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Klayman v. Judicial Watch, Inc.

United States District Court, District of Columbia

March 8, 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 8, 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 38, 39, and 41 through Steve Andersen's testimony; Exhibits 114, 117-21, 123, 125-28, and 176-83 through Susan E. Prytherch's testimony; and a combined version of Exhibits 45 and 54 through Paul J. Orfanedes's testimony. Defs.' Notice Regarding Authenticity for Exs. to Be Used on Thursday, Mar. 8, 2018, ECF No. 514 (“Notice”).[1] Counter-Defendant Larry E. Klayman has challenged the authenticity of the proposed exhibits, alleging in part that the authors of the respective documents must be present to authenticate. Pl.'s Objs. to Proposed Exs. (“Counter-Def.'s Resp.”).

         Upon consideration of the briefing, the relevant legal authorities, and the record as a whole, [2] the Court rules as follows on the authenticity of Counter-Plaintiffs' exhibits proposed for introduction at trial on March 8, 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 certain exhibits, 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”).

         Authentication of other exhibits relies on the testimony of a witness with knowledge that “an item is what it is ...


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