2005 UT 68
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Jau-Fei Chen, individually and as
No. 20020777
the natural guardian of Chi Wei
Zhang, E. Lei Zhang, and E. E.
Zhang, her minor children,
Plaintiff and Appellee,
v.
Jau-Hwa Stewart, E. Excel
International, Inc., a Utah
corporation, and Does I
F I L E D
through X,
Defendants and Appellant.
October 21, 2005
___________________________________
E. Excel International, Inc., a
Utah corporation,
Third-Party Plaintiff,
v.
Taig Stewart; Hwan Lan Chen;
Beverly Warner; Angela Barclay;
Dale Stewart; Sam Tzu; Richard Hu;
Apogee, Inc., a Utah corporation;
Apogee Essence International
Philippines, Inc., a Philippines
corporation; Excellent Essentials
International Corp., a Philippines
corporation; USA Apogee, Ltd., a
Hong Kong corporation; Shannon
River, Inc., a Utah corporation;
Shannon Heaton; Sheue Wen Smith;
Bryan Hyman; Paul Cooper; Kim
O'Neill; Byron Murray; and
Does I through X,
Third-Party Defendants and
Cross-Appellants.
---

---

Fourth District, Provo Dep't
The Honorable Fred D. Howard
No. 010400098
Attorneys: Michael R. Carlston, Richard A. Van Wagoner,
David L. Pinkston, R. Matthew Cox, Salt Lake City,
for Jau-Fei Chen
Mark A. Larsen, Jon K. Stewart, David S. Hill,
Stacy J. McNeill, Salt Lake City, for Jau-Hwa
and Taig Stewart
Daniel L. Berman, Samuel O. Gaufin, Stephen R.
Waldron, Eric K. Schnibbe, Salt Lake City, and
H. Thomas Stevenson, Ogden, for Hwan Lan Chen
---
PARRISH, Justice:
INTRODUCTION
¶1
This case arises from a dispute among members of a
traditional Chinese family. The dispute eventually led to
sabotage of the family business, protracted litigation, and
allegations of conspiracy to commit perjury and obstruction of
justice. Following extensive hearings, the district court held
defendant Jau-Hwa Stewart ("Ms. Stewart") in criminal and civil
contempt for violation of its orders, perjury, subornation of
perjury, and obstruction of justice. It is the validity of this
contempt order that is at issue in this appeal. For the reasons
detailed below, we affirm in part, reverse in part, and remand.
FACTUAL BACKGROUND1
¶2
In 1987, Dr. Jau-Fei Chen ("Dr. Chen"), her husband Rui
Kang Zhang, and her parents Hwan Lan Chen ("Madame Chen") and
Yung-Yeuan Chen incorporated E. Excel USA ("Excel"), a multilevel
marketing company that produced nutritional supplements and other

1 On appeal from a contempt order following an evidentiary
hearing, we recite the evidence in a light consistent with the
trial court's factual findings unless the findings are clearly
erroneous. See Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah
1988) ("On review of both criminal and civil proceedings, we
accept the trial court's findings of fact unless they are clearly
erroneous."). Our recitation of the facts is limited to those
directly relevant to the issues presented in this particular
appeal. For a more thorough recitation of the facts of this
case, see Chen v. Stewart, 2004 UT 82, ¶¶ 2-17, 100 P.3d 1177.
No. 20020777
2

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health related products. Dr. Chen became Excel's president and
sole shareholder, receiving six thousand shares of Excel stock at
the time of its incorporation.
¶3
In the early 1990s, Ms. Stewart, Dr. Chen's elder
sister, was invited to join the company as its vice president, in
part to capitalize on the knowledge Ms. Stewart had gained while
working for another multilevel marketing company. Ms. Stewart
accepted the invitation, was appointed to Excel's board of
directors, and thereafter began overseeing Excel's day-to-day
operations. In 1995, Dr. Chen transferred 1500 shares of stock
to Ms. Stewart in order to ensure that she would be "devoted to
the company." At the same time, Dr. Chen transferred her
remaining 4500 shares of stock to her three minor children,
giving each 1500 shares. As a result of these transfers, the
Chen children owned, collectively, a 75% interest in Excel, and
Ms. Stewart owned a 25% interest.
¶4
As a multilevel marketer, Excel entered into exclusive
distributorship contracts with territorial owners in its Asian
markets, who would, in turn, distribute Excel products through
use of a multilevel marketing network by enlisting "registered
distributors" to sell its products to consumers. Through the
years, Excel entered into exclusive distributorship contracts
with territorial owners located throughout several Asian and
Southeast Asian countries, including Malaysia, Taiwan, Hong Kong,
and the Philippines.
¶5
Working together, Dr. Chen and Ms. Stewart created a
successful company with markets throughout the world. But their
business and personal relationships deteriorated dramatically
during the spring of 2000, when Ms. Stewart and her mother,
Madame Chen, learned that Dr. Chen's husband was having an affair
and had been diverting company funds to support his mistress.
Upon learning this information, Madame Chen and Ms. Stewart
confronted Dr. Chen, demanding that she divorce her husband and
sever all ties with him. When Dr. Chen refused, Madame Chen and
Ms. Stewart designed a Machiavellian scheme to divest Dr. Chen of
control of Excel.
¶6
On September 1, 2000, while Dr. Chen was out of the
country, Ms. Stewart set in place her plan to usurp control of
Excel. Her first step was to gain control over the voting shares
of stock. She did this by purportedly acting on behalf of
Dr. Chen's three minor children, thus giving her a combined 100%
ownership of the voting shares of stock. Exercising the voting
rights of this stock, Ms. Stewart removed Dr. Chen and Mr. Zhang
as directors of Excel, appointing in their stead Ms. Stewart's
3
No. 20020777

