Loss of Audiotapes Did Not Warrant Exclusion of All Evidence Regarding Taped Conversations

Crigger v. Fahnestock & Co., Inc., 2005 WL 783355 (S.D.N.Y. Apr. 6, 2005)

Plaintiffs sought an in limine order precluding the submission of any evidence concerning the loss of audiotapes of conversations that had been mailed to plaintiffs’ counsel but subsequently lost. One of the plaintiffs had made notes of the conversations, which were produced. The court ruled that, since it had no idea what kind of evidence defendants would present concerning the loss of the tapes, it would make evidentiary determinations as objections arose. The court denied the defendants’ related motion in limine which sought to prevent plaintiffs from introducing any evidence whatsoever regarding the tape recordings, including the plaintiff’s notes and all testimony pertaining to the tapes. The court ruled that, absent bad faith in the destruction or loss of the audiotapes, the plaintiff could testify as to his best recollection of the conversations. The court further ruled that the plaintiff’s notes could be provided in order to refresh his recollection, but that the notes themselves would not be admissible.