"DEFENDANT DELFINO'S OBJECTIONS TO PLAINTIFFS EXHIBITS CC & DD IN THEIR OPPOSITION TO SPECIAL MOTION TO STRIKE THE THIRD AMENDED COMPLAINT
Objection To Admissibility of Plaintiffs' Exhibits CC and DD (Kinko's Excerpts of Videotape)
1. Defendants object to Plaintiffs' Exhibits CC and DD purporting to be excerpts of "Kinko's" surveillance videotapes dated May 5, 1999 and May 18, 1999, respectively. Apparently plaintiffs believe that there is a connection between the time certain postings occurred on the Internet and the alleged appearance of defendants in some scenes on store surveillance cameras. Both of these videotapes, however, are inadmissible and untrustworthy for the followings reasons:
a. The proffered tapes are not the original tapes.
b. The "original" tapes have never been authenticated. (Evidence Code ß1400, 1401, 1402)
c. The proffered tapes are "excerpts", the scenes from which have been selected and prepared exclusively by Plaintiffsí counsel.
d. Plaintiffs have never shown the original video tapes to defense counsel.
e. The proffered tapes have been edited for content and time and constitute only a fraction of the camera angles, times and activities occurring on the various surveillance camera. (Ev Cß 1402)
f. Plaintiffs cannot establish a "chain of custodyî for the tapes.
g. On one of the proffered "excerpted" tapes (May 5, 1999), a date stamp for a completely different date (May 7, 1999) flashes on the screen, a clear indication of inaccuracy or tampering, or both.
h. Kinko's security witness has testified that he has never before witnessed such as occurrence as he saw when viewing the tape as indicated in "g" above.
i. The Kinko's security witnesses cannot confirm that the time stamp in May 1999 was accurate.
j. The proffered declarant (Matthew Poppe) does not, and can not, authenticate the videotapes.
2. Even if the original tapes could somehow be authenticated, they cannot meet the probability test for accuracy in that:
a. Based on their experience, the Kinko's witnesses testified that the likelihood of the clock on the surveillance video recorder being re-set for daylight savings time was only 50 - 50. (see below, and the sealed deposition transcripts of Rollings submitted by plaintiffs).
b. The store does not set the video clock to real clock time, but rather to point-of-sale ("POS") time at the register, which is not a time referenced by the Internet postings and cannot now be correlated.
c. The surveillance video recorder's clock is not cross-referenced to the time shown on the Internet computers which are used by store customers.
3. Professor Witkin has specifically commented on the need for requiring authentication of items such as audio tapes. In O'Laskey v. Sortino (1990) 224 C.A.3d 241, 273 C.R. 674, a personal injury action, the trial judge refused to admit a transcript of a taped telephone conversation between defendant and a private investigator hired by plaintiff to determine whether defendant had left the state for more than 8 days during the year following the accident. (According to the transcript, defendant had gone to Las Vegas for two weeks, and under C.C. 351, the statute of limitations would be tolled during this time.) Held, exclusion was proper; although there was no violation of P.C. 632 (4 Cal. Crim. Law, 2d, ß2460 ), the transcript was properly excluded since the tape was not authenticated.
"(1) A tape recording is a "writing" that must be authenticated before it can be received into evidence, and without authentication of the tape, the transcript is irrelevant. (224 C.A.3d 249, citing the text.)
"(2) In offering the transcript, plaintiff submitted a declaration by his attorney stating that counsel had retained a private investigator from whom he had received the transcript and the tape; that he had listened to the tape, and the transcript was an accurate record of it; and that the voice on the tape was defendant's, which he recognized from defendant's deposition. (224 C.A.3d 249.)
"(3) The declaration is insufficient to authenticate the tape for the following reasons: (a) It does not show whether the tape was what plaintiff claimed it to be, since no sworn testimony of the investigator was offered to describe when, where, how, or by whom the tape was made. (224 C.A.3d 249.) (b) There is nothing in either the transcript or declaration identifying the investigator as the second party to the conversation. (224 C.A.3d 249.) (c) There is no evidence regarding the completeness or accuracy of the tape. Although counsel, in his declaration, attested to the accuracy of the transcript, the investigator was the only person competent to testify to the accuracy of the tape, i.e., whether it had been altered or edited or included the entire conversation. (224 C.A.3d 250.)"
4. In a first impression case regarding the admissibility of videotape evidence the court stated:
"We have weighed all of defendant's contentions and reiterate that all of the procedural safeguards established by the law of this state for photographs and motion pictures were followed in exemplary fashion by the trial court and counsel. The entire tape was carefully previewed by the court and counsel before its presentation to the jury and all motions and objections were carefully and thoroughly considered at that time. Prior to the viewing of the tape by the jury, a careful foundation was laid as to its technical aspects, accuracy and reliability. The ability of all concerned to see the video tape was carefully monitored. The entire eight hours were presented to the jury so that there were no opportunities for any misrepresentations of the testimony by editing or shortcutting. We think with all of these safeguards, the video tape of Pifer's preliminary hearing testimony was properly admitted." People v. Moran, (1974) 39 Cal.App.3d 398, page 411, 114 Cal. Rptr. 413.
