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Klayman v. Judicial Watch, Inc.

United States District Court, District of Columbia

March 5, 2018

JUDICIAL WATCH, INC., et al., Defendants.



         Counter-Plaintiffs 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 publications.

         Counter-Defendant 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, [1]the Court rules as follows on the authenticity of Counter-Plaintiffs' exhibits proposed for use at trial on March 5, 2018.


         Pursuant 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).

         Also of 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.

         After 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).

         Counter-Defendant 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.[2] At the Court's further request, Counter-Plaintiffs responded to Counter-Defendant's objections. Defs.' Resp. to Objs.


         The 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).


         A. Exhibits Authenticated by Counter-Defendant's RFA Responses

         Counter-Defendant's 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.[3] Counter-Defendant's responses affirming some or all aspects of the aforementioned pattern suffice to establish the authenticity of each of the following exhibits:

Exhibit 6 (Requests 39, 42; see also Requests 40-41, 43);
Exhibit 8 (Requests 44-47; see also Requests 48-49);
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);[4]
Exhibit 16 (Requests 84-89);
Exhibit 18 (Requests 94-99); and ...

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