In Lyngaas v. Curaden AG, No. 20-1199 (6th Cir. Mar. 24, 2021), a Telephone Consumer Protection Act (TCPA) class action, the court affirms the district court’s orders concerning the admissibility of a summary-report log that purportedly identified the class members who were called.
The class action alleged that the defendants faxed unsolicited ads to thousands of dentists for the Curaprox Ultra Soft CS 5460 toothbrush. At the class certification stage, to establish the “predominance” and “ascertainabilty” requirements of Rule 23(b)(3), the class offered the defendants’ “summary-report logs (documents that purportedly list each successful recipient).” The district court accepted the logs at the Rule 23 phase without specifically ruling on their admissibility. Nevertheless, after the class prevailed at trial – entitling class members to statutory damages of $1000 each – the court held that the logs were inadmissible to prove who received the faxes and converted the remedy phase into a claims-made process “to afford class members the opportunity to verify their receipt of Curaden USA’s unsolicited fax advertisements.”
On appeal, the court is required to sort out three issues with the logs. First, it holds that the district court did not err in considering the log during the class-certification stage, even absent authentication. Addressing an issue of first impression for the circuit, the panel holds that a court may make the findings required by Rule 23 based on “evidentiary proof” that does not “amount to admissible evidence, at least with respect to nonexpert evidence.” (This issue has split the circuits, with the Eighth and Ninth Circuits taking a more forgiving approach to the consideration of unauthenticated evidence, and the Fifth Circuit that expressly requires that class-certification evidence be in admissible form.)
Second, the panel holds that the district court was correct to hold that logs were not hearsay because they were electronically generated. “The hearsay rule applies only to out-of-court statements, Fed. R. Evid. 801(c)(1), and the rule defines a ‘statement’ as ‘a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion,’ Fed. R. Evid. 801(a). The ‘written assertion’ here was not made by a ‘person’; the court instead found, and the defendants do not contest, that the logs were data compilations automatically generated by a computer. This means that the logs are not hearsay.”
Finally, it holds that the district court did not abuse its discretion by ultimately excluding the same logs for lack of authentication. “Federal Rule of Evidence 901(a) requires a proponent of evidence to produce proof ‘sufficient to support a finding that the item is what the proponent claims it is.’ Rule 901(b) in turn provides a nonexhaustive list of means by which to authenticate evidence. By not presenting anyone to attest as to how the logs at issue were created or to personally vouch for their accuracy, Lyngaas failed to satisfy the requirements of Rule 901.” It also holds that the plaintiff’s expert testimony about the logs was insufficient to authenticate them. “[B]ecause of the lack of testimony describing how the report logs were created or having anyone vouch for their accuracy, [the expert’s] opinions regarding the logs were both speculative and unpersuasive.”