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United States v. Hofstetter

United States District Court, E.D. Tennessee

October 25, 2019




         The 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].[1] 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, [2] 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.

         I. Background

         The 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 [Id.].

         II. Standard of Review

         The 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 See Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992), aff'd 19 F.3d 1432 (6th Cir.) (unpublished table decision).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).

         III. Analysis

         Defendants 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].[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].

         Defendants 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].

         The 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)].

         Finally, 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)].

         The 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 judge's conclusion.

         A. The authenticity of the electronic copies.

         Turning 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 ...

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