Kennedy v. Supreme Forest Products, Inc. et al

Filing 151

RULING ON PENDING MOTIONS RE AUDIO RECORDINGS AND PHOTOGRAPHS. For the reasons set forth in the attached ruling, defendants' motions in limine to exclude the audio recordings (Doc. # 105 and # 145 ) are DENIED. Defendants' motion fo r sanctions against plaintiff (Doc. # 140 ) is GRANTED in part and DENIED in part. Plaintiff shall not be permitted to use or reference the late-disclosed photographs of his truck's suspension gauge. The Court otherwise declines to enter an order to require plaintiff to pay attorneys fees and costs. It is so ordered. Signed by Judge Jeffrey A. Meyer on 5/22/2017. (Gruber, Sarah)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL KENNEDY
Plaintiff,
v.
SUPREME FOREST PRODUCTS, INC., and
SUPREME INDUSTRIES, INC.,
Defendants.

No. 3:14-cv-01851 (JAM)

RULING ON PENDING MOTIONS
RE AUDIO RECORDINGS AND PHOTOGRAPHS
Plaintiff Michael Kennedy has filed suit against defendants Supreme Forest Products,
Inc., and Supreme Industries, Inc., alleging that they violated the federal Surface Transportation
Assistance Act by terminating his employment on April 3, 2014, for refusing to drive trucks that
were loaded with mulch that was over the federal legal weight limit. Defendants have moved to
preclude and for sanctions in connection with two types of evidence that plaintiff intends to
introduce at trial.
First, defendants seek to preclude certain audio recordings and transcripts of these
recordings. While plaintiff was still employed by defendants, he used his smartphone to
surreptitiously audio-record a meeting that took place at his place of employment on March 17,
2014, and a later conversation that he had with his supervisors Mark Bellino and Martin Paganini
on April 3, 2014. The recordings were copied to a computer, and the computer in turn was used
to generate additional copies that were disclosed by plaintiff to defendants during the course of
discovery. At some point in time plaintiff deleted the “original” of the recordings that had been
stored on his smartphone. Plaintiff intends to introduce at trial certain portions of the two copied
audio recordings, and he has also prepared a transcript of these portions of the audio recordings
for the jury to review while the audio recordings are played at trial.

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Second, defendants seek to preclude two photographs that plaintiff allegedly took on his
smartphone. On the day before jury selection and long after discovery had closed in this case,
plaintiff advised defendants of his intent to use at trial these two newly disclosed photographs
that he allegedly took while working for defendants in 2014. Both photographs purportedly show
the air suspension gauge of plaintiff’s truck and would support plaintiff’s claim that the truck
was loaded above the legal limit, including on April 3, 2014, when plaintiff was allegedly
terminated from his employment.
In light of this factual background, I will consider each of defendants’ arguments in turn.
Objection to Audio Recordings Based on Spoliation
Defendants argue that plaintiff should be sanctioned for his failure to produce the original
versions of his workplace audio recordings and the cell phone that he used for recording. Doc.
#140. I do not agree for substantially the reasons set forth in plaintiff’s opposition memorandum.
Doc. #148. Although plaintiff should have preserved the recordings on his smartphone, I do not
conclude that he acted in bad faith when he deleted the recordings. I further conclude that
sanctions are not appropriate in light of the fact that defendants did not attentively pursue access
to the smartphone and the originals as stored on the smartphone during the course of the
discovery period and depositions in this case. See generally West v. Goodyear Tire & Rubber
Co., 167 F.3d 776, 779 (2d Cir. 1999) (discussing district court authority and discretion to
impose sanctions for spoliation of evidence).
A motion for sanctions after the close of discovery should not be brought as a substitute
for defendants’ attentive pursuit of evidence during discovery. If defendants had timely and fully
pursued access to the smartphone and the original recordings during the discovery period, I
might well have concluded that plaintiff’s deletion of the original recordings should warrant