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husband and Madame Chen. With the new board in place, the
directors voted to remove both Dr. Chen and her husband from
their respective positions at Excel. Finally, the board named
Ms. Stewart as Excel's new president and Ms. Stewart's husband as
secretary.
¶7
During her tenure as president of Excel, Ms. Stewart
undertook a series of maneuvers designed to eliminate the
influence of, and any loyalty to, Dr. Chen. For instance, during
a meeting with the territorial owners of Malaysia and Taiwan,
Mr. Tjandra and Mr. Le, respectively, Ms. Stewart falsely
reported that Dr. Chen had left Excel in pursuit of other
matters. When Mr. Tjandra and Mr. Le refused to believe that
Dr. Chen would voluntarily leave the company and asked to speak
with Dr. Chen directly, Ms. Stewart responded by attempting to
convince the territorial owners that Dr. Chen's presence in the
company was not essential to its success. Despite her attempts
to persuade the territorial owners, it became evident to
Ms. Stewart that Mr. Tjandra and Mr. Le would continue to remain
loyal to Dr. Chen. Accordingly, Ms. Stewart terminated Excel's
exclusive distributorships with these territorial owners and
began new distributorships in the Philippines and Hong Kong with
Mr. Hu and Mr. Tzu, individuals loyal to her.
¶8
To ensure that these new "rogue" distributorships would
prosper, Ms. Stewart arranged to have substantial sums of money
sent to Mr. Hu and Mr. Tzu. She also forbade Excel employees to
ship Excel products to either Mr. Tjandra or Mr. Le, the
consequence of which "was that down-line distributors in the
multi-level marketing chain, in order to survive financially,
would of necessity defect to the new distribution companies."
Furthermore, Ms. Stewart shipped the new distributors Excel
products at no charge.
¶9
In early January 2001, Dr. Chen filed suit against
Ms. Stewart and Excel, alleging, among other things, corporate
waste, breach of fiduciary duty, and invalid removal of a
corporate director. Additionally, Dr. Chen moved for a temporary
restraining order and an order to show cause why the temporary
restraining order should not remain in effect as a preliminary
injunction during the pendency of the case. The district court
granted the temporary restraining order on January 10, 2001. As
modified by the district court, the temporary restraining order
provided as follows:
The Defendant Stewart, her agents, servants,
representatives, and any persons in active
concert or participation with her are
No. 20020777
4

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enjoined and restrained: (1) from acting as
a trustee of the [trusts benefitting
Dr. Chen's children]; [and] (2) from directly
or indirectly causing the Company to violate
any of its exclusive contracts with
territorial owners or to compete with
territorial owners in violation of such
contracts. The Court also enjoins and
directs [Ms.] Stewart immediately to fill,
complete and ship all pending orders for
products received from Territorial Owners
where such Territorial Owners have complied
with the terms of the exclusive contracts.
Ms. Stewart was properly served with the temporary restraining
order on January 11, 2001, and on January 24, 2001, the district
court extended the temporary restraining order without objection.
¶10
In direct violation of the temporary restraining order,
Ms. Stewart refused to fill the many orders received from
Mr. Tjandra and Mr. Le. Indeed, after the district court granted
the temporary restraining order, Ms. Stewart neither informed the
employees at Excel of the terms of the temporary restraining
order nor rescinded her order forbidding shipment of Excel
products to Mr. Tjandra and Mr. Le. At the same time,
Ms. Stewart oversaw shipments of Excel products to the rogue
distributors. At a time when Ms. Stewart, as president of Excel,
had the authority to recall any shipments in transit, she allowed
at least two shipments to be sent to Mr. Tzu and Mr. Hu in direct
violation of the restraining order.
¶11
From January 19, 2001, to February 21, 2001, the
district court held evidentiary hearings regarding Dr. Chen's
order to show cause why the temporary restraining order should
not remain in effect as a preliminary injunction during the
pendency of the case. During these proceedings, it became
apparent to Ms. Stewart that she would not be allowed to remain
as Excel's president. Consequently, she modified her plan to
force Dr. Chen out of Excel, opting instead to destroy the entire
company by creating a competitor that would force Excel out of
its Asian markets.
¶12
To this end, Ms. Stewart, with the aid of several
accomplices, undertook a number of acts designed to "[d]estroy
Excel." These acts included (1) "the removal of Excel . . .
property," such as computer equipment, office furniture, file
cabinets, desks, and chairs; (2) the deletion of e-mails and the
removal of other company documents, including laboratory and
5
No. 20020777

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toxicology reports; (3) the formation of a competing enterprise,
Apogee, Inc.; (4) the removal of Excel products and raw
materials; and (5) the sabotage of Excel products. Additionally,
Ms. Stewart, through her agents, continued to ship Excel products
to Mr. Hu and Mr. Tzu for the dual purposes of (1) providing them
with sufficient product to sustain their rogue distributorships
until Apogee was able to market its own product, and
(2) impairing Excel's ability to sell its product through its
normal distribution channels by "dumping the product and
undercutting the Territorial Owners' sales."
¶13
At the conclusion of the preliminary injunction
hearings, the parties stipulated to an interim order, which
provided in part:
12.
[Ms.] Stewart shall not tortiously
interfere directly or indirectly with
any contract determined by the Court at
any time to exist between the Company
and any distributor or any third party.
13.
[Ms.] Stewart will immediately return to
the Company's headquarters any corporate
assets in her custody or control
including but not limited to all
corporate records. A receipt shall be
provided by the Company to [Ms.] Stewart
for any item so returned.
¶14
The interim order also provided for the appointment of
a special master to serve as Excel's CEO during the pendency of
the litigation. Because the parties could not agree as to who
should serve as special master, the district court appointed
Larry Holman, "empowering him as interim CEO/special master with
full executive authority to act on behalf of the company, and
conduct its business, subject to the continuing oversight of the
board of directors and the Court." Chen v. Stewart, 2004 UT 82,
¶ 9, 100 P.3d 1177 (internal quotations omitted).
¶15
Just as she had violated the temporary restraining
order, Ms. Stewart violated the terms of the interim order by
continuing her efforts to create a successful competitor. For
example, in the spring of 2001, Ms. Stewart and others consulted
with and hired a general contractor for the express purpose of
constructing a facility that would house the new company's
operations. On April 17, 2001, Ms. Stewart, through the use of
an agent, filed with the State a request to register the business
name "Apogee, Inc." Thereafter, Apogee entered into a contract
No. 20020777
6

