Authenticating a telephone recording

I have two cases going, one in Nebraska, one in Kansas.  For each, I have a taped telephone call that I plan to try to use as evidence.

For the Nebraska case, the rule is as follows:

27-901. Rule 901. Requirement of authentication or identification; general provision; illustrations and examples; enumerated.

(1) 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.

(2) By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(f) Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (i) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (ii) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

However, I can't find anything similar for Kansas, or that it's not allowed at all.

I keep thinking about how, a few years back, there was a judge who died when he fell down an elevator shaft in an old building.  That building was evidence, which is why he was there.  Obviously the rules can't state specific rules pertaining to every single type of evidence that could possibly be offered in a court case.

If I'd have thought of this earlier this week, I would have tried to track down a copy of West's Lawyer's Guide to Kansas Evidence, 5th (Vol. 3, Kansas Law and Practice.)  The public libraries in town don't have it, and everyplace else that might will be shut down for the weekend.

Hopefully, so I hopefully won't stew all weekend while thinking about it, I'm hoping someone here might know or be able to find out on this.

BTW--I'm aware of the sorts of hearsay objections my adversary can make on this.  That's not what I'm concerned about right now, just how to authenticate it.

Nebraska patterns its rules of evidence after the federal rules of evidence. Thus, Rule 901(1)(f) of the Nebraska Rules of Evidence is the same as Rule 901(b)(6) of the Federal Rules of Evidence. Kansas, on the other, has its own unique evidence code that is not quite as detailed as the Federal and Nebraska rules.

You may be overthinking this. I'd expect that in both states, very generally what you'd do is have someone with personal knowledge of both the conversation and how it was recorded (i.e. you) testify as to how and when the recording was done, and then play the start of the tape long enough for the voices to be heard so that you can confirm that this is the tape of that conversation, identify the voices speaking, etc. As you noted, even if you can authenticate the tape, you still have the hearsay issues to work through. In many instances, tapes of conversations with persons other than the opposing party aren't admissible because of hearsay issues and you instead need to have that other person testify in court.

Fortunately, both states are one party consent states when it comes to recording telephone conversations.

It would be a good idea to familiarize yourself with the laws in case your opponents challenge the legality of the recordings.

http://www.rcfp.org/taping/states/nebraska.html

http://www.rcfp.org/taping/states/kansas.html

The links are only to summaries. Make sure you look up the actual statutes.

The Kansas case phone call is actually between me and someone in their corporate office in Texas, which is also one-party.

Since that person is my adversary, there is no way I could get them to testify in court, nor could I even bring this person all the way to Kansas to testify.

Dave381:

Since that person is my adversary, there is no way I could get them to testify in court, nor could I even bring this person all the way to Kansas to testify.

Wait a minute.  Are you saying this is the person you are suing?  If so, your contact with them, if they are represented by counsel is a big problem for you.  If they are not an opposing party, while you can testify that you taped a conversation between you and this third person, you cannot offer their statements in that conversation for the truth of the matter.  That's hearsay and inadmissible. 

Dave381:

The Kansas case phone call is actually between me and someone in their corporate office in Texas, which is also one-party.

Since that person is my adversary, there is no way I could get them to testify in court, nor could I even bring this person all the way to Kansas to testify.

As I understand it, the corporation is the one you are suing--it is the opposing party. If that's the case, the employee of the corporation is not your opposing party; he or she is an agent of the corporation. Depending on what the agent's statements were and why you want to admit them, you may have a serious hearsay problem.

Let's suppose the employee, Amy, tells you in the conversation "I know the company has your driving records because I'm looking right at them now, but there's no way we are releasing them to anyone." Now, if you want to get Amy's statement that she knew the company has records because she's seen them admitted to help prove in your case that the company does indeed have the records, then the statement is hearsay and almost certainly inadmissible. You'd need Amy to testify in court that she had seen the records. Indeed, it appears that the Kansas hearsay rule in Kansas code § 60-460 is more rigorous in excluding statements (i.e has fewer exceptions) than the federal and Nebraska rules. If there is an exception that would allow you to introduce her taped conversation rather than having her there to testify, its not evident in § 60-460.

Taxagent:

As I understand it, the corporation is the one you are suing--it is the opposing party. If that's the case, the employee of the corporation is not your opposing party; he or she is an agent of the corporation.

I apologize, that's what I meant to say.

The situation is detailed in my "Injunctions" thread:

http://community.lawyers.com/forums/t/114269.aspx

The phone call was placed to the Employment Verification office of the company's corporate office in Houston, Texas, but my injunction case is in Kansas City, KS. The person I spoke to basically kept saying that they don't have the records, that they don't keep them and they don't have to. She also admitted that my prospective employer had called four times trying to get verification, as well as other things.

