United States of America for the use and benefit of Porges Electrical Group, Inc., a California Corporation v. Travelers Casualty and Surety Company of America

Filing 209

Minute Order Granting Motion to Deem Exhibits Self-Authenticating, Denying Plaintiff's Motion to Admit Affidavit Into Evidence and Denying Defendants' Request for Supplemental Briefing.. Signed by Senior Judge Consuelo Bland Marshall on 1/10/2019. (fad, )

DISTRICT COURT OF GUAM
TERRITORY OF GUAM
CIVIL MINUTES - GENERAL
Case No.
Title

CV 15-00024

Date

January 10, 2019

United States, for the use and benefit of Porges Electrical Group v. Travelers Casualty and Surety
Company of America et al.

Present: The Honorable

CONSUELO B. MARSHALL, UNITED STATES DISTRICT JUDGE

VIRGINIA T. KILGORE
Deputy Clerk

NOT REPORTED
Court Reporter

Attorneys Present for Plaintiff:

Attorneys Present for Defendant:

NONE PRESENT

NONE PRESENT

Proceedings:

IN CHAMBERS- ORDER GRANTING PLAINTIFF’S MOTION TO DEEM
EXHIBITS SELF-AUTHENTICATING, DENYING
PLAINTIFF’S MOTION TO ADMIT AFFIDAVIT INTO
EVIDENCE, AND DENYING DEFENDANTS’ REQUEST
FOR SUPPLEMENTAL BRIEFING

The matter before the Court is Plaintiff’s oral motion (a) to deem as self-authenticating
Defendants’ Exhibit DR and Plaintiff’s Exhibits 278, 279, 280, 281, 282, 283, 284, 288, 220, 221, 222,
564, 580.2-580.4, 582, 616, 617, 622, 630, 519, 520, 521, 548, 549, 546, 509, and 510; and (b) to admit
the affidavit of Heather Strikwerda into evidence, contingent upon the admission by Defendants of the
deposition testimony of Heather Strikwerda. For the reasons below, the Court finds that the exhibits are
self-authenticating as records of payables, receivables, receipts, and payments received by Plaintiff’s
accounting director, Heather Strikwerda. However, the Court denies Plaintiff’s motion to admit the
affidavit into evidence.
Plaintiff relies on Fed. R. Evid. 902(11) to establish the exhibits as self-authenticating, which
applies to records that “meet[] the requirements of Rule 803(6)(A)-(C), as shown by a certification of the
custodian….” In turn, Rule 803(6) requires that “(A) the record was made at or near the time [of the act,
event, condition, opinion, or diagnosis recorded] by—or from information transmitted by—someone with
knowledge; (B) the record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit; [and] (C) making the record was a regular
practice of that activity.”
The exhibits Plaintiff seeks to establish as self-authenticating include reports generated from
various electronic accounting records prepared by Plaintiff’s former accounting director, Heather
Strikwerda. Strikwerda is the custodian and creator of these records. The records include four broad
categories of data: payables, receivables, receipts, and payments. Payables include invoices, bills,

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Initials of Deputy Clerk VTG

subcontractor payment applications, and payroll records. Receivables include applications by Plaintiff for
payment. Receipts include payments made to Plaintiff. Payments include payments made by Plaintiff.
In support of the motion, Plaintiff submits the affidavit of Strikwerda, the custodian of the records.
In her affidavit, Strikwerda certifies that “[t]he records … were made at, or near, the time of occurrence
of the matters set forth by … a person with knowledge of those matters.” (Dkt. No. 149 (Strikwerda Aff.)
¶ 6.) Strikwerda further certifies that (a) she has personal knowledge of what project folders payables were
assigned to because she receives the payables in those project folders (id. at ¶¶ 13, 14); (b) she has personal
knowledge of the content of payables because she personally receives those payables before recording
them (id.); she has personal knowledge of the projects associated with receivables and with the content of
those receivables because she prepares the receivables for those projects (id. at ¶ 18).
Defendants object that Strikwerda’s sole responsibility was “to get receipts or payroll information
from Mr. Porges or the job foremen and enter it into the software” and that she “did not verify any of the
information given to her prior to entering it.” (Dkt. No. 166 at 9.) Defendants further point out that
Strikwerda “did not know what Plaintiff’s field overhead costs were and was relying solely on what others
told her in preparing the reports, identifying the costs contained therein, and authenticating them for the
jury.” (Dkt. No. 194 at 2.) Defendants also object that Strikwerda did not record payable or payment
information at or near the time Plaintiff purportedly incurred the costs represented by the payables or
payments, and instead “she would enter the information as it was provided to her from company
employees or otherwise.” (Dkt. No. 116 at 15-16.) However, such objections do not speak to whether the
exhibits are self-authenticating as records of the payables and payments received by Strikwerda. They
speak instead to whether those payables and payments accurately reflect Plaintiff’s expenses.1
Any arguments regarding the accuracy of the payables and payments themselves ultimately speak
to the weight those payables and payments should be given as evidence of Plaintiff’s damages, not to
whether Plaintiff’s proffered exhibits are admissible as records of the payables, receivables, payments,
and receipts themselves. Accordingly, Defendants’ objections are overruled and the Court finds the
following documents to be self-authenticating as records of payables, receivables, receipts, and payments
received by Plaintiff’s former accounting director:2 Defendants’ Exhibit DR and Plaintiff’s Exhibits 278,
279, 280, 281, 282, 283, 284, 288, 220, 221, 222, 564, 580.2-580.4, 582, 616, 617, 622, 630, 519, 520,
521, 548, 549, 546, 509, and 510.
Plaintiff also moves to admit Strikwerda’s affidavit into evidence. This motion is denied. The
affidavit constitutes hearsay and Plaintiff has not demonstrated that any exception to the hearsay rule
applies.
IT IS SO ORDERED.
1 For the same reason, Defendants’ request to file supplemental briefing (Dkt. No. 206) is denied. The matters Defendants
seek to address in their supplemental briefing relate to whether the information provided to Strikwerda accurately reflects
Plaintiff’s costs and income, not whether the records themselves accurately reflect the information provided to Strikwerda.
The Court finds the exhibits to be self-authenticating as records of the information provided to Strikwerda, thus rendering
such arguments irrelevant.
2 To the extent Plaintiff wishes to introduce the exhibits, not as records of the payables, receivables, receipts, and payments
received by Strikwerda, but as records of Plaintiff’s actual income and expenses, Plaintiff “must produce evidence sufficient
to support a finding” that the payables, receivables, receipts, and payments provided to Strikewerda accurately reflect
Plaintiff’s income and expenses. Fed. R. Evid. 901(a). Such evidence need not necessarily address each individual payable,
receivable, receipt, and payment, but may instead address Plaintiff’s general practices in providing such documents to
Strikwerda. Defendants remain free to argue to the jury that such evidence is not credible.

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CV-90 (12/02)

CIVIL MINUTES - GENERAL

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Initials of Deputy Clerk VTG