Shutterstock_136443644When can "newly discovered evidence" save you from a bad outcome, even after the time for appeal has expired?

Rarely, the D.C. Circuit ruled on May 13.

Too rarely, Blawgletter thinks.

Wanna Be Startin' Sometin'

The D.C. Circuit's decision came in a case by one of Michael Jackson's last managers, Raymone K. Bain. Bain brought the case on May 5, 2009 — just weeks before Jackson's death (by propofol and lorazepam) on June 25, 2009.

Bain claimed that Jackson owed her $44 million as a 10 percent fee for bringing him projects under a May 2006 Personal Services Agreement.

Beat It

MJJ Productions, Inc., and the Estate of Michael Joseph Jackson moved for summary judgment against Bain's case,* citing a Payment and Release Agreement that Bain signed in December 2007.

Under the PRA, Jackson paid Bain about $500,000 in “full and final satisfaction of any [and] all monies, known or unknown, to be owed to you by the Jackson Parties with respect to any and all agreements whether verbal or written that you may have entered into with the Jackson Parties from the beginning of time until December 27, 2007.”

Don't Stop 'til You Get Enough

Bain opposed the motion to dismiss Because: Reasons. The Reasons included fraud, mistake, and forgery (of Jackson's signature). Bain also said the release language didn't really cover "any [and] all monies . . . with respect to any and all agreements . . . entered into with the Jackson Parties" as of December 27, 2007 but instead excluded "claims concerning future work or deals yet to be finalized." Bain v. MJJ Productions, Inc., No. 12-7061, slip op. at 3 (D.C. Cir. May 13, 2014).


The court ruled against Bain on May 7, 2010. But Bain didn't appeal.

She instead waited until October 4, 2010, to file a motion to set aside the summary judgment against her under Rule 60(b)(2). She cited "newly discovered evidence" — an April 24, 2008 letter, in which the King of Pop himself wrote:

I have never terminated your services nor did I null and void any of your Agreements. I know nothing about a release form. I neither authorized or signed the same. Therefore, I am authorizing you to continue to communicate with Mr. Yakoob regarding the Sultan’s property in Las Vegas, and to continue your role as my General Manager and President/COO of The Michael Jackson Company.

Bain, slip op. at 4-5. Bain alleged that he got a copy of the letter in late June or early July 2010 from a "consultant" to Jackson. Why the consultant chose to bring a box full of Jackson stuff to Bain more than a year after Jackson died does not appear.

Leave Me Alone

The district court held that the letter couldn't count as "newly discovered" under Rule 60(b)(2). The court pointed out that, at the time he responded to the motion for summary judgment, Bain had known about the letter, at least in the sense that he recalled that it once existed. The fact that he didn't get a copy until after the court granted summary judgment did not matter to the court.

The district court also ruled that Bain hadn't used enough "due diligence" to track down a copy of the letter for purposes of Rule 60(b)(2). Bain should have at least mentioned the letter in his opposition papers, the court noted, but did not.


The court of appeals affirmed. It disagreed that the letter couldn't qualify as "newly discovered". In the panel's view, "evidence that was lost, hidden, or unavailable during trial could qualify as 'newly discovered evidence' when later found, even if the evidence was known to the movant at the time of trial." Bain, slip op. at 8.

But the court agreed that Bain had failed to meet the due diligence test. Why didn't Bain ask the district court for help in finding a copy of the letter, the court wanted to know. It wrote:

Bain . . . ultimately offers no justification for her failure to mention the 2008 letter to the district court, to seek the court’s assistance in locating a copy, or to ask the defendants for any copy in their possession. Nor does she suggest that any such efforts to locate the letter could not have borne fruit. See In re Hope 7 Monroe St. Ltd. P’ship, 743 F.3d 867, 873-74 (D.C. Cir. 2014). In those circumstances, the district court did not abuse its discretion in finding that Bain failed to exercise reasonable diligence.

Bain, slip op. at 11.

Never Can Say Goodbye

Blawgletter thinks that the courts expect too much. They say that, even if you have no reason to believe that a copy of a document still exists, you must cite it and ask the court to help you find a copy it. The panel cites only to the original — which seems never to have turned up — but doesn't explain the relevance of its merely possible existence. The copy that Bain eventually found came from a file relating to the Sultan of Brunei. How could Bain have asked for help finding that copy?

The courts also seem to have assumed that Bain had a photographic memory of what the April 2008 letter said. That feels like a big leap to us. The only evidence relating to Bain's knowledge said nothing specific about the letter and instead noted that "I knew I had correspondence from Mr. Jackson" — hardly proof that Bain knew of the April 2008 missive or recalled its contents. Bain, slip op. at 6.


*The court actually converted a motion to dismiss into a summary judgment motion, but it amounts to the same thing.

Photo credit:    Joe Seer /