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with Mr. Hu, a rogue distributor, granting him the exclusive
right to distribute Apogee products in the Philippines.
Additionally, in the fall of 2001, Apogee began advertising its
competing products in Excel's established markets.
¶16
Because of what she considered to be Ms. Stewart's
contemptuous conduct, including the continued violation of the
temporary restraining and interim orders, Dr. Chen filed two
motions for contempt against Ms. Stewart.2 The first, filed on
June 22, 2001, sought to hold Ms. Stewart in civil and criminal
contempt for violation of the district court's orders. The
second, filed August 2, 2001, requested that the district court
summarily hold Ms. Stewart in criminal contempt for obstruction
of justice on the basis of a tape recording introduced into
evidence during the preliminary injunction hearings. The
recording allegedly captured a conversation evidencing a
conspiracy among Ms. Stewart, Mr. Hu, and Mr. Tzu to commit
perjury and obstruct justice.
¶17
On October 29, 2001, Excel, under the direction of the
court-appointed interim CEO/special master, filed an amended
answer, cross-claim, and third-party complaint against
Ms. Stewart, Madame Chen, and others, seeking a preliminary and
permanent injunction to enjoin them from engaging in any further
competition with Excel. On October 31, 2001, the district court
granted Excel's request for a temporary restraining order,
enjoining Ms. Stewart and other third-party defendants acting in
concert with Ms. Stewart from "competing or preparing to compete
against Excel." On November 8, 2001, the district court extended
indefinitely the temporary restraining order pursuant to a
stipulated order. Madame Chen accepted service of Excel's
amended answer, cross-claim, and third-party complaint on
January 15, 2002.
¶18
The district court began hearings on the contempt
motions on October 25, 2001. On November 27, 2001, the court
combined the contempt hearings with the hearings on Excel's
motion for a preliminary injunction. These combined hearings
concluded in the summer of 2002. On August 20, 2002, the
district court entered extensive findings of fact and conclusions
of law on Dr. Chen's motions to hold Ms. Stewart in contempt and
on Excel's motion for a preliminary injunction.

2 In Chen, 2004 UT 82, ¶ 70, we incorrectly stated that the
contempt motions were filed against both Ms. Stewart and Madame
Chen. In fact, the contempt motions filed by Dr. Chen sought to
hold only Ms. Stewart in contempt.
7
No. 20020777

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¶19
As to Dr. Chen's first contempt motion, the district
court held that Ms. Stewart violated the court's temporary
restraining and interim orders when she (1) "failed to fill
confirmed orders of Territorial Owners despite knowing what was
required, and having the ability to fulfill such orders";
(2) "intentionally caused and allowed shipments of product within
her control to be shipped to Messrs. Hu and Tzu . . . despite
knowing what was required and having the ability not to ship such
product"; (3) "knowingly and intentionally retained [corporate
assets that were the property exclusively of Excel] despite
knowing what was required and having the ability to immediately
return said property to Excel"; and (4) "undertook to prepare for
and cause competition with Excel . . . despite knowing what was
required and having the ability not to prepare for and cause
competition with Excel."
¶20
As to Dr. Chen's second contempt motion, the district
court found that Ms. Stewart committed perjury, suborned perjury,
and obstructed justice. This conclusion was based in part on the
substance of the tape recording that was admitted into evidence
during the preliminary injunction hearings. According to
Dr. Chen, the tape recording was anonymously sent to her
husband's home in Singapore in early February 2001. After
receiving the recording, Dr. Chen's husband made one copy and
then forwarded the original to Dr. Chen's counsel, who received
it on February 13, 2001, the same day Mr. Hu was scheduled to
testify in the preliminary injunction hearing. On the tape,
three individuals, presumed to be Ms. Stewart, Mr. Hu, and
Mr. Tzu, are heard discussing the substance of their testimonies,
agreeing that each would, among other things, (1) falsely accuse
Dr. Chen of forging documents; (2) deny involvement in setting up
the new distributorships; (3) deny that Ms. Stewart had loaned
money to Mr. Hu in order to set up a new distributorship,
although the parties acknowledged that Ms. Stewart had indeed
loaned Mr. Hu substantial funds for that purpose; and (4) answer
all questions that may be detrimental to Ms. Stewart's interest
with the phrase "I cannot remember."
¶21
Although none of the parties claimed to know the source
of the recording, the device that was used to record the
conversation, or the location of the interception, the district
court allowed Dr. Chen's counsel to present Mr. Hu with a
transcript of the recording. After looking over the transcript,
Mr. Hu admitted to having a conversation with Ms. Stewart but
stated that he did not remember whether Mr. Tzu was a party to
that conversation. To refresh Mr. Hu's recollection, counsel for
Dr. Chen then played a portion of the recording for Mr. Hu, who
subsequently identified the voices on the tape as his,
No. 20020777
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Ms. Stewart's, and Mr. Tzu's. When asked whether the tape
recording accurately reflected the conversation, Mr. Hu refused
to answer on Fifth Amendment grounds. Under questioning by
Ms. Stewart's counsel, Mr. Hu admitted that he had been in Taiwan
when the conversation took place, but he denied having ever given
consent to have the conversation recorded.
¶22
Ms. Stewart argued that the recording should not be
admitted into evidence because Dr. Chen failed to establish its
authenticity and the recording was subject to exclusion because
it was made in violation of both Utah and federal wiretap
statutes. The district court rejected these arguments,
concluding that Mr. Hu's identification of the voices, his
testimony that he had a conversation with Ms. Stewart and
Mr. Tzu, and the adverse inference drawn from Mr. Hu's assertion
of his Fifth Amendment rights provided sufficient foundation for
admission of the recording. The district court further ruled
that the recording was admissible for impeachment purposes
despite the fact that the interception may have violated either
Utah or federal wiretap exclusionary rules.
¶23
Although the district court initially admitted the
recording for impeachment purposes only, it later considered the
recording as substantive evidence. Indeed, the district court
relied on the recorded conversation, as well as on a document
submitted to a court in Hong Kong3 and Ms. Stewart's subsequent
testimony, in concluding that Ms. Stewart had committed perjury
and obstructed justice. The district court then granted
Dr. Chen's contempt motion and entered an order striking
Ms. Stewart's pleadings as a sanction for her contemptuous
conduct ("Stewart Contempt Order").
¶24
On the same day that the district court entered its
findings of fact on the Stewart Contempt Order, it also entered
nearly eighty-nine pages of findings on Excel's motion for a
preliminary injunction and, in addition, stated that "[a]ll
findings of fact made by this Court in respect to [Dr.] Chen's
Motion for Order to Show Cause and Motion for Summary Criminal
Contempt are . . . hereby incorporated as findings for purposes
of [] Excel's Motion for Preliminarily Injunction as well."

