Commercial Litigation and Arbitration

Telephone Call to Number Assigned to Business Is Self-Authenticating, But Not to Number Posted on Extinct Website —- Hearsay Excludable on Summary Judgment — Foreign Business Website Not Self-Authenticating under Rule 902(5)

Hansen v. PT Bank Negara Indonesia (Persero), 2013 U.S. App. LEXIS 2523 (10th Cir. Feb. 5, 2013):

Plaintiffs-Appellants Theodore L. Hansen, Interstate Energy Corp. and Triple M, L.L.C., appeal from the district court's judgment in favor of Defendant-Appellee PT. Bank Negara Indonesia (Persero) Tbk. ("BNI"). BNI is a banking corporation established under the laws of Indonesia. Plaintiffs sued BNI and various other defendants based on BNI's refusal to honor certain bank guaranties and letters of credit. Eventually, the district court granted BNI's motion for summary judgment for lack of jurisdiction under the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1604 ("FSIA"). Hansen v. Native Am. Oil Refinery Co., No. 2:06-CV-109, 2012 WL 567191 (D. Utah Feb. 21, 2012). Our jurisdiction arises under [*2] 28 U.S.C. § 1291, and we affirm.


Mr. Hansen owned gas stations, convenience stores, and other businesses in Utah, Idaho, and Wyoming. Aplt. App. 185. In 2003, he decided to sell these assets and related liabilities to Defendant Native American Refinery Company ("NARCO") for $50 million. Id. at 185-88. To secure its obligations, NARCO provided various BNI financial instruments. See id. at 188, 192-93, 1093, 1096, 1098 (describing a total of eight bank guaranties); id. at 191-92, 1097-98 (describing twenty-six different standby letters of credit). Some of these instruments secured Mr. Hansen's obligations to Triple M. Id. at 193, 953-57. The rest, however, secured NARCO's obligations to Mr. Hansen and to Interstate Energy, which Mr. Hansen owned. Id. at 188, 191-92, 967-1015.

Prior to the issuance of these guaranties, NARCO had never been a BNI customer, and Mr. Hansen had no experience with bank guaranties. See id. at 675-76, 694, 697, 899. But Mr. Hansen and others made various efforts to confirm these instruments. For example, Mr. Hansen searched a purported BNI website--which no longer exists--to see if the names of the bank officers on the guaranties matched those on the website. [*3] Id. at 581 (Hansen Dep.). Mr. Hansen also spoke by telephone with individuals he believed to be BNI employees Dr. Firmansyah and Eko Budiwiyono. Id. at 581, 583. According to Mr. Hansen, they confirmed the Bank's relationship with NARCO and the guaranties. Id. at 60, 581, 583. In none of these attempts to confirm the guaranties, however, did any individual explicitly validate any of the financial instruments as authentic BNI paper. Id. at 582, 708-09.

NARCO's CEO, Defendant Steve O.Z. Finkel-Minkin, NARCO's president, Defendant Robert McKee, and Triple M manager Mark McDougal corroborated this account. Id. at 1173, 566, 587. Finally, after Mr. Hansen attempted to use the financial instruments to secure another line of credit, Merrill Lynch employee Quinn Jensen contacted the BNI New York office to determine the authenticity of the instruments. Id. at 556, 558. During each call with BNI, the bank confirmed that a guaranty number Mr. Jensen provided was consistent with BNI guaranty numbers generally, but responded that the bank would have to see an actual certificate before confirming authenticity. Id. at 556-58. Merrill Lynch eventually decided not to extend the line of credit to Mr. [*4] Hansen. Id. at 1049-50.

