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Home / Opinion Digests / Civil Practice / Civil Practice – Evidence – Software Results – Not Hearsay – Expert vs. Fact Witnesses – Tracing Emails – Tort/Negligence – Malicious Prosecution Claim

Civil Practice – Evidence – Software Results – Not Hearsay – Expert vs. Fact Witnesses – Tracing Emails – Tort/Negligence – Malicious Prosecution Claim

Kirkman v. Tison (Lawyers Weekly No. 12-03-1057, 31 pp.) (L. Patrick Auld, USMJ) 1:09-cv-0086; M.D.N.C.

Holding: A witness can testify about results reported to her by “” because nothing “said” by a machine is hearsay.

Even though one of defendants’ witnesses may have specialized knowledge, since his testimony relates to his own actions and observations, defendants need not designate him as an expert witness.

Defendants’ motion to strike is granted as to plaintiff’s filings that exceed the permissible scope of a reply. Plaintiff’s motion to strike is denied.

Defendants’ motion for summary judgment is granted as to plaintiff’s unfair trade practices claim. Otherwise, the parties’ cross-motions for summary judgment are denied.


The individual defendants are board members of defendant Custom Rod Builders Guild, Inc. (CRBG). They believed plaintiff was sending emails to CRBG members, telling them to withdraw their support of CRBG.

Plaintiff alleges that defendants procured a misdemeanor summons charging him with a violation of G.S. § 14-196.3(b) (cyberstalking/harassment by email). The District Attorney eventually dismissed the summons.

Plaintiff filed this action, alleging malicious prosecution and unfair trade practices among other claims.

Motions to Strike

Plaintiff moved for summary judgment. In opposition, defendants filed various exhibits. Plaintiff’s motion to strike one of those exhibits expressly argued four grounds. After defendants responded to the motion, plaintiff filed a reply, arguing a fifth ground. Plaintiff’s reply violates this court’s Local Rules, so it is stricken.

Plaintiff moves to strike Cheryl Babineau’s affidavit. Therein, Ms. Babineau explains that she received “annoying, harassing and unwanted emails from names and email addresses” she did not recognize, including [email protected] She responded to one such email, attaching the internet service “DidTheyReadIt” to her response. DidTheyReadIt sent her an alert confirming the opening of her response to [email protected] and providing the IP address used to do so. Around the same time, Ms. Babineau also corresponded by email with plaintiff, and plaintiff used the same IP address identified in the DidTheyReadIt alert.

Plaintiff argues the response Ms. Babineau received from DidTheyReadIt is barred by the rule against hearsay.

However, nothing said by a machine is hearsay. United States v. Washington, 498 F.3d 225 (4th Cir. 2007). “Only a person may be a declarant and make a statement…. The raw data generated by [] machines do not constitute ‘statements,’ and [] machines are not ‘declarants.’” Ms. Babineau’s description of the automated alert she received from DidTheyReadIt thus does not constitute hearsay.

Next, plaintiff argues that Ms. Babineau’s “conclusion” about the “‘IP address, which [plaintiff] was using to communicate with [her]’ … is totally irrelevant to the question of whether [plaintiff] sent the anonymous emails defendants complain of” and “has no ‘tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’”

To the contrary, evidence that Ms. Babineau received emails from plaintiff originating from the same IP address as the one apparently utilized by [email protected] does have potential relevance in this case. First, such evidence might support an inference that plaintiff did send harassing emails (as defendants’ counterclaim contends). Second, such evidence bears upon the question (material to plaintiff’s claims) of whether (at the time they procured the summons) defendants had a basis (whether ultimately proven correct or not) to believe plaintiff sent harassing emails. The court thus will not strike Ms. Babineau’s affidavit based on plaintiff’s relevance objection.

Plaintiff also challenges the declaration of Dustin Adler. After defendants began receiving harassing emails, Mr. Adler became suspicious of one IP address. He set up a fake forum that only the user of that IP address could view. The forum log showed that the suspected IP address accessed the fake forum. Thereafter defendant CRBG received anonymous emails that referred to matters from the fake forum.

Plaintiff complains that defendants have not designated Mr. Adler as an expert. However, Rule 701 does not distinguish between expert and lay witnesses; rather, it distinguishes between expert and lay testimony. A person with specialized training does not testify as an expert by giving first-hand participant testimony, even though it appears to be expert testimony.  If that person played a personal role in the unfolding of the events at issue and the anticipated questioning seeks only to elicit the witness’s knowledge of those events, a party need not identify that witness as an expert.

The majority of Mr. Adler’s testimony concerns his personal knowledge of the investigation into who sent the harassing emails, including his use of the fake forum to uncover the sender of harassing emails. No grounds exist to strike such evidence under Rule 701. Insofar as Mr. Adler’s deductions cross the line into the territory of ultimate conclusions, the court will not consider such conclusions.

Finally, plaintiff objects to the deposition testimony of James Tison on the grounds that it contains improper expert opinion. Mr. Tison’s testimony concerned his creation and use of an email account to communicate with plaintiff.

A critical distinction between Rule 701 and Rule 702 testimony is that an expert witness must possess some specialized knowledge or skill or education that is not in possession of the jurors. Nothing in Mr. Tison’s testimony suggests he has specialized knowledge or training beyond that of a typical juror. Moreover, Mr. Tison related information about activities in which he participated. Plaintiff has not shown that such evidence runs afoul of Rules 701 and 702.  The court will not strike Mr. Tison’s deposition testimony.

Summary Judgment

In order to avoid liability on plaintiff’s malicious prosecution claim, defendants do not have the burden of proving that plaintiff in fact sent the harassing emails. Rather, plaintiff has the burden of proving that, when defendants procured the charge against him, they lacked probable cause to believe he sent the emails. Plaintiff is not entitled to summary judgment on his malicious prosecution claim.

In order to prove unfair trade practices, a plaintiff must prove damages. Plaintiff claims a loss of profits, but he has shown only a reduction in gross receipts. Without any proof of year-to-year expenses, such evidence does not show a reduction in profits. Defendants are entitled to summary judgment on plaintiff’s unfair trade practices claim.

Motions granted in part, denied in part.

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