COLLEEN KOLLAR-KOTELLY United States District Judge.
MEMORANDUM OPINION AND ORDER
Counter-Plaintiffs
Judicial Watch, Inc. (“Judicial Watch”) and
Thomas J. Fitton seek to introduce certain further exhibits
through the deposition testimony of Philip Zodhiates at trial
on March 9, 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.
I.
INTRODUCTION
The
Court begins by addressing certain exhibits that
Counter-Plaintiffs sought to introduce on March 7, 2018.
Pursuant to the Court's order, Counter-Plaintiffs
indicated that they wanted 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. Counter-Plaintiffs noted that they also intended
to use exhibits that already had been authenticated.
Id. Counter-Defendant Larry E. Klayman 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.
In the
Court's Memorandum Opinion and Order of March 7, 2018,
the Court found that Exhibits 64 and 67
proposed for introduction through the testimony of Mark
Fitzgibbons were deemed admitted without objection. The Court
found Exhibits 63, 65, and 66 to be
authenticated contingent on Mr. Fitzgibbons's testimony
on the grounds discussed in that Memorandum Opinion and
Order. Exhibit 62 was found not to be
authenticated on the extant record. The Court shared a copy
of that Memorandum Opinion and Order with the parties before
trial resumed on the morning of March 7, 2018, in order to
guide the parties as to the evidence necessary to lay a
foundation. Ultimately, during trial, Counter-Plaintiffs
solicited testimony from Paul J. Orfanedes and Mr.
Fitzgibbons regarding Exhibit 63, and from
Mr. Fitzgibbons regarding Exhibits 64, 65, and
67. The Court found that Counter-Plaintiffs
established adequate foundation as to those exhibits for
which its Memorandum Opinion and Order required specific
foundation to be laid. Ultimately, Exhibits 63-65 and
67 were admitted. Counter-Plaintiffs did not seek
admission of 66, nor of Exhibit 62 that the
Court had found not to be authenticated.
Subsequently the Court posted its Memorandum Opinion and
Order of March 7, 2018, at ECF No. 513.
At this
time, the Court shall rule on the authenticity of
Exhibits 132-35, 143-50, 153-54, 156-58, 160-61, and
168-70 that Counter-Plaintiffs propose to introduce
through the deposition testimony of Philip Zodhiates.
Previously, with respect to all but Exhibits 160 and
161, the Court found these exhibits to be
authenticated “[c]ontingent on Mr. Zodhiates's
deposition testimony adequately identifying the documents now
proposed by Counter-Plaintiffs.” Mem. Op. and Order,
ECF No. 511, at 6-7. The Court has since been given Mr.
Zodhiates's deposition transcript and now can evaluate
the authenticity accordingly.
Counter-Defendant
was not present at the deposition, nor was he represented
there. Counter-Plaintiffs claim that Counter-Defendant was
properly noticed, which he has not disputed. He does not
dispute the record showing that Counter-Plaintiffs tried
several times to contact him by telephone and that he still
was not present or accounted for when they started the
deposition thirty-eight minutes late. Dep. of Philip
Zodhiates, Klayman v. Judicial Watch, Inc., Civil Action
No. 1:06-CV-00670 (AK), at 12:11-12:18 (May 15, 2008)
(“Dep. of Philip Zodhiates”). Counter-Plaintiffs
claim that Counter-Defendant waived any objections to
authenticity of documents shown at the deposition by failing
to appear. However, they do not cite any authority, nor is
the Court aware of any, for their argument that a failure to
object to authenticity of an exhibit shown at a deposition
waives an authenticity objection to the introduction of that
exhibit at trial. See, e.g., Fed.R.Civ.P. 32(d)
(listing grounds for waiver of objections not raised at
deposition, none of which expressly addresses exhibits shown
at the deposition).[1] Consequently, the Court shall proceed to
consider Counter-Defendant's objections notwithstanding
his failure to make them during the deposition.
Counter-Defendant
objects cryptically to some of the exhibits proposed for
introduction through Mr. Zodhiates to the effect that
“authentication must await reading of
deposition.” E.g., Pl.'s Resp. to Defs.
[sic] Mar. 5, 2018 Designation of Exs.
(“Counter-Def.'s Resp.”). But with the
deposition transcript now before it, the Court is in a
position to evaluate the authenticity of the proposed
exhibits. Turning to Counter-Defendant's objection to
handwriting in Exhibits 160 and 161, the
Court previously reserved decision on the authenticity of
these exhibits while Counter-Plaintiffs were to
“determine whether the handwriting was shown to Mr.
Zodhiates during his deposition. Id. at 7. As
discussed below, Counter-Plaintiffs have since indicated that
Mr. Zodhiates was shown the relevant exhibits containing the
handwriting to which Counter-Defendant objects. The Court
shall proceed to evaluate the authenticity of
Exhibits 160 and 161.
Upon
consideration of the parties' briefing, [2] their further
representations, the relevant legal authorities, and the
record as a whole, the Court rules as follows on the
authenticity of Counter-Plaintiffs' exhibits that they
propose to introduce through the deposition testimony of Mr.
Zodhiates.
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 some 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 claimed to be,
” Fed.R.Evid. 901(b)(1), or testimony conveying
“[a] nonexpert's opinion that handwriting is
genuine, based on a familiarity with it that was not acquired
for the current litigation, ” id. 901(b)(2).
III.
DISCUSSION
A.
Zodhia ...