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sanctions. But that is not what happened here, and there is no indication that the copies of the
recordings produced by plaintiff have been materially altered or are otherwise not the same as
the originals recorded by plaintiff. Although defendants may fully cross-examine plaintiff about
his deletion of the recordings and argue at closings that plaintiff should have preserved the
original recordings, the Court will not issue an adverse inference instruction in the absence of
further evidence that plaintiff altered or destroyed the evidence with intent to impede its
availability for trial.
Objection to Audio Recordings Based on Authentication
Defendants argue that the copy of the audio recordings should be precluded on grounds
that they are not authentic. Doc. #105. A party who seeks to introduce evidence at trial must, of
course, bear the burden to show that the evidence is what its proponent claims it to be. Rule
901(a) of the Federal Rules of Evidence provides that “[t]o satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid.
901(a).
As the Second Circuit has observed, Rule 901 “does not definitively establish the nature
or quantum of proof that is required preliminarily to authenticate an item of evidence.” United
States v. Vayner, 769 F.3d 125, 130 (2d Cir. 2014). Still, “the bar for authentication of evidence
is not particularly high,” and “the proponent need not rule out all possibilities inconsistent with
authenticity,” but need only adduce “sufficient proof . . . so that a reasonable juror could find in
favor of authenticity or identification.” Ibid. And of course, once an item of evidence is
“authenticated” as required under Rule 901, this “merely renders evidence admissible, leaving
the issue of its ultimate reliability to the jury,” for which “the opposing party remains free to

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challenge the reliability of the evidence, to minimize its importance, or to argue alternative
interpretations of its meaning,” with all such challenges going to the weight of the evidence
rather than its initial admissibility. Ibid.1
Having listened in camera to those portions of the recordings that plaintiff intends to use
at trial, I cannot conclude that plaintiff will necessarily fail to establish that the recordings are
authentic pursuant to Rule 901. Defendants have done nothing to show that plaintiff has
materially altered the electronic recordings in any way. Provided that plaintiff testifies as
anticipated and in a manner that the Court decides is credible that the portions of the recordings
he intends to introduce at trial are indeed a fair and accurate representations of meetings or
conversations for which he was present, the Court will likely overrule any authenticity objection
under Rule 901.
Objection to Audio Recordings Based on “Best Evidence” Rule
Defendants further argue that the “best evidence” rule precludes admission of the copies
made by plaintiff from the recordings he made on his smartphone. It is true that Rule 1002 of the
Federal Rules of Evidence provides that “[a]n original writing, recording, or photograph is
required to prove its content unless these rules or a federal statute provides otherwise.” But
defendants’ argument overlooks another evidentiary rule—Rule 1004(a) of the Federal Rules of
Evidence—that excuses the “best evidence” requirement if “[a]ll the originals are lost or
destroyed,” unless the proponent lost or destroyed them in bad faith. See, e.g., United States v.

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Defendants contend that the authenticity of audio recordings must be established by clear and convincing
evidence. See Doc. #105-1 at 2 (quoting Penguin Books U.S.A., Inc. v. New Christian Church Full Endeavor, Ltd.,
262 F. Supp. 2d 251, 263 (S.D.N.Y. 2003)). Later precedent suggests that the clear-and-convincing standard
possibly may not apply in the civil context. See S.E.C. v. Badian, 822 F. Supp. 2d 352, 364 (S.D.N.Y. 2011),
amended on reconsideration in part, 2012 WL 2354458 (S.D.N.Y. 2012). I will apply the clear-and-convincing
standard in light of the textual requirements of Rule 901. See also Clifford S. Fishman, Recordings, Transcripts, and
Translations as Evidence, 81 Wash. L. Rev. 473, 479 & n.16 (2006) (noting applicable standard under Rule 901 and
tension within law of the Second Circuit concerning the governing standard of proof).

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Whittingham, 346 Fed. Appx. 683, 685 (2d Cir. 2009) (affirming admission of photographs
derived from surveillance video notwithstanding non-bad-faith destruction of the underlying
video); see also Fed. R. Evid. 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.”).
Objection to Audio Recordings Based on Foundation and Hearsay
Defendants further object on foundation and hearsay grounds to several of the specific
statements made by plaintiff and by one or more “unidentified male” speakers in the audio
recordings. Doc. #145. I will overrule any hearsay objection, because the hearsay rule does not
preclude the admission of statements made during a recorded conversation that are not offered
for the truth of what was said and also because the statements made by plaintiff and his coworkers are important to a context for and understanding of the fully admissible statements made
by Martin Paganani and Mark Bellino in their capacities as company managers (which
statements are subject to a hearsay exception as statements of a party opponent, Fed. R. Evid.
801(d)(2)(A)). See, e.g., United States v. Sorrentino, 72 F.3d 294, 298 (2d Cir. 1995), overruled
on other grounds by United States v. Abad, 514 F.3d 271 (2d Cir. 2008); Umar Oriental Rugs,
Inc. v. Travelers Prop. Cas. Co. of Am., 2008 WL 216926, at *7 n.6 (E.D.N.Y. 2008). To ensure
that the jury does not consider any statement for an improper purpose, the Court intends to
address this issue as part of a limiting instruction that it will furnish the jury just prior to the
playing of the audio recordings (and to reinforce these limitations in its final jury instructions).
Defendants also object that certain statements made by plaintiff and an “unidentified
male” are inadmissible expert testimony about the law. I do not agree. These statements and
references to the law are highly significant for a non-hearsay and non-expert-opinion basis to