3 In her third signed affirmation to a Hong Kong court,
Ms. Stewart stated, "I wish to deal briefly with the tape
recording of my conversation with Mr. Hu and Mr. Tzu, leaving
aside the question of how such a recording was obtained by the
Defendants. First of all, I regret very much if I did anything
which may have misled the Utah court. At the time, we were all
so angry with the 5th Defendant."
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No. 20020777

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¶25
After the district court entered the Stewart Contempt
Order and granted Excel's motion for a preliminary injunction,
Madame Chen filed a motion to vacate and set aside the district
court's orders relating to the appointment of the interim CEO, a
motion in which Ms. Stewart joined. The district court denied
the motion, and defendants sought permission to appeal the
interlocutory order. We granted permission to hear the
interlocutory appeal and held that defendants "waived their right
to object to the appointment of the interim CEO." Chen v.
Stewart, 2004 UT 82, ¶ 84. In so holding, we recognized that, in
appointing the special master, "the parties understood that the
interim CEO was not appointed as a neutral judicial magistrate."
Id. ¶ 58. We further held that the district court had not abused
its discretion in granting the preliminary injunction. Id. ¶ 84.
¶26
In this appeal, Ms. Stewart challenges the order
finding her in criminal and civil contempt. She asserts that the
district court erred by considering and relying on a tape
recording that was admitted without adequate foundation.
Additionally, Ms. Stewart challenges the district court's
inherent authority to strike her pleadings as a sanction for
contempt. In the alternative, she asserts that even if the court
had such authority, it nevertheless abused its discretion by
striking her pleadings when the results of her contemptuous
conduct could have been otherwise remedied. Finally, both
Ms. Stewart and Madame Chen argue that, during the contempt
proceedings, the district court violated their due process rights
by denying them the right to a fair hearing before an impartial
magistrate. We address each issue in turn.
ANALYSIS
I. DID THE DISTRICT COURT ERR IN ADMITTING THE TAPE RECORDING?
¶27
Ms. Stewart argues that the district court erred in
admitting the tape recording into evidence because Dr. Chen
failed to establish the requisite foundation. "A [district]
court has broad discretion to admit or exclude evidence and its
determination typically will only be disturbed if it constitutes
an abuse of discretion." State v. Whittle, 1999 UT 96, ¶ 20, 989
P.2d 52; see also State v. Cruz-Meza, 2003 UT 32, ¶ 8, 76 P.3d
1165 ("Although the admission or exclusion of evidence is a
question of law, we review a [district] court's decision to admit
or exclude specific evidence for an abuse of discretion.").
¶28
Rule 901 of the Utah Rules of Evidence provides that a
proponent of evidence must, as a "condition precedent to
admissibility," demonstrate "by evidence sufficient to support a
No. 20020777
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finding that the matter in question is what its proponent
claims." Utah R. Evid. 901(a). Although this court has yet to
articulate any specific test with regard to establishing the
authenticity of a tape recording, other jurisdictions have done
so. For example, in State v. Smith, 540 P.2d 424 (Wash. 1975),
the Washington Supreme Court held that a party must satisfy seven
factors in order to establish authenticity of an audiotape:
(1) It must be shown that the mechanical
transcription device was capable of taking
testimony. (2) It must be shown that the
operator of the device was competent to
operate it. (3) The authenticity and
correctness of the recording must be
established. (4) It must be shown that
changes, additions, or deletions have not
been made. (5) The manner of preservation of
the record must be shown. (6) Speakers must
be identified. (7) It must be shown that the
testimony elicited was freely and voluntarily
made, without any kind of duress.
Id. at 428 (internal quotations omitted).
¶29
Other jurisdictions have refused to adopt such a rigid
rule, declaring that "`the varying circumstances of particular
cases . . . militate against [the] adoption of inflexible
criteria applicable to all cases.'" United States v. Smith, 692
F.2d 693, 698 (10th Cir. 1982) (quoting United States v. Fuentes,
563 F.2d 527, 532 (2d Cir. 1977)). In United States v. King, 587
F.2d 956 (9th Cir. 1978), the Ninth Circuit stated as follows:
[W]e think that the [seven] elements, . . .
are useful, but not dispositive, guidelines
for determining when a proper foundation for
the introduction of sound recordings has been
made. Ultimately, the trial court, in the
exercise of its judicial discretion, must be
satisfied that the recording is accurate,
authentic, and generally trustworthy.
Id. at 961.
¶30
Recognizing the hazards that accompany the adoption of
an inflexible rule, we embrace the Ninth Circuit's approach in
King. Accordingly, to establish the requisite foundation for
admissibility of a tape recording, we hold that the proponent of
the recording must produce evidence sufficient to persuade the
district court "that the recording is accurate, authentic, and
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No. 20020777

