Weber v. Pierce Cnty. Wis. Dep't of Human Servs.
| Decision Date | 08 September 2022 |
| Docket Number | 21-cv-300-wmc |
| Parties | MATTHEW J. WEBER and HEIDI WEBER, Plaintiffs, v. PIERCE COUNTY WISCONSIN DEPARTMENT OF HUMAN SERVICES, MICHELLE HARRIS, JENNELLE WOLF, RON SCHMIDT, CITY OF FRIDLEY, MN POLICE DEPARTMENT, BRIAN J. DESJARDINS, STEPHANIE OLSEM, and KIM STENSLAND, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Pro se plaintiffs Matthew Weber and Heidi A. Weber claim that defendants violated their constitutional and state statutory rights by facilitating and continuing the removal of plaintiffs' then-minor daughter, JKW, from their Pierce County, Wisconsin home. Before the court are: (1) plaintiffs' “motion to produce” certain audio evidence (dkt. #90), which actually amounts to a motion to bar most of that evidence as inadmissible; and (2) the parties' cross-motions for summary judgment (dkt. ##51 61, 72). This case might be closer if it concerned temporary placement of an infant, toddler or even young adolescent, but it involves a nearly fully emancipated seventeen and a half year old, who was articulate enough to describe both concerns about her parents' conduct and her own physical and mental well-being, making it hard to find any fault with county or city protective services between negotiating JKW's expressed desire for temporary placement outside her parents' home, to which plaintiffs' had at least initially voluntarily agreed, and the holding a formal hearing before a county circuit court judge just two and a half weeks later, especially since that judge also agreed with protective services that JKS's continued placement outside the plaintiffs' home was appropriate until she reached the age of eighteen, which occurred approximately four months later. Indeed, without in any way minimizing the turmoil the Weber family as a whole experienced over several months, plaintiffs' claims against the individual Pierce County defendants are barred on three, separate grounds -- issue preclusion, the Rooker-Feldman doctrine, and absolute immunity. Accordingly, the court will deny plaintiffs' motion to compel and grant defendants motions for summary judgment.
Plaintiffs' motion to produce challenges the authenticity of an audio recording of Pierce County Child Protective Services' initial visit to plaintiffs' home, which must be authenticated before the court may consider it on summary judgment.[1] Pierce County Sheriff's Deputy Thomas Bauer attests to having recorded the visit on his work cellular phone as he accompanied defendant Michelle Harris, a Pierce County Human Services Department (“the Department”) Initial Assessment Worker, during Harris's initial visit with the Webers in April 2020. Before filing this lawsuit, the Sheriff's Office provided plaintiffs with a copy of the recording in response to an open records request. After filing this lawsuit, plaintiffs also obtained another copy of the recording in response to a discovery request. By motion, plaintiffs now assert that the recording has been edited and ask the court to deem it inadmissible, save for the portion capturing Harris's interview with their daughter, JKW.
The court will deny the motion. Audio recordings are “generally admissible as evidence whether in original or duplicate form.” Smith v. City of Chi., 242 F.3d 737, 741 (7th Cir. 2001). The party seeking to authenticate an audio recording in a civil proceeding must do so by “clear and convincing evidence.” See id. (). A party may do so by either showing the chain of custody or by establishing the accuracy and trustworthiness of the audio recording by other means. Id. at 741-42. For example, participants to the conversation or others who heard it can sufficiently authenticate an audio recording through affidavits or testimony. Id. at 742. After the proponent demonstrates that the audio recordings are authentic, the burden then shifts to the opponent to rebut that showing. Id.
Defendants have submitted both types of authentication evidence here. As for the chain of custody, Deputy Bauer attests he transferred the recording from his work phone to a disk on May 4, 2020 then removed the recording from his work phone, which he no longer has. (Dkt. #102 at 3.) Bauer then gave a copy of the disk to the department and placed the original disk in the Pierce County Sheriff's Office records room under lock and key, to which only one other deputy and he had access. (Id.) That other deputy also attests that she made a copy of the disk on February 16, 2021, in response to plaintiffs' open records request, as well as that the duplicator she used did not allow her to view, edit or alter the disk. (Dkt. #107 at 2.) Defendant Harris further attests to receiving a copy of the disk on May 4 and placing that copy in the plaintiffs' child protective services file. (Dkt. #101 at 2.) As for the recording's accuracy and trustworthiness, Bauer and Harris identify their own voices, as well as the voices of plaintiffs, their daughter, and their daughter's boyfriend. (Dkt. ##101 at 2, 102 at 4.)
