Opinion
Civil Action No. 03-2422(JWB).
January 7, 2005
DeCOTIIS, FITZPATRICK, COLE WISLER, By: Russell J. Passamano, Esquire, Teaneck, New Jersey, Attorney for Defendant Cimiluca.
SAIBER SCHLESINGER SATZ GOLDSTEIN, By: Mark E. Wolin, Esquire, Robert B. Nussbaum, Esquire, Newark, New Jersey, Attorneys for Plaintiff.
GALERMAN TABAKIN, By: Jonathan J. Sobel, Esquire, Voorhees, New Jersey, Attorneys for Defendant Hemberger.
OPINION
DIRECTV filed its Complaint (the "Complaint") against multiple defendants, including defendant Gary Hemberger ("Mr. Hemberger"), on May 23, 2003. DIRECTV alleges that Mr. Hemberger purchased illegally modified access cards that allowed him to view DIRECTV's television programming without authorization and payment. (See Compl., ¶¶ 3-4). The acts allegedly violate the Federal Communications Act of 1934, as amended, 47 U.S.C. § 605, and the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-21. (See id., ¶ 5).
DIRECTV delivers television programming to subscribers in the United States via satellite. (See Compl., ¶ 1). The transmissions by DIRECTV are scrambled to prevent non-subscribers from unauthorized viewing. (See id., ¶ 2). Its subscribers must obtain an access card which decrypts scrambled satellite transmissions containing television programming. (See id.)
Specifically, DIRECTV alleges that Mr. Hemberger is a resident of Tinton Falls, New Jersey, and that beginning in March 2001, he purchased nine or more illegally modified access cards and that those cards were shipped to his address in Tinton Falls, New Jersey, (See id., ¶ 15).
On September 27, 2004, this Court denied Mr. Hemberger's motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). On that same day, this Court also denied Mr. Hemberger's motions to quash several subpoenas issued by DIRECTV. Furthermore, on that day, this Court denied Mr. Hemberger's motion to compel arbitration pursuant to 9 U.S.C. § 4.
Mr. Hemberger now brings the current motion in limine to strike the affidavit/declaration of Scott Madvig and to preclude introduction into evidence of any packing slip.
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).
DISCUSSION
DIRECTV has produced a packing slip from Fulfillment Plus dated March 20, 2001 which refers to a purchase of three Vector Smart Card Emulator(s)" that were shipped to 72 Thayer Drive, Tinton Falls, New Jersey. (See Defendant's Br. at 4). The name of the buyer on the packing slip was defendant, Gary Hemberger at the aforementioned address. (See id.) there is also a packing slip dated May 1, 2001 from Fulfillment Plus for Vector Super Unloopers and Smart Card Emulators also addressed to Gary Hemberger but billed to Paul Hemberger. (See id. at 4, n. 1). These packing slips, which are "hard copy" duplicates of electronically stored records, were produced during discovery along with an affidavit/declaration of Scott Madvig ("Madvig Aff."), dated August 19, 2004. (See id. at 5). DIRECTV presents the Madvig affidavit to establish a foundation for the use of these packing slips at trial or arbitration.
Scott Madvig was the owner of Fulfillment Plus until May 25, 2001. (See Madvig Aff., ¶ 2). Fulfillment Plus provided warehouse, packaging and shipping services to a variety of business entities engaged in the sale and distribution of satellite signal theft devices, including Vector Technologies. (See id.) According to the Madvig affidavit, the packing slips were kept in the ordinary course of regularly conducted business activity of Fulfillment Plus. (See id., ¶ 6). Furthermore, the packing slips were created in the normal practice during the regular course of business of Fulfillment Plus. (See id., ¶ 7). Scott Madvig was among those who had possession, custody, control or access to these business records. (See id., ¶ 8).
I. Defendant Hemberger's Argument
Mr. Hemberger argues that because Madvig is the records custodian for Fulfillment Plus and not Vector Technologies the packing slip has not been adequately authenticated. (See Defendant's Br. at 6). "Madvig should not be able to authenticate a record from a company he does not even work for." (Id., at 9). Mr. Hemberger further argues that to satisfy the business records exception to the hearsay rule there must be an affidavit from Madvig's attorney. (See id. at 8). Defendant Hemberger lists six reasons that the Madvig affidavit fails to satisfy the hearsay exception:
(a) the affidavit/declaration does not say how Madvig obtained the records; (b) Madvig was not the owner of Vector Technologies, only Fulfillment Plus; (c) it does not state that Madvig would receive orders to fill from Vector Technologies and in-turn fill those order[s]; (d) it does not state that Madvig did or did not retain the orders after they were filled; (e) there is a chain of custody problem because the records changed hands, there are no affidavits from any other individuals reflective of same or how they came into possession of said orders; [(f)] Madvig can have no personal knowledge of what happened to the records once they were turned over to the authorities or counsel
(See id at 8-9).