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generally trustworthy." Id. While a proponent may find it
beneficial to demonstrate most, if not all, of the factors
discussed in State v. Smith, 540 P.2d 424, at 428 (Wash. 1975),
he is not required to do so as long as the evidence is otherwise
sufficient.
¶31
In this case, the district court found, due in part to
the adverse inference it drew from Mr. Hu's assertion of his
Fifth Amendment right,4 that Dr. Chen had satisfied her burden of
establishing the tape's authenticity and that the tape was
therefore admissible for impeachment purposes. The district
court did so, however, without any evidence as to who recorded
the tape, where it was recorded, the method of recording, its
chain of custody, or whether it had been altered in any fashion.
Accordingly, the district court was unable to determine whether
the tape was subject to exclusion under either Utah or federal
wiretap statutes.5

4 This court has recognized that a district court may draw
an adverse inference from a party's assertion of his Fifth
Amendment right in a civil case. See Gerard v. Young, 432 P.2d
343, 343, 346-47 (Utah 1967). This principle has been extended
in certain instances to apply to nonparty witnesses as well.
See, e.g., Pyles v. Johnson, 136 F.3d 986, 997 (5th Cir. 1998)
("We have held that the Fifth Amendment does not forbid adverse
inferences against parties to civil actions when they refuse to
testify in response to probative evidence offered against them.
The same is true regarding an invocation of the privilege by a
non-party witness in a civil action." (internal quotations and
citations omitted)). Because we need not reach the issue of
whether the district court erred in drawing an adverse inference
from Mr. Hu's silence, we decline to identify those instances in
which it is proper to draw such an inference from a nonparty's
assertion of his Fifth Amendment right.

5 The district court concluded that it was not necessary for
it to determine whether the tape was subject to exclusion under
the wiretap statutes because it was under the assumption that
even illegally obtained wiretaps are admissible for impeachment
purposes. This assumption is incorrect. Although an illegal
wiretap may be admitted to impeach a criminal defendant's
testimony, this impeachment exception to the federal wiretap
exclusionary rule does not extend to civil cases. See Forsyth v.
Barr, 19 F.3d 1527, 1541 n.28 (5th Cir. 1994); Williams v.
Poulos, 11 F.3d 271, 287-88 (1st Cir. 1993); United States v.
Wuliger, 981 F.2d 1497, 1505-06 (6th Cir. 1992). But see
Culbertson v. Culbertson, 143 F.3d 825, 828 (4th Cir. 1998)
(continued...)
No. 20020777
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¶32
Although the issue of a recording's authenticity is
distinct from the issue of whether it is subject to exclusion
under the wiretap statutes, there is considerable overlap between
the two because both generally require evidence of the
recording's origin. In short, to assess the adequacy of the
evidentiary foundation for admission of the recording, we must
consider that evidence in light of the wiretap exclusionary
rules.
¶33
Pursuant to the Utah wiretap exclusionary rule, section
77-23a-7 of the Utah Code, a party may exclude "any wire,
electronic, or oral communication [that] has been intercepted
. . . if the disclosure of that information would be in violation
of [the Utah Interception of Communications Act (the "Act")]."

5 (...continued)
(holding that the impeachment exception applied in a divorce
proceeding). For example, in Williams, the court declared that
the allowance of an impeachment exception [to
the federal wiretap exclusionary rule]
derives from the references in the
legislative history to search and seizure law
. . . . [B]ecause normal search and seizure
laws have arisen in the context of the Fourth
Amendment which is directed against the
government, not against private individuals,
and because the Fourth Amendment does not
apply in civil actions not involving the
government, these courts have . . . declined
to recognize an impeachment exception to
§ 2515 in civil proceedings.
11 F.3d at 287 (internal quotations and citations omitted).
Also, in Wuliger, the court stated that
we refuse to recognize an impeachment
exception to section 2515 in civil
proceedings. The greater value to society to
learn the truth in criminal cases where it
may be discovered by impeaching materials,
even if unlawfully obtained, may outweigh the
individual rights to privacy. While in the
civil context, it is principally the
individual rights that are at issue and
Congress has balanced the scale in favor of
the right of privacy.
981 F.2d at 1506.
We find the reasoning of the federal courts persuasive and
accordingly conclude that any impeachment exception to the Utah
wiretap exclusionary rule does not extend to civil cases.
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Utah Code Ann. § 77-23a-7 (2003).6 Except as otherwise provided,
an individual not acting under color of law violates the
provisions of the Act if he intercepts a communication to which
he is not a party and he did not have prior consent from one of
the parties to do so. Id. § 77-23a-4(7)(b). Although the Act's
exclusionary rule does not specify which party carries the burden
of proof, we conclude that, just as with the federal wiretap
exclusionary rule, the aggrieved party carries the burden of
establishing that the interception violates the Act. See United
States v. Phillips, 540 F.2d 319, 326 (8th Cir. 1976)
(recognizing that "[l]ogic requires that the party against whom
the evidence is offered . . . carry the ultimate burden of
alleging and proving the specific criminal, tortious, or other
injurious purpose for which the interception was made").
¶34
To satisfy this burden of proof, an aggrieved party may
typically draw on the foundational evidence presented by the
proponent of the recording. But in this case, admission of the
tape, despite Dr. Chen's failure to produce any evidence as to
the origin of the recording, the identity of the interceptor, or
the location of the interception, essentially shifted the burden
of laying foundation for the recording from its proponent to its
opponent and rendered it practically impossible for Ms. Stewart
to meet the burden of proof on her motion to suppress. Indeed,
admission of the tape under such circumstances prevented
Ms. Stewart from availing herself of the wiretap exclusionary
rules. This is an outcome we cannot accept. Because Dr. Chen
failed to offer any evidence of the tape's origin or
authenticity, we hold that the district court abused its
discretion in admitting it.7

6 The federal counterpart to Utah's wiretap exclusionary
rule is found in 18 U.S.C. § 2515, which provides, in part, as
follows:
Whenever any wire or oral communication has
been intercepted, no part of the contents of
such communication and no evidence derived
therefrom may be received in evidence in any
trial, hearing, or other proceeding in or
before any court . . . if the disclosure of
that information would be in violation of
this chapter.
18 U.S.C. § 2515 (2004).

