Transcript of evidentiary hearing before another court which was certified by the court reporter was self-authenticated under FRE 902(4); the duplicate of the hearing transcript was under FRE 1003 in the absence of a “genuine question” concerning the authenticity or unfair circumstances, in Ball v. A.O. Smith Corp., 451 F.3d 66 (2d Cir. June 9, 2006) (No. 05-1152)
How is a transcript from another court proceeding authenticated? Is it necessary to call a witness to authenticate the transcript? These issues were considered in a Second Circuit case.
The case involved a sanction imposed on attorney Ball based on his representation in an action involving the sale of silos. Ball filed RICO and state fraud claim. The trial court granted summary judgment for defendant Smith, concluding the claims were time-barred. The court imposed a sanction of $168,000 which was the cost of the defense in the action. The attorney filed for chapter 7 bankruptcy. The defendant claimed that the sanction was nondischargeable. The bankruptcy court agreed and exempted the debt from discharge. On appeal, the district court affirmed. As one issue, attorney Ball claimed that the bankruptcy court erred in considering “without a witness, a duplicate of a certified transcript of the evidentiary hearing held before” the district judge on the initial sanction. Ball, 451 F.3d at 71.
The Second Circuit affirmed the admission of the duplicate hearing transcript. The issue presented on appeal was “whether a judgment of sanctions in the form of defense costs entered against a lawyer under 28 U.S.C. § 1927 and Rule 11 of the Federal Rules of Civil Procedure is a nondischargeable debt ‘for willful and malicious injury by the debtor to another’ for purposes of Bankruptcy Code Section 523(a)(6).” Ball, 451 F.3d at 68. The circuit rejected the attorney’s claim that the duplicate transcript could only be admitted with a witness. As the circuit noted, “The original transcript, which includes a certification by the court reporter, is self-authenticating,” under FRE 902(4). Ball, 451 F.3d at 71 (citing United States v. Lumumba, 794 F.2d 806, 815 (2d Cir. 1986) (in criminal contempt case, transcript of trial in contempt hearing authenticated under FRE 902(4) “as a certified copy of a public record”), cert. denied, 479 U.S. 855 (1986)).
The duplicate of the transcript was admissible under FRE 1003, which makes a duplicate “admissible to the same extent as an original.” Under the rule, the opponent holds the burden to show its is inadmissible based on “(1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” The attorney failed to meet either requirement. Ball, 451 F.3d at 71.
The Ball case demonstrates some of the issues that may arise in admitting a transcript from another proceeding. While a witness could be used to authenticate the transcript under FRE 901(b)(1) as testimony of witness with knowledge, it is not required where it is certified under FRE 903(4).
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