Court room trial

Expert Testimony Excluded Because It Was Based on Unauthenticated Fax Logs

Written on Thursday, July 22nd, 2021 by T.C. Kelly
Filed under: Expert Opinions, ExpertWitness

Experts often base opinions upon data contained in documents. Sometimes the accuracy of that data seems self-evident. A log of fax transmissions printed out by a fax machine may seem like reliable data, but a recent decision from the Court of Appeals for the Sixth Circuit held that the data in the log needed to be authenticated. Since it was not, the expert’s opinion was inadmissible.

The Sixth Circuit decision reminds lawyers that they cannot assume the accuracy of data in documents that an expert relies upon to form an opinion. Rather, the lawyer may need to authenticate the documents with testimony from someone who has personal knowledge of the accuracy of the information contained in the document.

TCPA Lawsuit

Brian Lyngass is a dentist in Michigan. Twice in March 2016, he received an unsolicited fax on his office fax machine. Both faxes advertised a toothbrush. The company that manufactures the toothbrush, Curaden AG, is a Swiss corporation. It distributes and promotes its products in the United States through Curaden USA, a subsidiary that is incorporated in Ohio.

Curaden USA began an advertising campaign that included sending unsolicited faxes to dentists like Lyngass. The advertisements included Curaden USA’s contact information, including a fax number, phone number, email address, website, and social media accounts.

Lyngass began a class action lawsuit against Curaden USA and Curaden AG on behalf of dentists who received faxes from Curaden USA. The Telephone Consumer Protection Act (TCPA) allows individuals who receive unsolicited faxes to sue for actual damages or $500 in statutory damages. A judge may award attorneys’ fees to a prevailing plaintiff. 

The TCPA lends itself to class action lawsuits. Recipients of unsolicited faxes are all victims of an identical TCPA violation. Since statutory damages for each violation are small, victims have little incentive to sue individually. A class action allows all victims to band together to bring a lawsuit for significant damages.

Curaden AG argued that it took no action in the United States and did not approve Curaden USA’s unlawful fax distribution scheme. The appellate court concluded that the district court had jurisdiction over Curaden AG because it established Curaden USA in the United States and had the right to approve marketing plans and entered into distribution agreements with its worldwide distributors. The more important ruling from the standpoint of an expert witness blog concerned Lyngass’ reliance on expert testimony to support class certification and an award of damages.

Class Certification

Before a lawsuit can proceed as a class action, the district court must certify that the plaintiffs have satisfied the standards for class action litigation. The court was satisfied that the class of dentists who received Curaden faxes should be certified. On appeal, Curaden argued that the district court improperly relied on inadmissible evidence to support its certification decision.

The companies argued that class certification was inappropriate because the evidence before the court did not establish that all of the class members received unlawful faxes. If some dentists in the class received the fax but others did not, the plaintiffs would need to prove which members of the class were entitled to collect damages, rather than relying on classwide evidence to prove that they were all entitled to damages.

The plaintiffs relied on “summary-report logs that purportedly listed each successful recipient of the two fax advertisements by fax number.” The logs were printed by the fax machines that transmitted the ads. The plaintiffs argued that the summary-report logs would establish that each class member received an unlawful fax. Curaden argued that logs were inadmissible because the plaintiffs did not authenticate them. In other words, the plaintiffs offered no evidence that the logs actually identified the class members who received unlawful faxes.

Courts have been divided in deciding whether they may rely on inadmissible evidence when certifying a class. The Sixth Circuit joined the Eighth and Ninth Circuits in holding that evidence need not be admissible at the certification stage if it is reliable and may become admissible at trial. When documents are probably authentic, they are reliable. Since the plaintiffs advised the court that they would be able to authenticate them after further discovery, the judge was entitled to consider them.

The court limited its decision to inadmissible but reliable nonexpert evidence. The court made it a point to avoid deciding whether expert testimony must be reliable to support class certification.

Expert Testimony

After certifying the class and denying summary judgment to Curaden, the district court held a trial. The court excluded from evidence both the summary-report logs and the opinions of the plaintiffs’ expert witness, Lee Howard. However, the court determined that the Curaden companies violated the TCPA. The court then established a claims administration procedure that required individual dentists who wanted a share of the damages to file an affidavit stating that they received a Curaden fax and did not give Curaden permission to send it.

On appeal, the plaintiffs argued that the logs were admissible. The appellate court agreed with the district court that the plaintiffs offered no witness to “attest as to how the logs at issue were created or to personally vouch for their accuracy.” Perhaps a fax machine expert or an employee of the company that manufactured the machine could have vouched for the accuracy of the summary-log reports, thus overcoming the court’s doubtful concerns that a fax machine might malfunction or produce inconsistent results.

The court excluded Howard’s expert opinion about the number of successful fax transmissions because it was premised on the inadmissible summary-log reports. Howard also relied upon “an affidavit from the president of WestFax that was filed in another case and thus did not address the specific data at issue in the present case.” The court concluded that Howard’s opinions did not satisfy Daubert because they were not based on “known facts” but on speculation that the fax machine created an accurate record of the faxes that it transmitted.

Lessons Learned

The Lyngass decision teaches that expert opinions based on documents may be rejected as unreliable if the documents are not authenticated. Authenticating documents is not always easy. Employees of the company Curaden hired to send the faxes may have been unwilling to testify that they knew the summary-log reports were accurate. Perhaps someone with expert knowledge of the particular make and model of fax machine at issue would need to supply that information. Perhaps an expert would need to examine the machine to determine that was functioning properly. It is difficult to know what evidence would satisfy the court of the reality that fax machines nearly always print accurate logs of the faxes they transmit.

Given the absence of any reason to suspect that the fax machine produces an inaccurate record of the faxes it transmitted, making lawyers jump through hoops to prove their accuracy seems silly. Still, lawyers should keep in mind that if they want an expert to offer opinions that are based on documents, a court will probably require them to prove that the data in the documents is accurate, even if accuracy seems obvious.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.