While plaintiffs identify several problems with the recording, they do not begin to justify suppressing it in light of defendants' overwhelming proof of authenticity. For one, plaintiffs note that the recording file shows a “date modified” of May 4, 2020, but that is simply the date Bauer copied the file from his phone to a disk. Plaintiffs also opine that some 15 to 18 minutes of the recording must have been edited out based on an “unaccounted time gap” between when Harris told plaintiffs she would make a phone call and when Harris actually made the call. (Dkt. #91 at 4.) However, plaintiffs base that opinion on nothing more than their own, suspect recollection of what Harris actually said about the timing of her phone call. (Dkt. #53-3, Ex. B, 1:37:22-1:37:31.) Similarly, plaintiffs argue that certain statements they recall are now missing from the recording, but as defendants respond, a more persuasive explanation is that those statements were either not made at all or similar statements were made at other times, as reflected in the record. (Dkt. #97 at 12-14.) Finally, plaintiffs note that: (1) they are heard saying things they
“would never say”; (2) there is an unidentified “beeping” noise in the background at some point, which they speculate defendants caused to help “fool some edit detecting software”; (3) some of their words or statements trail off, even though plaintiffs recall being in close proximity during the entire visit; and (4) Mrs. Weber and Harris can be heard “cut[ting] each other off,” which is also a way of “covering splicing/edits.” (Dkt. #91 at 3-4.)
Plaintiffs' lay conjecture about what these “hallmark signs” mean and their own recollection of what occurred during the visit is not evidence of tampering, and provide no credible basis for this court (or a reasonable jury) to find that a nondefendant investigator or anyone else tampered with the recording before plaintiffs actually filed suit. (Id. at 3.)
In reply, plaintiffs attempt to change tack by raising new suspicions regarding the way the file is named and offering metadata they claim to have extracted from the audio recording file via an open-source website. However, a reply is for replying, not for making new arguments or presenting new evidence that could have been advanced in their original motion and supporting materials. See United States v. Foster, 652 F.3d 776, 787 n.5 (7th Cir. 2011) (). Moreover, neither plaintiff is qualified as an expert in extracting and analyzing metadata from audio files. At bottom, plaintiffs' general beliefs and suspicions about the recording based on what they remember or hear now, much less their lay interpretation of metadata are not enough to overcome defendants' evidence of authenticity. Accordingly, the court will deny plaintiffs' motion and consider the audio recording and its transcription at summary judgment.
UNDISPUTED FACTS[2]
The Webers are proceeding against two sets of defendants. The Pierce County defendants include its Human Services Department and director Ronald Schmidt, as well as the Department's Initial Assessment Worker Michelle Harris, Ongoing Social Worker Stephanie Olsem, Lead Social Worker Kim Stensland, and Child Protection Supervisor Jennelle Wolf. The City of Fridley defendants include the Fridley Minnesota Police Department and one of its police officers, Brian J. Desjardins.
The Department received a child protective service report on April 22, 2020, alleging that JKW had seen her mother “doing drugs in the garage” two days earlier. (Dkt. #63-1 at 2.) Specifically, Mrs. Weber reportedly was “bent over a desk,” “snorting something,” and told JKW that “it was her rock collection.” (Id.) JKW reportedly also saw “white residue on the desk,” but when she asked her father about the incident, he did not reply. (Id.) JKW further reportedly found “crystals in a small plastic container” earlier in the school year that purportedly belonged to her mother. (Id.) Finally, JKW expressed the belief that her parents “have a negative view of her,” would lead a “different lifestyle” without her, and acted like she was “in the way.” (Id.) At that time, the Department “screen[ed] in” the report the veracity of which the Webers dispute, and out of “concern for illegal drug use in the home,” determined that an assessment was warranted. However, because JKW was seventeen and a half...
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