Usov v. Lazar et al

Filing 160

OPINION re: 151 AMENDED MOTION in Limine . filed by Marc Lazar Inc., 149 MOTION in Limine . filed by Marc Lazar Inc. The Defendant's motion in limine to preclude the audio recordings and transcripts is denied. (As further set forth in this order) (Signed by Judge Robert W. Sweet on 11/22/2016) (lmb)

GEORGY USOV,
Plaintiff,
-against-

13 Civ. 818
OPINION

MARC LAZAR, INC.,
Defendant.

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A P P E A R A N C E S:
Attorneys for Plaintiff
THE ROTH LAW FIRM, PLLC
295 Madison Avenue, 22nct Floor
New York, NY 10017
By:
Richard A. Roth, Esq.

Attorneys for Defendant
NEIMAN GINSBURG and MAIRANZ
39 Broadway, 25 th Floor
New York, NY 100 06
By: Marvin Neiman, Esq.

Sweet, D.J.

Defendant Mark Lazar, Inc.

("ML I" or the "Defendant")

has moved in limine to preclude plaintiff Georgy Usov ("Usov " or
the "Plaintif f")

from presenting evidence of certain audio

recordings of purported conversations between Elena Harris and
Mark Lazar and any transcripts of their contents .

For the

reasons set forth below, the motion is denied.

Prior Proceedings

The opinions of August 22 , 2014 and May 27 , 2016 both
denied MLI ' s motions for summary judgment.

The action is set

for trial on November 28 , 2016 .

The Facts

The facts are set forth in the Defendant's motion as
Exhibit A and in Plaintiff's oppos iti on as the Affidavit of
Elena Harris.

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Plaintiff Can Attempt to Authenticate the Audio Recordings at
Trial and Both Parties' Transcripts Can Be Introduced

Defendant seeks to preclude Plaintiff from i ntroducing
at trial the audio recordings of purported conversations between
Elena Harris and Mark Lazar and any transcripts of those
conversations.

Defendant argues that these recordings are not
admissible because they cannot be properly authenticated under
Federal Rule of Evidence 901 .

Authenticity of audio recordings

must be established by "c l ear and convincing evidence " because
of their "strong effect on the jury" and their " susceptib[ility]
to alteration . "

Penguin Books, U.S . A., Inc . v . New Christian

Church of Full Endeavor, Ltd. , 262 F . Supp. 2d 251 , 263

(S . D.N.Y. 2003)

("Penguin Books" ) .

Penguin Books provided several factors that it

considered in determining whether an audio recording was
admissible.

Penguin Books , 262 F. Supp . 2d at 264.

The list in

Penguin Books is a gu i de , but not a required list of factors for

courts authenticating audio recordings.

Id.

These factors in

Penguin Books included :

(1) that the record i ng device used was capable of
taping the conversation now offered in evidence ; (2)
that the operator of the device was competent to
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operate it; (3) that the recording is authentic and
correct; (4) that changes, additions, or deletions
have not been made to the recording; (5) that the
recording has been preserved in the manner that is
presented to court; (6) that the speakers are
identified, and (7) that the conversation elicited was
made voluntarily and in good faith.

Id.

Unlike in Penguin Books in which the identity of th e

speakers had not been established (factor 6), here one of the
speakers and the person who recorded the conversations, Elena
Harris, identified the speakers.

Id.

The device was El ena

Harris' iPh one , which was capable of recording (factor 1 ) .
Further, Elena Harris was capable of operating the device
(factor 2) and she was one party consenting to the recording
(factor 7)

At trial Plaintiff will need to properly authenticate
and intr oduce the recordings.

However, at this stage Defendant

has not met its burden to preclude them.

Plaintiff will be

permitted to make arguments about issues regarding chain of
custody of the recordings.

Any such arguments about "[b]reaks

in the cha in of custody [f or audio recordings] do not bear upon
the admissibility of evidence, only the weight of the evidence
"

U.S. v. Morrison,

153 F.3d 34, 57

(2d Cir. 1998).

Defendant also seeks to preclude use of the
transcripts of these audio recordings at trial because there are
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inconsistencies between the parties' transcripts of the same
calls.

The accurate interpretation of the contents of the audio

recordings will be a fact issue at trial.

Both parties'

transcripts wi ll be permitted to aid the Court in understanding
the audio recordings.

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Conclusion

The Defendant ' s motion in limine to preclude the audio
recordings and transcripts is denied .

It is so ordered.

New York, NY
November Z, o/, 2016

T W. SWEET

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