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Klayman v. Judicial Watch, Inc.

United States District Court, District of Columbia

March 9, 2018

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

          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 ...


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