United States District Court, D. Connecticut
RULING ON PENDING MOTIONS RE AUDIO RECORDINGS AND
Jeffrey Alker Meyer United States District Judge.
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.
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
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.
light of this factual background, I will consider each of
defendants' arguments in turn.
to Audio Recordings Based on Spoliation
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).
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.
to Audio Recordings Based on Authentication
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).
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.
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.
to Audio Recordings Based on “Best Evidence”
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 ...