FTC v. Hughes
Decision Date | 12 January 1989 |
Docket Number | Civ. A. No. CA 3-87-1546-G. |
Citation | 710 F. Supp. 1520 |
Parties | FEDERAL TRADE COMMISSION, Plaintiff, v. Dudley M. HUGHES, Jr., d/b/a Dudley M. Hughes Funeral Co., Defendant. |
Court | U.S. District Court — Northern District of Texas |
Maridel S. Morgan, F.T.C., Dallas, Tex., for plaintiff.
Barbara St. Clair, Marshal W. Dooley and Richard G. Mills, Dooley, Rucker, Maris & Foxman, Dallas, Tex., for defendant.
This case is before the court on the motion of defendant Dudley M. Hughes, Jr. ("Hughes") to strike the affidavit, unsworn statements, depositions, and exhibits contained in the appendices to the motion for summary judgment of plaintiff Federal Trade Commission ("FTC").1 The motion to strike is DENIED in its entirety, except that the court will disregard certain conclusions of law in Curtistene McCowan's affidavit.
Appendix C
Hughes first contends in a general and conclusory manner that the 30 unsworn customer statements in Appendix C have not been authenticated and violate the hearsay rule. This is incorrect. The statements comply with 28 U.S.C. § 1746, as each declaration was made under penalty of perjury. Hence, they have the same force and effect as affidavits. 28 U.S.C. § 1746. They also comport with the Federal Rules of Evidence and of Civil Procedure. Each affidavit shows affirmatively that the declarant is competent to testify to the matters therein, F.R.Civ.P. 56(e), and sets forth facts demonstrating personal knowledge. F.R.Evid. 602. Each contains detailed, specific statements based on personal knowledge and experience.2 Consequently, the declarations are not hearsay. In addition, the statements within the declarations attributed to the defendant or his employees are also admissions by a party-opponent and hence are not hearsay. F.R. Evid. 801(d)(2).
Moreover, under F.R.Evid. 901(a), authentication is satisfied by evidence supporting "a finding that the matter in question is what its proponent claims." Here, each statement is authenticated by the signature of the witness under penalty of perjury. 28 U.S.C. § 1746. There is no indication that the statements are anything other than what they purport to be.
Appendix D
Hughes contends conclusorily that the 21 sample contracts, statements, and price lists in this appendix have not been authenticated and violate the hearsay rule.
Several factors establish their authenticity. First, the documents were submitted by Hughes in response to plaintiff's discovery requests. Second, he identified several in his deposition testimony. Hughes Deposition, Apr. 8, 1988, at 23-24 (identifying Appendix D, No. 11) and at 46 (identifying Appendix D, No. 18). Third, the defendant provided his customer files for photocopying at his funeral home. McCowan affidavit ¶¶ 4-6.3 The fact that documents were found in defendant's possession is enough to authenticate them. United States v. Black, 767 F.2d 1334, 1342 (9th Cir.) (, )cert. denied, 474 U.S. 1022, 106 S.Ct. 574, 88 L.Ed.2d 557 (1985); Burgess v. Premier Corporation, 727 F.2d 826, 835-36 (9th Cir.1984) ( ); In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 286 (3d Cir.1983) (, )rev'd on other grounds, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Fourth, all of the documents bear the defendant's company logo and pre-printed address, which are also indicative of authenticity. In re Japanese Electronic Products Antitrust Litigation, above, 723 F.2d at 293 ( ); New Orleans Saints v. Griesedieck, 612 F.Supp. 59, 62 (E.D.La. 1985) (, )aff'd, 790 F.2d 1249 (5th Cir. 1986); F.R.Evid. 901(b)(4) ( ).
Moreover, the records are not excluded under the hearsay rule because they are business records made as a routine practice at or near the time of events by a person with knowledge and which were kept in the course of a regularly conducted funeral business. F.R.Evid. 803(6). The FTC need not present live witness testimony to demonstrate that a document is a business record; documentary evidence, affidavits, party admissions, and other materials will suffice. In re Japanese Electronic Products Litigation, above, 723 F.2d at 288. Here, Hughes produced the documents in response to interrogatories; he identified several price lists and final statement forms in his depositions; and the McCowan affidavit identifies the records as having come from Hughes' customer files.
Appendix E
This appendix consists of depositions by non-party witnesses and by the defendant. They comply with F.R.Civ.P. 30(e) and (f) and Local Rule 6.1(b). All but the June 12, 1985 Hughes statement were properly certified by the officer and filed with the court. F.R.Civ.P. 30(f). The Cox, DeBord, Spears, and April 8, 1988 Hughes depositions were signed by the deponents. F.R. Civ.P. 30(e). The July 5, 1988 Hughes deposition was signed by the officer, pursuant to F.R.Civ.P. 30(e).
The June 12, 1985 Hughes statement was part of a non-public FTC investigatory hearing. The testimony, taken under oath in the presence of defendant's counsel, was provided pursuant to 16 C.F. R. § 2.8 and 2.10 (1988). While Hughes did not sign the statement, his testimony was voluntary and under oath in the presence of counsel. His counsel was given a copy of the statement. Nevertheless, he has not objected to the statement in the three years since he gave it. As a result, under F.R. Civ.P. 32(d)(4), he has waived any irregularities in the statement. Moreover, the statement, a party admission, is not hearsay. F.R.Evid. 801(d)(2).
Appendix F
Hughes seeks to strike his letter of October 30, 1984 to the FTC, his financial statement of May 31, 1987, and the "Income Tax Return 1040 Recap of Dudley M. and Trena K. Hughes from 1986." Both the financial statement and letter are on defendant's letterhead. Moreover, the signature on the letter is identical to the defendant's signature on the affidavit accompanying his summary judgment response. The 1040 Recap is a pre-printed form bearing the letterhead of Cunningham Northington Boynton. Hughes submitted a similar pre-printed Cunningham form with his summary judgment affidavit. All three documents were produced by defendant in response to plaintiff's discovery requests. These factors demonstrate their authenticity. F.R.Evid. 901(b)(4) ( ).
Likewise, the documents are not barred by the hearsay rule. The letter is a party admission. F.R.Evid. 801(d)(2)(A). Both the financial statement and 1040 recap manifest Hughes' adoption of their truth. F.R.Evid. 801(d)(2)(B). The financial statement is on defendant's letterhead, and was produced by him in response to an interrogatory. The 1040 Recap was provided by the defendant. It is a pre-printed form similar to the Cunningham form attached by defendant to his summary judgment affidavit.
Appendix G
This appendix contains Curtistene McCowan's affidavit and exhibits attached to it. The affidavit and attached exhibits were prepared pursuant to F.R.Evid. 1006, which permits summaries of voluminous documents for which in-court examination would be inconvenient. United States v. Stephens, 779 F.2d 232, 239 (5th Cir.1985). Here, there are over 23,000 pages of documents. The underlying documents—customer interview reports, data compilation sheets, and customer files—were made available to Hughes for examination well before the motion for summary judgment was filed. Hence, the requirements of F.R. Evid. 1006 were complied with. Hughes does not challenge the summaries as inaccurate.
The affidavit first outlines McCowan's close supervision of the photocopying and review of Hughes' files...
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