Striking Undisclosed Audio Recordings

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

The Court explained the Federal Rules of Civil Procedure were enacted to make trial practice fair and not a “game of blind man’s bluff.”  Rector, at *2.

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.

Discovery Zenith 

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.

2 thoughts on “Striking Undisclosed Audio Recordings

  1. Another useful, well-written and even entertaining post!

    Note that in addition to converting audio to text and then searching the text, parties can also have the voice files indexed according to the individual sounds or phonemes that appear in the files so that they can be searched by sound without having to go through the expense and potential inaccuracy of creating text files. In a survey by the eDiscovery Institute last year, Kroll, Nexidia and ZyLAB reported having this “voice analytics” feature. I haven’t researched the area for over a year now, so there may be others.

    If I had a large number of voice messages or wire taps, etc to process, I’d also include Nuance as a company to look at. Note that one solution is to use people who have trained Dragon Dictate voice-to-text software and who can listed to the recordings and basically repeat what was said into a microphone that feeds the Dragon Dictate software. Whle Dragon Dictate is voice- or user-specific, once trained the software is amazingly accurate.

    When considering such a project it might be worthwhile using “scopists” who are people who often help court reporters prepare drafts of transcripts. They could be less expensive than court reporters but still get the job done.

  2. I didn’t read the actual opinion, just your summary, but it seems like the court was wrong to the extent it suggested the recording should have been disclosed under Rule 26. If the fact the recording was useful to plaintiff’s case did not become clear until it was necessary to oppose the summary judgment motion, then no affirmative duty to disclose arose until the motion was filed. It was only then that it became clear that plaintiff would use the recording evidence “to support its claims.” This points up the contrast between the FRCP and some states procedure laws, (including, Arizona, I believe) which use a relevance standard for compulsory disclosure. I realize the court also pointed to affirmative discovery requests.

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