HERBERT A. ROSS
0 U.S. Bankruptcy Judge

1. INTRODUCTION

2. BACKGROUND

3. DOCUMENTS IN SUPPORT OF A SUMMARY JUDGMENT MOTION MUST BE AUTHENTICATED AS A CONDITION OF THEIR USE

4. ADMISSION OF FEDERAL JUDICIAL RECORDS

5. DEPOSITION TESTIMONY

6. CONCLUSION

TABLE SHOWING TYPE OF EXHIBIT AND STATUS OF AUTHENTICATION

The court will enter an order giving the trustee time to provide properly authenticated exhibits. This memorandum does not address any objection on the grounds of hearsay.

2. BACKGROUND- Several objections were filed to the exhibits submitted in support of the trustee's motion on the issue of whether debtors engaged in a Ponzi scheme.⁽²⁾ The exhibits were attached to various affidavits of Gary Spraker, an attorney for the trustee -- the first filed with the summary judgment motion in January 1998, relates to Exhibits 1-17, and the second, filed just before the oral argument in December 1998, relates to Exhibits 19-22.⁽³⁾ Attached as a table is a summary of the exhibits and analysis of the status of authentication.

At the hearing on the Ponzi scheme summary judgment motion on December 17, 1998, Cabot Christianson, trustee's attorney, said that the trustee had complied with a previous court order⁽⁴⁾ to properly authenticate the exhibits, most of which were documentary, attached to Gary Spraker's affidavits. He said that the new documents which were in compliance with the order had been filed on May 27, 1998. The court reviewed the May 27, 1998, supplementary filing (which only purport to address deposition exhibits (Exhibits 6, 7, 8, 9, 13, 14 and 15),⁽⁵⁾ and discovered that there has not been adequate compliance with the order.

While the use of some of the documents may not be essential to the trustee's motion, given the number of parties involved, the importance of the issues, and the likelihood of an appeal, it behooves the trustee to properly authenticate the various documents if he thinks they are critical to his summary judgment motion.

3. DOCUMENTS IN SUPPORT OF A SUMMARY JUDGMENT MOTION MUST BE AUTHENTICATED AS A CONDITION OF THEIR USE-  A federal court in the 9^th Circuit may not rely on documents submitted in support of summary judgment which have not been authenticated.⁽⁶⁾

"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."⁽⁷⁾

Aside from Exhibit 1 which was offered for illustrative purposes, the trustee has offered in support of his summary judgment motion a broad category of documents. There are judicial records (copies of court papers, pleadings, and judgments), the authentication of which are discussed in Part 4 of this Memorandum, and depositions taken in other proceedings which are discussed in Part 5.

4. ADMISSION OF FEDERAL JUDICIAL RECORDS-  FRCP 44(a)(1) governs the admission of public records. Judicial records are public records for the purposes of the rule.⁽⁸⁾ The rule provides:

(a) Authentication.

(1) Domestic. An official record kept within the United States, or any state, district, or commonwealth, or within a territory subject to the administrative or judicial jurisdiction of the United States, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by the officer's deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of the officer's office.

The trustee has relied on exhibits attached to Gary Spraker's affidavit which are apparently copies of documents (aside from the depositions discussed in Part 5 of this Memorandum) from the civil case in the U.S. District Court in Alaska brought by the SEC against RaeJean Bonham,⁽⁹⁾ the criminal case against Bonham⁽¹⁰⁾ in the same court, and the civil case brought by Delta Airlines in the U.S. District Court in the Northern District of Georgia.⁽¹¹⁾ The trustee also offers a copy of an order in a bankruptcy case from the Southern District of Florida.⁽¹²⁾

None of these documents have been authenticated in the manner described in FRCP 44(a)(1) or any alternative method that might be available under FRE 901 and 902. The affidavit of the trustee's attorney that they are "true and correct" alone is insufficient.⁽¹³⁾ They therefore cannot be considered unless properly authenticated.

