HELP.. CA Lawyer trying to use stuff I posted here as evidence

[Guest Jary]

Can the CA Lawyer use my post here as evidence in his favor? That is what he is trying to do. Not sure how he found my post but I received a letter form him today, saying that he was troubled by my answers to his Discovery requests since I have posted here that the account is mine, and that I should call him to discuss this. Otherwise he is left with no alternative other than to file a request with thte court that my answers are non-responsive together with a request for sanctions. How can I fight this. This is so unfair, can he get a judgement based on this? I think all is lost......

[CarolinaBlueEyes]

hardly.. I assume Jary is not your real name and even if it is he has to PROVE you wrote it.. hes trying to scare you

[direred]

You are not required to be truthful here, you know.

Now you know why I don't talk about my ongoing cases any more. This sort of thing can and does happen.

[SecretAgentWoman]

It's not admissable.

Waves to lawyer -

Oh, and collection lawyer dude - FOAD! :'> :'>

[Guest Jary]

I hope that it is not admissible SecretAgentWoman. I am so discouraged...They have absolutely no evidence. My motion to compel is coming up because they did not answer my discovery requests.

[Macwench]

Oh, and collection lawyer dude - FOAD! :'> :'>

I'll second that!

[direred]

Since this is a legal forum, I'll talk a wee bit about the federal rules of evidence.

In a recent case, (Lorraine and Mack v. Markel American Insurance Company, 2007 U.S. Dist. LEXIS 33020), there's a humongous 54-page decision.

Cases involving electronic evidence often raise the issue of whether electronic writings constitute "statements" under Rule 801(a). Where the writings are non-assertive, or not made by a "person," courts have held that they do not constitute hearsay, as they are not "statements." United States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003) ("[N]either the header nor the text of the fax was hearsay. As to the header, 'nder FRE 801(a), a statement is something uttered by 'a person,' so nothing 'said' by a machine . . . is hearsay' (second alteration in original)); Safavian, 435 F. Supp. 2d at 44 (holding that portions of e-mail communications that make imperative statements instructing defendant [*114] what to do, or asking questions are nonassertive verbal conduct that does not fit within the definition of hearsay); Telewizja Polska USA, 2004 U.S. Dist. LEXIS 20845, 2004 WL 2367740 (finding that images and text posted on website offered to show what the website looked like on a particular day were not "statements" and therefore fell outside the reach of the hearsay rule); Perfect 10, 213 F. Supp. 2d at 1155 (finding that images and text taken from website of defendant not hearsay, "to the extent these images and text are being introduced to show the images and text found on the websites, they are not statements at all--and thus fall outside the ambit of the hearsay rule."); United States v. Rollins, rev'd on other grounds 2003 CCA LEXIS 303, 2004 WL 26780, at *9 (A.F. Ct.Crim.App. Dec. 24, 2003)("Computer generated records are not hearsay: the role that the hearsay rule plays in limiting the fact finder's consideration to reliable evidence received from witnesses who are under oath and subject to cross-examination has no application to the computer generated record in this case. Instead, the admissibility of the computer tracing system record should be measured by the reliability [*115] of the system itself, relative to its proper functioning and accuracy."); State v. Dunn, 7 S.W.3d 427, 432 (Mo. Ct. App. 2000) ("Because records of this type [computer generated telephone records] are not the counterpart of a statement by a human declarant, which should ideally be tested by cross-examination of that declarant, they should not be treated as hearsay, but rather their admissibility should be determined on the reliability and accuracy of the process involved."); State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998) (reviewing the admissibility of computer generated records and holding "[t]he role that the hearsay rule plays in limiting the fact finder's consideration to reliable evidence received from witnesses who are under oath and subject to cross-examination has no application to the computer generated record in this case. Instead, the admissibility of the computer tracing system record should be measured by the reliability of the system, itself, relative to its proper functioning and accuracy.").

