United States District Court, District of Columbia
UNITED STATES ex rel. LANDIS, et al., Plaintiffs,
TAILWIND SPORTS CORP., et al., Defendants.
OPINION AND ORDER
CHRISTOPHER R. COOPER United States District Judge
October 2015, Relator Floyd Landis moved to compel Defendant
Lance Armstrong to stipulate to the authenticity of portions
of the Sony-produced documentary The Armstrong
Lie-and corresponding lines of the official
transcript-in which Armstrong was interviewed. The Court
granted this motion, permitting Relator to pose the following
interrogatory to Armstrong: "Do both the video footage
of you in the 2013 documentary The Armstrong Lie and
the transcript of that documentary previously provided to you
accurately reflect the questions asked of you and the answers
you gave?" Order of Oct. 29, 2015, at 3, ECF No. 447.
responding to this interrogatory, Armstrong insisted that the
does not accurately reflect the questions asked of him and
the answers he gave. Questions to which answers are given
have been edited out. The content of the questions themselves
ha[s] been edited, including deleting portions of the
questions. Armstrong’s answers have also been edited.
Parts of his answers have been deleted. In other instances,
multiple answers have been combined so as to appear to be a
Decl. Paul D. Scott Supp. Relator’s Summ. Disc. Dispute
("Scott Decl.") Ex. A, at 5-6, ECF No. 478.
Similarly, Armstrong asserted that the transcript of the
documentary provided to him
does not reflect the questions asked of Armstrong and the
answers he gave. . . . Portions of Armstrong’s answers
that appear in the film do not appear in the transcript.
Entire statements that Armstrong made in the film are missing
from the transcript. The transcript contains words and
phrases that Armstrong did not utter in the film. Words that
Armstrong uttered in the film have been replaced with words
he did not.
Id. at 6. Dissatisfied with these responses, Relator
now moves the Court to reopen Armstrong’s deposition so
that Relator can learn precisely which questions and answers
in the video and transcript are contested. Alternatively,
Relator requests that the Court order Armstrong to supplement
his interrogatory response by specifying what he contends the
disputed questions and answers actually were. Armstrong
refuses to do so; he maintains that he has answered
Relator’s Court-drafted interrogatory in full.
Federal Rule of Evidence 901(a), in order to authenticate an
item of evidence, "the proponent must produce evidence
sufficient to support a finding that the item is what the
proponent claims it is." This requirement can be
satisfied by the testimony of a witness with knowledge
"that an item is what it is claimed to be."
Id. 901(b)(1). Under D.C. Circuit precedent, video
or audio tapes may be authenticated "by testimony from
parties to the conversation affirming that the tapes
contained an accurate record of what was said."
United States v. Strothers, 77 F.3d 1389, 1392 (D.C.
Cir. 1996) (quoting United States v. Dale, 991 F.2d
819, 843 (D.C. Cir. 1993)) (internal quotation marks
omitted). Relator’s present motion is premised on the
commonsense principle that third parties should not be
unnecessarily burdened with subpoenas when the discovery
sought can be obtained in a way that is "more
convenient, less burdensome, or less expensive."
thrust of Armstrong’s interrogatory response is that
relevant portions of The Armstrong Lie have been
edited and spliced in a way that renders them too misleading
to serve as reliable tools in a search for the truth. But
addressing this concern is the function of two other Federal
Rules of Evidence, not Rule 901. Rule 403 authorizes courts
to exclude relevant evidence that carries too great a danger
of "unfair prejudice" or "misleading the
jury." And under Rule 106, when a party introduces only
part of a recorded statement, the opposing party may require
the immediate introduction of any other part (or of another
statement) "that in fairness ought to be considered at
the same time."
amply bear out this distinction. As a leading Evidence
treatise has explained, objections that a video or film
"has been edited and is therefore misleading" are
to be "resolved pursuant to Rule 403." 2
McCormick on Evidence § 216 (7th ed.).
United States v. Damrah, 334 F.Supp. 967 (S.D. Ohio
2004), exemplifies this approach. In that case, the defendant
argued that video tapes had not been sufficiently
authenticated because they were "edited and
spliced" and "may have therefore been
misleading." Id. at 984. Regardless of whether
deletions and rearrangements rendered the finished product
misleading, the Court was "satisfied that the videos
fairly depict the actual events that took place."
Id. In short, "the tapes fairly and accurately
(although perhaps not completely) depict the events they
purport to depict, editing and splicing not to the
contrary." Id. at 985. Affirming this decision
on appeal, the Sixth Circuit noted that the defendant did
"not question the fact that he and his words are
depicted in the videotapes." United States v.
Damrah, 412 F.3d 618, 628 (6th Cir. 2005). Similarly, in
Asociación de Periodistas de Puerto Rico v.
Mueller, 680 F.3d 70 (1st Cir. 2012), the plaintiffs
described contested videos as "incomplete" and
"extensively edited, " but they did "no[t] . .
. say that the videos do not show actual footage of the
incident in question, " id. at 79. For that
reason, there was "no serious basis for disputing the
authenticity of the videos." Id. at 80; see
also Mills v. Riggsbee, Civ. No. 05:12-148- KKC, 2013 WL
6243951, at *3 (E.D. Ky. Dec. 3, 2013) ("[E]ven if the
video could be sufficiently authenticated, it should be
excluded from trial pursuant to Rule 403.").
has cited no authority for the proposition that an otherwise
authentic video clip may be rendered inauthentic because some
actually spoken words have been omitted and others reordered.
Of course, Armstrong may later move the Court to exclude
certain video footage as unduly misleading under Rule 403,
and at trial he may invoke Rule 106 to introduce
more-complete versions of any footage "that in fairness
ought to be considered at the same time." Relator may
well wish to obtain raw, unedited versions of the relevant
footage in anticipation of such challenges. Moreover, based
on the legal principles articulated in this Opinion and
Order, the Court expects that Armstrong will in good faith
stipulate to the authenticity of any video clips in which he
appears to be speaking. Indeed, Armstrong’s
interrogatory response leaves him little room to do
otherwise. See Scott Decl. Ex. A, at 5-6 (referring
to "Armstrong’s answers, " "his answers,
" "statements that Armstrong made, " and
"[w]ords that Armstrong uttered"); see
also Decl. Paul D. Scott Supp. Relator’s Summ.
Disc. Dispute Ex. B ("Lance Armstrong Deposition"),
at 696:4-5, ECF No. 440 ("[I]f it’s me and
I’m talking and my mouth is moving, that’s
me."). But the Court will not require Armstrong to
supplement his interrogatory response or to sit for further
will the Court order Armstrong to identify any alleged errors
in the transcript of The Armstrong Lie provided to
him by Relator on September 18, 2015. Relator is equally able
to identify discrepancies between the words actually uttered
in the documentary and the text of a corresponding
transcript. If Relator wishes to include relevant portions of
the transcript in his trial exhibits, the Court expects him
to ensure their accuracy. If necessary, Armstrong may object
to the accuracy of Relator’s transcript designations in
advance of trial.
foregoing reasons, it is hereby ORDERED that Relator’s
Motion to Compel, as reflected in his  ...