EDNY Notes Split Re Interpretatin of FRE 606(b)

Per Leibstein v. LaFarge North America, Inc., --- F.Supp.2d ----, 2011 WL 499952 (E.D.N.Y. Feb. 14, 2011):

Fed. R. of Evid. 606(b) provides that “[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations....” Fed. R. of Evid. 606(b). Query: Does Rule 606(b) preclude a juror-such as those who spoke to Elena Leibstein-from testifying about supposed misconduct by another juror learned during jury deliberations? That question does not lend itself to a simple answer, for there is a split among the Circuits on this point. Compare, e.g., Hard v. Burlington Northern R.R., 812 F.2d 482, 485 (9th Cir.1987)(Ninth Circuit held that “[s]tatements [offered in support of an application for a new trial] which tend to show deceit during voir dire are not barred by [Rule 606(b) ] )” with (1) Williams v. Price, 343 F.3d 223 (3d Cir.2003) in which then-Judge Alito opined that the Ninth Circuit decision in Hard “appears [to be] inconsistent with Fed. R. of Evid. 606(b),” id. at 236, n. 5, and (2) United States v. Benally, 546 F.3d 1230, 1235-36, 1239-41 (10th Cir.2008).