits arising out of injuries on the jobsite, where employees may witness the accident or corrective measures. Edward X. Clinton, Jr. Copyright 2010

7 -7-