United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
A. VARLAN UNITED STATES DISTRICT JUDGE.
Court has before it a motion for reconsideration and reversal
of the magistrate judge's order finding that electronic
copies of certain patient files are admissible [Doc.
706]. The magistrate judge, the Honorable Debra
C. Poplin, ruled that the files qualify as duplicates under
Federal Rule of Evidence 1003 and are thus admissible [Doc.
686 p. 5]. Defendants contest this conclusion,  and the
government has responded in opposition [Doc. 713]. Finding
the magistrate judge's opinion neither clearly erroneous
nor contrary to law, 28 U.S.C. § 636(b)(1)(A), the Court
will DENY the motion.
magistrate judge discusses the relevant factual and
procedural history to this motion in her order [Doc. 686 p.
1-3]. Given that there are no objections pertaining to that
portion of the order, it is hereby incorporated by reference
Standard of Review
magistrate judge's memorandum and order in this case was
issued pursuant to 28 U.S.C. § 636(b)(1)(A). For such
nondispositive matters, a district judge may
“reconsider any pretrial matter . . . where it has been
shown that the magistrate judge's order is clearly
erroneous or contrary to law.” Id. The clearly
erroneous standard applies to a magistrate judge's
findings of fact, and the contrary to law standard applies to
the magistrate's conclusions of law. See Gandee v.
Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992),
aff'd 19 F.3d 1432 (6th Cir.) (unpublished table
decision). Both standards of review are deferential. “A
finding is clearly erroneous where it is against the clear
weight of the evidence or where the court is of the definite
and firm conviction that a mistake has been made.”
Galbraith v. N. Telecom, Inc., 944 F.2d 275, 281
(6th Cir. 1991), overruled on other grounds, Kline v.
Tenn. Valley Auth., 128 F.3d 337 (6th Cir. 1997). A
decision is contrary to law if it “contradict[s] or
ignore[s] applicable precepts of law, as found in the
Constitution, statutes, or case precedent.” United
States v. Andrew Assad, No. 2:18-cr-140, 2019 WL
5396783, at *3 (E.D. Tenn. Oct. 22, 2019) (internal quotation
and citations omitted).
argue the Court should reverse the magistrate judge's
ruling that electronic copies are admissible because she
incorrectly found that the copies qualify as duplicates under
Federal Rule of Evidence 1003 [Doc. 706 p. 2]. Rule 1003
permits the admissibility of a duplicate “to the same
extent as the original unless a genuine question is raised
about the original's authenticity or the circumstances
make it unfair to admit the duplicate.” Fed.R.Evid.
1003. Defendants argue that the copies do not qualify as
duplicates for two related reasons: (1) the copies are
inauthentic, and (2) even if they are authentic, it would be
unfair to admit them [Doc. 706 p. 3]. Highlighting certain
features of the actual files the black and white copies did
not capture, including colored tabs, the color of pen
markings made on the files by different providers, and the
front and back covers of a significant number of files,
defendants argue the copies fail to “convey a complete
picture of the care that was provided” and are
therefore “neither ‘authentic' [n]or
‘duplicates'” [Id. at 4]. Defendants
assert that Rule 1003 does not permit the introduction of
black and white copies and thus Federal Rule of Evidence 1002
requires the government to produce the original files
[Id. at 4-5].
also argue that the magistrate judge improperly relied on
United States v. Enzinger, No. 2:11-CR-62-DBH, 2011
WL 4459103, at *1 (D. Me. Sept. 23, 2011). Enzinger
is distinguishable, defendants contend, because the
Enzinger court held it was not unfair to admit a
copy where the original was not available, it was unclear
“whether it ever existed, ” the document was a
single page, and defendants had the opportunity to
cross-examine witnesses about the copy [Doc. 706 p. 3]. Here,
in contrast, the original files reside within the
government's possession in the courthouse, and the files
number in the thousands [Id. at 3-4].
government states that defendants have failed to raise any
issues that have not already been extensively litigated [Doc.
713]. It also argues that the sole case cited by
defendants¸ Toho Bussan Kaisha, Ltd. v. American
President Lines, Ltd., has “absolutely no
application here whatsoever” because the court was not
presented with a Rule 1003 issue, did not mention that rule,
deemed the copies inadmissible as business records because no
witness could testify to their authenticity, and excluded the
documents based on 28 U.S.C. § 1732 and various New York
state statutes [Id. (citing Toho Bussan,
265 F.2d 418, 424 (2d Cir. 1959)]. In contrast, the
government argues, the magistrate judge properly relied on
United States v. Enzinger [Id.]. The
government cites another case, Barnes v. Tenn. Personal
Assistance, Inc., which it argues lends additional
support to the magistrate judge's conclusion, noting that
the court held admissible a duplicate calendar over
defendant's objection that the duplicate failed to show
whether the same color pen had made all the entries [Doc. 713
p. 2 (citing Barnes, No. 10-1260, 2012 U.S. Dist.
LEXIS 83663, at *4 n.2 (W.D. Tenn. June 18, 2012)].
the government notes that the magistrate judge's order
balanced significant logistical issues with defendants'
concerns [Id.] Her order stated that a party
introducing an original patient file in evidence could
produce the file to the jury through an electronic duplicate
but could also introduce a color photograph of any page of
the original file to emphasize a particular color of ink or
tab not depicted on the electronic file [Id.]. Her
opinion thus complied with Federal Rule of Evidence 611's
instruction that a court exercise control over the mode of
presenting evidence to ensure effective procedures for
determining the truth, avoid wasting time, and protect
witnesses [Id. (citing Fed.R.Evid. 611)].
magistrate judge's ruling that the copies are admissible
as duplicates under Rule 1003 was not clearly erroneous or
contrary to law. Fed.R.Civ.P. 72(a). Defendants fail to
support their arguments that the copies are inauthentic and
that it would be unfair to admit electronic copies in place
of the original files. In contrast, the Federal Rules of
Evidence and precedent both support the magistrate
The authenticity of the electronic copies.
first to defendants' argument that the copies are
inauthentic and thus not duplicates under Rule 1003, the
Court finds that neither the federal rules, nor precedent
support the reasons defendants cite for finding the copies
inauthentic. Federal Rule of Evidence 1001(4) defines a
“duplicate” as “a counterpart produced by a
mechanical, photographic, chemical, electronic, or other
equivalent process or technique that accurately reproduces
the original.” See also Fed. R. Evid. 1003,
Ad. Comm. Notes (1976) (“[A] counterpart serves equally
as well as the original, if the counterpart is the product of
a method which insures accuracy and genuineness. By
definition in Rule 1001(4) . . . a ‘duplicate'
possesses this character.”). Defendants appear to argue
that the electronic copies are inauthentic because the method
of copying the files did not accurately capture the
information contained in the files. However, defendants do
not explain the significance of the color tabs and the
missing front and back covers of certain files to the
files' contents, and federal rules of evidence regarding
secondary evidence, such as Rule 1003, are concerned with
proof of the contents of a document. Fed.R.Evid. 1002
(“An original writing . . . is required to prove its
content unless these rules or a federal statute provides
otherwise.”); United States v. Moore, 30 F.3d
135; 1994 WL ...