5. On December 8, 1999, two Kinko's experts, Don Rollings and Ray Short, were deposed by Orrick. Kinko's witnesses were unable to authenticate the subject video tapes has being authentic.
Rollings Deposition:
Falcon: Before she does that, do you have any way of knowing of whether or not that's the original videotape from May 5th from the Cupertino store maintained by Kinko's?
Rollings: No.
Falcon: You don't have a chain of custody log or anything like that for tapes that are surrendered to law enforcement or to private parties?
Rollings: Law enforcement of course has a chain of custody that they have. We have no chain of custody, and I have none on these tapes. (Rollings deposition, page 31 lines 20 thru p.32, L 6)
Falcon: As you sit here today, do you have any way of knowing whether what's been marked as Exhibit No. 9 is the original videotape taken from the Mountain View store for May 18th, 1999?
Rollings: No.
POPPE: Is it Kinko's policy that the time on the multiplexer should be changed on the day of the switch to or from daylight savings time?
ROLLINGS: No it's not a policy. We would like it to be done, though. It's a guideline.
POPPE: In your experience, is that guideline followed?
ROLLINGS: Out of a thousand branches, about 50/50
POPPE: Okay, In the 50 where the guideline is not followed, what does that mean? Itís never switched?
ROLLINGS: Typically, it will be an hour off.
FALCON: Do you have any way of knowing as to the particular store, Mountain View and/or Cupertino, whether the -- in May of this year, whether the time adjustment was made for the change in daylight savings -- to daylight savings time?
ROLLINGS: If -- is the question was the time correct?
FALCON: In May.
ROLLINGS: I would have no idea. (Rollings deposition, page 42 lines 22 thru p.43, L 18)
...
FALCON: In your experience in the diligence of each individual store to reset their surveillance recorders to current time after a switch either from daylight savings or savings to daylight has been about 50/50?
POPPE: Daylight to standard?
FALCON: Yes. Daylight to standard.
ROLLINGS: Yes.
FALCON: In your experience in the diligence of each individual store to reset their surveillance recorders to current time after a switch either from daylight savings or savings to daylight has been about 50/50?
COUNSEL FOR PLAINTIFF: Daylight to standard?
FALCON: Yes. Daylight to standard.
ROLLINGS: Yes.
FALCON: Is it your understanding that this year, we went from standard to daylight in California in April?
ROLLINGS: I have no idea. Don't pay a lot of attention to it.
FALCON: Do you know whether Exhibit 6 that you viewed a minute ago, whether that machine was adjusted for the change in time that occurred around April of --
ROLLINGS: No, I don't know.
FALCON: Do you know anybody who would know?
ROLLINGS: No. That if it was done? Was that the question?
FALCON: Yeah.
ROLLINGS: Yeah, no, I wouldn't.
FALCON: Or when it was done?
ROLLINGS: No, I wouldn't. (Rollings deposition, page 69 line 4 thru p.70, L 5)
The second Kinkoís witness, Short, viewed the subject videotapes in the presence of Michelangelo Delfino and Mary Day. He couldnít even identify them from the videotapes.
DAY: Can you tell whether he was again using floppy disks or keyboards or whether the computer was ñ
SHORT: No, I can't. I speculate that he did begin or she -- I can't even tell if it's a he or she, began working as his arms seemed to be bent at the level of the desk but that's, again, speculation.
Even plaintiffsí own counsel was unable to identify defendant in the video tape. The following exchange occurred between two of Plaintiffís attorneys, Mr. Poppe and Mr Liburt, while having Mr. Delfino view the excerpts of Kinkoís videotapes.
LIBURT: Yeah. Matt, can you please speed up to when the gentleman enters that we believe is Mr. Delfino?
POPPE: He's in.
LIBURT: Oh, he is? I missed it?
. . .
DELFINO: I didn't catch it either, so don't feel bad.
. . .
LIBURT: Have you -- Mr. Delfino, have you recognized anybody so far watching this tape?
DELFINO: No. LIBURT: Okay.
There has been no proof provided by plaintiffs establishing the store managers followed procedures for determining accurate date and time stamping on the video tapes. When asked about how the time appearing on the video tapes gets set, it is left to the diligence of whoever is in charge of the machines in each store. Here, there has been NO authentication or verification of the accuracy of the time stamps on the videos. Without such, the tapes are inadmissible for the use proffered by plaintiffs, i.e., that the time correlates to the time of certain postings.
FALCON: But for the machines, the video machines, that's just whatever manually is put in?
ROLLINGS: Correct.
FALCON: They're accurate only as to the diligence and the accuracy or whoever is in charge of monitoring those machines in each store?
ROLLINGS: That is correct. (Rollings deposition, page 67 line 20 thru p.68, L 2)
CONCLUSION
It is respectfully submitted that the videotape excerpts identified by Plaintiffs as Exhibits CC and DD are inadmissible.
Dated: October 22, 2000
Glynn P. Falcon Attorney for Michelangelo Delfino"
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Anti-SLAPP hearing is schedule for Thursday 26 October 2000 9am PST Dept 17 Santa Clara County Superior Court, Judge Conrad Rushing presiding. |