The requirement that the statement be offered to prove its substantive truth. The third question that must be answered in [*116] determining if evidence is hearsay is whether the statement is offered to prove its substantive truth, or for some other purpose. Rule 801© states: "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." (emphasis added). Thus, even if the evidence is an assertion, made by a declarant, it still is not hearsay unless offered to prove the truth of what is asserted. The advisory committee's note to Rule 801© underscores this: "If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay. The effect is to exclude from hearsay the entire category of 'verbal acts' and 'verbal parts of an act,' in which the statement itself affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights." FED. R. EVID. 801© advisory committee's note (citation omitted). See also WEINSTEIN at § 801.11[1] ("If the significance of an offered statement lies solely in the fact that it was made, no issue [*117] is raised as to the truth of anything asserted.' Thus, if a declarant's statement is not offered for its truth, the declarant's credibility is not material, and the statement is not hearsay."(citation omitted)). Commentators have identified many instances in which assertive statements are not hearsay because they are not offered to prove the truth of the assertions: (1) statements offered to prove a claim that the statement was false or misleading, as in a fraud or misrepresentation case; n42 (2) statements offered to "prove that because they were made, listeners had notice or knowledge of the information related in the statements," or to show the effect on the listener of the statement; n43 (3) statements "offered to prove an association between two or more persons;" n44 (4) statements offered as circumstantial evidence of the declarant's state of mind, n45 or motive; n46 (5) statements that have relevance simply because they were made, regardless of their literal truth or falsity--the so called "verbal acts or parts of acts," n47 also referred to as "legally operative facts"; n48 and (6) statements that are questions or imperative commands, n49 such as "what time is it" or "close [*118] the door."

[...]

When analyzing the admissibility of electronically generated [*119] evidence, courts also have held that statements contained within such evidence fall outside the hearsay definition if offered for a purpose other than their substantive truth. Siddiqui, 235 F.3d at 1323 (e-mail between defendant and co-worker not hearsay because not offered to prove truth of substantive content, but instead to show that a relationship existed between defendant and co-worker, and that it was customary for them to communicate by e-mail); Safavian, 435 F. Supp. 2d at 44 (e-mail from lobbyist to defendant not hearsay because they were not offered to prove their truth, but to illustrate the nature of the lobbyist's work on behalf of clients to provide context for other admissible e-mail; and as evidence of the defendant's intent, motive and state of mind); Telewizja Polska USA, 2004 U.S. Dist. LEXIS 20845, 2004 WL 2367740; Perfect 10, 213 F. Supp. 2d at 1155 (exhibits of defendant's website on a particular date were not "statements" for purposes of hearsay rule because they were offered to show trademark and copyright infringement, therefore they were relevant for a purpose other than their literal truth); State v. Braidic, 2004 Wash. App. LEXIS 22, 2004 WL 52412 at *1 (Wash. App. Jan. 13, 2004) [*120] (e-mail sent by defendant to victim not hearsay because they were not offered to prove the truth of the statements.).

[...]

