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Peter Hilburn v. State of New Jersey Department of

March 5, 2012

PETER HILBURN, PLAINTIFF,
v.
STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: William J. Martini, U.S.D.J.

ORDER

This matter comes before the Court on Plaintiff's motion in limine, ECF No. 81,to exclude certain tape recordings as having been made in violation of the New Jersey Wiretapping Statute, N.J.S.A. 2A:156A-3 & 4, and/or the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2522, and otherwise being inadmissible under the Federal Rule of Evidence. The Court has reviewed the applicable law and the relevant legal submissions. The Court also conducted an evidentiary hearing on February 29, 2012 during which it heard oral argument, testimony regarding the recordings, and the recordings themselves.

At the hearing, testimony from Debbie Schoffstall provided a partial foundation for the admissibility of the recordings. Her testimony, taken with the recordings, established that, in general, she was either a participant in each recorded conversation or the participants had no reasonable expectation of privacy during the conversation. As such, in general, the recordings do not appear to violate either the state or federal wiretapping statutes at issue. See, e.g., Horberger v. American Broadcasting Companies, Inc., 799 A.2d 566, 627 (N.J. Super. A.D. 2002); D'Onofrio v. D'Onofrio, 780 A.2d 593, 597 (N.J. Super. A.D. 2001). But the Court will reconsider this general determination with respect to each individual recording, and if Defendants are unable to elicit testimony at trial sufficient to establish the legality of any individual recording, the Court may exclude it.

Based on the reasons stated on the record during the evidentiary hearing and the reasons stated in this order, the Court also makes the following preliminary findings regarding the admissibility of each recording under the Federal Rules of Evidence:

Conversation #1 -- This conversation is substantially audible, but its relevance depends upon Defendants establishing that the conversation is arguably in violation of Department of Corrections' policy. Defendants have proffered, but have not actually provided any evidence of any formal policy prohibiting employees from commenting on internal investigations. It also appears that the recording is an incomplete record of the potentially relevant portions of the conversation, which calls into question the accuracy and reliability of the recording. Therefore, there is insufficient foundation for the recording to be admissible. If Defendants can provide the necessary foundation, the recording will be admissible.

Conversation #2 -- This conversation is substantially audible and is relevant to Defendants' argument that they had a legitimate basis to terminate Plaintiff because he made potentially offensive comments in violation of Department of Corrections' policy. The recording is admissible.

Conversation #3 -- This conversation is substantially audible, but its relevance depends upon Defendants establishing that the conversation is arguably in violation of Department of Corrections' policy regarding commenting on internal investigations. It also appears that the recording is an incomplete record of the potentially relevant portions of the conversation, which calls into question the accuracy and reliability of the recording. Therefore, there is insufficient foundation for the recording to be admissible. If Defendants can provide the necessary foundation, the recording will be admissible.

Conversation #4 -- This conversation is substantially audible and is relevant to Defendants' argument that they had a legitimate basis to terminate Plaintiff because he made potentially offensive comments in violation of Department of Corrections' policy. The recording is admissible.

Conversation #5 -- This conversation is substantially audible and is relevant to Defendants' argument that they had a legitimate basis to terminate Plaintiff because he made potentially offensive comments in violation of Department of Corrections' policy. The recording is admissible.

Conversation #6 -- This conversation is substantially audible but does not appear to be relevant to Defendants' argument that they had a legitimate basis to terminate Plaintiff because he made potentially offensive comments in violation of Department of Corrections' policy. And the risk of undue prejudice outweighs any minimal relevance because of the highly personal nature of the conversation. This recording is not admissible.

Conversation #7 -- This conversation is substantially audible and is relevant to Defendants' argument that they had a legitimate basis to terminate Plaintiff because he made potentially offensive comments in violation of Department of Corrections' policy. The recording is admissible.

Conversation #8 -- This conversation is substantially audible, but its relevance depends upon Defendants establishing that the conversation is arguably in violation of Department of Corrections' policy regarding commenting on internal investigations. And to the extent that the conversation reflects comments that are potentially offensive, the recording appears to be incomplete and does not provide the context in which those comments were made, which calls into question the accuracy and reliability of the recording. Therefore, there is insufficient foundation for the recording to be admissible. If Defendants can provide the necessary foundation, the recording will be admissible.

Conversation #9 -- This conversation is substantially audible, but its relevance depends upon Defendants establishing that the conversation is arguably in violation of Department of Corrections' policy regarding commenting on internal investigations. Therefore, there is insufficient foundation for the recording to be admissible. If Defendants can provide the necessary foundation, the recording will be admissible.

Conversation #10 -- This conversation is substantially audible and is relevant to Defendants' argument that they had a legitimate basis to terminate Plaintiff because he made potentially offensive comments in violation of ...


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