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Klayman v. Judicial Watch, Inc.

United States District Court, District of Columbia

March 7, 2018

LARRY KLAYMAN, Plaintiff,
v.
JUDICIAL WATCH, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

         Counter-Plaintiffs Judicial Watch, Inc. (“Judicial Watch”) and Thomas J. Fitton seek to introduce certain further exhibits at trial on March 7, 2018, in support of their counterclaims. The Court has a standing order calling for daily briefing on authenticity in order to resolve any such objections outside of the jury's presence and thereby facilitate an efficient trial. See Min. Order of Mar. 2, 2018.

         Pursuant to the Court's order, Counter-Plaintiffs indicate that they want to admit Exhibits 62-67 through Mark Fitzgibbons's testimony pursuant to subpoena. Defs.' Notice Regarding Authenticity for Exs. to Be Used on Wednesday, Mar. 7, 2018, ECF No. 512 (“Notice”). Counter-Plaintiffs note that they also intend to use exhibits that already have been authenticated. Id. Counter-Defendant Larry E. Klayman has challenged the authenticity of four of the new exhibits, alleging in part that some of them are illegible and unsigned. Defs.'-Counterclaimants' Desigation [sic] of Exs. 62-66 (“Pl.'s Resp.”).

         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 introduction at trial on March 7, 2018.

         II. LEGAL STANDARD

         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 Exhibit 66, the Court shall draw on the standard established by the Federal Rules for the so-called business records exception to the hearsay rule. “A record of an act, event, condition, opinion, or diagnosis” is not excluded if

(A) the record was made at or near the time by-or from information transmitted by-someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

         Fed. R. Evid. 803(6) (“Records of a Regularly Conducted Activity”).

         III. ...


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