Is the evidence excluded from the definition of hearsay by Rule 801(d)(1) or 801(d)(2). Once it has been determined whether evidence falls into the definition of hearsay because it is a statement, uttered by a declarant, and offered for its substantive truth, the final step in assessing whether it is hearsay is to see if it is excluded from the definition of hearsay by two rules: 801(d)(1), which identifies three types of prior statements by witnesses who actually [*123] testify and are subject to cross examination, which are excluded from the definition of hearsay, and 801(d)(2), which identifies five types of admissions by a party opponent that are excluded from the definition of hearsay. FED. R. EVID. 801(d) advisory committee's note ("everal types of statements which would otherwise literally fall within the definition [of hearsay] are expressly excluded from it ... "); WEINSTEIN at § 801[20][1] & § 801[30][1]; SALTZBURG at § 801.02[2] & 801.02[6]. Rule 801(d)(1) identifies three types of prior witness statements that are excluded from the definition of hearsay: first, 801(d)(1)(A) excludes prior inconsistent "testimonial statements" made under oath at a trial, hearing, court proceeding or deposition; next, 801(d)(1)( excludes prior consistent statements offered to rebut an express or implied allegation of recent fabrication, or improper influence or motive; and finally, 801(d)(1)© excludes statements of identification of a person made after perceiving that person. For each of these exceptions, it is required that the declarant testify at trial and be subject to cross examination about [*124] the prior statements. FED. R. EVID 801(d)(1); FED. R. EVID. 801(d)(1) advisory committee's note ("[Rule 801(d)(1)] requires in each instance, as a general safeguard, that the declarant actually testify as a witness, and it then enumerates three situations in which the statement is excepted from the category of hearsay."); WEINSTEIN at § 801.20[2] ("For a prior witness statement to escape the hearsay rule, the declarant must testify at trial and be subject to cross-examination concerning the statement." (citation omitted)). Rule 801(d)(2) identifies five types of statements as "admissions by a party opponent," and excludes them from the definition of hearsay. Specifically: 801(d)(2)(A) excludes the party's own statement, made in either an individual or representative capacity; 801(d)(2)( addresses a statement by another that a party has adopted or manifested a belief in its truth; 801(d)(2)© deals with a statement by a person authorized by a party to make a statement concerning a subject; 801(d)(2)(D) excludes a statement made by a party's agent or servant concerning a matter within the scope of the agency [*125] or employment, made during the existence of the agency or employment relationship; and 801(d)(2)(E) excludes the statement of a co-conspirator of a party made during the existence of the conspiracy and in furtherance of the conspiracy. To qualify as an admission, the party's out-of-court statement must be offered against that party, it cannot offer its own out of court statements as admissions. WEINSTEIN at § 801.30[1] ("To be admissible under [Rule 801(d)(2)], the party's statements must be offered against that party. A party cannot use this provision to offer his or her own statements into evidence."). As can be seen from reading Rule 801(d)(1) and (2), there are specific foundational facts that must be established before the statement or admission can be accepted into evidence. These determinations are made by the trial judge under Rule 104(a), and therefore the rules of evidence, except for privilege, are inapplicable. FED. R. EVID. 104(a), 1101(d)(1); FED. R. EVID. 104(a) advisory committee's note ("[W]hen a hearsay statement is offered as a declaration against [*126] interest, a decision must be made whether it possesses the required against-interest characteristics. These decisions too, are made by the judge.") Given the near universal use of electronic means of communication, it is not surprising that statements contained in electronically made or stored evidence often have been found to qualify as admissions by a party opponent if offered against that party. Siddiqui, 235 F.3d at 1323 (ruling that e-mail authored by defendant was not hearsay because it was an admission under Rule 801(d)(2)(A)); Safavian, 435 F. Supp. 2d at 43-44 (holding that e-mail sent by defendant himself was admissible as non-hearsay because it constituted an admission by the defendant, 801(d)(2)(A), and as an "adoptive admission" under Rule 801(d)(2)(); Telewizja Polska USA, 2004 U.S. Dist. LEXIS 20845, 2004 WL 2367740 (N.D. III. Oct. 15, 2004) (holding exhibits showing defendant's website as it appeared on a certain day were admissible as admissions against defendant); Perfect 10, 213 F. Supp. 2d at 1155 (admitting e-mail sent by employees of defendant against the defendant as admissions under 801(d)(2)(D)). If, after applying [*127] the foregoing four-step analysis, it is determined that the electronic evidence constitutes a statement by a person that is offered for its substantive truth and is not excluded from the definition of hearsay by Rule 801(d)(1) or (2), then the evidence is hearsay, and is inadmissible unless it qualifies as one of many hearsay exceptions identified by Rule 803, 804 and 807. The process of determining whether hearsay falls into one of the many exceptions can appear daunting, because there are twenty-three identified in Rule 803, five in Rule 804, and Rule 807, the so-called "catch-all" exception, allows exceptions to be tailor made. Upon closer examination, however, the task is less onerous because the number of hearsay exceptions can be categorized in helpful ways that make them more manageable, and in most instances a handful of hearsay exceptions repeatedly are used in connection with electronically generated or stored evidence. Familiarity with these rules will suffice in most instances to overcome hearsay objections routinely made to ESI. Rule 803 contains twenty-three separate hearsay exceptions. At first glance they may seem like they have nothing in common, but they do. All [*128] twenty-three are admissible regardless of whether the declarant is available to testify, distinguishing them from the five exceptions in Rule 804, each of which is inapplicable unless the declarant is "unavailable," as defined by any of the five methods identified in Rule 804(a).

[SecretAgentWoman]

Oh thanks, direred, that clears things right up.

[CarolinaBlueEyes]

Oh thanks, direred, that clears things right up.

