Author Topic: Authenication of Evidence  (Read 1743 times)

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suemepunk

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Authenication of Evidence
« on: May 10, 2011 05:43:41 AM »
I am battling an OC that has presented a complaint with affidavit of debt (really weak one) that references the Credit Card Agreement BUT
it is not attached.  Do you legal minds think this violates my rights and the courts opportunity to authenticate evidence for admission?


Federal Rules of Evidence

Rule 901. Requirement of Authentication or Identification

(a) General provision.

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

kevinmanheim

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Re: Authenication of Evidence
« Reply #1 on: May 10, 2011 01:41:30 PM »
If it were me, I would file a MTD for failure to state a claim. I would note that there is no contract attached, but that the affidavit references one.

If they submitted the agreement, I would use it to MTC arb.

suemepunk

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Re: Authenication of Evidence
« Reply #2 on: May 10, 2011 04:29:20 PM »
Yep, have something ready but need some case law.....nothing so far in NC that is not a murder Devil.
Would like something business oriented.

Mischievous Smurfy

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Re: Authenication of Evidence
« Reply #3 on: May 10, 2011 05:48:01 PM »
I would start by using "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." in google scholar and lexbycc
Ease of Use - Smurfy's Quick Reference


why are we requesting validation instead of disputing???  Why Why Why

suemepunk

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Re: Authenication of Evidence
« Reply #4 on: May 10, 2011 06:59:21 PM »

Yes, I have tried the query of the whole string .... basically pulls up every state that employs the statute...many.....pretty standard.  Typically this is used to challenge admissability of produced evidence.....but I am trying to challenge evidence introduced but not presented.

There is a requirement to attach everything referenced in a Summary Judgement .... Forms of Affidavits....NC 1A1 56(e).
But this is a complaint w/ affidavit.......no similar law in federal.

(e)������ Form of affidavits; further testimony; defense required. � Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

I did find this on a presentation..................
b.   FEDERAL RULE 901
i.   Federal Rule 901(a) deals with the requirement to authenticate evidence, but it is silent regarding how to do so, whereas, Federal Rule 901(b) provides illustrations of how authentication may be satisfied.   

suemepunk

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Re: Authenication of Evidence - FLA Law
« Reply #5 on: May 10, 2011 08:44:21 PM »
Found this surfing...........

LEGAL REASONING IN SUPPORT OF MOTION

I. Plaintiff Failed to Attach Documents Referred to in the Affidavit

a. Failure to Attach Documents Violates Fla. Stat. §90.901 (1989)
Florida Statue §90.901 (1989) states, in pertinent part, that “[a]uthentication or identification of evidence is required as a condition precedent to its admissibility.”  The failure to authenticate documents referred to in affidavits renders the affiant incompetent to testify as to the matters referred to in the affidavit.  See Fla. R. Civ. Pro. 1.510(e) (which reads, in pertinent part, that “affidavits…shall show affirmatively that the affiant is competent to testify to the matters stated therein”); Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla. 2d DCA 1992) (holding, in part, that failure to attach certified copies of public records rendered affiant, who was not a custodian of said records, incompetent to testify to the matters stated in his affidavit as affiant was unable to authenticate the documents referred to therein.)

Here, Spradling affirmatively states in the Affidavit that he is “familiar with the books of account and have examined all books, records, and documents kept by LITTON LOAN SERVICING, LP concerning the transactions alleged in the Complaint.”[4] Furthermore, Spradling averred that the “Plaintiff or its assigns, is owed…$408,809.30.”[5] Nevertheless, Spradling has failed to attach any of the books, records or documents referred to in the Affidavit.  In addition, Spradling does not meet the definition of “custodian,” which is “a person or institution that has charge or custody (of…papers).”  See Black’s Law Dictionary, 8th ed. 2004, custodian.  By Spradling’s own admission “[t]he books, records, and documents which [Spradling] has examined are managed by employees or agents whose duty it is to keep the books accurately and completely.”[6] Emphasis added.  Thus, Spradling has only examined the books, records, and documents which he refers to in the Affidavit while the true custodians of these documents are the employees or agents whose duty it is to keep the books accurately and completely.  In essence, Spradling averred to records which he did not submit nor could he testify for the authenticity of just as the affiant in Zoda did.

Spradling’s failure to attach the documents referred to in the Affidavit without being custodian of same is a violation of the authentication rule promulgated in Fla. Stat. §90.901 (1989), which renders him incompetent to testify to the matters stated therein as the Second District in Zoda held.  Therefore, the Affidavit should be struck in whole.

b. Failure to Attach Documents Violates Fla. R. Civ. Pro. 1.510(e)

Fla. R. Civ. Pro. 1.510(e) provides, in part, that “worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”  Failure to attach such papers is grounds for reversal of summary judgment decisions.  See CSX Transp., Inc. v. Pasco County, 660 So. 2d 757 (Fla. 2d DCA 1995) (reversing summary judgment granted below where the affiant based statements on reports but failed to attach same to the affidavit.)

As previously demonstrated, Spradling referred to books, records, and documents kept by Litton which allegedly concerned the transaction referred to in the Complaint against the Defendant.  Nevertheless, as previously demonstrated, Spradling has not attached any of these books, records or documents.  This failure to do so is a violation of Fla. R. Civ. Pro. 1.510(e) and is grounds for a reversal of a summary judgment decision in favor of the Plaintiff.  Therefore, the Affidavit should be struck in whole.

kevinmanheim

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Re: Authenication of Evidence
« Reply #6 on: May 10, 2011 10:22:35 PM »
If you are in NC, FL law isn't going to help.

I wouldn't worry about being fancy. I would object because there's no contract attached, yet the affidavit in support of the SJ references a contract. I would also MTC arb - fast.

suemepunk

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Re: Authenication of Evidence
« Reply #7 on: May 10, 2011 11:02:04 PM »
MTC Arb has been served ..... I have 4 different letters opting for arbitration before the suit was brought.   And case law in NC to boot.

But I want a big stack of hammers to pound with so trying to have affidavit tossed. complaint tossed, i have admission to be admitted, trying to toss his discovery response (it was late)......