COLES et al v. CARLINI et al

Filing 94

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 12/14/2012. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JAMES COLES, et al.,
Plaintiffs,

HON. JEROME B. SIMANDLE
Civil No. 10-6132 (JBS/AMD)

v.
MEMORANDUM OPINION
NICHOLAS CARLINI, et al.,
Defendants.

SIMANDLE, Chief Judge:
The matter before the Court is Plaintiffs’ appeal of a
nondispositive order issued by Magistrate Judge Donio that denied
Plaintiffs’ motion to deem a videotape exhibit a “true, correct,
accurate and admissible transcription and copy of the original
VHS videotape recording” of a traffic stop recorded by the New
Jersey State Police. [Docket Item 79.] The Court finds as
follows:
1. The underlying dispute arises from an allegedly illegal
traffic stop of Plaintiffs, who were riding motorcycles, by the
New Jersey State Police. The facts of this case were recounted by
the Court in Coles v. Carlini, No. 10-6132, 2012 WL 1079446, at
*1-*5 (D.N.J. Mar. 29, 2012) and, as they are irrelevant to the
present motion, will not be repeated here.
2. Defendants’ Answer to the Amended Complaint made dozens
of references to the videotape of the traffic stop, attached to
the Amended Complaint as Exhibit A. [Docket Item 57.] One

representative example:
The original videotape of the incident speaks for
itself. Answering Defendants reserve the right to
authenticate the video attached as Exhibit A, as well
as the right to verify the accuracy of its timestamp
and amplify its sound. Without such authentication and
testing, Answering Defendants must deny the allegations
in this paragraph.
[Answer ¶ 149.]
3. Defendants previously had admitted the authenticity of
the videotape, in their motion to strike and motion to dismiss:
“the MVR [mobile video/audio recording] is properly considered by
the Court under Fed. R. Civ. P. 12(b)(6), because it is
undisputedly authentic and integral to the Plaintiff’s Amended
Complaint, which relies on it extensively.” [Docket Item 39-1 at
2 n.1.] Relying on this admission, this Court considered the
videotape exhibit in deciding the motion to dismiss, because the
exhibit was “undisputedly authentic.” Coles, 2012 WL 1079446, at
*7. The Court stated: “it is undisputed by the parties that the
recording of the traffic stop attached as an exhibit to the
Plaintiff’s First Amended Complaint is an authentic document.”
Id.
4. Plaintiffs moved before Magistrate Judge Donio for an
order deeming Exhibit A “a true, correct, accurate and admissible
transcription and copy of the original VHS videotape recording.”
[Docket Item 61 ¶ 58.] Plaintiffs argued that 42 paragraphs in
Defendants’ Answer denied allegations in the Amended Complaint

2

because the video had not been authenticated. [Id. ¶ 33.]
Plaintiffs argued that Defendants should be estopped from
disputing the exhibit’s authenticity, and they should return a
more complete Answer. [Id. ¶ 24.]
5. Although Defendants urged the Magistrate Judge to deny
the motion “in its entirety” [Docket Item 67 at 3], Defendants
also conceded that they “have no objection to the Court deeming
the exhibit authentic at the present time. If later testing
reveals evidence of tampering, then the defendants will submit
the appropriate motion to the Court and ask it to vacate its
interlocutory order.” [Id. at 16-17.]
6. At the motion hearing, Judge Donio asked Defendants’
counsel if he was contesting the validity of the video exhibit,
and he responded:
only [if] we find out later, at some point, that there
is something that was done to it. Now, I don’t think
that’s going to be the case, but it’s early on and we
just wanted to preserve our right to do that and that’s
why we agreed to have the Court deem it authentic.
[Excerpt of Mots. Hearing Before The Honorable Ann Marie Donio
United States Magistrate Judge (Docket Item 80) at 4:1-8.] Judge
Donio expressed the view that it was premature to move to
authenticate the document: “I don’t see it as ripe, at this
point.” [Id. at 17:24.] Judge Donio stated:
Why would I deem it authentic today, in the nature of
this proceeding? What would be the benefit or detriment
to that? Isn’t it evidence that will be presented and
admitted in an appropriate trial and why do we need to
3

