## Facts

- A consumer sued a debt collection agency under the FDCPA based on a prerecorded voicemail left on his cell phone.
- The original voicemail stored on the phone was later deleted.
- Before deletion, the consumer played the message for his attorney, who rerecorded it on another device, creating a secondary recording.
- The secondary recording included background office conversation captured while the voicemail was played aloud.
- The debt collector argued the rerecording was unreliable and that the original was destroyed in bad faith, citing the plaintiff’s technical background, criminal history, and alleged inconsistencies in deposition testimony.
- The plaintiff asserted the voicemail was lost in connection with changing cellular carriers and that counsel did not insist on preserving the original.

## Issues

1. Whether Federal Rule of Evidence 1004 permits introduction of a rerecorded voicemail as secondary evidence when the original voicemail was deleted and the opponent alleges bad-faith destruction.
2. Whether discovery should be extended to permit additional examination of the defendant’s agent in connection with the evidentiary dispute.

## Decision

- The motion in limine to exclude the rerecorded voicemail was denied.
- The court held Rule 1004 allowed secondary evidence because there was an insufficient showing that the plaintiff destroyed the original in bad faith.
- The motion to extend time for additional discovery was denied for lack of good cause and because the requested discovery was unlikely to affect the Rule 1004 analysis.

## Legal Principles

- Under Federal Rule of Evidence 1004(1), secondary evidence of a recording’s contents is admissible if the original is lost or destroyed, unless the proponent lost or destroyed it in bad faith.
- “Bad faith” requires proof that the proponent destroyed the original with an improper purpose, such as preventing its use as evidence; speculation and circumstantial suspicion alone are insufficient.
- Disputes about a secondary recording’s accuracy, completeness, or deviations from expected practices ordinarily affect weight and credibility, not admissibility under the Best Evidence Rule.
- Courts may deny requests to reopen or extend discovery when deadlines have passed and the moving party fails to show good cause or material benefit from the additional discovery.

## Conclusion

The court permitted the plaintiff to use a rerecorded voicemail as secondary evidence under Rule 1004 because the defendant did not prove the original was deleted in bad faith, and it declined to extend discovery where the request was untimely and unlikely to change the evidentiary outcome.


Vagenos v. LDG Fin. Servs., LLC, 2009 U.S. Dist. LEXIS 121490 (E.D.N.Y. 2009)