United States District Court, S.D. Georgia, Waycross Division
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
before the Court is Defendants' Objection to
Plaintiff's Use of Sound Recordings at Trial. (Doc. 94.)
For the reasons which follow, the Court OVERRULES
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.)
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.)
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 p. 1.)
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.(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.)
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). “This determination 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).
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.)
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, 71-16-71-21.) While
some of these recordings are not entirely clear due to
background noises, this does 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.
reasons set forth above, the Court OVERRULES Defendants'
Objection to Plaintiffs 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.