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11 Questions to Raise in a Debt-Buyer Lawsuit (Authenticity of Electronic Reproductions)

Our last blog (Can a Debt Buyer Authenticate a Creditor's Business Records?) addressed the general rule that debt buyers usually lack the personal knowledge to "lay a foundation" to admit the original bank's records into evidence.

Another potent defense is to attack the authenticity of electronic records. Records produced during a debt buyer case are usually electronic reproductions of the originals. Because of that, genuine issues arise as to the authenticity (accuracy and trustworthiness) of the records. Has the electronic file been preserved and un-tampered with? That question leads to other questions about the computer equipment, software, access, and policies. In order to satisfy this query, the person attesting to the accuracy of electronic reproductions must have special knowledge of these issues.

The astute consumer debtor (or his or her counsel) would think about and ask questions relating to the eleven-step foundation for computer records suggested by E. Imwinkerlried's Evidentiary Foundations:

  • The business uses a computer.
  • The computer is reliable.
  • The business has developed a procedure for inserting data into the computer.
  • The procedure has built-in safeguards to ensure accuracy and identify errors.
  • The business keeps the computer in a good state of repair.
  • The witness had the computer readout certain data.
  • The witness used the proper procedures to obtain the readout.
  • The computer was in working order at the time the witness obtained the readout.
  • The witness recognized the exhibit as the readout.
  • The witness explains how he or she recognizes the readout.
  • If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.[1] [2]

An employee of a debt buyer will probably have no direct knowledge of any of the above 11 items. Therefore, objections should be raised before a debt buyer attempts to admit electronic reproductions of a bank's records. Your first question could ask when and how the records being used against you were created.

Feel free to view my evidence blog, which contains educational content involving the rules of evidence.

Contact us if you want to help to raise your defenses in any debt buyer case.

[1] E. Imwinkelried, Evidentiary Foundations § 4.03[2] (7th ed. 2008).

[2] Jonathan Sheldon, Carolyn L. Carter, Chi Chi Wu, Collection Actions, at 68 [3rd ed 2014].