The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court
MEMORANDUM DECISION AND ORDER RE MOTION FOR CLARIFICATION REGARDING RULE 902(11) CERTIFICATIONS
The Court has before it a "motion for clarification regarding Rule 902(11) certifications." The motion is fully briefed and at issue. For the reasons explained below, the Court will deny the motion on the ground that the BLM certificates fail to specifically identify the documents certified as required by Rule of Evidence 902(11).
The BLM and DuPont seek a ruling from the Court that their records certification meets the authenticity requirements of Rules of Evidence 803(6) and 902(11) so that "no witness will be required to authenticate the document productions to which those certifications relate, or to establish the applicability of the business-records hearsay exception to those documents." See BLM Brief (Dkt. 1832) at p. 1. The two defendants have sent about 653 third-party subpoenas and received at least 182 productions of records, with more being received each day. See DuPont Brief (Dkt. 1833) at p. 2. The defendants do not rebut plaintiffs' estimate that the documents produced to date contain over 500,000 pages of material. See Anderson Affidavit (Dkt. 1853-1) at p. 2, ¶ 5.
To authenticate these documents, the defendants sent a cover letter to each person responsible for producing the documents on behalf of the third party. The cover letter requested that "[i]f you would please sign the attached form, then it will probably not be necessary to call you to testify as a witness in this case to authenticate the documents you have produced." See Exhibit B to DuPont Joinder (Dkt. 1833). The attached form was entitled "Certification of Records" and reads as follows:
I hereby certify that the documents I produced to the United States Department of Justice on or about [date] are accurate and complete copies of all documents then within the possession custody, or control of [entity] which were responsive to the United States Department of Justice subpoenas of [entities or persons], signed by Wagner Jackson. I further certify that these documents were made at or near the time of the occurrence of the matters set forth therein, or from information transmitted from a person with knowledge of those matters, and that these documents were made and kept in the course of regularly conducted activity as a regular practice of [entity]. I declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct. [Following this statement is a signature line with the title "Custodian of Records".]
See BLM Brief (Dkt. 1862) at p. 3. It appears that defendants have received back about 85 signed forms. See Anderson Affidavit, supra, at ¶ 9.
The plaintiffs sent a letter to defendants on September 14, 2010, claiming that the form was not sufficient under Rule 902(11). In response, the defendants brought this motion in December of 2010 seeking "clarification" as to whether the form complied with Rule 902(11).
Rule 902(11) requires that the form be signed by the "custodian or other qualified person." Plaintiffs argue that the defendants' form does not identify the position or responsibilities of the person signing the form. However, immediately beneath the signature line is the title "Custodian of Records." Whoever signs that line implies that he or she has custodial responsibility over the records produced. See 31 Wright and Gold, Federal Practice & Procedure, § 7138 at p. 228 (2000) (finding compliance with similar provision in Rule 902(4) when custodian's status could be inferred from certificate even if not made explicit). Moreover, by certifying that the documents are true and correct copies of the original and stored in the course of regularly conducted activity, the signor is inferring that he or she is the custodian. Id. at p. 233 (custodial status "can even be implied from the mere fact that the certification asserts that the item is a true and correct copy of the original").
More troubling, however, is the certification's failure to specifically identify the documents to which it refers. Instead of specifically identifying the documents produced, the certificate merely refers to "the documents I produced to the [BLM] on or about [date]." There is no way to know what documents were produced on that date without referring to a chart created by the BLM. See Exhibit B to BLM Reply Brief (Dkt. 1862). The chart shows, for each third-party who produced documents, the documents produced and the date of the cover letter accompanying the production. Id. Viewing the BLM's chart and the custodian's certificate together, the plaintiffs and the Court could figure out the specific documents that each custodian certified as business records.*fn1 But this cannot be determined from the custodian's certificate alone, and that is the source of the Court's concern.
This can be illustrated by examining the exemplar provided by the BLM with its motion.
That certificate is signed by Kelly Olson who is the custodian for the Idaho Barley Commission (IBC). She certifies that the documents she produced on September 15, 2010, in response to the BLM's subpoena, are business records. But she does not specifically list the documents she produced on September 15, 2010. To identify those documents, one must refer to a chart created by the BLM showing that the documents produced by the IBC on September 15, 2010 are Bates-stamped "IBC - 000001 to 86." The chart provided to the Court is not accompanied by an affidavit of its creator, but the BLM states in its briefing that "if necessary, the United States could provide testimony as to the processing of that document [the ...