New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

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

Download PDF

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.

***

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.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

Court’s Inherent Power to Police the Conduct of Litigants and Attorneys Extends to Persons Engaged in the Unauthorized Practice of Law Before Them

(1) Inherent Power Sanctions — Duty to Correct or Withdraw — Strategic Silence As Bad Faith — Failure to Advise Court of Absence of Diversity Jurisdiction for 15 Months for Strategic Reasons, Only “Pull[ing] Out The Diversity-Destroying Card” After Losing = “A Textbook Example of Bad Faith” — (2) Under Goodyear, The Court’s Fundamental Job Is to Decide Whether Fees Would Have Been Incurred Absent the Sanctioned Conduct — (3) Appellate Review: While Sanctions Orders Are Reviewed for Abuse of Discretion, A Finding of Bad Faith Is Reviewed for Clear Error — (4) When There Are Two Permissible Views of The Evidence, The Factfinder’s Choice Between Them Cannot Be Clearly Erroneous — (5) “A District Court Is Not Required To Consider Irrelevant Evidence” — (Good Quotes)

Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

(1) Spoliation: Sanctions Are Warranted Only If the Movant Establishes That A Reasonable Trier of Fact Could Find That The Destroyed Evidence Would Support A Claim Or Defense — § 1927 Sanctions: “Courts Often Refuse to Award Sanctions When Both Parties Contributed to the Waste of Judicial Resources” (Good Quote)

No Sanctions Imposed on Counsel Who Submitted A.I.-Generated Phony Cases Without Checking Them in Good Faith on The Mistaken Assumption They Had Been Provided by Highly Respected Co-Counsel Rather Than His Criminally-Convicted, Disbarred Client — No Sanctions on Client Who Had No Access to LEXIS or Westlaw to Check the Phony Cases and Submitted Them in Good Faith: “It Would Have Been Downright Irrational For Him To Provide Fake Cases For [His Lawyer] To Include In The Motion Knowing They Were Fake —

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice