[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Burnley v. Valentin, 2026 WL 767145 (E.D. Va. Mar. 18, 2026), the proponent of an audio recording survived a challenge that it was a deepfake.

Burnley involved two motions to enforce settlement agreements.

Mr. Burnley had made harassment claims against his neighbors and the police. The settlement agreements were memorialized in two separate writings, and the case was dismissed, with the court retaining jurisdiction to enforce the agreement. 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.”

Later: “Walburn provided Burnley with a written notice of breach…. Specifically, counsel for Walburn sent, by USPS Priority Mail, a letter to Burnley identifying the provision of the Settlement Agreement he allegedly breached, providing a copy of the Settlement Agreement, and enclosing the audio recording of Burnley allegedly calling Walburn’s employer.” [emphasis added].

Both settling parties moved to enforce the settlements. Mr. Burnley filed responses. After holding that the agreements were valid, the court wrote:

The question remains as to whether Burnley breached these settlement agreements. For the reasons stated below, the Court finds that Burnley violated the Walburn-Burnley Settlement Agreement by contacting Walburn’s employer about Walburn.

It then turned to the facts. A caller, identifying himself as “Tyrone Jackson,” began making calls to Mr. Walburn’s employer. Suffice it to say that the calls breached the agreement if they were from Mr. Burnley. Mr. Walburn contended that they were and that “Tyrone Jackson” was a pseudonym. He pointed to a number of facts, such as the fact that “Tyrone Jackson” was a former neighbor of Mr. Burnley. Mr. Burnley denied making the calls and challenged voice comparison. The court wrote:

He argues that the Court cannot grant the Motion to Enforce because the audio recordings have not been “authenticated prior to admission” pursuant to Federal Rule of Evidence 901(a)…. Instead, he argues, the recordings are either someone else entirely or are a manipulated audio made by artificial intelligence to “clone” his voice…. Given Burnley’s dispute over the authenticity of the audio recording, the Court ordered supplemental briefing and conducted an evidentiary hearing on the issue. [emphasis added]

Mr. Walburn submitted a Declaration from Mr. Roskam affirming that the copy of the audio recording was an exact duplicate of the original. Mr. Walburn also submitted a Declaration:

In it, Walburn declared that he has been “acquainted with [Burnley] for approximately 5 years[,]” and has “had the opportunity to engage in conversations with him and hear his voice on multiple occasions.” … He declared that he received a copy of the audio recording from Raskom on June 10, 2024, and that it is his “sworn opinion and belief that the audio recording is both authentic and that ‘Tyrone Jackson’s’ identity is [Burnley].” … He based his sworn opinion and belief on recognizing Burnley’s voice “from numerous prior verbal interactions with him.” … Finally, Walburn certified that “the recording in the Court’s possession is original or an exact duplicate of the original recorded evidence.”

Mr. Burnley responded:

In his response, Burnley maintains that: (1) the declarations of Walburn and Roskam are defective because referenced exhibits were not attached…; (2) that the declarations themselves must be stricken as submitted in bad faith pursuant to Civil Procedure Rule 56(h)…; (3) there are deficiencies in the chain of custody that require a certificate of authentication…; and (4) it would “be an abuse of judicial process to attempt to authenticate [the audio recording] on February 17, 2026 when the telephonic recording occurred on June 6, 2024…. Further, Burnley denies having any conversations with Walburn which would substantiate Walburn’s claim that he can recognize Burnley’s voice.

The court discussed the low burden of the authentication rule, Fed.R.Evid. 901(a) and applied that rule, writing:

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. [emphasis added].

It also rejected Mr. Burnley’s “sham affidavit” argument. The affidavit did not conflict with any prior sworn testimony.

It then turned to Mr. Burnley’s chain of custody argument. He asserted “that federal law requires complete documentation of every individual who accessed the recording, including dates, times, and storage locations, and that failure to do so violates due process.” Citing Fourth Circuit precedent, the court disagreed. Chain of custody is not an “iron-clad requirement” and “the fact of a missing link” does not defeat authentication if there is “sufficient proof that the evidence is what it purports to be and has not been altered in any material respect.” Mr. Roskam’s uncontroverted Declaration met that standard. It explained that the call was recorded in the ordinary course of business, transmitted internally, and provided to Mr. Walburn. Both of the declarants testified that it was an exact duplicate.

In the court’s words, “[n]onetheless,” Mr. Burnley asserted that Mr. Roskam failed to explain “where the voice recording of June 6, 2024 was stored and the names of the LiveWire employees that had access to the recording” as well as file a “certificate of authentication.” The court held that Fed.R.Evid. 901 does not require certificate or formal attestations.

Burnley’s insistence on additional formalities finds no support in the Federal Rules or Fourth Circuit law. On the other hand, Rule 901(b) non-exhaustive list of evidence that satisfies Rule 901(a)’s authenticity requirement expressly states that “[t]estimony of a witness with knowledge” that “an item is what it is claimed to be” is sufficient. Fed. R. Evid. 901(b)(1). Here, the Court has been presented with two declarations, sworn under penalty of perjury, testifying that the audio recording is what it purports to be, which plainly satisfies Rule 901.

Holding that the “ultimate question is whether the authentication testimony was sufficiently complete so as to convince the court that it is improbable that the original item had been exchanged with another or otherwise tampered with,” the court found that the two sworn statements provided that foundation.

It also rejected the argument that it was “unfair and unjust” to permit authentication of a June 6, 2024, recording on February 17, 2026. “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.”

Finally, the court addressed the voice identification issue. Mr. Walburn attested that he has known Mr. Burnley for five years, heard his voice many times, and recognized it on the recording. Mr. Burnley denied making the call, was skeptical of the voice recognition, and said that “under no circumstances [had he] had numerous conversations with [Walburn]…” However, he admitted that Mr. Walburn spoke to him in the past. The court wrote:

Given the issues raised by Burnley as to the authenticity and identity of the caller on the audio recording, the Court convened an evidentiary hearing on March 4, 2026. During the hearing, the Court heard the audio recording live…. Walburn testified that the recording was an accurate, unaltered copy of the recording he heard when his supervisor, Mr. Roskam, shared it with him…. Walburn clarified that he had previously worked for FedEx, was not fired for selling illegal narcotics, and does not know of anyone, including those who live on his street, named Tyrone Jackson…. He testified that he recognized the voice on the audio recording as Burnley’s voice because “it sounds exactly like him,” and that “[g]iven the previous lawsuits, his previous interactions calling FedEx, and all of the novel information in there, [there] is only one person, which is him.” … Walburn noted that he could recognize Burnley’s voice because Walburn had “two or three conversations with him” about “four or five years ago” and has heard him “sometimes outside or so.” …

 On cross-examination, Burnley questioned Walburn about how Walburn recognized the caller as Burnley, to which Walburn responded: “I have ears” and “I can hear.” … The Court provided Burnley the opportunity to testify, under oath, that the voice on the recording was not his.… Notably, Burnley declined to testify under oath that it was not his voice on the recording…. 

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. See Fed. R. Evid. 404(b)(2) (permitting the use of prior acts for the admissible purpose of proving identity and not for proving propensity in conformance with the prior acts). [emphasis added].

Turning to the merits:

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. His unwillingness to testify under oath to the contrary further shows that Burnley is aware of the consequences of his actions but nonetheless refuses to take accountability for them. Given the seriousness of Burnley’s behavior in flagrantly violating the settlement agreement, the Court finds that enforcement is necessary.

The court addressed a number of other issues.

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.