Commercial Litigation and Arbitration

Email Sufficiently Authenticated by Opposing Party’s Act of Producing It in Discovery

AT Engine Controls Ltd. v. Goodrich Pump & Engine Control Sys., Inc., 2014 U.S. Dist. LEXIS 174535 (D. Conn. Dec. 18, 2014):

This case concerns a dispute between plaintiff AT Engine Controls Ltd. ("ATEC") and defendant Goodrich Pump & Engine Control Systems, Inc. ("GPECS") regarding technology in a digital electronic control unit ("DECU") that is used in certain military aircraft engines. The companies are longtime business partners, and they worked together decades ago to develop the DECU. But eventually, GPECS developed a new competing digital electronic control unit, the EMC-100. To develop the EMC-100, GPECS used certain DECU design documents.

In this lawsuit, ATEC claims that GPECS's usage of DECU design information to create the EMC-100 constitutes misappropriation [*3]  and misuse of ATEC's proprietary information in violation of a longstanding agreement between the parties. I conclude that, whatever merit there may or may not be to ATEC's claims, there is no genuine dispute of material fact that all of its claims are barred by the applicable statute of limitations. Accordingly, I grant GPECS's motion for summary judgment and deny ATEC's motion for summary judgment.



By the following month--September of 2004--the VTEC aero assets (except for the intellectual property rights in the DECU) had been sold to ATEC. In connection with this litigation, ATEC produced from its own files a document titled "Company Review" that is dated from early in September 2004.12 See Doc. #201 at 34-43. Viewing the facts in the light most favorable to ATEC, I will assume that this document was not written by anybody at ATEC but by a third-party contractor, consultant, or advisor. The first page lists Terry Madden and Andrea Hough as contact [*27]  people, and the document sets forth the following description of the GPECS product as a "plug and play" replacement for the DECU that infringes on ATEC's intellectual property rights:

   Whilst the T-55 DECU is currently having a large Production run for the Chinook upgrade Programme, over the next two years, [GPECS] ha[s] been developing their own Universal Governor, under US Army funding, which they claim could be used in place of the AT Engine Controls Limited DECU (even on the same airframe/engine as the AT Engine Controls Limited DECU)--as a Plug and Play replacement. However, it is less likely that the Customer will want to pay for new Units (and the Airframe/Engine Certification Programme) once it has initially Purchased the AT Engine Controls Limited DECU. If they did buy the [GPECS] Unit, then AT Engine Controls Limited would consider a lawsuit, as [GPECS] (as their own Customer for the DECU) would have found it hard to prove that their own unit is a Plug and Play replacement without infringing on the Intellectual Property Rights of AT Engine Controls Limited. Also, by that time, AT Engine Controls Limited would already have made the sales on the initial units, so the effect on its [*28]  ongoing business would not be as critical.

Id. at 38.

12     Notwithstanding the fact that ATEC produced this document from its own files, ATEC has argued--both in its memorandum in opposition to GPECS's motion for summary judgment and at oral argument--that this document is "unauthenticated" because it is "unsigned" or is a mere "draft." I am not persuaded. It is true that evidence submitted at the summary judgment stage must be capable of being "presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). And it is well established that, in order to be admissible, evidence must be properly authenticated--that is, there must be some "evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). But "the bar for authentication of evidence is not particularly high," United States v. Al-Moayad, 545 F.3d 139, 172 (2d Cir. 2008) (internal quotation marks and citation omitted), and a document can be authenticated in many ways, see Fed. R. Evid. 901(b) (setting forth a non-exhaustive list of ways that evidence may be authenticated). One such way--at least at the summary judgment stage--is by the mere act of production, which implicitly authenticates a document. See, e.g., United States v. Brown, 688 F.2d 1112, 1116 (7th Cir. 1982) ("Just as [the defendant] could have identified the records by oral testimony, his very [*29]  act of production was implicit authentication."); Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389, 397 (D. Conn. 2008) ("emails . . . properly authenticated to the extent that they were produced . . . by [party challenging authenticity] itself during discovery"), aff'd, 587 F.3d 132 (2d Cir. 2009); John Paul Mitchell Sys. v. Quality King Distribs., Inc., 106 F. Supp. 2d 462, 472 (S.D.N.Y. 2000) (defendant "implicitly authenticated . . . documents by his act of production"). Here, there is no dispute that ATEC produced the "Company Report" from its own files, implicitly authenticating the document. Moreover, for purposes of trial, I see no reason why this document could not be authenticated simply by the testimony of a records keeper at ATEC, who would presumably testify as to what both parties already acknowledge: that this document came from ATEC's own records. I also note that, while this document is obviously probative evidence of ATEC's knowledge of the "universal governor"/EMC-100 program, ATEC's contemplation of legal action against GPECS for copying its DECU intellectual property, and ATEC's motive for delaying any legal action, it alone is not dispositive in my analysis of the statute of limitations issue. In other words, my ruling would be the same even if I excluded this document from consideration.

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