EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, January 17, 2010

Adverse (Dis)Possession: Eastern District Of New York Order Adverse Inference Instruction In Best Evidence Ruling

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

That said, Federal Rule of Evidence 1004(1) provides that 

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.

It is very difficult for the opponent of such "other evidence" to prove "bad faith," and a showing of negligence by the proponent is generally not enough to prevent the application of Federal Rule of Evidence 1004(1). As the recent opinion of the United States District Court for he DIstrict of New York in Vagenos v. LDG Financial Services, LLC, 2009 5219021 (E.D.N.Y. 2009), makes clear, however, this does not mean that the opponent is without recourse.

In Vagenos, Chris Vagenos filed an action pursuant to the Fair Debt Collection Practices Act against LDG Financial Services, LLC, alleging that the company engaged in deceptive practices in connection with the collection of a consumer debt. His claims were based upon upon telephonic communications received from LDG, but he deleted the original, allegedly unlawful pre-recorded message that was left for him, retaining only a purported duplicate.

According to the Eastern District of New York, Vagenos was allowed to introduce his purported duplicate because his

explanation about the unavailability of the original message [wa]s sufficient to meet the threshold requirements of Fed.R.Evid. 1004(1). Plaintiff and plaintiff's counsel may very well have breached their duty to preserve critical evidence in this case, but they did not do so in bad faith.

(I'm not sure why the court didn't simply find the duplicate admissible under Federal Rule of Evidence 1003, which does not require fulfillment of any of the Rule 1004 factors)

As noted above, however, this did not leave LDG without recourse. Instead, the court concluded,

This is not to say, however, that plaintiff should face no consequences for his and his attorney's actions. The standard of bad faith under Rule 1004(1) must necessarily be high, at least where, as here, precluding the crucial secondary evidence would be tantamount to directing a verdict against the proponent of that evidence; plaintiff cannot prevail in this action if the Court excludes the duplicate recording. Although plaintiff's conduct thus does not meet the standard of "bad faith" under Rule 1004(1) and the fatal consequences that would flow from it, that conduct does violate plaintiff's obligation to retain relevant evidence. Indeed, it is the very importance of the evidence that heightened the obligation to preserve the original. Plaintiff's neglect has complicated the task of the fact finder, which now has to determine whether the message plaintiff claims he received is in fact the message he did receive. It has prejudiced defendant, which cannot inspect the original tape or subject it to forensic analysis. These issues could have been avoided entirely had plaintiff or his attorney taken any steps to merely retain the original evidence.

And, according to the court, the remedy for LDG was an adverse inference instruction

that a party in possession of material evidence has a duty to preserve it, and the jury may consider plaintiff's failure to preserve the original recording as evidence that the destroyed portion of the message contained information harmful to plaintiff's case.



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