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Certification as to authenticity of cell phone records was inadequate under § 909.02(12)

Nicole Marie Thomas v. Korry Ardell, 2014AP295, District 4, 11/13/14 (not recommended for publication); case activity

The circuit court did not erroneously exercise its discretion in refusing to admit cell phone records because the proponent of the evidence didn’t provide a proper foundation by presenting either the testimony of a qualified witness or a proper certification proving authenticity.

At the hearing on Thomas’s petition for a domestic abuse injunction against Ardell, Ardell sought to introduce Thomas’s cell phone records in an attempt to show he did not call Thomas on a certain date, as Thomas asserted. (¶¶5-6, 22). The circuit court held the records were hearsay and rejected Ardell’s claim they were admissible under the hearsay exception for records of regularly conducted activity, § 908.03(6). (¶23). To satisfy that exception, Ardell must establish authenticity by either “the testimony of the custodian or other qualified witness” or “a certification that complies with s. 909.02(12) or (13)….” Ardell submitted a document he claimed satisfied § 909.02(12), but the document isn’t adequate:

¶25      As Thomas points out, a written certification under Wis. Stat. § 909.02(12) must be made by the records “custodian or other qualified person.” We fail to see, and Ardell fails to explain, how the document that Ardell relies on as his “written certification” meets this requirement. The document is a “declaration” that contains a single, ambiguous statement by the declarant on this topic. The declarant states that “I am acting in behalf of the custodian of records of the business named in the subpoena [that business being Thomas’s cell phone carrier], or I am otherwise qualified as a result of my position with the business named in the subpoena” (emphasis added). Ambiguity arises, in part, because of the “or”—we cannot tell from the declaration whether the declarant is claiming to be acting “in behalf of” the custodian or is claiming to be an “otherwise qualified” person. If the declarant is merely “acting in behalf of” a custodian, that is insufficient. As to whether the declarant is otherwise a “qualified” person within the meaning of the statute, the declaration provides nothing more than a bald assertion, and Ardell provides no authority showing that that is enough. Without more explanation, Ardell fails to convince us that the circuit court erroneously exercised its discretion by refusing to admit the phone records based on this declaration.

It appears from Ardell’s briefs that the “written certification” he was relying on was provided by the cell phone company (Verizon). Other cell phone companies might use a standard certification with the same or similar ambiguities or inadequacies. If the companies use the same problematic form in response to all subpoenas for cell phone records, proponents of cell phone records evidence intending to rely on § 909.02(12) will want to get the certification re-written to avoid the problem Ardell encountered—and opponents of the evidence will want to remember to object to the adequacy of the certification.

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