New York City Debt Collection Defense Attorney

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 often 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 regarding the records' authenticity (accuracy and trustworthiness). 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.

Challenging the Authenticity of Electronic Records in Debt Buyer Cases

A smart consumer debtor or their lawyer should ask questions based on the eleven-step foundation for evaluating computer records:

  1. The business uses a computer.
  2. The computer is reliable.
  3. The business has developed a procedure for inserting data into the computer.
  4. The procedure has built-in safeguards to ensure accuracy and identify errors.
  5. The business keeps the computer in a good state of repair.
  6. The witness had the computer readout certain data.
  7. The witness used the proper procedures to obtain the readout.
  8. The computer was in working order at the time the witness obtained the readout.
  9. The witness recognized the exhibit as the readout.
  10. The witness explains how he or she recognizes the readout.
  11. 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 limited to 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.

Sample Questions Used to Cross-Examine a Debt Buyer Witness

  1. Regarding the Use of a Computer by the Business: "Can you confirm if the original creditor consistently used a computer system to maintain and manage the records in question?"

  2. Reliability of the Computer System: "What evidence can you provide to demonstrate the reliability of the computer system used by the original creditor to store these records?"

  3. Procedure for Inserting Data into the Computer: "Could you describe in detail the procedure that was used by the original creditor to input data into their computer system?"

  4. Safeguards and Error Identification: "What built-in safeguards were implemented by the original creditor to ensure the accuracy of the data and to identify any potential errors?"

  5. Maintenance of the Computer System: "How did the original creditor maintain their computer system to ensure it was always in a good state of repair?"

  6. Process of Obtaining the Computer Readout: "Can you walk us through the process you personally used to have the computer read out the specific data related to this case?"

  7. Adherence to Proper Procedures for Readout: "Did you strictly follow the established procedures to obtain the readout from the computer? Please detail these procedures."

  8. Working Condition of the Computer at the Time of Readout: "Was the computer system functioning properly at the time when you obtained the readout?"

  9. Recognition of the Exhibit as the Readout: "How do you recognize the exhibit presented here as the accurate readout from the creditor's computer system?"

  10. Explanation of Recognizing the Readout: "Can you explain in detail how you are able to recognize and verify the authenticity of this computer readout?"

  11. Interpretation of Symbols or Terms in the Readout: "If there are any unusual symbols or technical terms in the readout, could you explain their meaning and relevance to this case for the court?"

Why This Line of Questioning Is Significant

  1. Authenticating the Records: By law, for a document to be admissible in court, it must be authenticated. This means that the party presenting the document must demonstrate that the document is what it claims to be. In the case of electronic records from a debt buyer, this involves proving that the records are accurate representations of the original creditor's data.

  2. Ensuring Reliability: Electronic records can be subject to alterations, errors, and inconsistencies. The questioning focuses on the processes and systems used to maintain the integrity of these records. This includes examining how data was entered, stored, and retrieved and the safeguards in place to prevent and detect errors.

  3. Demonstrating Personal Knowledge: The witness from the debt-buying company must have personal knowledge of the original creditor's record-keeping practices. Often, debt buyers acquire records without a deep understanding of how they were created or maintained. Highlighting a lack of direct knowledge can cast doubt on the reliability of the evidence.

  4. Understanding Technical Aspects: The questioning can delve into technical aspects of how the electronic records were managed. This includes understanding any specialized terms or codes used in the records, which is crucial for interpreting the data accurately.

  5. Challenging Chain of Custody: It's important to establish that the records were maintained in a consistent manner from the time of their creation by the original creditor until they were presented in court. Any gaps or inconsistencies in the chain of custody can be grounds to question the records' integrity.

  6. Compliance with Legal Standards: Courts have specific standards for the admissibility of electronic records. The questioning ensures that these standards are met, particularly in the context of the business records exception to the hearsay rule, which allows business records to be admissible if certain criteria are met.

  7. Establishing the Basis for Objections: If the witness cannot adequately answer these questions, it provides a basis for objecting to the admissibility of the records. This can be critical in debt defense, where the absence of reliable records can significantly weaken the debt buyer's case.

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

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

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[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].