Commercial Litigation and Arbitration

Text Messages — Authentication by One Party to Discussion — No Best Evidence Problem Converting Texts to Emails for Printing and Submission to Court — 12(f) Motion to Strike “Drastic,” Disfavored

Greco v. Velvet Cactus, LLC, 2014 U.S. Dist. LEXIS 87778 (E.D. La. June 27, 2014):

Plaintiff Joseph Greco moves to strike a number of exhibits attached to the motions for summary judgment of defendants Velvet Cactus, LLC and Scott Dickinson. Greco also moves to strike certain statements in defendants' statements of uncontested material facts. For the reasons that follow, the Court DENIES plaintiff's motion.


Federal Rule of Civil Procedure 12(f) allows the court to strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). A motion to strike under Rule 12(f) "is a drastic remedy to be resorted to only when required for the purposes of justice." Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962); see also Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982)("[M]otions  [*2] to strike a defense are generally disfavored, . . ."); Synergy Mgmt., LLC v. Lego Juris A/S, No. 07-5892, 2008 WL 4758634, at *1 (E.D. La. Oct. 24, 2008) ("Motions to strike made under Rule 12(f) are viewed with disfavor by the federal courts, and are infrequently granted."). A motion to strike should be granted only when "the allegations are prejudicial to the defendant or immaterial to the lawsuit." Johnson v. Harvey, No. 96-3438, 1998 WL 596745, at *7 (E.D. La. Sept. 8, 1998) (citation omitted). Immateriality is established by showing that the challenged allegations "can have no possible bearing upon the subject matter of the litigation." Bayou Fleet P'ship v. St. Charles Parish, No. 10-1557, 2011 WL 2680686, at *5 (E.D. La. Jul. 8, 2011) (citations omitted). Disputed questions of fact cannot be decided on a motion to strike. Gonzales v. State Farm Mut. Auto. Ins., No. 10-3041, 2011 WL 2607096, at *5 (E.D. La. July 1, 2011).


B. Exhibit 4

Exhibit 4 consists of a series of emails forwarded from a Sprint phone number to defendants' attorney, Kate Brownlee. In defendants' supplemental Exhibit 5, Dickinson declares under penalty of perjury that each email contains a text message sent either by Greco to Dickinson or vice versa. The emails do not identify the author of each message or indicate the date on which each message was sent.

Dickinson declares that his phone does not permit him to print or take a "screen shot" of the text messages. He further declares based on his personal knowledge that the text messages contained in Exhibit 4 were sent between May 11, 2012 and March 13, 2013. During that period, Dickinson declares that Greco and Dickinson sent each other at least 111 messages. In Dickinson's declaration, he specifically identifies Greco as the author of 11 of the messages and provides the date on which each of the 11 text messages was sent. He bases these declarations on his personal knowledge "based on [his] review of the text messages contained on [his] cell phone." Greco personally admitted to the accuracy of 5 of the 11 text messages in the portion of his deposition that was submitted by defendants. Moreover, Greco's attorney questioned Dickinson about a number of Dickinson's messages to Greco that were included in Exhibit 4, and Greco now relies on Dickinson's acknowledgment that he sent those messages in the opposition to summary judgment.

Greco first argues that the entire set of messages is irrelevant. Rule 401 provides that evidence is relevant as long as it has probative value with respect to any fact of consequence to the determination of the action. Fed. R. Evid. 401. Defendants argue that the messages speak to the issue of whether the allegedly harassing conduct was "unwelcome," as well as whether it was "severe or pervasive." Both of these issues are elements of Greco's claim of hostile work environment sexual harassment.

Each message whose author has not been identified in either Dickinson's declaration, Dickinson's deposition,  [*5] or Greco's deposition lacks relevance for the purposes of defendants' motions for summary judgment and will not be considered by the Court in deciding defendants' motions for summary judgment. Without knowing the identity of the author, those messages are probative neither of Dickinson's conduct nor of Greco's subjective response to Dickinson's alleged harassment.

Nonetheless, the messages are not the proper subject of a motion to strike unless they "can have no possible bearing upon the subject matter of the litigation." To the extent the messages are otherwise admissible, defendants could establish their relevance at trial by introducing testimony or other evidence of the identity of their author.

