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Court Excludes Do-It-Yourself Discovery

At trial of plaintiff’s products liability claim involving a broken toilet, an Arlington County Circuit Court will exclude evidence the plaintiff gathered on his own from defendant, after his motel room mishap.

The issues before the court involve plaintiff’s informal communications with defendant Toto USA Inc.’s technical support/customer service department that related to pending litigation without identifying himself as a litigant. The question is whether the court should prohibit plaintiff from presenting as evidence at trial the statements made by the department employees.

It appears that on July 7, 2015, plaintiff began contacting by telephone Toto employees and discussed facts that could be relevant to the subject matter of this lawsuit, and plaintiff then communicated the content of those communications to his attorneys. Thereafter, plaintiff continued to have contact with department employees about the same subject matter. In February 2016, Toto’s counsel called plaintiff’s lawyers to complain. Once Toto’s attorney informed plaintiff’s attorneys that he knew plaintiff was communicating directly with Toto, plaintiff ceased. A reasonable inference is that plaintiff’s counsel instructed plaintiff to cease.

Contact with employees that may bind the corporation by their acts or omissions should be contacted through formal discovery. Toto’s motion to exclude statements by its employees that were initiated by plaintiff, or through his efforts, regarding the subject matter of this litigation is granted.

If Toto’s motion had not been granted upon the foregoing reasons, the subject communications would be impermissible as not being a party admission. Based on the record as developed and presented by proffer to the court on the pending motion, it does not appear that the employees of the department were authorized to make a statement concerning the subject matter of this litigation. Moreover, they were not part of the “control group.”

Motion to exclude granted.

Haidar v. HEI South Orme St. LLC & Toto USA Inc. (Fiore) No. CL 15-2145, Oct. 18, 2016; Arlington County Cir.Ct. VLW 017-8-048, 4 pp.