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2. The plaintiff's testimony is
A plaintiff sued a defendant for copyright infringement for using in the defendant's book some slightly disguised house plans on which the plaintiff held the copyright. The plaintiff is prepared to testify that he heard the defendant's executive copyright assistant say that the defendant had obtained an advance copy of the plans from the plaintiff's office manager.
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Under FRE 801(d)(2), a statement by an opposing party (traditionally known as an «admission by a party-opponent») is not hearsay. Under this Rule, when the opposing party's statement is offered against that same opposing party and was made in either an individual or representative capacity, it is admissible. Statements by an agent or employee concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal.
A is correct. A statement made by a party's employee concerning a matter within the scope of the employment, during the existence of the relationship, is excluded from the definition of hearsay as a vicarious admission of a party-opponent. Such vicarious admissions are admissible as substantive evidence against the principal. Because the statement the plaintiff is seeking to testify about was made by an executive assistant who was working on copyright matters, the statement is admissible against the defendant.
B is incorrect. This answer reaches the correct answer with the wrong reasoning. There is no indication that the executive copyright assistant is part of a conspiracy. No evidence suggests that the assistant was involved in obtaining a copy of the plans or in the alleged infringement, so the assistant should not be considered a co-conspirator. In addition, the assistant did not make the statement in furtherance of a conspiracy. Therefore, the statement is not admissible as a co-conspirator statement but as a vicarious admission by a party-opponent.
C is incorrect. Although the testimony was made out-of-court, it is considered non-hearsay under FRE 801(d)(2) because it was made by the defendant's employee during the course and scope of employment, and is therefore admissible against the defendant as a vicarious admission.
D is incorrect. This is a misstatement of the law. There is no requirement that the employee had to have been authorized to speak for the principal to be considered an admission. Because it was made by the defendant's employee in the scope of employment, the statement is not hearsay and is admissible against the defendant.