Cervetto v. Powell et al

Filing 122

MEMORANDUM, OPINION, AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 11/3/2016. IT IS HEREBY ORDERED that Cervetto's motion to deem Sherry Powell and Terry Lutz subject to compulsory attendance at trial through subpoena (DN 100 ) is DENIED. IT IS FURTHER ORDERED that Defendants' motion in limine (DN 114 ) to prohibit the use of the Transcript of the Recorded Statement is GRANTED. The Court may revisit this ruling during trial, however, should testimony warrant so doing. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:14CV-00075-HBB
MICHAEL G. CERVETTO

PLAINTIFF

VS.
MARK J. POWELL and
TRANSERVICE LOGISTICS, INC.

DEFENDANTS

MEMORANDUM, OPINION,
AND ORDER
Before the Court is the Defendants’ motion in limine to prohibit Plaintiff’s use of the
recorded statement of Mark and Sherry Powell during trial (DN 114). Plaintiff has filed a
response1 to the motion (DN 117), and Defendants filed a reply (DN 120).
Also before the Court is Plaintiff’s related motion (DN 100)2 in which Plaintiff seeks to
compel attendance of non- party Sherry Powell at trial to testify regarding the recorded
statement, and also to compel the attendance at trial of Transervice employee Terry Lutz.
Defendants have filed a response (DN 104), and Plaintiff has filed a reply (DN 107).
The Court discussed the motions during the telephonic status conference on October 24,
2016 and requested briefing on any additional authority relative to the motions (DN 118).
Thereafter, Defendant filed a supplemental pleading (DN 120) and Plaintiff filed a supplemental
pleading 9DN 1210. The motions now stand submitted for ruling.

1 Plaintiff mistakenly captioned the response as a reply.
2 Plaintiff’s motion also requested a telephonic pretrial conference (DN 100). The Court granted that part of
Plaintiff’s motion in a separate order (DN 109), and conducted the telephonic pretrial conference on October 24,
2016 (DN 118).

A. Use of the transcribed statement and compelling Sherry Powell to testify at trial.
This action arises from a collision between two commercial vehicles. Plaintiff Michael
G. Cervetto (“Cervetto”) was the driver of one vehicle and Defendant Mark J. Powell
(“Powell”), employed by Defendant Transervice Logistics, Inc. (“Transervice”), drove the other.
Following the accident, a representative of Travelers Insurance Company, which insured the
Transervice vehicle, conducted a recorded telephonic interview with Mark Powell. As the
interview progressed, Mark Powell asked his wife, non-party Sherry Powell, to take the phone
and answer certain questions on his behalf. The recording of the interview was later transcribed
(DN 114-2). During the telephonic conference with the Court, Defendants’ counsel indicated
that the audio recording no longer existed. Plaintiff came into possession of the transcription
through Defendants’ inadvertent production in discovery. Defendants advance several reasons
why Plaintiff should be prohibited from utilizing the transcript as evidence during the trial.
1. Authentication
Defendants contend that Plaintiff cannot satisfy his burden of authenticating the
transcript.

They argue that under Fed. R. Evid. 901(b)(1) Plaintiff must introduce the

transcription through the testimony of a witness “that an item is what it is claimed to be.”3 There
is no contemporaneous audio recording of the conversation with which the transcription can be
compared.

