Also known as: substantially equivalent · substantial equivalents · substantially equivalents · substantial equivalence · doctrine of equivalents
Written by attorneys — see sources below.
2 senses
A body of information or materials that serves as an alternative to protected work-product documents. A requesting party must demonstrate both substantial need for the materials to prepare its case and an inability to obtain this alternative without undue hardship before a court will order production.
A body of information or materials that serves as an alternative to protected work-product documents. A requesting party must demonstrate both substantial need for the materials to prepare its case and an inability to obtain this alternative without undue hardship before a court will order production.
Scott Summers sued Skyline Construction after a scaffolding collapse. Skyline's risk manager prepared post-incident reports under counsel's direction. Summers moved to compel the reports. The court ordered production only after Summers proved both substantial need for the materials to prepare expert testimony and that no other discovery could supply the same information without undue expense and delay.
A means or manner of payment that is commercially equivalent to the contractually agreed method. When governmental regulation renders the original payment method unavailable, the buyer may satisfy the obligation by tendering this alternative, discharging the duty unless the regulation is discriminatory, oppressive, or predatory.
Stonehaven Properties contracted to purchase equipment from Sterling Manufacturing with payment by letter of credit. A new foreign regulation blocked letters of credit. Sterling refused delivery until Stonehaven offered wire transfer under the regulation's terms. The court held that the wire transfer constituted a commercially substantial equivalent, discharging Stonehaven's obligation.
1 common questions
A means or manner of payment that is commercially equivalent to the contractually agreed method. When governmental regulation renders the original payment method unavailable, the buyer may satisfy the obligation by tendering this alternative, discharging the duty unless the regulation is discriminatory, oppressive, or predatory.
Each sense below has its own examples, sources, and questions.
Sylvia Santos sued a trucking company after a highway collision. The company's investigator took a recorded statement from an eyewitness that contradicted the witness's later deposition. Santos showed the statement was essential for impeachment and that interviewing the witness herself could not replicate the prior inconsistent account. The court ordered production of the statement.
Respondent Robert Nobles was tried and convicted in federal district court on charges arising from an armed robbery of a federally insured bank. The prosecution's principal evidence consisted of identification testimony from a bank teller and a salesman who had been present during the robbery. Nobles presented an alibi but centered his defense on efforts to discredit the two eyewitnesses. In preparing for trial, a defense investigator hired by Nobles' counsel interviewed both eyewitnesses and recorded the substance of those conversations in a written report. During cross-examination of the bank teller, defense counsel asked whether the teller had told the investigator he saw only the back of the man identified as Nobles; the teller did not recall making the statement. The prosecutor was permitted to see a portion of the report briefly, after which the teller testified that he had actually seen more than the back and continued to identify Nobles. Defense counsel similarly cross-examined the salesman about whether he had told the investigator that all blacks looked alike to him; the salesman denied making the statement. The district court declined to order immediate disclosure but ruled that production of portions of the report would be required if the investigator later testified about the interviews. The court stated it would conduct an in camera review and excise any references to matters not relevant to the precise statements at issue. After the prosecution rested, the defense called the investigator as a witness. The court reiterated that an inspected and edited copy of the report would have to be provided to the government at the conclusion of the investigator's testimony. When defense counsel refused to produce the report, the court ruled that the investigator could not testify about his interviews with the two witnesses. The Court of Appeals for the Ninth Circuit reversed the conviction. The Supreme Court granted certiorari.
View caseSimon Stern challenged an IRS summons directed at his accountant for production of financial ledgers. Stern argued the records were the substantial equivalent of his own compelled testimony. The court rejected the claim because the accountant, not Stern, was the party compelled to act, and no personal compulsion against Stern existed.
On January 7, 1970, the Government filed a petition in the United States District Court for the Western District of Virginia, pursuant to 26 U. S. C. §§ 7402(b) and 7604(a), seeking enforcement of an Internal Revenue summons in connection with an investigation of petitioner's tax liability from 1964-1968. The summons was directed to petitioner's accountant for the production of all books, records, bank statements, cancelled checks, deposit ticket copies, workpapers and all other pertinent documents pertaining to the tax liability of the taxpayer. Petitioner is the sole proprietress of a restaurant. Since 1955 she had given bank statements, payroll records, and reports of sales and expenditures to her accountant, Harold Shaffer, for the purpose of preparing her income tax returns. The accountant was not petitioner's personal employee but an independent contractor with his own office and numerous other clients who compensated him on a piecework basis. When petitioner surrendered possession of the records to Shaffer, she retained title in herself. During the summer of 1969, Internal Revenue Agent Dennis Groves commenced an investigation of petitioner's tax returns. After examining her books and records in Shaffer's office with his permission, Groves found indications of a substantial understatement of gross income. Groves thereupon reported the case to the Intelligence Division of the Internal Revenue Service. Special Agent Jennings of the Intelligence Division next commenced a joint investigation with Groves. Jennings first introduced himself to petitioner, gave her Miranda warnings as required by IRS directive, and then issued the summons to Shaffer after the latter refused to let him see, remove, or microfilm petitioner's records. When Jennings arrived at Shaffer's office on September 2, 1969, the return day of the summons, to view the records, he found that Shaffer, at petitioner's request, had delivered the documents to petitioner's attorney. Jennings thereupon petitioned the District Court for enforcement of the summons, and petitioner intervened, asserting that the ownership of the records warranted a Fifth Amendment privilege to bar their production. Both the District Court and the Court of Appeals for the Fourth Circuit addressed the privilege claim. The Supreme Court granted certiorari, 405 U. S. 1038.
View case3 common questions
The requesting party must demonstrate both substantial need for the materials to prepare its case and that it cannot obtain their substantial equivalent by other means without undue hardship. Even then, opinion work product receives absolute protection.
A prior inconsistent statement is unique for impeachment purposes because interviewing the witness after the fact cannot replicate the earlier contradiction. The rule therefore permits discovery of the statement even though the requesting party could otherwise interview the witness.
No. The Fifth Amendment privilege protects only against personal compulsion. When the summons compels the accountant rather than the taxpayer, no self-incrimination occurs even if the records contain the taxpayer's information.
Yes. Under UCC § 2-614(2), the buyer may tender a commercially substantial equivalent means of payment. If delivery has already occurred, payment by the regulatory method discharges the obligation unless the regulation is discriminatory, oppressive, or predatory.
…main, where a party seeks to discover a statement made to an opposing party in order to prepare for trial, he can obtain the "substantial equivalent . . . by other means," Fed. Rule Civ. Proc. 26 (b) (3), i. e. , by interviewing the witness himself. A prior inconsistent statement in the possession of his adversary, however, when sought…