Text Messages Insufficiently Authenticated by Testimony That Proponent Identified Owner of Phone from Which Texts Were Sent at an Uncertain Later Time and That He Couldn’t Recall How He Accessed or Copied the Messages

Barker v. Computer Sci. Corp., 2015 U.S. Dist. LEXIS 39994 (E.D. Va. Mar. 27, 2015):

Plaintiff Damien Barker ("Plaintiff" or "Barker") began his employment with Computer Science Corporation ("CSC") in February 2011 as a systems analyst. (Dkt. No. 77-6 at 2-3). In this position, he provided technical support to the United States Marine Corps ("Marine Corps"), a CSC client. Plaintiff's immediate supervisor was Nick Avenetti ("Avenetti"), and his secondary supervisor was Program Manager Judith Shaw ("Shaw"). Id. Captain Howard Smith ("Capt. Smith") served as the Marine Corps Operations Officer at Camp Pendleton. [*2]  Id. Richard Pennington ("Pennington") was CSC's Operations Director. (Dkt. No. 77-3 at 2).

Plaintiff alleges that beginning in March 2011, his coworkers made inappropriate racial comments and jokes toward him.1 (Dkt. No. 81 at 2). Plaintiff testified in his deposition that early in his employment, Sergeant Dieter Schirrmacher ("Sgt. Schirrmacher")2 and Jeremiah Mooney ("Mooney") made jokes at a barbeque about Barker making pan-fried chicken. (Dkt. No. 81-25 at 21). Plaintiff also alleged that Mooney and Sgt. Schirrmacher made jokes about racial stereotypes involving watermelons. (Dkt. No. 90-1 at 2, 7).

1   The coworkers alleged to have made these comments were not African American.

2   Sgt. Schirrmacher was employed by the Marine Corps, not CSC.

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3. Exhibit V

Exhibit V is a printout of a purported text message exchange between Capt. Smith and Sgt. Schirrmacher. (Dkt. No. 81-21), CSC argues that Exhibit V should be stricken because the text messages are unauthenticated. (Dkt. No. 87 at 5). Plaintiff argues that he authenticated the text messages at his deposition and in the declaration submitted as Exhibit 1 to his opposition to the motion to strike. (Dkt. No. 92 at 3-6).

The Court finds that Plaintiff did not adequately authenticate the text messages at his deposition. Barker testified that he determined the phone belonged to Capt. Smith. (Dkt. No. 78-1 at 68), But he could not recall at the time of his deposition when he found the phone, other than that it occurred sometime after he made complaints about discrimination in October. Id. at 69. Nor did he remember how he copied the messages, although he guessed that he "might have" taken a picture of the messages. Id. at 68-69. He could not recall how he accessed the messages, or what he did with the phone after he copied the [*28]  messages. Id. at 69-70. The Court also declines to accept as authentication of the text messages the declaration signed on November 18, 2014 and filed as Exhibit 1 to the plaintiffs opposition to the motion to strike, Accordingly, Exhibit V and Exhibit 1 (the declaration) are stricken.

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