Commercial Litigation and Arbitration

Date & Time Stamp on Voicemail, Like Header on Fax, ≠ Hearsay — Nor Is Voicemail Offered for Fact Statements Were Made — No Best Evidence Bar Where Provider Deleted Original — Witness Testimony OK; Maybe Copy, Too

Walker v. Asset Acceptance LLC, 2012 U.S. Dist. LEXIS 95128 (D.N.J. July 10, 2012):

a. The Voicemail Message and Plaintiff's Testimony Are Not Hearsay

"Hearsay" means a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Fed. R. Evid. 801(c). Defendant argues that the profane voicemail message and Plaintiff's testimony about it are hearsay. Defendant further argues that the voicemail system's statements of the date and time the message were received are also hearsay. Neither argument is persuasive because neither the statements nor Plaintiff's testimony as to them are hearsay.

Not every extrajudicial statement  [*9] constitutes hearsay. U.S. v. Saada, 212 F.3d 210, 218, n. 8 (3d Cir. 2000). As noted in the definition, the hearsay rule applies to statements offered to prove the truth of the matter asserted in the statement. Here, Plaintiff does not offer the profane remark or testimony about it in order to prove its truth; rather, the import of the statement is its having been made, as such a statement could violate the FDCPA. "If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of the matter asserted, and the statement is not hearsay." Id.; Fed. R. Evid. 801(c), advisory committee note. Thus, by definition, the voicemail message is not hearsay.

The automated time-and-date stamp attached to the voicemail is also not hearsay. The voicemail system is not a declarant and the  [*11] data it collected and relayed were not statements. U.S. v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003) (header on a fax was not hearsay because "a statement is something uttered by 'a person,' so nothing 'said' by a machine . . . is hearsay") (citation omitted); See also, U.S. v. Washington, 498 F.3d 225, 231 (4th Cir. 2007) (only a person may be a declarant and make a statement). As such, the voicemail system's time-and-date identifier is not hearsay. Accordingly, the Court concludes that the voicemail message and Plaintiff's testimony as to what she heard therein are not excluded as hearsay. 3

3   Because the Court finds the voicemail message is not hearsay for the reasons stated, Plaintiff's arguments that the statement constitutes a party admission need not be addressed.

b. Plaintiff's Testimony Concerning the Voicemail Message is Not Excluded Under Fed. R. Evid. 1002.

The determination that the message and Plaintiff's testimony regarding it are not hearsay does not end the inquiry into their admissibility. Because Plaintiff relies on the contents of the voicemail message as the basis of Defendant's alleged violation of the FDCPA, Plaintiff's evidence may be subject to the admissibility  [*12] standards of Article X of the Federal Rules of Evidence. The Court must therefore determine whether Plaintiff's evidence--the message and her testimony--are subject to and excluded by the best evidence rule.

Derived from the common law "best evidence rule," Rule 1002 limits the forms of evidence that are admissible to prove the content of writings, recordings and photographs. "An 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. The Rules make provision, however, for the admission of other forms of evidence in certain circumstances. Under Rule 1003, "[a] duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate." Fed. R. Evid. 1003. In addition, "[a]n original is not required and other evidence of the content of a writing, recording, or photograph is admissible if . . . (a) all the originals are lost or destroyed, and not by the proponent acting in bad faith." Fed. R. Evid. 1004.

As an initial matter, the Court finds that Article X is applicable  [*13] in this case because in order to sustain her claim, Plaintiff must establish that the content of the voicemail message violated the FDCPA. Plaintiff's knowledge of the profane statement arises solely from the recorded message. In addition, Plaintiff does not have independent first hand knowledge of the date and time the message was left or of the originating phone number, which are alleged to link the message to Defendant, outside of the content of the message itself. Thus, Plaintiff must prove the content of the recording to satisfy her burden of proof and Rule 1002 applies. The Court must therefore determine whether any or all of Plaintiff's evidence regarding the message is excluded under the Rules.

Plaintiff does not possess an original version of the message as recorded by her cell phone provider. That original, which was not physically stored on Plaintiff's phone but on her cell phone provider's server, no longer exists. Plaintiff asserts that she had originally been told that the message would be retrievable for six months, until January 22, 2011. (Walker Dep. 27:3-7.) According to Plaintiff, the message was actually deleted from the provider's server after fourteen days, which  [*14] Plaintiff did not learn until Plaintiff's Counsel subpoenaed the message in January of 2011 and the provider notified Counsel that the message was no longer available. (Decl. of Lovelt Walker ("Walker Decl.") ¶ 9.; Decl. of Brent F. Vullings ("Vullings Decl.") ¶ 3). 4 Plaintiff states that prior to its deletion, she accessed the original version through her phone and one of her sons recorded it onto his own phone, transferred it to a computer and sent it to her attorney. (Walker Dep. 20:6-25 - 21:1-9.) It is this version which Plaintiff offers as evidence.

4   The message would have been deleted no later than August 6, 2010. (Vullings Decl. ¶ 4.)

Loss or destruction of the original, unless due to bad faith of the proponent, is a satisfactory explanation of nonproduction. Fed. R. Evid. 1004(1), advisory committee note. On January 13, 2011, Plaintiff was deposed and testified that she understood the original message to be retrievable until January 22, 2011. Plaintiff's Counsel served a subpoena upon Plaintiff's cell phone provider on January 18, 2011, and in response the provider informed Counsel that the message would not have been retrievable after fourteen days. Though Counsel waited until  [*15] the eleventh hour to subpoena the original, there is no evidence of, and Defendant does not allege, that Plaintiff lost or destroyed the original in bad faith and the Court is satisfied that this was not the case. 5 This is enough to satisfy 1004 and allow for the introduction of secondary evidence of the voicemail message.

5   Defendant argues that it sent Plaintiff's attorneys a letter on November 3, 2010 seeking to preserve the original message along with a proposed preservation order, which was filed on January 14, 2011. (Dominczyk Decl. Ex. "I," "J," "K.") Defendant argues that despite the request to preserve evidence, Plaintiff allowed the original message to be destroyed. If, however, the original message was already destroyed in August of 2010, Defendant's request in November 2010 for the preservation order was, unknown to either party, futile and the fact that Plaintiff waited until the last minute to attempt to acquire the message in January of 2011 did not affect the destruction of the original recording.

As discussed above, Plaintiff's testimony as to the content of the voicemail message is not hearsay. As the Court also finds that Plaintiff is entitled to present secondary  [*16] evidence of the message under Rule 1004, Plaintiff may testify as to the message as she heard it. As such, Plaintiff possesses admissible evidence which creates a genuine issue of material fact as to whether Defendant left an abusive voicemail in violation of the FDCPA. Accordingly, Defendant's motion for summary judgment as to the FDCPA claim will be denied.

6   Defendant challenges admission of Plaintiff's copied version of the message, arguing that it is not a suitable duplicate under Rules 1001 and 1003. Because Plaintiff's testimony regarding the message is admissible and enough on its own to raise a genuine issue for trial, the Court need not determine the admissibility of the copied message at this time in order to resolve Defendant's motion for summary judgment. As to that question, the Court feels that determining the propriety of admitting the copy of the recording requires a Rule 104 hearing prior to trial. Because the Court does not reach the issue, denial of Defendant's motion for summary judgment on the FDCPA claim does not preclude Defendant from maintaining its challenge.

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