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Kennedy v. Supreme Forest Products, Inc.

United States District Court, D. Connecticut

May 22, 2017

MICHAEL KENNEDY Plaintiff,
v.
SUPREME FOREST PRODUCTS, INC., and SUPREME INDUSTRIES, INC., Defendants.

          RULING ON PENDING MOTIONS RE AUDIO RECORDINGS AND PHOTOGRAPHS

          Jeffrey Alker Meyer United States District Judge.

         Plaintiff Michael Kennedy has filed suit against defendants Supreme Forest Products, Inc., and Supreme Industries, Inc., alleging that they violated the federal Surface Transportation Assistance Act by terminating his employment on April 3, 2014, for refusing to drive trucks that were loaded with mulch that was over the federal legal weight limit. Defendants have moved to preclude and for sanctions in connection with two types of evidence that plaintiff intends to introduce at trial.

         First, defendants seek to preclude certain audio recordings and transcripts of these recordings. While plaintiff was still employed by defendants, he used his smartphone to surreptitiously audio-record a meeting that took place at his place of employment on March 17, 2014, and a later conversation that he had with his supervisors Mark Bellino and Martin Paganini on April 3, 2014. The recordings were copied to a computer, and the computer in turn was used to generate additional copies that were disclosed by plaintiff to defendants during the course of discovery. At some point in time plaintiff deleted the “original” of the recordings that had been stored on his smartphone. Plaintiff intends to introduce at trial certain portions of the two copied audio recordings, and he has also prepared a transcript of these portions of the audio recordings for the jury to review while the audio recordings are played at trial.

         Second, defendants seek to preclude two photographs that plaintiff allegedly took on his smartphone. On the day before jury selection and long after discovery had closed in this case, plaintiff advised defendants of his intent to use at trial these two newly disclosed photographs that he allegedly took while working for defendants in 2014. Both photographs purportedly show the air suspension gauge of plaintiff's truck and would support plaintiff's claim that the truck was loaded above the legal limit, including on April 3, 2014, when plaintiff was allegedly terminated from his employment.

         In light of this factual background, I will consider each of defendants' arguments in turn.

         Objection to Audio Recordings Based on Spoliation

         Defendants argue that plaintiff should be sanctioned for his failure to produce the original versions of his workplace audio recordings and the cell phone that he used for recording. Doc. #140. I do not agree for substantially the reasons set forth in plaintiff's opposition memorandum. Doc. #148. Although plaintiff should have preserved the recordings on his smartphone, I do not conclude that he acted in bad faith when he deleted the recordings. I further conclude that sanctions are not appropriate in light of the fact that defendants did not attentively pursue access to the smartphone and the originals as stored on the smartphone during the course of the discovery period and depositions in this case. See generally West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) (discussing district court authority and discretion to impose sanctions for spoliation of evidence).

         A motion for sanctions after the close of discovery should not be brought as a substitute for defendants' attentive pursuit of evidence during discovery. If defendants had timely and fully pursued access to the smartphone and the original recordings during the discovery period, I might well have concluded that plaintiff's deletion of the original recordings should warrant sanctions. But that is not what happened here, and there is no indication that the copies of the recordings produced by plaintiff have been materially altered or are otherwise not the same as the originals recorded by plaintiff. Although defendants may fully cross-examine plaintiff about his deletion of the recordings and argue at closings that plaintiff should have preserved the original recordings, the Court will not issue an adverse inference instruction in the absence of further evidence that plaintiff altered or destroyed the evidence with intent to impede its availability for trial.

         Objection to Audio Recordings Based on Authentication

         Defendants argue that the copy of the audio recordings should be precluded on grounds that they are not authentic. Doc. #105. A party who seeks to introduce evidence at trial must, of course, bear the burden to show that the evidence is what its proponent claims it to be. Rule 901(a) of the Federal Rules of Evidence provides that “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a).

         As the Second Circuit has observed, Rule 901 “does not definitively establish the nature or quantum of proof that is required preliminarily to authenticate an item of evidence.” United States v. Vayner, 769 F.3d 125, 130 (2d Cir. 2014). Still, “the bar for authentication of evidence is not particularly high, ” and “the proponent need not rule out all possibilities inconsistent with authenticity, ” but need only adduce “sufficient proof . . . so that a reasonable juror could find in favor of authenticity or identification.” Ibid. And of course, once an item of evidence is “authenticated” as required under Rule 901, this “merely renders evidence admissible, leaving the issue of its ultimate reliability to the jury, ” for which “the opposing party remains free to challenge the reliability of the evidence, to minimize its importance, or to argue alternative interpretations of its meaning, ” with all such challenges going to the weight of the evidence rather than its initial admissibility. Ibid.[1]

         Having listened in camera to those portions of the recordings that plaintiff intends to use at trial, I cannot conclude that plaintiff will necessarily fail to establish that the recordings are authentic pursuant to Rule 901. Defendants have done nothing to show that plaintiff has materially altered the electronic recordings in any way. Provided that plaintiff testifies as anticipated and in a manner that the Court decides is credible that the portions of the recordings he intends to introduce at trial are indeed a fair and accurate representations of meetings or conversations for which he was present, the Court will likely overrule any authenticity objection under Rule 901.

         Objection to Audio Recordings Based on “Best Evidence” Rule

         Defendants further argue that the “best evidence” rule precludes admission of the copies made by plaintiff from the recordings he made on his smartphone. It is true that Rule 1002 of the Federal Rules of Evidence provides that “[a]n original writing, recording, or photograph is required to prove its content unless these rules or a federal statute provides otherwise.” But defendants' argument overlooks another evidentiary rule-Rule 1004(a) of the Federal Rules of Evidence-that excuses the “best evidence” requirement if “[a]ll the originals are lost or destroyed, ” unless the proponent lost or destroyed them in bad faith. See, e.g., United States v. Whittingham, 346 Fed.Appx. 683, 685 (2d Cir. 2009) (affirming admission of photographs derived from surveillance video notwithstanding non-bad-faith destruction of the underlying video); see ...


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