On Tuesday, Judge Kaplan granted a motion in limine concluding, in a matter of first impression in SDNY, that the evidentiary bar in Federal Rule of Evidence 407 against subsequent remedial measures applies to plaintiffs just the same as defendants. The plaintiff is the tax-collecting arm of the Dutch government, which accuses various defendants of obtaining fraudulent refunds, and which sought to exclude evidence that it updated it guidelines after the underlying events in ways that potentially would have flagged the refund requests as improper. The defendants wanted to introduce the evidence to show (among other things) that the Dutch government was partly to blame for processing the refunds.

Judge Kaplan granted the motion, and, in doing so, rejected the defendants’ arguments that that Rule 407 applies only to measures taken by defendants.Continue Reading Judge Kaplan: Bar on Evidence of Subsequent Remedial Measures Applies to Both Plaintiffs and Defendants