II. Analysis
The Madvig affidavit is sufficient to meet the standards set forth by Fed.R.Evid. 902(11) ("Rule 902") and therefore the Madvig affidavit may authenticate the packing slips at trial or arbitration. The hard copy exhibits attached to the Madvig affidavit are "duplicates" of electronic records of Fulfillment Plus. (Fed.R.Evid. 902(11)). As required by Rule 902, Madvig was among the people at Fulfillment Plus who had possession, custody and control of these records. (See id., ¶ 8). Moreover, as required by Rule 902, the Madvig affidavit sets forth that the "packing slips were kept during the regularly conducted business activity of Fulfillment Plus." (See id., ¶ 6). Also, the Madvig affidavit states that the packing slips were created in the "normal practice during the regular course of business of Fulfillment Plus." (See i.e., ¶ 7). Therefore, the Madvig affidavit meets the requirements of Rule 902(11).
Rule 902(11) states:
(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record —
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
A. The Business Records Exception to the Hearsay Rule
Now the Court must turn to the claims made by Mr. Hemberger about the Madvig affidavit. To begin, Mr. Hemberger is mistaken when he argues that the affidavit/declaration does not say how Madvig obtained the records. The Madvig affidavit in fact sets forth that these records "remained in the control and custody of Fulfillment Plus until seized during May 25, 2001 execution of a Writ of Seizure on Fulfillment Plus." (See Madvig Aff., ¶ 10). Second, while it is true that Madvig was not the owner of Vector Technologies, DIRECTV provided Mr. Hemberger with an additional affidavit by Bruce Turner, ("Turner Aff."), President of Global Capital Corp., which was selling the brand name Vector Technologies, to further authenticate the packing slips pursuant to Rule 902(11). (See Plaintiff's Opp. at 5-6 and Plaintiff's Exh. C). Therefore, although Madvig was not the records custodian for Vector Technologies, DIRECTV has provided adequate information to show that the packing slip is admissible pursuant to Rule 902(11). See DirecTV, Inc. v. Miller, 2004 U.S. Dist. LEXIS 4421 *5-6 (M.D. Fla. 2004) (finding that an affidavit by Mr. Turner established "that he was the custodian of Vector Technologies' database, that the receipts in question were generated automatically when the orders were placed, that the generation of such receipts was part of a regularly conducted activity, and that the generation of such receipts was a regular practice within that activity").
Next, Mr. Hemberger is also mistaken when he states that the Madvig affidavit "does not state that Madvig would receive orders to fill from Vector Technologies and in-turn fill those order[s]." The affidavits of Bruce Turner and Madvig together show that these packing slips were sent by Fulfillment Plus on behalf of Global Capital under the name Vector Technologies. (See Exhs. B, C). The Madvig affidavit states that Madvig provided services to companies "including Vector Technologies" and that his company would "package and ship these devices throughout the United States." (See Madvig Aff., ¶ 2).
Furthermore, Mr. Hemberger's claim that the Madvig affidavit "does not state that Madvig did or did not retain the orders after they were filled" is unpersuasive because Madvig stated, as required by Rule 902(11), that he was among the people at Fulfillment Plus who had possession, custody and control of these records. Therefore, the Madvig affidavit has met the standard under Rule 902(11).
B. Chain of Custody
Mr. Hemberger's last claim is outside the scope of Rule 902(11), because it is a claim based on chain of custody. Mr. Hemberger claims that the Madvig affidavit is "silent with respect to how Plaintiff's attorneys received the documents." (See Defendant's Br. at 8). According to Mr. Hemberger, "there is a chain of custody problem because the records changed hands, there are no affidavits from any other individuals reflective of same or how they came into possession of said orders." (See id.) Therefore, Mr. Hemberger argues that the packing slips should not be admitted as evidence because "Madvig can have no personal knowledge of what happened to the records once they were turned over to the authorities or counsel." (See id.)
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. Such supplemental submissions shall be filed and served on or before January 21, 2005. Any replies thereto from defendants shall be filed and served by January 28, 2005.
CONCLUSION
For the foregoing reasons the defendant's motion to strike the Madvig affidavit is denied. Anticipating supplemental submissions regarding chain of custody, defendant's motion to preclude admission of the packing slips is adjourned to February 7, 2005 to be decided on the papers.