ROFL>>> I was thinking the same thing.. I wanted to say... SO is that a yes??? OMG you are too funny!!!!!

[MountainDude]

Nothing gets the blood flowing like a District Cout opinion on electronically generated evidence. OUCH

Jary, you should print that opionion that dired posted and fax it to the CA lawyer.

j

[RSB]

HOW would that CA lawyer know who you are in real life? Is your name Jary?

[Lecasbas]

Originally posted by Jary

since I have posted here that the account is mine

By here, you mean the CIC forum? Did he use these words?

If you use your real state as a location, I don't think it would take a rocket scientist to figure out who's who.

And, of course, if he was fishing you probably just confirmed his suspicions by talking about the event right after he wrote you.

I've often wondered to what extent the JDB will go to to chase after a Bad Debt. Would they pay someone to watch this forum and add 2 and 2 together to get their man...or woman?

I'm half expecting to get a letter myself one of these days. It's the type of thing they do to rattle our cages.

I agree that they can't use any purported evidence garnered here in Court. How could they possibly prove anything.

What they could do now, if in fact they do think they know who you are, is watch your strategy.

What I try to do is ask mulitple questions in different posts...Go different directions all the time. Do not post your Counterclaims, Discovery questions, exact amounts or when your are going to court, for example. Let them waste their time following different rabbits to see where their wholes are.

If you still feel uncomfortable, disappear. Talk to one of the administrators about the problem. I don't see why you couldn't change your name and don't publish your state this time. When you come back as JOJODODO don't say hi to everybody.

You could always reverse things. Tell them everything you are going to do to them in court (you know they're listening) and do something the exact opposite. If you have sent a C&D CMRRR then they have violated that. It is possible they also have violated certain Stalking laws. Shake their cages.

[CarolinaBlueEyes]

sorry but thats just paranoid.. the carolinas are full of blue eyed blondes and yes i have stated cases here.. so what.. can you PROVE it was me.. nope.. its not like I list account numbers my home address (and those are not even my real lips)...

heck for all the judge knows Gomer the collector posted here and made it up with your name.. its all heresay.. which in turn is BS...what you know means nothing.. what you can PROVE.. whole other animal..

and it annoys me when a poster doesnt have their state... hard to give answers much of the time since state laws vary so much.. in fact its very helpful to know .. for example if someone from texas is worried about losing their home. I KNOW texas has homestead exemptions.. if they are in Iowa I can't give the same advice.

[SecretAgentWoman]

Do you think the CAs and their lawyers will clue in that I'm not really a secret agent, that in fact by day I'm a mild mannered tech support geek?

Naaaaa....they'll continue to be intimidated by my brilliance and demeanor!

[Lecasbas]

Originally posted by CarolinaBlueEyes

sorry but thats just paranoid

I agree with everything you said. I personally don't care if the CA is listening. I was just suggesting some options for anyone who may be paranoid, as you put it.

I do jump around on different subjects mostly because I have a lot to learn all over the place. Someone could use this tactic to confuse prying eyes.

[Big Time]

There is a word for what he is doing, Jary. It's called "Posturing."

That's just what lawyers do. He is taking the posture that he is right about everything and that he is the one in control of your fate, rather than you. He is acting as if he decides what is and what isn't, rather than the Judge. He has no such power and and isn't superior to you in any way.

Internet message board documents are easily falsified and can't even be admitted as evidence because they fall under the hearsay rule. It's not the same as a written letter by you. Motion to preclude if he tries any of what he is threatening.

He also wants you to feel as if you've been caught getting help from other people on the internet, as if there is anything wrong with that. If it comes up, invite the Judge to read these boards. He will see that we are sincere and use these forums as a way to establish parity. He will also see that if there ever is any bad info posted, the other members are quick to correct the post.

Lastly, remember Towerrat's strategy on discovery:

If he sends you a letter about wanting discovery, you send him a letter requesting discovery.

If he motions to compel discovery, you file an opposition to his motion and motion to compel the discovery that you sent to him. If he requests sanctions, you request sanctions.

If he claims your answers are evasive, you deny it and assert that it is his questions that are irrelevant and harassing and that he is abusing discovery in this way. Don't be afraid to tell the Judge that discovery isn't a game, and that you answered the best you could, but questions that go beyond the four corners of the complaint serve no useful purpose.

