Opinion
Civil Action No. 03-2422 (JWB).
March 8, 2005
SAIBER SCHLESINGER SATZ GOLDSTEIN, Mark E. Wolin, Esquire, Robert B. Nussbaum, Esquire, Newark, New Jersey, Attorneys for Plaintiff.
DeCOTIIS, FITZPATRICK, COLE WISLER, Russell J. Passamano, Esquire, Teaneck, New Jersey, Attorneys for Defendant Cimiluca.
GALERMAN TABAKIN, Jonathan J. Sobel, Esquire, Voorhees, New Jersey, Attorneys for Defendant Hemberger.
OPINION
This matter comes before the Court on Defendant Gary Hemberger's motion in limine to preclude introduction into evidence of certain packing slips. This Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a). Personal jurisdiction and venue are proper in this District pursuant to 28 U.S.C. § 1391(b).
FACTS AND PROCEDURAL HISTORY
A complete factual recitation is provided in this Court's Opinion of January 7, 2005.
On September 24, 2004, Defendant Gary Hemberger ("Mr. Hemberger") brought the current motion in limine to strike the affidavit/declaration of Scott Madvig and to preclude introduction into evidence of certain packing slips, copies of which are annexed to this Opinion as Exhibits A and B. This Court issued a written Opinion and Order deciding this motion on January 7, 2005. See DIRECTV, Inc. v. Cimiluca, et al., 03-cv-2422 (JWB) (January 7, 2005). In that Opinion, this Court denied Mr. Hemberger's motion to strike the Madvig Affidavit, holding that the requirements of Fed.R. Ev. 803(6) and 902(11) had been satisfied, and adjourned the motion to preclude admission of the packing slips subject to supplemental submissions regarding chain of custody. See id.
On January 20, 2005, Plaintiff DIRECTV submitted a supplemental Declaration of Scott Madvig as well as the Declaration of Michael Houck to address the chain of custody issue. Thereafter on January 30, 2005, Mr. Hemberger submitted a Reply to these supplemental filings ("Reply"). In that Reply, Mr. Hemberger again urged this Court to preclude the introduction of the packing slips. On February 7, 2005, DIRECTV submitted a written request to file a brief addressing the issues raised in Mr. Hemberger's Reply. The next day, counsel for Mr. Hemberger sent this Court a letter opposing DIRECTV's request. In a letter dated February 14, 2005, this Court denied DIRECTV's request to file an additional brief and further stated that DIRECTV's letter requesting the brief would not itself be considered a brief. The Court heard oral argument on February 28, 2005.
DISCUSSION
I. Defendant Hemberger's Argument
Mr. Hemberger argues that the chain of custody regarding the packing slips must be proven in reference to the database that was created by Mr. Madvig because all of the records and packing slips came from this database. See Reply at 2. According to Mr. Hemberger, there are "no credible documents to support how the `database' came into the possession of Plaintiff, Directv." Id. at 6. Furthermore, Mr. Hemberger points to "factual inaccuracies as to when the records were seized." Id. at 8. II. The Chain of Custody Issue Has Been Resolved by Directv's Supplemental Affidavits and Declarations
In the January 7, 2005 Opinion, this Court carried Mr. Hemberger's motion to preclude admission of the packing slips subject to DIRECTV's supplemental submission regarding the chain of custody issue. See DIRECTV, Inc. v. Cimiluca, et al., 03-cv-2422 (JWB) (January 7, 2005). In that opinion, this Court stated:
The Court agrees that neither the Madvig affidavit nor the Turner affidavit adequately address the chain of custody issue from the time of seizure on May 25, 2001 until now. The Court looks to a factually similar case from the Court of Appeals for the Second Circuit. See United States v. Lauersen, 348 F.3d 329 (2d Cir. 2003). In Lauersen, following a chain of custody objection by the defendant, the Second Circuit upheld the lower court's ruling that the government could produce a supplemental affirmation of an FBI agent stating that "the documents had been faithfully maintained during the time they were in Government custody." (See id. at 341).