Defendants assert that Plaintiff has not identified any trial witness who has

3 The statement was inadvertently produced by the Defendants in discovery. Plaintiff does not argue, nor does the
undersigned believe, that this, in and of itself, makes the document self-authenticating. “The fact that [a] document
was produced in discovery does not, like an evidentiary Philosopher’s Stone transmute it into an admissible selfauthenticating document.” Romero v. Nevada Dept. of Corr., No. 2:08-cv-808-JAD-VCF, 2013 U.S. Dist. LEXIS
168736, at *38 n. 18 (D. Nev. July 19, 2011) (quoting United States v. Novelli, 381 F. Supp. 2d 1125, 1130 (C.D.
Cal. 2005)). The undersigned is aware of cases holding to the contrary. See, e.g. Robinson v. City of Garland, No.
3:10-CV-2496-M, 2016 U.S. Dist. LEXIS 132447, at *15 n. 11 (N.D. Tex. Aug. 17, 2016); Hannon v. Kiwi Servs.,
No. 3:10-CV-1382-K-BH, 2011 U.S. Dist. LEXIS 152114, at *6-7 (N.D. Tex. Dec. 30, 2011). Having located no
authority within the Sixth Circuit endorsing the latter view, and in light of the 2011 amendment of the rule to
remove reference to an “admission” by a party, the undersigned is not persuaded that cases interpreting Fed. R.
Evid. 801(d)(2)(A) as automatically authenticating any documents produced by an opposing party in discovery as an
“admission” are correct. To conclude that merely because something is discoverable it is automatically
authenticated renders the rules regarding authentication meaningless.

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knowledge of how the transcription came into existence, and neither Mark nor Sherry Powell
created the transcript and cannot vouch for the document.
The Court notes that, when confronted with a similar situation in which the audio
recording of a transcribed conversation was not available for comparison, the court in Morris v.
Board of Educ. of Estill Co., Ky., No. 5:08-cv-00513-KKC, 2010 U.S. Dist. LEXIS 84309, at
*2-3 (E.D. Ky. Aug. 16, 2010), held that “[b]ecause the cassettes are unavailable, there is no way
to authenticate the transcript to determine their accuracy and authentication is a prerequisite to
the admissibility of evidence.”
2. Hearsay
Defendant’s next argument is that the transcription is not admissible because it
constitutes hearsay. Post-accident witness interviews are “classic hearsay.” Essex Ins. Co. v.
Fidelity and Guar. Ins. Underwriters, Inc., 282 F. App’x 406, 411 (6th Cir. 2008) (Unpub.). At
the conclusion of the transcript, there appears the notation:
“I, Adam Bauman, Legal Transcriptionist, do hereby certify that
the foregoing testimony, prepared from designated portions of
audio files furnished by the parties herein, is true and accurate to
the best of my knowledge and belief and has not been altered or
edited other than where necessary for translation.”
(DN 114-2, p. 14).
The characterization of the statement as “testimony” is incorrect. There is no indication
that either party to the conversation was placed under oath at the commencement of the
interview. To the contrary, the first statement on the transcript is: “[a]ll right. Mark, just so
you’re aware, the conversation we’re having is being recorded for quality purposes” (Id. at p. 1).
Adam Bauman’s signature is not notarized or witnessed and he will not appear as a witness at

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trial. The Travelers representative taking the recorded statement is not identified. Neither of the
Powells signed or otherwise acknowledged the transcription.
A hearsay exception must be applicable for the transcript to be utilized in some form at
trial. The Court observes that the transcript might fall within the hearsay exception for prior
inconsistent statements by an opposing party under Fed. R. Evid. 801(d)((2)(A), however this
exception requires a predicate authentication of the prior statement.
A statement qualifies as a party statement under Rule 801(d)(2)(A)
even though the party denies having made it, if the statement’s
proponent provides adequate proof to support a finding that the
statement was made by the party. However, in the absence of
adequate proof that the statement was made by the party, the
statement will be excluded as hearsay.
5-801 Weinstein & Berger, Weinstein’s Fed. Evid. § 801.30[3] (Matthew Bender 2016); see also
Ellipsis, Inc. v. The Color Works, Inc., No. 03-2939 B, 2006 U.S. Dist. LEXIS 29583, at *31
(W.D. Tenn. Jan. 25, 2006) (Rule 801(d)(2) requires authentication of documents claimed to be a
party admission). As noted earlier, there are no witnesses who can authenticate the transcription
of the audio recorded statement.
With regard to Sherry Powell’s portion of the transcription, 801(d)(2)(A) is inapplicable
because she is not an opposing party. Rule 801(d)(1)(A), governing prior statements of a
witness, is also inapplicable because the prior statement must be one given under oath and the
transcription is not sworn testimony.
Plaintiff advances Fed. R. Evid. 612, which deals with writings used to refresh a
witness’s memory, as a basis upon which to admit Defendant Mark Powell’s portion of the
transcribed statement. Plaintiff states Rule 612 allows him to “use the Powells’ written recorded
statement to refresh his memory about what was said to the Traveler’s insurance investigator