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understanding the response by defendants’ representatives when advised that defendants’
operations may be in violation of the law. Accordingly, I will allow these statements but subject
again to an appropriate limiting instruction.
Objection to Use of Transcripts with Audio Recordings
Defendants next object to the admission of the transcripts prepared by plaintiff of certain
portions of the audio recordings that plaintiff intends to introduce at trial. With two exceptions, I
conclude that plaintiff’s proposed interpretations of the conversations are at least arguably
correct.2 It is well-established that a transcript of an audio recording is admissible for limited
demonstrative purposes at trial provided that the opposing party has an opportunity to introduce a
competing transcript if there is disagreement concerning the content of certain statements. See
United States v. Ben-Shimon, 249 F.3d 98, 101 (2d Cir. 2001) (per curiam). “Disagreements over
accuracy notwithstanding, a district court’s admission of a properly authenticated transcript is
not reversible error if the defendant is made aware that he is free to submit a competing
transcript, and does not do so.” United States v. Gay, 85 Fed. Appx. 794, 795 (2d Cir. 2004).
Again, I will issue a limiting instruction concerning the jury’s consideration of transcripts.
Limiting Instruction to Accompany Audio Recordings and Transcripts
Subject to further input from counsel and in light of my rulings above, the Court intends
to issue the following limiting instruction prior to the playing of the audio recordings:
Members of the jury, you will hear in this case certain audio recordings and
review certain transcripts of these recordings. It is important that you understand and
follow three limitations that are placed on your consideration of such evidence.

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First, the beginning of the transcript for the recording of April 3, 2014, reflects a brief interchange
between plaintiff and “Mark” that is not on the recording submitted to the Court. See Doc. #77-11 at 3 (lines 2-6)
(“MR. KENNEDY: Hey, Mark, are you in the office? MARK: Yeah. MR. KENNEDY: Okay. Can you come out
here for a minute?”). Because this interchange does not appear on the recording itself, plaintiff shall redact this
interchange from the transcript. Second, the transcript contains an alleged statement by Paganini that the Court was
unable to hear. See Doc. #77-11 at 6 (lines 17-18) (“MR. PAGANINI: “I’m sorry you feel that way. Yup.”). Plaintiff
shall redact this statement from the transcript.

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First, the rules of evidence generally forbid the introduction of so-called
“hearsay” evidence. What is “hearsay”? A hearsay statement is defined to mean an outof-court statement made by someone if that statement is offered to prove a certain fact to
be true. Of course, all of the statements that you will hear on any audio recording
occurred out of court.
Now there are exceptions to this rule that prohibits hearsay, and one exception is
for any statements that are made by one’s opponent at trial. Either party is permitted to
introduce as evidence in a case the out-of-court statements that were made by the
opposing party. If the opponent is a corporation as in this case, then a statement by a
manager of the company within the scope of employment is considered to be a statement
of the party.
As you listen to these recordings, you will hear statements that plaintiff claims
were made by himself, by other co-workers who were not managers at the defendant
companies, and by one or more managers including Martin Paganani and Mark Bellino. It
is for you to decide who it is that is speaking on the recordings. For any statements that
you find were made by Mr. Paganini or Mr. Bellino within the scope of their
employment, you may consider such statements for the truth of what they say. But you
may not consider as true any statement made by plaintiff or his other non-manager coworkers. Those statements by plaintiff and his co-workers should be evaluated by you
solely as background context for your understanding and evaluation of any statements
made by Mr. Paganini or Mr. Bellino.
Second, you may hear certain statements on the audio recordings about what the
law requires in terms of truckload weights. You should not accept these statements as
necessarily true statements of the law, because it is the Court that will advise you in its
final jury instructions just what it is that the law required. As I just noted before, you
should consider any statements by plaintiff or by his non-managerial co-workers only for
the context that they provide for your understanding of any statements made by
managerial employees of the defendant companies.
Third, you will have transcripts prepared by the parties to review while you listen
to the recordings. These transcripts are meant solely to be aids to your interpretation
while you listen to the recordings. Unlike the other documents that have or will be
introduced as evidence in this case, the transcripts will not accompany you to the jury
room for your deliberations at the end of the case. That is because the transcripts
themselves are not evidence—they are solely what the parties claim are the people whose
voices are heard on the recordings and what it is the parties claim that they said to the
extent that it may be possible to hear what was said. It is for you alone to decide if the
transcripts are correct in terms of the speakers they identify and in terms of what was said
and what inferences to draw from anything that you hear on the audio recordings.
So those are the three limitations that apply to your consideration of the audio
recordings and of the transcripts. In my final written instructions that you will receive at

