Smallwood v. Davis
ORDER OVERRULING Defendants' 94 Objection to Plaintiff's Use of Sound Recordings at Trial. Signed by Magistrate Judge R. Stan Baker on 3/30/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 5:14-cv-87
TIMOTHY DALE DAVIS; T&A FARMS;
ALPHINE DAVIS; and STACY
Presently before the Court is Defendants’ Objection to Plaintiff’s Use of Sound
Recordings at Trial.
For the reasons which follow, the Court OVERRULES
Plaintiff filed his Complaint against Defendants on October 28, 2014, pursuant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., for employment discrimination.
(Doc. 1, p. 2.) Plaintiff asserted Defendants denied him equal pay or work and decreased his
work hours as acts of racial discrimination. (Id. at pp. 2–3.) Plaintiff filed an Amended
Complaint on November 26, 2014, alleging employment discrimination under Title VII and
discrimination under 42 U.S.C. § 1981.
(Doc. 6, p. 2.)
Plaintiff maintained Defendants
subjected him to disparate treatment on the basis of his race. (Id. at pp. 6–8.) Defendants filed
their Answer to Plaintiff’s Amended Complaint on February 9, 2015. (Doc. 18.)
On August 15, 2016, Defendants filed a Motion for Summary Judgment. (Doc. 65.) The
Honorable Lisa Godbey Wood denied Defendants’ Motion, in part, but found Plaintiff to have
surrendered his Title VII claims against Defendants Alphine Davis and Dinwiddie. (Doc. 81,
p. 15 n.5.) In making her determination, Chief Judge Wood considered the recordings Plaintiff
submitted in opposition to Defendants’ Motion that Plaintiff claimed were of conversations he
had with Defendant Timothy Davis. (Id. at p. 6 n.2 & pp. 11–12.) Chief Judge Wood noted “[i]t
is difficult to make out what is said” in a recorded conversation purportedly between Plaintiff
and Defendant Timothy Davis and that Defendants “did not concede its veracity.” (Id. at p. 6
n.2.) Defendants have now moved to exclude Plaintiff from introducing these recordings as
evidence. (Doc. 94.)
Defendants assert that the sound recordings Plaintiff wishes to introduce during the trial
of this case are unreliable and untrustworthy and have not been authenticated. (Id. at p. 3.)
Specifically, Defendants request that Audio Recordings 1-4, 11-14, and 26-38, which are listed
as Plaintiff’s Trial Exhibits 7, 8, and 9, should not be used during the trial of this case. (Id. at
Counsel for Defendants states that Plaintiff’s counsel used these recordings during
Plaintiff’s deposition, over counsel’s objection because these recordings were inaudible to him. 1
(Id. at p. 2.) In addition, Defendants assert Plaintiff’s counsel noted during the deposition that an
expert may be needed to decipher the recordings, if the parties so stipulate. (Id.)
The numerical identification Defendants’ counsel uses in this Objection do not coincide with the
numerical identifications given for these recordings during Plaintiff’s deposition. (Doc. 94, pp. 7–13.) In
turn, those numerical identifications do not fully coincide with the identifications Plaintiff submitted to
the Court in response to Defendants’ Motion for Summary Judgment. (Doc. 71.) Because Defendants
did not submit with this Objection the recordings they seek to have excluded at trial, the Court relies on
the recordings Plaintiff submitted in opposition to Defendants’ Motion for Summary Judgment.
“To 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). Before a court can make a determination of the
admissibility of an audio recording, “(1) the proponent of the proffered evidence must establish
by other evidence that the matter offered is genuine and authentic and otherwise provide
necessary foundational information[,] and (2) the recording must be audible[.]” United States v.
Aisenberg, 120 F. Supp. 2d 1345, 1349 (M.D. Fla. 2000). The recording must be audible “both
(a) in the sense that the listener can hear satisfactorily the words spoken and reliably distinguish
them from other words that sound similar (and other sounds, not words, that sound like words)[,]
and (b) in the sense that enough of the recording is distinguishable to permit the listener to
reasonably determine the sense in which the words are used, i.e., the sense in which the speaker
intended them.” Id. “In other words, the word ‘audibility’ permits two somewhat different and
confusing definitions. ‘Audible’ can mean simply that some sound or any part of some sound
actually can be heard. On the other hand, ‘audible’ can mean that some sound or part of some
sound can be heard sufficiently to permit the listener to ascertain with reasonable reliability the
sense in which the speaker used any word or words that can be heard.” Id. “The former is the
ordinary meaning of ‘audible.’