This Court finds that a supplemental affidavit or declaration is necessary to resolve this chain of custody issue. Standing alone, the Madvig affidavit and the Turner affidavit do not adequately authenticate the packing slips because they do not address the chain of custody following May 25, 2001. DIRECTV has offered to supplement the Madvig affidavit regarding any material issue, stating that it "will provide such a supplemental affidavit in a timely manner before trial or arbitration." (See Plaintiff's Opp. at 1, n. 1). Relying on Lauersen, this Court will allow DIRECTV an opportunity to supplement its affidavits to prove chain of custody since the seizure of May 25, 2001. Such a supplemental affidavit, or affidavits shall also describe the date, location and manner of production of the hard copy duplicate packing slips which Madvig has authenticated.Id. at 9-10
In response, DIRECTV submitted the supplemental Declaration of Scott Madvig ("S.M. Dec.") as well as the Declaration of Michael Houck ("Houck Dec."). The S.M. Dec. states:
4. On May 25, 2001, DIRECTV executed a Writ of Seizure at Fulfilment Plus. In response to that event, I immediately closed Fulfillment Plus and terminated all further involvement with the satellite theft devices. I also entered into a comprehensive settlement with DIRECTV.
5. On or about June 15, 2001, I produced all of my electronic business records to DIRECTV' counsel, Scott Wils[d]on, Esq. Of Yarmuth Wils[d]on-Calfo PLLC (the "Yarmuth Firm") in Seattle, Washington. I did this bu turning over to the Yarmuth Firm a zip disk containing the entire Fulfilment Plus Access Database which I described in my prior declaration in this matter dated August 19, 2004.Id. at 2. The S.M. Dec. establishes that the information was stored in electronic format and then transferred via zip disk to DIRECTV's counsel on June 15, 2001. This Declaration attests to the whereabouts of the database and packing slips from May 25, 2001 until June 15, 2001.
Any discrepancies between this S.M. Dec. and its predecessor signed by Mr. Madvig on August 19, 2004 are immaterial to resolution of the current dispute.
The whereabouts of the packing slips following this June 15, 2001 transfer are explained by the Houck Dec. Mr. Houck is a paralegal at the Yarmuth Firm. See Houck Dec. at ¶ 2. Mr. Houck attests that the records were received at Yarmuth on or about June 15, 2001. See id. at ¶ 4. Mr. Houck adds that the "original zip disk has been in the custody and control of this firm since that date and no modifications have been made to the data on this disk." See id. at ¶ 5. Each of the two packing slips at issue here were "printed from the disk." Id. at ¶¶ 7, 8. As a paralegal at the Yarmuth Firm who was working with Mr. Scott Wilsdon, Esq., Mr. Houck has personal knowledge of the location and condition of the database and packing slips from June 15, 2001 until the present.
These recent Declarations from Madvig and Houck, supplementing the information provided in the prior submissions by DIRECTV, fulfill their intended purpose. They meet the standard set forth in United States v. Lauersen, 348 F.3d 329, 341 (2d Cir. 2003) where the FBI agent stated only that "the documents had been faithfully maintained during the time they were in Government custody." Here DIRECTV has set forth the adequate foundation for admission of the packing slips by filling the missing gap regarding custody following May 25, 2001.
CONCLUSION
For the foregoing reasons, as well as those expressed in this Court's January 7, 2005 Opinion, Mr. Hemberger's motion to preclude introduction into evidence of the packing slips is denied.
EXHIBIT A
PACKING SLIP Vector Technologies PACK ID: 28791 Invoice: 985055330555 PRINTED: 3/20/2001 10:31:31 AMSHIP TO: BILL TO:
Name: GARY HEMBERGER Name: GARY HEMBERGER Phone: (732) 460-0555 Phone: (732) 460-0555 Email: HEMGAR@YAHOO.COM Email: HEMGAR@YAHOO.COM Company: Company: Address: 72 THAYER DR Address: 72 THAYER DR
TINTON FALLS, NJ 07724 TINTON FALLS, NJ 07724 US US
Product ID Product Description Quantity 22 Vector Smart Card Emulator 3 Vector Emulator 3 Standard 6' RJ-11 Cable 3 RJ-11 to DB9 Adpater 3
EXHIBIT B
PACKING SLIPVector Technologies PACK ID: 42663 Invoice: 988681239079 PRINTED: 5/1/2001 9:21:21 AM
SHIP TO: BILL TO:
Name: GARY HEMBERGER Name: PAUL F. HEMBERGER Phone: (732) 671-3544 Phone: (732) 671-3544 Email: HEMGAR@YAHOO.COM Email: HEMGAR@YAHOO.COM Company: Company: Address: 72 THAYER DR Address: 120 EVERGREEN TERRACE
TINTON FALLS, NJ 07724 MIDDLETOWN, NJ 07748 US US
Product ID Product Description Quantity 2 Vector Super Unlooper with SU2 Code 3 Vector Super Unlooper SU2 3 9 Volt Power Supply 3 Serial Cable 3
22 Vector Smart Card Emulator 3 Vector Emulator 3 Standard 6' RJ-11 Cable 3 RJ-11 to DB9 Adpater 3