7 In arguing that the tape was properly admitted, counsel
for Dr. Chen suggests that counsel's duty of candor toward the
tribunal actually required counsel to bring the tape to the
(continued...)
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II. DID THE DISTRICT COURT HAVE INHERENT AUTHORITY TO STRIKE
MS. STEWART'S PLEADINGS AS A SANCTION FOR CONTEMPT?
¶35
Ms. Stewart also contends that the district court did
not have the authority to strike her pleadings as a sanction for
contempt based on her violation of the court's orders and its
finding that she committed perjury and obstructed justice. We
disagree.
¶36
A court's authority to sanction contemptuous conduct is
both statutory and inherent. See Utah Code Ann. §§ 78-32-1 to
-17 (2002) (detailing the procedures governing contempt); In re
Evans, 130 P. 217, 224 (Utah 1913) ("It is undoubtedly true that
courts of general and superior jurisdiction possess certain
inherent powers not derived from any statute. Among these are
the power to punish for contempt . . . ."). In Utah, statutory
provisions restrict both the amount of a fine and the length of a
jail sentence that may be imposed as a sanction for contempt.
Utah Code Ann. § 78-32-10. These statutory provisions, however,
do not encroach upon the judiciary's inherent authority to punish
contemptuous conduct by means other than the penalties described
by section 78-32-10. Rather, "to the extent the common law
[governing contempt] [is] not inconsistent with the statutes, it
survives and can continue to evolve." Von Hake v. Thomas, 759
P.2d 1162, 1167 (Utah 1988); see also People ex rel. Pierce v.
Carrington, 17 P. 735, 737 (Utah 1888) ("[C]ourts may go beyond
the power given by statute in order to preserve and enforce
constitutional powers when acts in contempt invade them."). This
inherent authority, however, is not without limitation. A
court's authority to "hold any person in contempt, whether a
party to a case before that court or a non-party, is subject to
constitutional and statutory restraints regarding the process due

7 (...continued)
attention of the court. We have no quibble with this
proposition. However, the fact that counsel is obligated to
disclose to the court information bearing on the integrity of the
proceedings does not mean that such information is necessarily
admissible in evidence.
Counsel for Dr. Chen further asserts that Ms. Stewart waived
her right to object to admission of the tape by offering into
evidence her own translation of the recording. We disagree. At
the time Ms. Stewart offered the alternate translation, the court
had already admitted the tape over Ms. Stewart's objection. The
alternative translation was submitted for purposes of damage
control and did not reflect Ms. Stewart's acquiescence with
respect to the admissibility of the underlying recording.
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No. 20020777

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to any person so accused." Crank v. Utah Judicial Council, 2001
UT 8, ¶ 25, 20 P.3d 307.
¶37
The United States Supreme Court has recognized that the
demands of due process may limit a court's authority to sanction
contemptuous conduct. In Hovey v. Elliott, 167 U.S. 409 (1897),
the Court held that the act of striking a defendant's answer
simply because he failed to comply with the court's order to pay
a certain sum into the court's registry violated "an essential
element of due process of law." Id. at 444. In contrast, in
Hammond Packing Co. v. Arkansas, 212 U.S. 322 (1909), the Court
concluded that the district court did not violate due process
when it struck the defendant's answer after the defendant refused
to comply with the court's discovery order. Id. at 351. In
distinguishing Hovey, the Hammond Court declared that "the
preservation of due process was secured by the presumption that
the refusal to produce evidence material to the administration of
due process was but an admission of the want of merit in the
asserted defense." Id.
¶38
Ms. Stewart contends that, pursuant to Hovey and
Hammond, a court's inherent power to strike the pleadings of a
party is limited to those instances where the sanction is
designed to coerce compliance with a discovery order. She
further contends that the sanctions imposed in this case were
designed to punish her, rather than to coerce her compliance with
court orders, and therefore exceeded the authority of the
district court. We disagree.
¶39
The holding in Hovey "was based principally on the
notion that a party should not be deprived of his opportunity to
defend based on factors unrelated to the merits of his case."
Phoceene Sous-Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d
802, 806 (9th Cir. 1982) (emphasis added). The holding of
Hammond was "premised on the idea that one may reasonably infer
from the suppression of relevant evidence that the defendant's
case is lacking in merit." Id. Indeed, the Hammond Court
likened the district court's authority to strike pleadings to
"the authority to default . . . because of a failure to answer,
based upon a presumption that the material facts alleged or
pleaded were admitted by not answering." 212 U.S. at 351.
¶40
The presumption underlying the ruling in Hammond
applies with equal, if not greater, force to the intentional act
of perpetrating a fraud on the court. "A `fraud on the court' is
`an unconscionable plan or scheme which is designed to improperly
influence the court in its decision.'" Phoceene Sous-Marine, 682
F.2d at 805 (quoting England v. Doyle, 281 F.2d 304, 309 (9th
No. 20020777
16

