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Revis v. T&A Farms

United States District Court, S.D. Georgia, Waycross Division

March 31, 2017

LAWRENCE C. REVIS, JR., Plaintiff,



         Presently before the Court is Defendants' Objection to Plaintiff's Use of Sound Recordings at Trial. (Doc. 97.) For the reasons which follow, the Court OVERRULES Defendants' Objection.


         Plaintiff filed his Complaint against Defendants on October 28, 2014, and alleged he brought his cause of action 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 terminated his employment and denied him equal pay or work 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. 7, p. 2.) Plaintiff maintained Defendants subjected him to disparate treatment on the basis of his race. (Id. at p. 7.) Defendants filed their Answer to Plaintiff's Amended Complaint on February 9, 2015. (Doc. 18.)

         On August 15, 2016, Defendants filed a Motion for Summary Judgment. (Doc. 67.) 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. 88, p. 11 n.6.) In making her determination, Chief Judge Wood considered evidence which appears to have originated from the recordings Plaintiff submitted in opposition to Defendants' Motion that Plaintiff claimed were of conversations John Smallwood[1] had with Defendant Timothy Davis. (Id. at pp. 6-9, 15-17.) Defendants have now moved to exclude Plaintiff from introducing these recordings as evidence. (Doc. 97.)


         Defendants 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 John Smallwood's deposition, over counsel's objection because these recordings were inaudible to him.[2] (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.)

         “To 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).[3] “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).[4]

         In 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. Defendants have not made any availing argument that Plaintiff will be unable to meet these basic requirements at trial. The recordings were apparently made by John Smallwood, and, therefore, Plaintiff can call John Smallwood to testify to authenticating information regarding their creation. As for the purpose for which Plaintiff will offer these recordings, Plaintiff will undoubtedly introduce them in an attempt to prove Defendants' allegedly racist and retaliatory motives. As Chief Judge Wood described in her Summary Judgment Order in John Smallwood's case, the voice which John Smallwood contends belongs to Defendant Timothy Davis repeatedly made racial epithets and retaliatory statements. Order, Smallwood v. T&A Farms, et al., 5:14-cv-87 (S.D. Ga. Jan. 13, 2017), ECF No. 81, p. 9 n.2 & pp. 11-12.

         The question of audibility is a closer call. However, the recordings are not so poor to warrant their exclusion. The Court has listened to the recordings Plaintiff submitted in his Response to Defendants' Motion for Summary Judgment, (docs.73-7-73-12), and the recordings John Smallwood submitted in his cause of action. Br., Smallwood v. T&A Farms, et al., (S.D. Ga. Oct. 24, 2016), ECF Nos. 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. 88, pp.6-9, 15-17); see also, Order, Smallwood v. T&A Farms, et al., 5:14-cv-87 (S.D. Ga. Jan. 13, 2017), ECF No. 81, pp. 11-12. Defendants' counsel is free to attack the reliability of these recordings at trial and to cross-examine any witness 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.


         For the reasons set forth above, the Court OVERRULES Defendants' Objection to Plaintiffs Use of Sound Recordings at Trial. (Doc. 97.) Plaintiff is permitted to introduce these recordings at trial, subject to his meeting authentication and other foundational requirements.

         SO ...

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