He is being oppressive, trying to take advantage of your inexperience and I hope you will amend your complaint to include punitive damages.

[Recovering Attorney]

discovery isn't a game, and if you treat it as such, especially as a pro se, you'll get your hand slapped by the judge. The Mad Hatter strategy is endearing at tea parties only.

If you indeed said something like " I owe Providian a load of cash but I don't want to pay ithem" that is arguably an admission against your interest and could be used against you in a trial . If you said something like ": I guess I am screwed", well, who knows what you were thinking? Tell the lawyer you don't know what he's talking about and he should send you any statement he says you made that he is aware of.

IMO, pro se litigants need to be brutally honest. Your sincerity in the face of a bluffing JDB is important. If you start acting too cute, then you'll lose that credibility edge.

You may also want to get back to basics. This may be a juncture where a settlement can be had.

[direred]

If you indeed said something like " I owe Providian a load of cash but I don't want to pay ithem" that is arguably an admission against your interest and could be used against you in a trial . If you said something like ": I guess I am screwed", well, who knows what you were thinking? Tell the lawyer you don't know what he's talking about and he should send you any statement he says you made that he is aware of.

Yes, that's true, except that one needs to be honest in dealings with courts, and one bears no burden of honesty on internet forums.

That said, if you DID say you owed something, you'd have to demonstrate that you weren't being honest, and I'm not sure that works in your favor in court, kwim?

[ChicagoGirl]

Do you think the CAs and their lawyers will clue in that I'm not really a secret agent, that in fact by day I'm a mild mannered tech support geek?

Naaaaa....they'll continue to be intimidated by my brilliance and demeanor!

That actually made me laugh out loud!

[elyse449]

...and how does this super, ultra, smart, "posturing" attorney know that whoever was posting about this alleged case isn't some enemy POSING as you? Sorry, it's all up to interpretation.

Use it as evidence? HA! Now comes the time to hire a private investigator to check out his little Saturday night escapades...

E~

[merkurfan]

Send back a letter saying you know what he did last summer and your gonna spill the beans.

Who knows what he did last summer, but something tells me, theres SOMETHING that happened last summer he does not want people to know about.

[Believe]

Send back a letter saying you know what he did last summer and your gonna spill the beans.

Who knows what he did last summer, but something tells me, theres SOMETHING that happened last summer he does not want people to know about.

This is funny... Lord knows after dealing with CA and courts, we need some humor, or at least I am in need of some humor!!!

[rella5]

OMG those are not carolina's lips? As an avid consumer of lipstick I was SOOOOOOO jealous!

OK, seriously, I remember one of Jary's posts , I believe it was one of his responses or interogs or something where I noted what appeared to be a full legal name and I wondered then if he had accidentally left his real name in, possibly when scanning the doc in. Is it possible that a lawyer or his henchman could google a name and get a hit to this board? Or have I been infected with the paranoia?

[Tazjeepcj7]

I wouldn't worry until the plaintiff's attorney furnishes your "statements" through discovery. Then you can attack what the plaintiff's attorney submits...

[Arwencita]

I took the liberty of reading your thread, and I really did not see anything that the Lawyer could use. It did not seem like you were deceptive in any way. You never said "I don't want to pay this" or "this is mine but I just want to get rid of it" or anything to that effect. I see only that you stated a problem and asked for advice. Maybe you should have not been so honest and posted the real names and facts but other than that all I see is you asking what can I do about this and getting answers. Or how can I word this, or what do you think about this, what does this mean, etc etc etc. The only thing I see is that you used the term "Scumbag" when describing the attorney a few times, maybe you should not have done so, but really other than that it looks like you were just looking for help with your case. What is so wrong about that?? Not sure what the attorney thinks he can prove with this. That you asked for help??

I agree with Tazjeepcj7

I wouldn't worry until the plaintiff's attorney furnishes your "statements" through discovery. Then you can attack what the plaintiff's attorney submits...

If he doesn't introduce it during discovery he cannot use it during the trial. I would just wait and see what happens. I would run this issue by a lawyer just to be safe and see what the rules are in your state for this kind of evidence.

Good luck, I hope this all works out for you, you looked like you had a grasp on this situation.