The manual for bankruptcy clerks advises strongly against allowing original documents if they are subpoenaed, and suggests using certified copies instead, and gives the following mundane advice, which the trustee's counsel might follow:⁽¹⁴⁾

Generally, the party requesting the subpoena is more interested in the documents themselves than in the custodian. The requestor may be willing to withdraw the subpoena if certified copies of desired documents are provided. This course of action eliminates the need for the clerk or a deputy to take time to testify and also avoids the litigation required by opposition to the subpoena. It is strongly recommended that the clerk never allow original records to be put into evidence or transferred to the custody of another court in response to a subpoena duces tecum. If the appearance of the clerk or a deputy clerk is required, the person testifying should bring certified copies of records rather than the originals.

The authority established under Fed. R. Civ. P. 44(a)(1) of the Federal Rules of Civil Procedure, adopted in Fed. R. Bankr. P. 9017, also provides that:

An official record...when admissible for any purpose, may be evidenced...by a copy attested by the officer having legal custody of the record, or by the officer's deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district...in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district...in which the record is kept, authenticated by the seal of the officer's office.

This provision allows the introduction into evidence of certified copies of the records of the clerk in place of the originals. Most court and administrative forums will accept a certified copy of any court record without the necessity of the appearance of the official custodian (the clerk).

Certified copies are prepared by making a photocopy of the original document from the original permanent record. This ensures that each and every notation or marking thereon appears on the certified copies. A certification such as the following,

UNITED STATES BANKRUPTCY COURT District of ________________

I, the undersigned Clerk of the Court, do hereby certify that this is a true, correct and full copy of the original document on file in my custody.

Dated_________________

John Doe, Bankruptcy Clerk

by_____________________

Deputy Clerk

 

or other appropriate certification statements can be used. The clerk may purchase rubber stamps with the certification on them.

The seal of the court must be affixed with the certification. The court seal may be a raised embossed seal or a rubber stamp like the certification stamp. An embossed seal can be placed through all pages of the document which adds security against tampering with preceding pages of a multi-page document, but must be smudged (the raised portions blackened with a pencil) to be photocopied. The rubber seal photocopies easily, but to provide the same security for the document would require stamping and signing on every page. Even then, tampering is possible through re-photocopying.

5. DEPOSITION TESTIMONY- The trustee offered parts of depositions from the SEC action in Alaska,⁽¹⁵⁾ and the Delta action in Georgia⁽¹⁶⁾ to support his motion for summary judgment. He supplemented that with some depositions taken in the BRA or one of the individual adversary proceedings.⁽¹⁷⁾ While FRCP 32 contains some restrictions and ground rules about using depositions, a deposition under oath can be used as a substitute for an affidavit in support of a summary judgment motion.⁽¹⁸⁾

FRCP 30(f) provides a method for the officer taking the deposition to certify it. A copy of a deposition with this certificate should be sufficient to satisfy the requirement of FRE 901, or the testimony of the transcriber or an attorney that was present.⁽¹⁹⁾

All that the trustee has submitted is a copy of a first page with the word "Certified" stamped on it. None of the detail required by FRCP 30(f) has been provided by the official taking the deposition. This is not sufficient.

While the authentication of a deposition may be waived in a summary judgment situation where no objection has been made at the trial level,⁽²⁰⁾ in this case there was an objection.

6. CONCLUSION-  None of the briefs discussed the nuts and bolts of authentication. I would welcome a motion to reconsider if I have misinterpreted the law. It is perhaps easier for the trustee to get the appropriate court certifications, and certificates of the officer conducting the depositions.

Exhibit 1 does not require authentication since it is submitted as summary of data from the individual adversaries as an illustration. The court is not assuming that the data is precisely true, but it illustrates the types of cases, "net gainers" and "net losers" which the trustee discusses in his motion. The accuracy of the data is not being tested in the BRA, but in each individual adversary.

Exhibit 20 is a copy of a disclosure made in the Dutton adversary. Although the description is cursory, I presume that it is something disclosed under FRCP 26 to the trustee's attorneys and is something they can authenticate pursuant to FRE 901(a).

