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 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.
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”). 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.”).
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 introduction at trial on March 8, 2018.
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
(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
Fed. R. Evid. 803(6) (“Records of a Regularly Conducted
of other exhibits relies on the testimony of a witness with
knowledge that “an item is what it is ...