The latter is the meaning of ‘audible’ in the legal sense.
Trustworthiness or reliability is an elemental component of the term ‘audible’ within the
contemplation of the law of evidence.” Id. A “district court is required to exclude a recording
only if the inaudible or unintelligible portions ‘are so substantial as to render the whole recording
untrustworthy.’” United States v. Sutherland, 656 F.2d 1181, 1200 (5th Cir. 1981); accord
Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1533 (11th Cir. 1990). 2 “This determination
In Sherman, the plaintiff introduced into evidence a tape recording of a conversation he had with the
employer who fired him in an effort to prove that another party had caused plaintiff’s termination. The
of reliability is left to the sound discretion of the trial judge.” See id.; United States v. Pope, 132
F.3d 684, 688 (11th Cir. 1998). 3
In order to introduce these recordings during the trial of this case, Plaintiff will, of course,
need to authenticate these recordings. Fed. R. Evid. 901. In addition, Plaintiff will have to
establish the purpose of his use of these recordings during trial. See Sherman, 891 F.2d at 1532–
34. Defendant has not made any availing argument that Plaintiff will be unable to meet these
basic requirements at trial. The recordings were apparently made by Plaintiff directly, and,
therefore, Plaintiff can testify to authenticating information regarding their creation. As for the
purpose for which Plaintiff will offer these recordings, Plaintiff will undoubtedly introduce them
in attempt to prove Defendants’ allegedly racist and retaliatory motives. As Chief Judge Wood
described in her Summary Judgment Order, the voice which Plaintiff contends belongs to
Defendant Timothy Davis repeatedly made racial epithets and retaliatory statements. (See Doc.
81, p. 6 n.2 & pp. 11–12.)
The question of audibility is a closer call. However, the recordings are not so poor to
warrant their exclusion. The Court has listened to the nine (9) recordings Plaintiff submitted in
his Response to Defendants’ Motion for Summary Judgment. (Docs. 71-11–71-14, 71-16–7121.) While some of these recordings are not entirely clear due to background noises, this does
recording was made without the former employer’s knowledge. The defendant contended the trial court
(which, incidentally, was this Court) erred in permitting the recording because the recording was
inaudible and its contents were hearsay. The Eleventh Circuit Court of Appeals found no error in the trial
court’s admission of the recording as non-hearsay under Federal Rule of Evidence 801(d)(2) as an
admission by a party-opponent and as impeachment evidence under Rule 801(c) after authentication
under Rule 901. The Eleventh Circuit agreed with the trial court that the relevant portion of the recording
was audible and probative. Sherman, 891 F.2d at 1532–34.
In support of their Objection, Defendants’ counsel cites to United States v, McMillan, 508 F.2d 101
(8th Cir. 1974), and states that McMillan sets forth “the rules prescribed for testing admissibility of
recordings[.]” (Doc. 94, p. 3.) This Court discovered no case arising in the Eleventh Circuit which cites
not render these recordings “inaudible”, either by the common definition or by the legal
definition. Aisenberg, 120 F. Supp. 2d at 1349. The contents of these recordings are probative
of the issues before the Court. Sherman, 891 F.2d at 1533. Indeed, at least portions of these
recordings have been accepted by this Court as evidence of a genuine dispute as to material facts
to deny Defendants’ Motion for Summary Judgment.
(Doc. 81, pp. 11–12.) Defendants’
counsel is free to attack the reliability of these recordings at trial and to cross-examine Plaintiff
as to these recordings. However, the Court does not find these recordings to be “inaudible” or
that any “unintelligible portions are so substantial as to render the whole recording
untrustworthy.” Sutherland, 656 F.2d at 1200. Accordingly, Plaintiff may introduce the audible
portions of these recordings at trial.
For the reasons set forth above, the Court OVERRULES Defendants’ Objection to
Plaintiff’s Use of Sound Recordings at Trial. (Doc. 94.) Plaintiff is permitted to introduce these
recordings at trial, subject to his meeting authentication and other foundational requirements.
SO ORDERED, this 30th day of March, 2017.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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