In Kennedy v. Supreme Forest Prods., No. 3:14-cv-01851, (D. Conn. May 22, 2017) at issue is whether certain audio recordings and photographs may be excluded. Plaintiff Michael Kennedy filed suit against defendants Supreme Forest Products, Inc., and Supreme Industries, Inc., alleging that they violated the Federal Surface Transportation Assistance Act by firing him 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 want to preclude certain audio recordings and transcripts of these recordings. While Plaintiff was still employed by Defendants, he used his smartphone to record the audio of a meeting that took place at work on March 17, 2014, and a later conversation that he had with his supervisors 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. 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.
Defendants also want to preclude two photographs that plaintiff allegedly took on his smartphone. The Court stated that plaintiff should have preserved the recordings on his smartphone, but concluded that he did not act in bad faith when he deleted the recordings and further concluded that sanctions were not appropriate in light of the fact that Defendants did not pursue access to the smartphone and the originals on the smartphone during the course of the discovery period and depositions in this case.
Defendants also argue that the copy of the audio recordings should be precluded on grounds that they are not authentic. However, the Court says Defendants have done nothing to show that Plaintiff has materially altered the electronic recordings in any way. Provided the Plaintiff testifies 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.
Defendants argue that the best evidence rule precludes admission of the copies made by plaintiff from the recordings he made on his smartphone. The Court says since there is no evidence of bad faith in the deletion of the originals, that this objection is rejected.
Defendants object on foundation and hearsay grounds to several of the specific statements made by plaintiff and by one or more unidentified male speakers in the audio recordings. The Court stated it would overrule hearsay objections, because the hearsay rule does not preclude the admission of statements made during a recorded conversation that are not offered for the truth of what was said and also because the statements made by plaintiff and his co-workers are important to a context for and understanding of the fully admissible statements made by the company managers.
Defendants object to the admission of transcripts prepared by Plaintiff of certain parts of the audio recordings that Plaintiff intends to introduce at trial. The Court concluded that Plaintiff’s proposed transcripts of the conversations are arguably correct. A transcript of an audio recording is admissible for limited demonstrative purposes at trial provided that the opposing party has an opportunity to introduce a competing transcript if there is disagreement concerning the content of certain statements. The Court will give specific instructions to the jury regarding the audio recordings.
Defendants move for sanctions as a result of plaintiff’s late disclosure of the photographs. Plaintiff admits the photos were not timely produced. The Court, in determining what sanctions, if any, to impose for a violation of a discovery requirement that is discovered on the eve of trial, will consider the party’s explanation for the failure to comply with the discovery requirement; the importance of the evidence in question; the prejudice suffered by the opposing party as a result of having to prepare to meet the new evidence; and the possibility of a continuance. Considering these factors, the Court has decided to preclude the photographs. Plaintiff has not presented a good reason for the late disclosure, and they were produced too late to allow for Defendants to defend against them. The Court said a continuance was not appropriate considering the case is already several years old.
Defendant’s motion to preclude audio recordings is denied. Defendant’s motion for sanctions is granted in part.