Since she works for the enemy, she won't testify on my behalf, and I also can't afford to bring her 750 miles to a hearing anyway.

Dave381:

The person I spoke to basically kept saying that they don't have the records, that they don't keep them and they don't have to.

That's not helpful to you, in my view. If it's true the employer doesn't have the records, your injunction request would fail (assuming, of course, you'd get past the remedy at law issue to even argue this). The reason is simple: the company can't be ordered to provide records it doesn't have. You need to prove they have the records.

Dave381:

She also admitted that my prospective employer had called four times trying to get verification, as well as other things.

You don't need her to prove that anyway, right? Your prospective employer could testify about the efforts made to get the information.

Taxagent:

If it's true the employer doesn't have the records, your injunction request would fail (assuming, of course, you'd get past the remedy at law issue to even argue this). The reason is simple: the company can't be ordered to provide records it doesn't have. You need to prove they have the records.

The same management is still there.  They can vouch for everything, but the higher-ups won't let them.

Taxagent:

You don't need her to prove that anyway, right? Your prospective employer could testify about the efforts made to get the information.

The prospective employer is based in St. Louis, and I'm in Kansas City.  I have however, mentioned the idea of them sending some sort of affidavit detailing their efforts to get this information.  But there's a problem--company mangement of all sorts are an unofficial "union".  They are not going to do anything to "screw" each other concerning employees.  They may be competitors in the marketplace, but they are in holy alliance against employees.  Thus, the prospective employer wouldn't bother.  Also, they may already have the notion that I'm the type of person that will get THEM into legal trouble for some reason or other if they hire me.  I've stated very plainly that this is only an injunction, not a lawsuit for damages, but I don't know that they are convinced.  For the past few days, I've gotten no responses to my emails or phone calls.  This may be just because of the upcoming holiday, though.

Also, this is off the subject of the thread, but I'm considering making up a phony Employment Verification Request Form from a phony company, having someone fax it to this jerk company, and then I'd have proof that they don't release or keep necessary records, as they could be the witness to lay foundation for the return fax.  I might even use the store up the street that has fax AND notary service available for good measure.  I'm wondering though--would I get in trouble for "doing private investigation without a license?"

Dave381:

I'm wondering though--would I get in trouble for "doing private investigation without a license?"

No.

PI laws don't require a license if you are investigating on your own behalf.

MO's PI laws are at:

http://pr.mo.gov/pi-statutes.asp

I hope you're right.  I can't find anything in those rules that excludes people who are doing their own PI work.  Can you?

Dave381:

Also, this is off the subject of the thread, but I'm considering making up a phony Employment Verification Request Form from a phony company, having someone fax it to this jerk company, and then I'd have proof that they don't release or keep necessary records, as they could be the witness to lay foundation for the return fax.

If they company doesn't provide the records, all that would show is that the company didn't give the records to you. It would not prove whether the company has the records and just won't release them or whether it instead just doesn't have them. And if the company doesn't have them, nothing else will matter for the injunction. Again, the company cannot be ordered to produce records it does not have.

Taxagent:

If they company doesn't provide the records, all that would show is that the company didn't give the records to you. It would not prove whether the company has the records and just won't release them or whether it instead just doesn't have them. And if the company doesn't have them, nothing else will matter for the injunction. Again, the company cannot be ordered to produce records it does not have.

 

It's not really physical records per se that they need to release, it's information.  How long I was employed, type of vehicle driven, the fact that I had no accidents, roughly how many miles driven, etc.  Companies will have a form as part of their job applications that is a request for employment verification. An applicant will put his name and other info at the top, and sign his name.  The form is then faxed to the former employer, is filled out with the information needed, and faxed back.

The current management can verify all this, but the corporate bureaujerks won't let them.

Also, should the judge deny my request for an injunction and the next step is a lawsuit and/or government agencies getting involved, I will want to show that they are claiming I only worked there for a month, aren't releasing federally-required information, etc, and have it be good evidence.

Dave381:

I will want to show that they are claiming I only worked there for a month, aren't releasing federally-required information

What information is "federally required"?  I don't think there's any law requiring a former employer to even respond to a prospective employer's request for information.  There's laws about what they can say if they do respond but I've never seen any laws that say they have to respond in the first place. 

See thread about "Injunctions".  In the case of truck drivers, some of the information IS federally required:

http://community.lawyers.com/forums/t/114269.aspx