In Burnley v. Valentin, No. 3:23-cv-00160 (RCY) (E.D. Va. Mar. 18, 2026), Virginia Magistrate Judge Mark R. Colombell, rejecting claims by Burnley that an audio file that sounded like him was “made by artificial intelligence to ‘clone’ his voice”, ruled: “Based on the evidence presented, which included two sworn declarations, the Court is satisfied that the audio recording is authentic and has not been materially altered.”

Case Discussion and Judge’s Ruling

In this case, Burnley had made harassment claims against his neighbors and the police, which were ultimately settled and memorialized via two settlement agreements. The case was dismissed, but a party seeking to enforce the agreement was first required to notify the opponent, “describing the alleged breach and supplying written, audio, video, photographic, or other tangible evidence of the alleged breach.”

Defendant Walburn filed an instant Motion to Enforce the Settlement Agreement, after a caller identifying himself as “Tyrone Jackson” contacted Walburn’s new employer (Livewire) by telephone, making derogatory statements about Walburn. Walburn’s Supporting Memorandum contended that the caller was Burnley using a pseudonym, as: (1) Walburn recognized the caller’s as Burnley’s voice; (2) Walburn is not acquainted with anyone named Tyrone Jackson; (3) Tyrone Jackson is the name of one of Burnley’s former neighbors; (4) the substance of the call matches prior remarks Burnley previously directed to Walburn’s previous employer, FedEx; and (5) the caller had “knowledge uniquely available to [Burnley], including information about Walburn’s past and present employment, Walburn’s home address, where Walburn parks his work truck, and Walburn’s whereabouts.”

Walburn filed a supplemental brief containing a sworn declaration from Dustin Roskam, a manager at Livewire who received the audio recording, certifying that “the recording in the Court’s possession and the written communication between [him] and Parasol’s service agent … are original or exact duplicates of the original evidence.” Walburn submitted his own declaration, stating he has been “acquainted with [Burnley] for approximately 5 years[,]”has “had the opportunity to engage in conversations with him and hear his voice on multiple occasions” and that it is his “sworn opinion and belief that the audio recording is both authentic and that ‘Tyrone Jackson’s’ identity is [Burnley].”

In Burnley’s response, he argued (among other things) that the Court cannot grant the Motion to Enforce because: 1) the declarations of Walburn and Roskam are defective because referenced exhibits were not attached, and 2) that the declarations themselves must be stricken as submitted in bad faith pursuant to Civil Procedure Rule 56(h). He also contended the audio recordings have not been “authenticated prior to admission” pursuant to Federal Rule of Evidence 901(a) and that the recordings are either someone else entirely or are a manipulated audio made by artificial intelligence to “clone” his voice.

Judge Colombell stated: “The Court finds that Walburn sufficiently established the authenticity of the audio recording through the sworn declarations of Walburn and Roskam. The declarations primarily established: (1) how the recording was made; (2) how the recording was received; and (3) that the recording in the Court’s possession is an original or exact duplicate. The Court finds that none of these foundational facts depend on the attachment of an exhibit, as Burnley contends. Indeed, the absence of an exhibit, however referenced in the declaration, does not render sworn, factual statements inadmissible, nor does it undermine authentication under Rule 901. At any rate, the Walburn cured this deficiency by filing their Reply to Burnley’s Response and attaching the exhibits referenced in the Walburn and Roskam declarations.”

Judge Colombell also found Burnley’s reliance on the “sham affidavit” doctrine and Federal Rule of Civil Procedure 56(h) to be “unavailing”, rejected Burnley’s chain of custody argument and also rejected the argument that it was “unfair and unjust” to permit authentication of a June 6, 2024, recording on February 17, 2026, stating: “Based on the evidence presented, which included two sworn declarations, the Court is satisfied that the audio recording is authentic and has not been materially altered.”

Judge Colombell convened an evidentiary hearing on March 4, 2026, where Walburn responded to Burnley’s cross-examination about how Walburn recognized the caller as Burnley, to which Walburn responded: “I have ears” and “I can hear.” He also stated: “Notably, Burnley declined to testify under oath that it was not his voice on the recording.”

So, Judge Colombell stated: “Based on the evidence presented, the Court credits the statements by ‘Tyrone Jackson’ on the audio recording as having been made by Burnley. First, despite being given the opportunity to testify in open court, under penalty of perjury, Burnley declined to state on the record that he did not call LiveWire on June 6, 2024 and that the statements captured on the audio recording were made by him. Second, Walburn sufficiently identified Burnley’s voice as the voice of ‘Tyrone Jackson’ based on hearing Burnley’s voice on prior occasions as his neighbor. Third, Walburn notes that Burnley previously swore, in an affidavit, that Burnley had contacted Walburn’s former employer, FedEx, in 2023 and alleged that Walburn used illegal drugs and tried to sell Burnley illegal drugs ‘on numerous occasions.’…The Court considers this previous behavior as relevant to proving Burnley’s identity as the caller who lodged nearly identical accusations against Walburn in the phone call to Walburn’s current employer, LiveWire… Here, the Court finds that Burnley’s use of a pseudonym demonstrates awareness of the contractual prohibition and an attempt to evade it. Such conduct indicates that Burnley not only circumvented the settlement agreement in bad faith, but willfully breached it.”

As a result, Judge Colombell found “that the parties’ fee-shifting provision of the agreement requires an award of costs and reasonable attorneys’ fees to Walburn, which will be subject to a reasonableness review.”

So, what do you think? Were the proceedings enough to determine the “audio recording is authentic”? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today. Hat tip to Michael Berman for his coverage of the case here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.