The opinion of the court was delivered by: Magistrate Judge Cole
After a number of fits and starts, trial is scheduled to begin in the instant case in which the plaintiff charges the defendants with having willfully infringed his patent for underground couplers. He intends to introduce at a 16-page report that he contends was generated by Verizon in connection with its purchase of couplers manufactured by the defendants. The document, which was created by what Verizon called a "Cross-Functional Team" comprised of 21 members -- at least according to the document -- is entitled "Innerduct Couplers/Caps, RFP No. R0603358, Contract -Recommendations." The document, which is in Power Point form, briefly describes the product involved (innerduct couplers), the product history, the "incumbent suppliers" (one of which is defendant, Duraline Corporation) adverts to the RFP issued to 12 suppliers, and, in a few brief sentences, summarizes the "advantages" and "disadvantages" of each bidder and the Team's recommendations, by bidder. The report sets forth in chart form a "savings analysis," and in bullet-point, single line statements gives the rationale for supplier selection, and the "next steps" to be taken in light of the Team's recommendations for which vendors' bids are to be accepted.
The defendants vigorously object to the introduction of the report at trial on two grounds. First, they contend that the report has not been properly authenticated under Rule 901, Federal Rules of Evidence and thus must be excluded. They also contend that the Verizon report is hearsay and thus must be excluded from evidence. Rule 802, Federal Rules of Evidence. The plaintiff is equally adamant that there has been more than sufficient authentication, and that the report is not hearsay since it will not be used for the truth of the notation "Bid Lozon products," on page 8 of the report, which briefly itemizes 10 "Advantages" of the "Duraline coupler." Rather, the plaintiff intends to draw certain inferences from that entry which it contends support its damage theory and other components of its case. The inferences the plaintiff will seek to draws from the entry are relied on by the plaintiff's damage expert.*fn1 Alternatively, the plaintiff contends that the report qualifies for admission under the exception to the hearsay rule for records of a regularly conducted activity. Rule 803(6), Federal Rules of Evidence.
The threshold question that must be answered is whether the Verizon report has been properly authenticated. That is, is it what it purports to be? If it cannot be authenticated, it is inadmissible, quite apart from the hearsay rule. The defendants adamantly deny that the document satisfies Rule 901, while the plaintiff scoffs at the notion that it is anything other than a report issued by Verizon at or near the close of the bidding process that identifies the successful bidders in connection with Verizon's purchase of underground couplers -- a matter about which there is no dispute -- and, among other things, laconically summarizes the perceived advantages and disadvantages of each. To make his case under both Rule 901 and the hearsay rule, the plaintiff has submitted a certification (actually three) pursuant to Rule 902(11) from one of the senior members of the "Cross Functional Team" purportedly issuing the report.
Federal Rule of Evidence 901(a) requires, as a condition precedent to admissibility, "evidence sufficient to support a finding that the matter in question is what its proponent claims." Authentication can be established in a variety of ways, including by "[t]estimony of [a] witness with knowledge...that a matter is what it is claimed to be[,]" Rule 901(b)(1), or by distinctive characteristics such as "[a]ppearance, contents, substance, [or] internal patterns... taken in conjunction with circumstances." Rule 901(b)(4). Phrased differently, authentication can be established by circumstantial evidence. See, e.g., United States v. Hull, 74 Fed.Appx. 615, 620, 2003 WL 21949581, 3 (7th Cir. 2003); United States v. Dumeisi, 424 F.3d 566, 574 (7th Cir. 2005); United States v. Elkins, 885 F.2d 775 (11th Cir.1989).
The affidavits of Cynthia Williams are more than sufficient to authenticate the Verizon report under Rule 901(b)(1), and the circumstantial evidence is overwhelming that this is indeed a report created by Verizon that summarizes the awards to various bidders in connection with the particular bid involved in this case. In her affidavit of February 2, 2012 -- there are two earlier versions -- Ms. Williams states that she is an employee of Verizon, and a member of the "Cross-Functional Team that generated the 16-page document entitled "Innerduct Couplers/Caps, RFP No. R0603358, Contract - Recommendations." [Docket No. 420 -- 2]. A review of the report (plaintiff's Exhibit 40) reveals that there were 21 members of the Team. Mr. Williams is the second listed name.
Ms. Williams' first affidavit was dated July 23, 2009 and was written on Verizon stationary. In it, she said that she was the custodian of records for Verizon and in that capacity certified that the copy of the16-page document entitled "Innerduct Couplers/Caps, RFP No. R0603358, Contract - Recommendations" that was attached to her affidavit was a true and accurate copy of the original document maintained by Verizon in the actual course of business. She went on to say it is Verizon's ordinary practice to maintain such records and that the records were made contemporaneously with the transaction and events it described or within a reasonable time thereafter. The second affidavit was prepared in January 2012 and again stated that Ms. Williams was an employee of Verizon and a member of the Cross Functional Team the generated the 16-page Verizon report.
Quite apart from Ms. Williams' certifications, the evidence more than suffices to authenticate circumstantially the Verizon report. The report was produced in response to a subpoena issued several years ago by the plaintiff to Verizon that broadly called for documents relating to the particular bid identified in the report and that is involved in the instant case.*fn2 That alone is sufficient authentication. Cf., Dumeisi, 424 F.3d at 575; Minemyer,. 678 F.Supp.2d at 709.
Moreover, the contents of the document obviously involve the bids that were undeniably submitted to Verizon in connection with its purchase of Innerduct Couplers. It is the sale of couplers by Duraline to Verizon that the plaintiff alleges infringed his patent. The defendants conceded at oral argument that the various references to Verizon's award of bids was accurate, and that the other information was, in the main, confirmed by other the evidence obtained in the extensive discovery in the case.
Indeed, during the course of the oral argument on the authenticity of the Verizon report, I reviewed with the defendants' three lawyers each page and each line of the document. I asked whether, based on the discovery that the parties had conducted in this case, the defendants could say that there were any inaccuracies in any itemizations or entries made in the report. With the single exception of the statement on page 8, which is devoted to Duraline, the defendants could not say that there were any inaccuracies. The only entry to which they objected was the following: "Advantages -- Bid Lozon Products." Finally, no other report or document was produced by Verizon in response to the subpoena that would have called into question the authenticity of the Verizon report or called into question any of the entries in the document.
Although the defendants have had for three years an affidavit from Mr. Cliff Ginn, a Verizon employee who it is conceded by the defendants was also a member with Ms. William of the "Cross Functional Team,"*fn3 there is nothing in that affidavit that questions the authenticity of the report.*fn4 While the affiant takes issue with the inference the plaintiff seeks to draw from the entry on page 8, "Bid Lozon products," he does not remotely suggest that the report is not what it purports to be or that it is not a report made in connection with the bid with which the report concerns itself.
There is a further, but highly significant, factor that demonstrates conclusively the futility of the defendants' contention that the Verizon report has not been properly authenticated. In 2009, the plaintiff's damage expert issued his report, which in part relied on the notation on page 8 of the Verizon report. The defendants made no claim then or over the next three years that that reliance was improper because the report had not been authenticated. Of course, were the report something other than what it purported to be, one would have expected an appropriate motion under Daubert v. Merrell Dow Pharmaceutical, 509 U.S. 579 (1993) to strike that portion of the expert's report ...