American Express' submission of electronic records fail to satisfy New York evidentiary rules

The lesson here is to always challenge electronic "reproductions" of any evidence, especially account statements, submitted in support of a credit issuer's lawsuit against you. In this case, the court rejected AMEX's seemingly "robosigned" affidavit in support of its summary judgment motion because it failed to state "when, how, or by whom" the electronically reproduced records were created. New York State Technology Law §§ 302 and 306 require a showing that the electronic record system permits "additions, deletions, or changes" through an audit trail. These laws also require a showing of the manner in which "tampering or degradation" of the reproduced records is prevented.

Absent an affidavit, in admissible form, from a witness with personal knowledge meeting these additional requirements involving electronically reproduced records, the purported evidence is incompetent and inadmissible. What are bank records aren't "electronic reproductions"?

(American Express Centurion Bank v. Badalamenti, NYLJ, January 10, 2011)

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