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Apodaca v. AAA Gas Co.3/11/2003
eventing adverse parties from securing the release or settlement of claims, was not an issue when the OSHA officer conducted the interviews.
Authentication
Plaintiffs next contend that the statements were never authenticated and the failure of Defendants to call the OSHA investigator to authenticate the statements deprived them of their right to cross examine the interviewer regarding their accuracy. Although Plaintiffs stipulated to the authenticity of the OSHA file that contained the statements as part of OSHA's investigative report, they raise several points of concern regarding the statements. First and foremost, there was confusion as to the investigator's identity. AAA Gas filed two affidavits from two different investigators, both swearing that they took the statement and attesting to Velasquez's competence; however, it appears that all parties agree that only one investigator interviewed Velasquez. Second, Velasquez and the investigator were the only persons present during the interview, which was not recorded. Velasquez did not write the statement and, by the time of trial, Velasquez's memory of the interviews was vague. As a result, Plaintiffs argue, there is no foundation for the statement unless the investigators testified about who actually took the statement and affirmed that it was an accurate representation of what was said. Defendants counter that the failure to object to the OSHA file resulted in a waiver of any objection to the authenticity of the statements contained in the file. State v. Gallegos, 92 N.M. 336, 337-38, 587 P.2d 1347, 1348-49 (Ct. App. 1978) (finding that absent timely objections or a motion to strike, objections to foundational requirements are not reviewed on appeal).
The record clearly shows Plaintiffs made several objections to the authenticity of the statements, as well as a motion to strike at the conclusion of trial. On appeal, Plaintiffs cite only the general proposition that the proponent of documents, including public records, has the burden to authenticate those records. State v. Ramirez, 89 N.M. 635, 645-46, 556 P.2d 43, 53-54 (Ct. App. 1976), overruled on other grounds by Sells v. State, 98 N.M. 786, 788, 653 P.2d 162, 164 (1982). This ignores the fact that Plaintiffs stipulated to the file's authenticity. They cite no authority to support their position that each document within a file must be separately authenticated. More important, Plaintiffs do not deny that the statements were taken by an OSHA investigator or that the statements were part of the OSHA file. Rule 11-901(A) NMRA 2003 merely requires "sufficient evidence to support a finding that the matter in question is what its proponent claims," which is a preliminary determination made by the trial judge. State v. Garcia, 110 N.M. 419, 425, 796 P.2d 1115, 1121 (Ct. App. 1990). In this case, Plaintiffs do not really contest the underlying facts for the trial court's preliminary determination, and we therefore affirm on the issue of authenticity under Rule 11-901. Along with their general arguments about authenticity, Plaintiffs specifically argue that the author of the report was not established. To the extent that this raises foundational arguments distinct from authenticity, Rule 11-104 NMRA 2003 may apply. However, Plaintiffs fail to establish that the relevancy of the report was conditioned on the identity of the author. Rule 11-104(B). Cf. Plummer v. Devore, 114 N.M. 243, 245-46, 836 P.2d 1264, 1266-67 (Ct. App. 1992) (holding that foundation was not established for admission of breathalyzer test where State failed to show that machine was capable of producing valid results). Accordingly, the trial court did not abuse its discretion, and Plaintiffs arguments fail.
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