address the authenticity of what the recording is
today?
[Id. at 4:9-13] She elaborated:
[T]here is nothing before me at this time, is what I’m
saying. Is that your position? I mean, we’re not in an
evidentiary hearing and there’s nothing for me to admit
to, to whom would I be admitting it? There’s no jury,
we’re not in a dispositive motion context. That would
be the District Judge, anyway and there’s no evidence
issue, there’s no in limine motion.
[Id. at 18:4-10.] Judge Donio ruled that Defendants must answer
based on “their own memory as to what occurred” and should “not
referenc[e] whether the tape is authentic” in their responses.
[Id. at 21:3-9.] To the extent Defendants’ Answer denied
allegations by referencing the videotape, Judge Donio ruled that
Defendants would have to revise their responses. [Id. at 28:1625.] If, at a later stage in litigation, the Defendants’ denials
turn out to be improper, “the defendants will have to deal with
it at that time.” [Id. at 28:21-25.] Judge Donio never ruled that
Exhibit A was authentic. She then entered a written order that
stated the motion “shall be, and is hereby, DENIED in part and
GRANTED in part as set forth on the record . . . .” [Docket Item
76 at 1.]
7. Plaintiffs appeal the order, arguing that Exhibit A must
be deemed authentic and admissible because of Defendants’
previous admissions to that effect. [Pl. Appeal ¶ 2.] Because
Plaintiffs claimed in their motion that Defendants were bound by
their “judicial admission of authenticity,” Plaintiffs conclude
4

that Judge Donio’s ruling denying the motion was contrary to law.
[Id. ¶¶ 5-6.]
8. Defendants, responding to the appeal, continue to admit
the authenticity of the videotape exhibit. “We have no objection
to the Court entering an order deeming Exhibit A authentic, so
long as such an order is without prejudice to the defendants’
right to move to vacate that order if Exhibit A is later found to
have been doctored.” [Def. Opp’n at 1-2.] Defendants continue:
“we have no reason to believe Exhibit A has been tampered with or
doctored. . . . [F]ormer DAG Michael Engallena did not challenge
the authenticity of Exhibit A. The defendants are not challenging
it now.” [Id. at 2.]
9. A district court reviewing a nondispositive order by a
Magistrate Judge must “modify or set aside any part of the order
that is clearly erroneous or is contrary to law.” Fed. R. Civ. P.
72(a); L. Civ. R. 72.1(c). A Magistrate Judge’s finding is
clearly erroneous when “although there may be some evidence to
support it, the reviewing court, after considering the entirety
of the evidence, is ‘left with the definite and firm conviction
that a mistake has been committed.’” Kounelis v. Sherrer, 529 F.
Supp. 2d 503, 518 (D.N.J. 2008) (quoting Dome Petroleum Ltd. v.
Emp’rs Mut. Liab. Ins. Co., 131 F.R.D. 63, 65 (D.N.J. 1990) and
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). A
ruling is contrary to law if “the magistrate judge has

5

misinterpreted or misapplied applicable law.” Id. Where a
Magistrate Judge “is authorized to exercise his or her
discretion, the decision will be reversed only for an abuse of
discretion.” Id.
10. The parties agree that the videotape exhibit is
authentic, unless some evidence is discovered to show the exhibit
has been tampered with or doctored, and all agree that scenario
is unlikely. See Def. Opp’n at 2 (“we highly doubt that any such
evidence will be uncovered”). Agreement among the parties,
however, does not render the Magistrate Judge’s order clearly
erroneous or contrary to law. Judge Donio did not rule that
Exhibit A was not authentic; her order directed Defendants to
cure problems with their Answer by eliminating denials based on
the videotape exhibit. Thus, the order rendered unnecessary any
decision on the authenticity of the exhibit until such a time
that the exhibit’s authenticity becomes a material issue. This
solution was within the Magistrate Judge’s discretion, and the
Court finds no abuse of discretion in this case.
11. Therefore, the order of the Magistrate Judge will be
affirmed. The accompanying Order will be entered.
12. In light of the agreement of both sides during briefing
of this motion that the videotape exhibit is authentic, the Court
will deem the exhibit as having been authenticated under Rules
901, et seq., Fed. R. Evid. Its admissibility at trial will thus

6

depend on either the parties’ stipulation of admissibility or
upon Plaintiffs’ showing under the relevant exception(s) to the
hearsay rules in Ruls 801-803, Fed. R. Evid., and the
accompanying Order will also so provide.

December 14, 2012
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

7