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after the accident” (DN 121, p. 2). Plaintiff further argues the hearsay exclusion is overcome by
Fed. R. Evid. 803(5) as the statement is a recorded recollection.
The hearsay exception to past-recorded recollection under Fed. R. Evid. 803(5) allows
such statements when they deal with a matter the witness once knew about but now cannot recall
well enough to testify fully and accurately. The record must have been made or adopted by the
witness when the matter was fresh in the witness’s memory and accurately reflect the witness’s
knowledge. In this case, Mark Powell has testified that he had a sudden and unexpected loss of
consciousness which caused the accident. With the exception of those events occurring while he
was unconscious, he has testified as to the facts of the accident. He has also testified as to his
medical history. These are the two topics also involved in his Travelers statement and there is no
indication that he will lack knowledge of these topics at trial. Where a witness does not suffer
from a lack of memory, past recollection recorded is inapplicable. Rush v. Illinois Cent. R.R.
Co., 399 F.3d 705, 719 (6th Cir. 2005). Moreover, where a statement was recorded by someone
other than the testifying witness, a foundation must be laid as to the accuracy of the recording
(or, in this case, both the accuracy of the recording and transcription). Simpson v. Saks Fifth
Ave., Inc., No. 07-CV-0157-CVE-PJC, 2008 U.S. Dist. LEXIS 60480, at *14 (N.D. Okla. Aug.
8, 2008).
3. Spousal Privilege
Spousal privilege stands as a further impediment to Plaintiff’s intention to subpoena
Sherry Powell to authenticate the transcription of her statement to the insurance representative.
Jurisdiction for Plaintiff’s claim in this action is founded upon diversity of citizenship (DN 1).

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Pursuant to Fed. R. Evid. 501 state law governs the application of privilege. Ky. R. Evid. 504(a)
establishes a privilege for spousal testimony. The Rule provides:
Spousal testimony. The spouse of a party has a privilege to refuse
to testify against the party as to events occurring after the date of
their marriage. A party has a privilege to prevent his or her spouse
from testifying against the party as to the events occurring after the
date of their marriage.
Ky. R. Evid. 504(a).
The rule includes a number of exceptions to the privilege, such as criminal conspiracy,
domestic abuse or matters involving the interest of a minor child, but none of those exceptions
apply here.

If Plaintiff was able to overcome the hurdles previously discussed regarding

authentication of the transcribed statement, then the spousal privilege would not preclude use of
the statement itself. “[A]n out-of-court statement of a witness who is precluded from testifying
because of invocation of spousal privilege is admissible if that statement falls within a
recognized exception to the hearsay rule and if it does not divulge a marital communication.”
Slaven v. Commonwealth, 962 S.W.2d 845, 853 (Ky. 1997).
Insofar as Plaintiff seeks to have Sherry Powell appear as a witness at trial for purposes
of authenticating the portion of the transcript where she spoke with the insurance representative,
both she and her husband have invoked their respective claims to privilege. Plaintiff has not
provided citation to any authority which would suggest that the privilege is inapplicable to this
situation. The question is whether testimony directed to authentication of a prior statement
regards “an event” as described in the rule. Professor Lawson provides the following guidance
on the scope of the rule:
The “spousal testimony” privilege is defined in KRE 504(a) and is
considerably more comprehensive than other privileges in the law
of evidence. When applicable, it provides protection against a use
of any and all information that could be obtained from a spouse
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about events involved in the case in which the privilege is claimed
(while most other privileges only provide protection for
confidential communications).
Lawson, The Ky. Evid. Law Handbook § 5.10[2][a] (5th ed. 2013) (emphasis in original).
The undersigned concludes that the privilege is a testimonial privilege and the giving of a
statement regarding the subject of this action is an “event” related thereto. Consequently, the
invocation of the privilege bars any questioning of Sherry Powell about the recorded statement,
including the fact of having given the statement and the accuracy or veracity of the contents.
B. Subpoena of Terry Lutz as a Witness
Terry Lutz is an employee of Transervice. The parties agree that she does not live or
physically appear for work in Kentucky or within 100 miles of the trial venue in Bowling Green,
Ky. Plaintiff asks that she be compelled to attend trial as a witness.
Plaintiff states that “the issue of whether an employee of a party can be subpoenaed under
Federal Civil Rule 45 (c)(3)(A)(ii) when the employee/officer resides or works more than 100
miles away from the court has been addressed by several courts” (DN 100, p. 2). He goes on to
cite In re: Vioxx Prods. Liab. Litig., 438 F. Supp. 2d 664 (E.D. La. 2006), Seiter v. Yokohama
Tire Corp., No. C08-5578 FDB, 2009 U.S. Dist. LEXIS 106395 (W.D. Wash. Nov. 3, 2009),
Aristocrat Leisure Ltd. V. Deutsche Bank Trust Co. Americas, 262 F.R.D. 293 (S.D.N.Y. 2009),
In re: Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., No. 1:00-1898, MDL 1358
(SAS), M21-88,04-CV-3417, 2009 U.S. Dist. LEXIS 86950 (S.D.N.Y. June 24, 2009), and
Scottsdale Ins. Co. v. Education Mgt., Inc., No. 04-1053 Section “C” (3), 2007 U.S. Dist. LEXIS
53895 (E.D. La. Jan. 23, 2007), as cases supporting the proposition that the 100 mile limit on
subpoenaed compulsory attendance at trial does not apply to employees of parties to the
litigation.

