Were You Lying Then, Or Are You Lying Now?

Witness For The Prosecution was a 1957 film about the testimony of a German-born wife whose husband was on trial for murdering a rich woman. Based upon an Agatha Christie novel, the film gave a quote which has been parroted by attorneys ever since.

Sir Wilfrid: And when you said that he had accidentally cut his wrist, again, you lied? 

Helm: Yes!

Sir Wilfrid: And now today you’ve told us a new story entirely! The question is, Frau Helm, were you lying then, [or] are you lying now? 

Whether in court, deposition or on the big screen, the impeachment of witness creates drama-the kind of drama opposing attorneys try to avoid.

In O’Dwyer v. Our Lady of the Lake, — So. 3d —, 2013 WL 2131763 (La. 5/17/13), the Louisiana Supreme Court was asked to decide whether audio recordings of a defense witness must be disclosed before the deposition of the witness. The O’Dwyer plaintiff was a nursing student who alleged that she had been targeted for termination from the nursing program through “harassment, bullying, stalking, and intimidation.”

O’Dwyer’s attorney sought to depose the nursing program director. The defendant sought production of audiotaped conversations between the program director and another student before the deposition was allowed, and successfully obtained a written order that the audiotapes be produced. The First Circuit denied the plaintiffs’ writ, but writs were granted by the Louisiana Supreme Court.

The O’Dwyer Court looked to prior jurisprudence. In Wolford v. JoEllen Smith Psychiatric Hospital, 96-2460 (La. 5/20/97), 693 So. 2d 1164), the Supreme Court held that a defendant was not required to produce surveillance of the plaintiff until after the plaintiff’s deposition. The Court highlighted the “important function in the search for truth” served by surveillance. After all, the value of the surveillance could be minimized were a plaintiff able to view the evidence and tailor his or her testimony to match. Therefore, the evidence was viewed as potential impeachment evidence and could be withheld prior to deposition.

In Bell v. Treasure Chest Casino, L.L.C., 06-1538 (La. 2/22/07), 950 So. 2d 654, the Court refused to extend Wolford to the production of video which captured the accident itself. Video of the accident upon which the plaintiff sued was direct evidence and not primarily impeachment evidence. Therefore, it had to be produced prior to the plaintiff’s deposition.

In O’Dwyer, the Court concluded that the audiotapes were made for impeachment and therefore need not be produced until after the nursing director’s deposition. Justice Weimer, in dissent, challenged the characterization of the audiotapes as exclusively impeachment evidence. He cited to the language of the writ application which described the tapes as “unique evidence that may be used for direct or impeachment evidence at trial.”

O’Dwyer indicates that a court may look to the primary function of the evidence in deciding its discoverability. The fact that the audiotapes may serve as direct evidence did not require their production when their primary function was impeachment.


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