In Johnson v. Capital One Servs., LLC, No. 18-cv-62058-BLOOM/Valle, 2019 U.S. Dist. LEXIS 178160, at *3-4 (S.D. Fla. Oct. 15, 2019), Judge Bloom found a TCPA Plaintiff’s handwritten call-logs to be admissible as a party-opponent admission.  (For you trial lawyers out there, they probably could at least have been referred to under FRE 612 to refresh the witness’ recollection, anyway).

In the Motion, Capital One argues that Johnson should be precluded from presenting her personal call log. It argues that “Plaintiff will attempt to introduce her personal notes – what she claims is her personal log of calls Capital One made to the 2114 Number – that purports to “indicat[e] dates, times and length of phone calls received from Capital One and a description of the substance of the phone call when it was answered [interrogatories]. In various entries in this log, the author (presumably Plaintiff) wrote the word “dialer” and tries to tie that word to a call from Capital One.” Mot. at 9. Defendant argues that Johnson’s call log and notes from purported conversations are inadmissible hearsay. Plaintiff responds that her personal notes regarding the telephone calls she had with Capital One representatives fit squarely within the definition of nonhearsay under Federal Rule of Evidence 801(d)(2)(A) or 801(d)(2)(D). The statements constitute Plaintiff’s personal knowledge of the phone calls she received and reflect statements made by Capital One representatives.  Under the Federal Rules of Evidence, “‘[h]earsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed .R. Evid. 801(c). In general, “[h]earsay is not admissible except as provided by [the federal] rules . . . .” Fed. R. Evid. 802. A “statement by [a] party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship,” however, is deemed an admission by a party opponent and is excluded from the definition of hearsay. Fed. R. Evid. 801(d)(2)(D); see Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1456 (11th Cir.1997). Here, statements allegedly made by Capital One’s representative and Johnson’s personal observations made at the time she heard the statements are properly admissible. The Motion as to this issue is denied.

Judge Bloom also found that the Plaintiff could testify that she heard ‘clicks-and-pauses’ (which would be used to establish that an ATDS was used), although she was not competent to testify on that ultimate fact.

Capital One argues that Johnson should be precluded from presenting testimony of click and pauses that Plaintiff claims to be indicia of an ATDS.  Johnson also argues in her Response that her testimony is relevant as to whether an automated dialing system was used. The Court agrees with Johnson.  While Johnson is not competent to testify that the system used was an ATDS, she is permitted to testify as to what she heard that may lead the trier of fact to conclude that the system used was an automatic telephone dialing system. Moreover, the three cases cited by Defendant either did not arise in the context of the TCPA, or do not support the proposition that the use of an ATDS may only be proven through testimony of an expert. See Williams v. Bluestem Brands, Inc., 2019 U.S. Dist. LEXIS 56655, at *3-4 (M.D. Fla. Apr. 2, 2019) (noting that the defense that the platform used to make calls was not an ATDS was supported by expert, in order preliminarily approving class action settlement); O’Bryan v. Ford Motor Co., 18 F. Supp. 3d 1361, 1367 (S.D. Fla. 2014) (discussing the importance of proving element of defective product in negligence case);  Strauss v. CBE Grp., Inc., 2016 U.S. Dist. LEXIS 65587, 2016 WL 2641965, at *2 (S.D. Fla. Mar. 23, 2016) (noting that an expert witness may not offer legal conclusions, such as whether a dialer system constitutes an ATDS). As such, the Motion as to this issue is denied.

Finally, Judge Bloom addressed admissibility of other TCPA claims against the defendant as evidence of willfulness.

Capital One seeks to preclude Plaintiff from presenting evidence of other litigation or settlements involving Capital One. The Court agrees that any information or evidence pertaining to other litigation and settlements is irrelevant, and the lack of probative value of any such evidence is substantially outweighed by the danger of unfair prejudice. The Motion as to this issue is granted.