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the end of the case, I will reiterate these limitations to ensure that you are aware of them
and follow them when you begin your deliberations in this case.
The Court will consider any suggestions made by counsel concerning the wording of this
proposed limiting instruction.
Objection to Photographs Based on Late Disclosure
Defendants move for sanctions as a result of plaintiff’s late disclosure of the photographs
that he took of his truck’s suspension gauge. Plaintiff does not contest that the photographs were
within the scope of defendants’ prior discovery requests and that he failed to timely disclose
them. For example, defendants requested from plaintiff during discovery “any and all documents
relating to Plaintiff’s allegation that Defendants began loading the Defendants’ trucks with larger
loads and denser mulch that regularly exceeded 80,000 pounds.” Doc. #140-2 at 7.
Rule 37 of the Federal Rules of Civil Procedure authorizes the Court to impose a broad
range of sanctions for a party’s failure to comply with discovery requests. “A district court has
wide discretion to impose sanctions, including severe sanctions,” under Rule 37. Design
Strategy, Inc. v. Davis, 469 F.3d 284, 294 (2d Cir. 2006).
In determining what sanctions, if any, to impose for a violation of a discovery
requirement that is discovered on the eve of trial, a court should consider (1) the party’s
explanation for the failure to comply with the discovery requirement; (2) the importance of the
evidence in question; (3) the prejudice suffered by the opposing party as a result of having to
prepare to meet the new evidence; and (4) the possibility of a continuance. See Patterson v.
Balsamico, 440 F.3d 104, 117 (2d Cir. 2006).
I have considered each of these factors, and I conclude that an appropriate sanction is
preclusion of the photographs (and any reference at all to their existence by plaintiff or his
counsel unless defendants open the door to the receipt of this evidence in which case plaintiff

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must seek advance permission of the Court to proceed). Plaintiff has offered no good reason for
his failure to have disclosed the photographs at an earlier time. It is evident from the fact that he
took the photographs (as well as engaged in covert audio recordings) that plaintiff was attentive
to gathering evidence against defendants prior to having filed this lawsuit, and this compounds
my concern about why the photographs were not timely disclosed. Whatever the reason for
plaintiff’s failure, the photographs were disclosed too late in order for defendants to have a fair
and adequate opportunity to defend against them at trial. It would not be appropriate to grant a
continuance of trial, because this case is several years old, the parties have long prepared for
trial, and defendants should not shoulder a burden from plaintiff’s failure until the day before
jury selection to comply with a basic discovery requirement.
In view of my decision to preclude any evidence of the late-disclosed photographs at
trial, I will deny defendants’ further request that I dismiss plaintiff’s case in its entirety.
Dismissal would not be an appropriate and proportional remedy for plaintiff’s failure to disclose
the photographs, especially considering that preclusion of the evidence adequately redresses any
prejudice to defendants from late disclosure.
CONCLUSION
Defendants’ motions in limine to exclude the audio recordings (Doc. #105 and #145) are
DENIED. Defendants’ motion for sanctions against plaintiff (Doc. #140) is GRANTED in part
and DENIED in part. Plaintiff shall not be permitted to use or reference the late-disclosed
photographs of his truck’s suspension gauge. The Court otherwise declines to enter an order to
require plaintiff to pay attorneys fees and costs.
It is so ordered.

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Dated at New Haven, Connecticut, this 22d day of May 2017.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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