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Cir. 1960)). The attempt to improperly influence the decision of
the court by suborning perjury or obstructing justice yields a
reasonable inference that the actor's claims or defenses lack
merit. We accordingly conclude that the district court has the
authority to strike pleadings as a sanction for an attempt to
perpetrate a fraud on the court. As in Hammond, "the
preservation of due process [is] secured by the presumption that
the [perpetration of a fraud is] but an admission of the want of
merit in the asserted defense." Hammond, 212 U.S. at 351.
¶41
Our interpretation of Hammond is supported by the case
law of other jurisdictions holding that a court may strike a
party's pleadings as a sanction for actions demonstrating bad
faith. For example, in TeleVideo Systems, Inc. v. Heidenthal,
826 F.2d 915 (9th Cir. 1987), the Ninth Circuit held that the
district court did not deny the appellant due process when it
struck his pleadings because the appellant had engaged in an
"elaborate scheme involving perjury." Id. at 917. The court
reasoned that the sanction of striking the appellant's answer and
entering a default judgment was designed "not only to punish [the
appellant], but to enable the court to proceed to hear and decide
the case untainted by further interference and possible further
perjury on the part of [the appellant]." Id.; see also Kirby v.
Adkins, 582 So. 2d 1209, 1211 (Fla. Dist. Ct. App. 1991) ("[A]
court has the inherent authority either to dismiss an action or
to strike pleadings of a party who perpetrates a fraud on the
court. [However, a question does] exist as to whether a party
who commits fraud should be permitted to proceed on the merits of
a legitimate portion of a claim.").
¶42
We find additional support for our interpretation of
Hammond in those cases recognizing a distinction between
sanctions imposed for conduct unrelated to the merits of a case
and conduct that does relate to the merits. See Phoceene
Sous-Marine, 682 F.2d at 806 (holding that because the "deception
related not to the merits of the controversy but rather to a
peripheral matter," the court erred in entering a default
judgment); Dubman v. N. Shore Bank, 249 N.W.2d 797, 799 (Wis.
1977) (holding that, "[i]f imposed solely for failure to obey
court orders, without evidence warranting a finding of no merit
or bad faith, the sanction of striking a pleading . . . denies
due process of law").
¶43
In sum, a court has the inherent authority to strike a
party's pleadings and enter a default judgment if the party
engages in conduct designed to improperly influence the court's
decision on the merits of the case, such as perjury or
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No. 20020777

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obstruction of justice, or if the conduct itself tends to
demonstrate bad faith or a lack of merit.
III. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN
STRIKING MS. STEWART'S PLEADINGS?
¶44
Having concluded that a district court possesses the
power to strike the pleadings of a party in those circumstances
where the party engages in acts giving rise to a reasonable
inference that the party's case lacks merit, we now consider
whether the district court properly exercised that power in this
case. "An order relating to contempt of court is a matter that
rests within the sound discretion of the [district] court."
Dansie v. Dansie, 1999 UT App 92, ¶ 6, 977 P.2d 539. We
accordingly review the sanctions imposed by the district court
for an abuse of that discretion. Ms. Stewart argues that the
district court did abuse its discretion because her contemptuous
conduct was readily remediable through other, less severe
sanctions. Because we conclude that it is necessary for the
district court to reevaluate its contempt citation and the
accompanying sanctions in light of our ruling that the tape
recording was not admissible, we need not address this argument.
¶45
The district court struck Ms. Stewart's pleadings on
the basis of its finding that Ms. Stewart had committed perjury
and obstructed justice. While it is apparent from the district
court's conclusions of law that the tape recording was not the
sole basis for that finding, it nevertheless played a significant
role in the district court's assessment. Because the district
court erred in admitting the recording into evidence, we remand
this case to the district court to reassess the contempt motion
in light of the remaining evidence and to assess appropriate
sanctions based on that evidence. On remand, if the district
court finds that Ms. Stewart did, in fact, commit perjury and
obstruct justice, we recognize that it is within the inherent
authority of the court to strike her pleadings.
IV. DID THE DISTRICT COURT VIOLATE MS. STEWART'S
DUE PROCESS RIGHTS?
¶46
Ms. Stewart also claims that the district court's
contempt citation violated her due process rights by denying her
the right to a fair trial before an impartial magistrate.8

8 Ms. Stewart also argues that she was denied due process
when the district court (1) improperly considered evidence other
than that presented in the affidavits filed by Dr. Chen, and
(continued...)
No. 20020777
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Specifically, Ms. Stewart claims that the district court's
reliance on the testimony and reports of Mr. Holman, whom the
district court had appointed as both special master and interim
CEO of Excel, was improper because Mr. Holman could not
simultaneously participate in the proceedings as a neutral
judicial officer and a party litigant.
¶47
We recently considered and rejected this very claim in
deciding the interlocutory appeal in this matter, Chen v.
Stewart, 2004 UT 82, 100 P.3d 1177. We concluded that "the
parties understood that the interim CEO was not appointed as a
neutral judicial magistrate," id. ¶ 58, but was instead
"appointed an interim CEO with the title of special master only
for the purpose of providing him the judicial immunity associated
with the designation," id. ¶ 56 (emphasis added). In addressing
Ms. Stewart and Madame Chen's claim of bias, we stated:
[A]ny confusion appears to have been
manufactured after the fact rather than
created by the court's order itself; no
disagreement about Mr. Holman's powers
surfaced until after his actions unfavorably
affected defendants. Had Mr. Holman's
designation as a special master led to an
actual overlap of the quasi-judicial powers
of a traditional rule 53 special master and
the executive powers of a court-appointed CEO
or receiver, the designation could have
created conflict issues. However, it is
quite clear that did not happen here. The
orders of appointment are clear, as is the
fact that the parties understood and agreed
to them at the time they were issued.

8 (...continued)
(2) improperly held Ms. Stewart in contempt without affording her
the right to a trial by jury. Ms. Stewart raised the first issue
for the first time on appeal. Consequently, we will not address
it. See Pugh v. Draper City, 2005 UT 12, ¶ 18, 114 P.3d 546 ("It
is well-established that we generally will not address issues
raised for the first time on appeal unless a party can
demonstrate exceptional circumstances." (internal quotations
omitted)). As to the second issue, assuming Ms. Stewart was
entitled to a trial by jury, an issue the parties have not
briefed, this right was waived when she failed to request one.
See Utah R. Crim. P. 17(d) ("All [nonfelony] cases shall be tried
without a jury unless the defendant makes written demand at least
ten days prior to trial, or the court orders otherwise.").
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No. 20020777

