United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
Judicial Watch, Inc. (“Judicial Watch”) and
Thomas J. Fitton seek to introduce certain exhibits in
support of their counterclaims. Counter-Plaintiffs indicated
on March 2, 2018, that they wanted to use Exhibits 4-31.
Counter-Plaintiffs discussed these exhibits as falling into
five general categories: 1) Letters sent by Counter-Defendant
to donors of Judicial Watch that were in turn forwarded to
Judicial Watch; 2) Letters sent by Counter-Defendant to
employees of Judicial Watch; 3) the Saving Judicial Watch
website; 4) an email from Counter-Defendant to Mr. Fitton;
and 5) advertisements by Counter-Defendant in conservative
Larry E. Klayman raised authenticity objections to these
exhibits. Accordingly, the Court called for further briefing
by the parties in order to resolve these objections outside
of the jury's presence and thereby facilitate an
efficient trial. See Min. Order of Mar. 2, 2018.
Upon consideration of the briefing, the relevant legal
authorities, and the record as a whole, the Court rules as
follows on the authenticity of Counter-Plaintiffs'
exhibits proposed for use at trial on March 5, 2018.
to the Court's Minute Order, Counter-Plaintiffs submitted
their Notice proposing support for the authenticity of
Exhibits 4-9, 11-14, and 16-30, which they intend to admit
through the testimony of Paul Orfanedes. The Court interprets
the omission of support for Exhibits 10, 15, and 31 from
Counter-Plaintiffs' Notice as an indication that they
either no longer plan to introduce these exhibits, or will
not seek to introduce them through Mr. Orfanedes's
testimony on Monday, March 5, 2018. In their response to
Counter-Defendant's objections, Counter-Plaintiffs
“agree to postpone use of [Exhibits] 10, 15 and
31.” Defs.' Resp. to Objs. Nevertheless,
Counter-Plaintiffs do provide support for the authenticity of
Exhibit 15 in their Supplemental Notice, as discussed below,
and the Court accordingly shall proceed to address its
authenticity. See infra n.4. As to Exhibits
10 and 31, the Court shall not permit their
introduction at trial on Monday, March 5, 2018, on this
record, but Counter-Plaintiffs are not precluded from seeking
to introduce them later in the trial with adequate support
for their authenticity. See Min. Order of Mar. 2,
2018 (describing process for briefing authenticity).
note, Counter-Plaintiffs' Notice does not employ the five
categories discussed in open court, perhaps to some degree
because they now plan to introduce them through Mr.
Orfanedes, rather than in part or in full through some
combination of testimony by Mr. Fitton and by deponents who
are not available to testify at trial. Rather,
Counter-Plaintiffs proceed one-by-one through the exhibits.
Counter-Plaintiffs also argue that Counter-Defendant admitted
to certain of the exhibits in his Answer and Affirmative
Defenses to Amended Counterclaim of Defendants, ECF No. 91
(“Answer to Amended Counterclaim”). Notice at 5.
submission of their Notice, Counter-Plaintiffs submitted
their Supplemental Notice. They argue that other of
Counter-Defendant's filings earlier in this litigation
likewise represent an admission on his part. First,
Counter-Plaintiffs argue that Counter-Defendant's
response to their Motion for a Protective Order in 2007 did
not object to the authenticity of the exhibits at issue- some
of which purportedly are the same as those presently at
issue-and accordingly conceded their authenticity. Suppl.
Notice at 1-2 (citing ECF Nos. 73, 74). Second,
Counter-Plaintiffs argue that certain of
Counter-Defendant's admissions in Plaintiff's
Responses to Defendants' Requests for Admission to
Plaintiff, ECF No. 110 (“RFA Responses”), confirm
the authenticity of specific exhibits now offered into
evidence. See Suppl. Notice at 2-25 (attaching
Plaintiff's responses to the requests reprinted therein).
responded to Counter-Plaintiffs' Notice and filed two
responses to the Supplemental Notice. Pl.'s Resp. to
Notice; Pl.'s First Resp. to Suppl. Notice; Pl.'s
Second Resp. to Suppl. Notice. Among Counter-Defendant's
objections was the timing of Counter-Plaintiffs'
Supplemental Notice. At the Court's further request,
Counter-Plaintiffs responded to Counter-Defendant's
objections. Defs.' Resp. to Objs.
threshold for proof of authenticity is low;
Counter-Plaintiffs need only “produce evidence
sufficient to support a finding that the item is what the
proponent claims it is.” Fed.R.Evid. 901(a). With
respect to a unique document or other item, an illustrative
example of sufficient evidence is “[t]he appearance,
contents, substance, internal patterns, or other distinctive
characteristics of the item, taken together with all the
circumstances.” Fed.R.Evid. 901(b)(4).
Exhibits Authenticated by Counter-Defendant's RFA
responses to Counter-Plaintiffs' requests for admissions
are sufficient by themselves to establish the authenticity of
many of the proposed exhibits. Those responses follow a
predictable pattern. See, e.g., Suppl. Notice at 2
(arguing authenticity of Exhibit 9 based on Plaintiff's
responses to Requests 50-55); RFA Responses at 12-13
(Plaintiff's responses to Requests 50-55).
Counter-Defendant admits that he assisted in drafting a
specific letter. That letter seeks contributions to Saving
Judicial Watch. He admits to the return address on that
letter for the contributions that it seeks. He admits to
authorizing that his signature be affixed to the letter. He
admits that the letter came from “Larry Klayman dba
Saving Judicial Watch.” And he admits that the letter
was sent by U.S. Mail. Counter-Defendant's responses
affirming some or all aspects of the aforementioned pattern
suffice to establish the authenticity of each of the
Exhibit 6 (Requests 39, 42; see
also Requests 40-41, 43);
Exhibit 8 (Requests 44-47; see also
Exhibit 9 (Requests 50-55);
Exhibit 11 (Requests 57-62);
Exhibit 12 (Requests 64-67, 69-70);
Exhibit 14 (Requests 73-74, 77; see
also Request 76);
Exhibit 15 (Requests 78-83);
Exhibit 16 (Requests 84-89);
Exhibit 18 (Requests 94-99); and