Ultimately, NARCO failed to meet its obligations, and creditors foreclosed on the assets. Id. at 192, 1095. When Mr. Hansen contacted BNI, BNI refused to make payment and denied issuing or authenticating any of the instruments. Id. at 193, 225. BNI submitted fifteen declarations by individuals whose names and purported signatures appear on the guaranties denying issuance and authenticity. Id. at 242-45; see also id. at 247-48, 254-56, 266-67, 277-83, 289-91, 297-99, 306-07, 314-15, 321-22, 328, 339-40, 348-51, 356-58, 365-66, 370-72. One Indonesian resident, Eko Budianto, however, declared that, on behalf of NARCO, he helped facilitate the bank guaranties and letters of credit issued by BNI and spoke with various BNI employees when doing so. Id. at 1215-18. Mr. Budianto was not employed by BNI. Id. at 902, 915-16.

Plaintiffs sued BNI on February 6, 2006 based on its refusal to honor its alleged financial instruments. ***

C. Are the Statements About the Telephone Conversations Sufficiently Authenticated?

Plaintiffs next argue that there was sufficient evidence that Dr. Firmansyah and Mr. Budiwiyono were agents of party-opponent BNI and that the district court erred in finding that their alleged statements during various telephone conversations were inadmissable hearsay. See Fed. R. Evid. 801(d)(2) (describing admissions by party-opponents as non-hearsay). Plaintiffs rely on evidence about how the telephone number for BNI was obtained, that calls were answered purportedly by BNI representatives, and that the conversations related to business one would expect to be conducted over the phone. See Aplt. Open. Br. 18-19, 28-32. Plaintiffs contend that Rule 901(b)(6) or 902(5) establishes that the statements were made by someone at or on behalf of BNI such that they are admissible under Rule 801(d)(2).

Again, we are not persuaded. Generally, "[Fed. R. Civ. P.] 56 precludes the use of inadmissible hearsay testimony in depositions submitted . . . in opposition to, summary judgment." Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1236 (10th Cir. 1998) (quotation omitted). When an otherwise inadmissible hearsay statement is made by a party-opponent, however, it may be admitted under Rule 801(d)(2). In order to qualify as an admission by a party-opponent, Plaintiffs must establish that it was made by the party or that the party adopted or authorized it. Fed. R. Evid. 801(d)(2). Neither Rule 901(b)(6) nor Rule 902(5) gets us there.

Rule 901(b)(6)(B) provides that a telephone call to a business is authenticated if there is evidence that a person placed a call to a telephone number assigned by the telephone company to that particular business and the subject of the telephone call related to business that is reasonably transacted over the telephone. See Fed. R. Evid. 901(b)(6)(B) & cmt. On a purported BNI website that no longer exists, Mr. Hansen found a phone number and he--or someone with whom he worked--called it.... Mr. McKee, Mr. McDougal, and Mr. Finkel-Minkin had similar experiences. See id. at 1173, 566, 587. Plaintiffs admit that "there is no evidence in the record that the telephone number called . . . was the number assigned by the telephone company to BNI." Aplt. Open. Br. 31. Without additional evidence, Rule 901(b)(6) cannot be used to establish that these statements were made by anyone at, or on behalf of, BNI. Therefore the district court did not abuse its discretion in concluding that Dr. Firmansyah and Mr. Budiwiyono could not be considered party-opponents on this ground.

Plaintiffs nevertheless argue that the website should be considered self-authenticating pursuant to Rule 902(5) and that the statements made during calls to a number on that website are therefore admissible. Aplt. Open. Br. 31 & n.6. We disagree. The rule provides that "[a] book, pamphlet, or other publication purporting to be issued by a public authority" is self-authenticating. Fed. R. Evid. 902(5). A website of a foreign bank does not fall squarely within the language of this rule. See, e.g., id. 902(5) cmt. ("Dispensing with preliminary proof of the genuineness of purportedly official publications [is] most commonly encountered in connection with statutes, court reports, rules, and regulations . . . ."). Moreover, a telephone number retrieved from a website in these circumstances does not have the sufficient indicia of reliability that justifies the self-authentication exceptions in the first place. See id. 902 cmt. Generally, Rule 902 eases Rule 901's requirements of authentication where the possibility of fraud, forgery, and mis-attribution of certain documents is slight. This is hardly the case here. We therefore conclude that the district court did not abuse its discretion in excluding the telephone conversations as inadmissible hearsay.

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