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Id. ¶ 62. Consequently, we again reject Ms. Stewart's claim that
she was denied her right to a fair hearing before an impartial
magistrate.
V. DID THE DISTRICT COURT VIOLATE MADAME CHEN'S
DUE PROCESS RIGHTS?
¶48
Madame Chen also appeals the contempt order issued
against Ms. Stewart, seeking to have it set aside to the extent
that it has adversely affected Madame Chen. She identifies two
different respects in which she contends the Stewart Contempt
Order has violated her due process rights. First, Madame Chen
points to the fact that the district court incorporated its
findings of fact on the Stewart Contempt Order into its findings
of fact on the preliminary injunction, which prohibits her from
competing against Excel. She argues that this incorporation
denied her due process because she had neither been served nor
appeared as a party in the action for a majority of the days on
which the district court took evidence regarding the Stewart
Contempt Order and she was never notified that the findings
supporting the Stewart contempt citation might be used against
her. Second, Madame Chen points to the fact that the district
court appointed the special master to act as the interim CEO,
thus depriving her of a fair hearing before an impartial,
subordinate judicial officer. Because we conclude that Madame
Chen does not have standing to challenge the Stewart Contempt
Order, we need not address either claim.
¶49
Madame Chen argues that she has standing to appeal the
Stewart Contempt Order because she was a party to the action
below, the contempt order was used against her when the district
court relied upon it in issuing the preliminary injunction, and
the contempt order will be considered by the district court in
ruling on the pending contempt motion filed by Excel on
September 27, 2002, which seeks to hold Madame Chen in contempt.
"[T]he question of whether a given individual . . . has standing
to request a particular relief is primarily a question of law,
although there may be factual findings that bear on the issue.
We will review such factual determinations made by a [district]
court with deference." Kearns-Tribune Corp. v. Wilkinson, 946
P.2d 372, 373-74 (Utah 1997).
¶50
In Society of Professional Journalists v. Bullock, 743
P.2d 1166 (Utah 1987), this court discussed the standing
requirements that must be met by a party on appeal:
On appeal, a party whose standing is
challenged must show that he or she had
No. 20020777
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standing under the traditional test in the
original proceeding before the district
court. In addition, an appellant generally
must show both that he or she was a party or
privy to the action below and that he or she
is aggrieved by that court's judgment.
Id. at 1171 (citations omitted). To satisfy the "basic
requirements" of the traditional standing test, "a party must
allege that he or she has suffered or will imminently suffer an
injury that is fairly traceable to the conduct at issue such that
a favorable decision is likely to redress the injury." Provo
City Corp. v. Thompson, 2004 UT 14, ¶ 9, 86 P.3d 735.
¶51
Madame Chen argues that she has standing to challenge
the Stewart Contempt Order because that order has already been
used against her in the form of the preliminary injunction and
may be used against her in the future, as evidenced by Excel's
pending motion to hold Madame Chen in contempt. We are not
persuaded.
¶52
There is no dispute that the district court
incorporated its findings of fact supporting the Stewart Contempt
Order into its findings of fact supporting the preliminary
injunction. However, in denying Madame Chen's motion to vacate
on January 24, 2003, the district court clarified the source of
its factual findings for both the Stewart Contempt Order and the
preliminary injunction:
The litigation of this proceeding began two
years ago and has included hundreds of
exhibits and almost 40 days of testimony.
There exists an extensive record in this case
from which the Court based its Findings of
Fact and Conclusions of Law. . . . The Court
has concluded by the overwhelmingly
persuasive evidence that the conspiracy
incident to this action included Madam[e]
Chen. . . . Further, as a matter of
clarification, the two sets of Findings of
Fact and Conclusions of Law stand independent
of each other. While the Court incorporated
said Findings of Fact relative to the civil
conspiracy issues into the Findings of Fact
for Preliminary Injunction, the Court hereby
states to the parties to clarify, that said
incorporation was not essential, and that the
Court reaches the same conclusions for the
21
No. 20020777

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relief sought by [] Excel on the separate
Findings entered. This Court concludes that
the outcome of the hearings would not have
been any different if the errors alleged by
Madame Chen . . . had never occurred.
(Emphasis added.)
¶53
Because Madame Chen has done nothing to challenge this
statement by the district court, other than to state that the
explanation was merely an attempt to "whitewash" the record, we
accept this finding and hold that the preliminary injunction's
findings of fact stand independent from those findings entered in
support of Ms. Stewart's contempt citation. See Chen, 2004 UT
82, ¶ 76 ("In order to challenge a court's factual findings, an
appellant must first marshal all the evidence in support of the
finding and then demonstrate that the evidence is legally
insufficient to support the finding even when viewing it in a
light most favorable to the court below." (internal quotations
omitted)). Consequently, we reject Madame Chen's claim that she
was aggrieved by the Stewart Contempt Order because it was used
against her in the context of the preliminary injunction
proceeding.
¶54
We similarly reject Madame Chen's argument that she has
standing to appeal the Stewart Contempt Order because it may
potentially be used against her in the future. It may very well
violate Madame Chen's due process rights if the district court
relies on the findings entered in connection with the Stewart
Contempt Order when considering the pending motion to hold Madame
Chen in contempt. However, Madame Chen's concern over this
future possibility, without more, is insufficient to establish
that she has been aggrieved thus far. The district court has yet
to rule on the motion requesting that Madame Chen be held in
contempt. Accordingly, Madame Chen cannot establish that she has
actually been aggrieved by the Stewart Contempt Order, and we
therefore conclude that she lacks standing to challenge it.
CONCLUSION
¶55
In conclusion, we hold that the district court erred in
admitting the tape recording into evidence when Dr. Chen did not
provide any evidence as to its origin. Although the district
court does have the inherent authority to strike pleadings for
conduct designed to improperly influence court proceedings, the
issue of whether the district court properly struck Ms. Stewart's
pleadings must be remanded to the district court to be determined
in light of our ruling regarding the tape's admissibility.
No. 20020777
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Furthermore, we hold that Ms. Stewart failed to demonstrate that
the district court violated her due process rights. Finally, we
hold that Madame Chen does not have standing to challenge the
Stewart Contempt Order because she has failed to establish that
she has been aggrieved by that order.
---
¶56
Chief Justice Durham, Justice Nehring, Judge Orme, and
Judge Iwasaki concur in Justice Parrish's opinion.
¶57
Having disqualified themselves, Associate Chief Justice
Wilkins and Justice Durrant do not participate herein; Court of
Appeals Judge Gregory K. Orme and District Judge Glenn K. Iwasaki
sat.
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No. 20020777

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