American Power Products, Inc. v. CSK Auto, Inc., 692 Ariz. Adv. Rep. 22 (App. Div.I, August 5, 2014) (J. Norris)
EVIDENTIARY HEARING MAY BE REQUIRED TO DETERMINE PREJUDICE WHERE BALIFF HAS EX PARTE COMMUNICATION WITH JURORS DURING DELIBERATION CONCERNING SUBSTANTIVE PROCEDURAL MATTER
Plaintiff sued the defendant over the sale of electric scooters seeking $5 million in damages. The defendant counterclaimed for $950,000. The trial went 12 trial days over three weeks. There were 164 exhibits (one being 4,000 pages long) and 24 witnesses. During voir dire court advised the jury panel that the trial would be completed on October 6 or possibly the 10th following a three day weekend. When a trial day was missed a juror inquired of the court whether this meant the trial would go beyond the October 6 target. The jury was instructed on Friday at 10:45 a.m. October 7 followed by closing arguments that went through the lunch hour to 1:43 p.m. After an hour or two of deliberations at 4:13 p.m. the jury returned a 6-2 verdict for the plaintiff in the amount of $10,733. Plaintiff had an investigator interview several jurors post—verdict obtaining two affidavits which stated the deliberations were not fair and most the jurors refused to consider the evidence and just wanted to go home. One affidavit stated that during deliberations the bailiff entered the room and was asked how long deliberations usually last to which she responded “an hour or two should be plenty.” Plaintiff sought a new trial based in part upon the affidavits and requested an evidentiary hearing regarding whether or not the deliberations were improperly curtailed due to the bailiff's comment. The defendant did not contest the truth of the affidavit regarding what the bailiff said. The trial court denied the motion without a hearing. The Arizona Court of Appeals remanded the case on this issue. The court of appeals acknowledged that Arizona Rule of Evidence 606(b)(1)1 prohibits impeachment of a jury verdict with affidavits of jurors concerning the deliberations but pointed out that rule 606(b)(2) provides testimony of a jury may be considered to determine whether "extraneous prejudicial information was improperly brought to the jury's attention." Accordingly while the content of the affidavits concerning the deliberations themselves was inadmissible, the bailiff's comment was extraneous information that was admissible on the issue of prejudice. Arizona Rule of Civil Procedure 39(e) provides a bailiff is not to communicate with jurors except to ask if they have reached a verdict. The Arizona Supreme Court has expanded this rule to allow communications regarding “administrative details.” The court noted that it is always inappropriate for the trial court or bailiff to communicate with jurors regarding a substantive legal issues or matters of substantive procedural matters without first notifying the parties and making a record. A statement with regard to how long the jury should deliberate is a substantive procedural issue. Here the trial court lacked adequate facts to determine whether the communication prejudiced the deliberations. The case was remanded for the trial court to determine whether an evidentiary hearing would be feasible considering the passage of time since the trial and to determine whether plaintiff was prejudiced by the improper ex parte communication rendering a new trial appropriate.