The following is from an article titled "The Examiner in Corporate Restructurings Burden or Benefit?" Written by Thomas Salerno. Google it. Read it. Investigative opinions, legal analysis and potential conclusions are hearsay. Now compound this with the fact that the examiner said he ran out of time, the fdic did not participate etc, the ec can pick up where he dropped the ball and continue to fight:
An examiner report is in the strictest form classic hearsay – it is an out of court statement by the examiner regarding facts and legal conclusion drawn from those facts (again depending upon the mandate of the examiner when appointed). Since it is clear that the examiner report does not bind the court in the case, how does one get an examiner report into evidence? Interestingly, there have been few reported decisions on this very important issue in question. There are at least two theories to get an examiner report into evidence. The first is that the facts being determined would constitute ‘investigative findings’, and therefore would be an exception to the hearsay rule. So are an examiner’s factual findings ‘investigative findings’ such that they are admissible as evidence in court? Perhaps. At least one court has found that the legal conclusions in an examiner report under no circumstances would meet the hearsay exception of the rules, but rather the factual findings may qualify. The problem may be further exasperated by the fact that examiner reports may contain ‘hearsay within hearsay.’ For example, an examiner report will usually be based upon witness interviews. The examiner may say, for example: “John Doe told me as follows...” Accordingly, not only is the examiner report hearsay, but it contains hearsay with respect to the statement of John Doe. Courts that have looked at this problem have held that unless there is an independent basis in the evidentiary rules to admit the hearsay contained in the examiner report, even the factual findings may be kept out of an evidentiary record.
The second theory used is that the examiner is in the nature of a court-appointed expert under Federal Rule of Evidence 706. Under the Federal Rules of Evidence, a court can appoint its own expert to assist the court with certain defined areas. It has been suggested in at least one case that an examiner is in the nature of a court-appointed expert on the areas that he or she is examining. While that is fine as far as it goes, that would also subject the examiner to complete discovery obligations that would be incumbent upon any expert (such as depositions, requests for production of documents, etc.). This may run counter to the examiner’s wishes as the examiner may not simply wish to become an expert for a litigant in the case. (In the Enron case, for example, in order not to ‘chill’ the examiner’s activities, the bankruptcy court specifically limited discovery of the examiner.) In addition, if it is not stated clearly at the outset of the appointment that the examiner will be in the nature of a court-appointed expert, trying to anoint the examiner with this title after the examiner report comes out may be a bit strained.
AI
