In a summary judgment battle, the Plaintiff referenced audio recordings in opposition to the Defendants’ summary judgment motion.
The Defendant brought a motion to strike the audio recordings, because the audio was neither disclosed nor produced in discovery. Rector v. Town of Fishers, 2012 U.S. Dist. LEXIS 81771 (S.D. Ind. June 13, 2012).
The Court tossed out the audio recordings like they were 8 track cassettes.
Turning Up the Discovery Gain
The discovery dispute involved audio recordings the Plaintiff made of conversations with one of the Defendant’s employees. These recordings were never produced in discovery, despite a request for any statements, including recorded, that referenced the events in the lawsuit. Rector, at *1-2.
The Discovery Amplifier
Federal Rule of Civil Procedure Rule 26(a)(1)(A)(ii) imposes affirmative disclosure obligations on parties to disclose “all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” Rector, at *2, citing Fed. R. Civ. Pro. 26(a)(1)(A)(ii).
Grazing Effect on the Court
The Court found the audio recordings should have been produced under Rule 26(a), noting that the Plaintiff included the recordings in their opposition to the Defendant’s summary judgment motion. Rector, at *3. Moreover, the Plaintiff was also obligated to produce the recordings pursuant to the Defendant’s Rule 34 request. Id.
One does not need noise canceling headphones to hear the Court’s message that the audio recordings should have been produced:
Indeed, so clear is the discoverability of the audiotape that the Court notes that Plaintiff’s counsel has been unable to explain why the audiotape was not produced during discovery.
Rector, at *3.
The Court explained that pursuant to Rule 37(c)(1), when a party withholds information that should have been included in its initial disclosures, “[t]he exclusion of non-disclosed evidence is automatic and mandatory under Rule 37(c)(1) unless non-disclosure was justified or harmless.” Rector, at *3, citing Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004).
The Court’s stated the following in its order to excluded the audio recordings:
Given the Plaintiff’s inability to explain its non-production, the Court cannot find that the non-disclosure was justified. As for harmlessness, the Plaintiff does not argue it. Even if the Plaintiff had, the Court would reject here. The Defendant prepared its motion for summary judgment based upon what it believed to be the evidentiary record. Had it known about the audiotape, it might have structured its argument differently—or perhaps even avoided filing a motion altogether. Accordingly, consistent with Rule 37(c)(1), the Court will exclude the undisclosed evidence for the purposes of summary judgment.
Rector, at *3-4.
Bow Tie Thoughts
Highly skilled and competent lawyers have to think very broadly when discussing discovery with their clients. Virtually every smartphone has a recording feature. It certainly does not hurt to ask a client if the client recorded anything about the lawsuit, either on their phone or a digital recording device. While no one is expecting Garage Band to be in discovery, none of the drummers from Spinal Tap were expecting to spontaneously combust.
After determining whether any audio discovery exists, the next issue is reviewing it for whether it is relevant to the case or responsive to a discovery request. Many of the litigation support review platforms today can support audio discovery. Additionally, many litigation support service providers can also transcribe the audio, so the text is searchable in the review database.
Audio discovery should be included in client interviews to determine if any exists. If it does, verify with a service provider they can transcribe the audio and whether their hosted review platform supports audio files.