The balance of the exhibits offered by the trustee, Exhibits 2-17, 21-22 are not properly authenticated. There does not appear to be an Exhibit 18 (it was probably confused with Exhibit 17 in the trustee's opening memorandum⁽²¹⁾).

At the present time, the court is awaiting proposed findings from Cabot Christianson. In the meantime, the court will grant another extension for the trustee to properly authenticate these documents. The terms of the order can be discussed at the next BRA status conference.

Dated: January 7, 1999

Serve:

RaeJean Bonham, Debtor

Cabot Christianson, Esq., for Trustee

Larry D. Compton, Trustee

John Burns/David G. Parry, Esqs., for Joint Defense Committee

Rebecca Copeland, Esq., for Joint Defense Committee

Ron Goss, Esq., for Various s

William Satterberg, Esq., for Various s

Barbara Schuhmann, Esq., for Various s

Janet Stafford, Adversary Proceeding Manager

Maia Weber, Deputy Clerk, Fairbanks

Clerk of Court

1. Motion for Partial Summary Judgment That Debtor Operated a Ponzi Scheme; and on Fraudulent Conveyance Causes of Action; and for Rule 54(b) Final Judgment for Preference Recipients and Against "Net Gainers" to the Extent of Their Net Gains, Docket Entry 318, filed January 9, 1998.

2. Motion To Strike Affidavit Of Gary Spraker, filed by Ronald Goss for Defendants Paul Carter, et al., Docket Entry 376, on March 8, 1998, and Motion to Strike Affidavit of Gary Spraker and Attached Exhibits, filed by David Parry for various defendants, Docket Entry 751, on December 15, 1998.

3. Affidavit of Gary Spraker (attaching Exhibits 1-17), Docket Entry 323, filed January 6, 1998, and Supplemental Affidavit of Gary Spraker (attaching Exhibits 19-22), Docket Entry 728, filed December 15, 1998.

4. Order Denying Defendant's Motion to Strike Affidavit of Gary Spraker, Docket Entry 514, filed May 21, 1998.

5. Plaintiff's Supplement to Exhibits to Affidavit of Gary Spraker, Docket Entry 529, filed May 27, 1998.

6. Hal Roach Studios v Richard Feiner and Co., 896 F2d 1542, 1550 (9^th Cir 1990).

7. FRE 901(a); see, also, United States v Nolan, 818 F2d 1015, 1017 (1^st Cir 1987).

8. Wright & Miller, Federal Practice and Procedure: Civil 2^nd § 2532 fn 4.

9. See, Exhibits 2, 3, 5, 10, 11, and 12.

10. See, Exhibit 4.

11. See, Exhibit 16.

12. See, Exhibit 17.

13. Beyene v Coleman Security Services, Inc., 854 F2d 1179, 1182-83 (9^th Cir 1988).

14. Clerk's Manual - United States Bankruptcy Court (3^rd ed Ct. Adm. Div. Adm. Office of U.S. Cts. 199_), § 32.05 c.

15. See, Exhibits 6, 7, 8, 9 and 13.

16. See, Exhibits 14 and 15.

17. See, Exhibits 21-22.

18. Hoover v Switlik Parachute Co., 663 F2d 964, 966 (9^th Cir 1981); Microsoft Corp. v Very Competitive Computer Products Corp., 671 FSupp 1250, 1254 fn 2 (ND Cal 1987); Peterson v Instapak Corp., 690 FSupp 697, 700 fn 4 (ND Ill 1988), aff'd, 902 F2d 1232 (7^th Cir1990).

19. United States v Workinger, 90 F3d 1409, 1415-16 (9^th Cir 1996).

20. Diamonds Plus, Inc. v Kolber, 960 F2d 765, 768 (8^th Cir 1992).

21. Memorandum in Support of Motion for Partial Summary Judgment That Debtor Operated a Ponzi Scheme; and on Fraudulent Conveyance Causes of Action; and for Rule 54(b) Final Judgment for Preference Recipients and Against "Net Gainers" to the Extent of Their Net Gains, Docket Entry 319, filed January 9, 1998.