Greco also argues that there is a lack of foundation for the messages, but defendants' supplemental Exhibit 5, which is Dickinson's sworn declaration, identifies the contents of the emails and explains why they are presented in the format in which they appear.

Greco further claims that the text messages are not authenticated. But Rule 901(b)(1) provides that the testimony of a witness with knowledge "that an item is what it is claimed to be" satisfies the authentication requirement. Fed. R. Evid. 901(b)(1).  Dickinson personally forwarded each text message from his phone to Brownlee's email address. Accordingly, he has personal knowledge of the authenticity of contents of the emails, and his testimony identifying them as a series of text messages between him and Greco suffices to authenticate them as such.

Greco also argues that the emails violate the Best Evidence Rule, which provides that "[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise." Fed. R. Evid. 1002. Contrary to defendants' assertion, the Best Evidence Rule does in fact apply to the text messages, because Dickinson's personal knowledge of them is derived entirely from having viewed them in his phone. Cf. United States v. Harry, 927 F. Supp. 2d 1185, 1227 (D. N.M. 2013) (applying best evidence rule to text messages); 2 McCormick On Evid. § 233 (7th ed.) (citing State v. Espiritu, 176 P.3d 885, 893 (Haw. 2008) (noting that the "best evidence rule is "particularly suited" to electronic evidence and admitting testimony about text messages under the best evidence rule when original messages and cell phone were unavailable and there was no evidence of proponent's bad faith)).

The purpose of the best evidence rule is to prevent inaccuracy and fraud when attempting to prove the contents of a writing. See United States v. Yamin, 868 F.2d 130, 134 (5th Cir. 1989) (holding that, in a prosecution for the sale of counterfeit watches, it was not error to allow testimony regarding the trademark on the watches rather than introducing the watches themselves, in part because the purpose of the rule was not violated) (citing Fed. R. Evid. 1001, advisory committee note). That purpose is satisfied here. Dickinson states under penalty of perjury that each email accurately reflects the contents of a single text message. Moreover, plaintiff not only admits to the accuracy of several of the messages in his deposition; he also utilizes the very same exhibit as the basis for his deposition of Dickinson concerning a number of the text messages. Indeed, Exhibit 4 is the only possible source of the messages about which Greco's attorney deposed Dickinson, because Greco replaced his own phone shortly after filing his EEOC charge and claims to no longer have a record of the messages. Greco, just like defendants, relies heavily on deposition testimony concerning the text messages in his opposition memorandum. Plaintiff cannot seriously dispute the accuracy of the very exhibit on which he relies, and in fact, he does not. Nowhere in his motion to strike does Greco actually dispute the accuracy of the messages in the exhibit.

Moreover, given the purposes of the Best Evidence Rule, it is reasonable to conclude that the emails meet the definition of an original. "For electronically stored information, "original" means any printout -- or other output readable by sight -- if it accurately reflects the information." Fed. R. Evid. 1001. According to Dickinson's affidavit, the text messages essentially were converted to email format for printing. As discussed above, Greco cannot and does not dispute that the emails accurately reflect the limited information they purport to display--not the author or date of the messages, but their contents. Nor does Greco indicate whether he believes the author and time stamp would even be displayed on the same screen as the content of each message. Accordingly, the Court concludes that it is appropriate for both parties to rely on the emails as evidence of the content of the messages themselves while relying on sworn statements and deposition testimony for information regarding the author and date of those messages.

Greco also argues that the messages are hearsay. To the extent defendants seek to introduce messages authored by Greco against him, they are the admissions of a party opponent and are not hearsay. Fed. R. Evid. 801(d)(2). Messages sent by Dickinson are Dickinson's own, out-of-court statements and would constitute inadmissible hearsay if introduced by Dickinson at trial unless they were not offered for the truth of the matter asserted or met some exception to the hearsay rule. There was only one such instance in the entirety of defendants' motions, however, and the message was not offered for the truth but to demonstrate its effect on Greco.11 It is plaintiff--not defendant--who relies on messages sent by Dickinson in support of his arguments. Accordingly, the Court denies plaintiff's request to strike Exhibit 4.

11   R. Doc. 28-1 at 10 (Greco to Dickinson: "U left yet?"; Dickinson to Greco: "Not going buddy."; Greco to Dickinson: "Alrite bud. Next time.")


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