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The flaw in Plaintiff’s argument is that Rule 45 was amended in 2013 to remove section
(c)(3)(A)(ii). The Advisory Committee notes observe that the amendments “resolve a split in
interpreting Rule 45’s provisions for subpoenaing parties and party officers.”

Advisory

Committee Notes, Rule 45, 2013 Amendment, Subdivision (c). Rule 45(c)(1)(A) currently
provides that, for appearance at a trial, a subpoena may command a witness to appear within 100
miles of where the person resides, is employed or regularly transacts business in person. If the
witness is a party’s officer, Rule 45(c)(1)(B) permits compulsion of attendance within the state
where the person resides, is employed or regularly transacts business in person.
There is no latitude in interpreting the rule beyond its strict terms. “[T]hese rules were
not made to be ‘tempered’; they were made to be ‘technical’ -- from the specific amount of fees
to be tendered, to the court issuing the subpoena, to the geographic scope of the request.” Hill v.
Homeward Residential, Inc., 799 F.3d 544, 553 (6th Cir. 2015). Consequently, the only possible
basis upon which Ms. Lutz could be compelled to appear at trial is if she regularly transacts
business in person in Kentucky, notwithstanding that it does not involve any physical presence.
Ms. Lutz handles liability and worker’s compensation claims for Transervice on a
nationwide basis, although she does not personally investigate the underlying claim (DN 104-1,
p. 2-3). Plaintiff has suggested that Ms. Lutz placed some telephone calls to Kentucky in the
course of handling the claim. While this may constitute same manner of transacting business,
the qualifier that it be “in person” cannot be ignored. A fundamental objective of Rule 45 is
avoidance of undue burden and expense. See Rule 45(d). For this reason, limits are placed on
the geographic scope of compulsory attendance at judicial proceedings.

If an individual

regularly conducts business in person in a state, it is not unreasonable to expect them to attend a
trial in that state even if it involves travel. The same cannot be said for placing telephone calls

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on a limited or occasional basis. To hold otherwise would be to subject an employee to the
burden of traveling anywhere in the United States to which he or she made a business-related
call.
Wherefore, the Court rules on the pending motions as follows:
IT IS HEREBY ORDERED that Cervetto’s motion to deem Sherry Powell and Terry
Lutz subject to compulsory attendance at trial through subpoena (DN 100) is DENIED.
IT IS FURTHER ORDERED that Defendants’ motion in limine (DN 114) to prohibit
the use of the Transcript of the Recorded Statement is GRANTED. The Court may revisit this
ruling during trial, however, should testimony warrant so doing.

November 3, 2016

Copies:

Counsel

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