In a case built around a verbal real estate partnership, a critical piece of evidence was a cell phone recording. On the recording, one brother tells the others in plain English: “we are partners.” The defense challenged the admission of that evidence at every stage.

The Jogani decision offers important lessons about the timing of evidentiary objections, the rules governing translated foreign-language statements, and the critical importance of preserving the metadata of recorded files.

THE BASIS FOR THE DISPUTE

As discussed in Part 1, the Jogani brothers built a real estate portfolio of more than 170 apartment buildings based on an oral agreement. When the brother who controlled the entities denied the partnership had ever existed, Plaintiffs faced the challenge of proving an arrangement that had never been put in writing.

One brother, Chetan, had anticipated this problem. Over the years, the brothers met several times a year to discuss business. Chetan recorded those meetings on his cell phone with his brothers’ agreement. He regularly downloaded the audio files to his computer. The brothers spoke primarily in Gujarati. He then provided them to a transcriber and translator. The English language transcripts were used at trial.

Among the most significant moments captured on the recordings was Haresh stating in English: “We are talking pure business. We are partners. We are not brothers.” It was a direct admission in his own words of the very partnership he later denied.

THE HEARSAY CHALLENGE AND WHY IT FAILED

Years before trial, Chetan produced the recordings and translated transcripts to Defendants. His attorney then sent a letter inviting Defendants to identify any errors in the translations. Defendants did not respond. That letter would prove important.
When Defendants later moved in limine to exclude the recordings before trial, they argued the recordings could not be authenticated. They did not object on the basis of hearsay. The trial court denied the motion.

Six weeks into trial, on the eve of Chetan’s testimony, Defendants filed a second motion seeking a hearing on the recordings’ authenticity. Again, no hearsay objection was made. The court declined to revisit its ruling. It noted that Defendants had been given the opportunity to raise these issues years earlier. They had not responded.

At trial, after the transcripts had already been admitted and Chetan had testified at length about their contents, defense counsel stated: “I may have forgotten to say ‘hearsay’ when I made my first objection to these transcripts. But for the record, I make that objection also.” The court overruled the objection.

On appeal, the Court ruled that Defendants had forfeited their hearsay challenge. Under Evidence Code section 353, a judgment may only be reversed based on erroneously admitted evidence if a timely and specific objection was made. A timely objection is one made when the evidence is first offered. An objection made after evidence has been admitted and discussed at length before the jury is too late. An objection on one ground does not serve as a placeholder for a later objection on a different ground. The belated hearsay objection was forfeited.

THE LANGUAGE CONDUIT THEORY

The Court went further and ruled that even if the objection had been timely, the admission of the translated transcripts was not error. The basis for this ruling was the language conduit theory. That theory was established by the California Supreme Court in Correa v. Superior Court (2002) 27 Cal.4th 444.

Under the language conduit theory, when a translator serves as a neutral conduit between the speaker and the listener, the translated statement is treated as the statement of the original speaker. The translation does not add a separate layer of hearsay. Courts evaluate whether the theory applies by considering the translator’s qualifications and impartiality, which party supplied the translator, whether the translator had any motive to mislead, and whether subsequent conduct was consistent with the translated statements.

Here, the translated transcripts were prepared by the Oriental Languages Bureau in Mumbai, India. The agency was certified by courts and governmental bodies in India. A notarized letter confirming this was submitted at trial. Defendants’ own forensic expert reviewed a sample of the recordings and translations. He found no significant translation errors. Defendants had possessed the recordings and transcripts for six years before trial. They had never sought discovery about the translator’s identity or qualifications. The trial court did not abuse its discretion in admitting the transcripts.

The Court found the recordings were highly probative of the existence of the partnerships. That was the central question before the jury. The admission of the recordings and translated transcripts was affirmed.

THE METADATA PROBLEM AND HOW IT WAS OVERCOME

Defendants retained a forensic investigator to challenge the authenticity of the recordings. He testified that the original metadata was missing from the audio files. Without the original files to compare against, he stated it was impossible to determine whether the files had been altered.

This was a significant vulnerability. Metadata is the electronic information embedded in a digital file. It records when a file was created, when it was last modified, and in many cases how it was handled. When metadata is missing or unavailable, it creates an opening for challenges to authenticity.

What saved Chetan was what his attorney had done six years earlier. In May 2017, Chetan’s counsel sent a letter to Defendants’ counsel identifying the recordings and transcripts. The letter invited Defendants to advise if there were any errors. Defendants never responded. At trial, the court pointed directly to that letter. The court observed that Haresh never denied it was his voice on the recordings. He never denied that the translations accurately reflected what he said. The court noted that Defendants had failed to respond to the 2017 letter and had failed to seek discovery about the recordings in the years that followed.

The forensic investigator was also impeached at trial. On cross-examination he claimed he had found evidence of alteration. He was then confronted with his own deposition testimony in which he stated he had not been able to observe any specific indications of manual alterations to the files. He ultimately confirmed he found no evidence the files had been spliced or that the audio had been modified. He could not reach a conclusion as to whether the files were authentic. Chetan separately offered evidence that the files’ available metadata showed creation dates as early as 2005 or 2006.

TAKEAWAY AND FINAL THOUGHTS

The recorded statements issue in Jogani carries several practical lessons.

First, evidentiary objections must be timely and specific. Failing to raise a hearsay objection when evidence is first offered forfeits the objection on appeal. Counsel cannot treat an objection on one ground as a placeholder for a later objection on a different ground.

Second, translated foreign-language recordings are not automatically hearsay. Where a neutral and qualified translator serves as a conduit for the speaker’s words without distortion or bias, California courts will treat the translation as the statement of the original speaker. Recordings of business discussions conducted in a foreign language can be admitted at trial when the translation is reliable.

Third, metadata should be preserved from the moment recordings are made. The absence of original metadata creates an opening for authenticity challenges that can put otherwise powerful evidence at risk. Where possible, recordings should be maintained in their original form on the original device. Copies should be clearly documented. The chain of custody should be preserved and recorded.

Fortunately for the partnership parties, six years before trial, counsel wrote to the opposing side identifying the recordings and translations and inviting any objection to their accuracy. Defendants never responded. That silence became part of the foundation for the court’s ruling. It demonstrated that Defendants had every opportunity to challenge the recordings and translations and chose not to. In cases involving recorded evidence, early written notice to the opposing party about the existence and content of recordings can assist admissibility.

Randy Sullivan has taken several partnership, corporate, LLC, and accounting-related cases to trial and is well versed in these strategies.