Klayman v. Judicial Watch, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LARRY KLAYMAN,
Plaintiff,
v. Civil Action No. 06-670 (CKK)
JUDICIAL WATCH, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
(March 9, 2018)

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

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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.

1
An argument could be made that certain objections to exhibits would be waived if not raised.
“An objection to a deponent’s competence—or to the competence, relevance, or materiality of
testimony—is not waived by a failure to make the objection before or during the deposition, unless
the ground for it might have been corrected at that time.” Fed. R. Civ. P. 32(d)(3)(A). In particular,
one could assert that an objection to the competence of testimony about handwriting is waived if
not made at the deposition. But because this attenuated point has not been briefed, in an exercise
of its discretion the Court shall proceed and ultimately call for further support for authentication.

2
 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. Zodhiates Testimony

a. Exhibits 132-35

2
The Court’s consideration has focused on the following documents:
• Defs.’ Notice Regarding Authenticity for Exs. to Be Used on Tuesday, Mar. 6, 2018, ECF
No. 510 (“Notice”);
• Pl.’s Resp. to Defs. [sic] Mar. 5, 2018 Designation of Exs. (“Counter-Def.’s Resp.”).

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 Through Mr. Zodhiates’s deposition testimony, Counter-Plaintiffs propose to admit
Exhibits 132-35 containing a series of purchase orders from Response Unlimited, a company that
Mr. Zodhiates owned and that acted as a mailing list broker and list manager supporting
fundraising operations, among other things. See Dep. of Philip Zodhiates at 15:2-7, 16:6-20.

At the deposition, Exhibits 132-35 were shown to Mr. Zodhiates with the labels deposition
Exhibits 4-B, 4-C, 4-D, and 4-E. It is difficult to understand the testimony about these four exhibits
without also reading the preceding portion about then-labeled Exhibit 4-A (which Counter-
Plaintiffs have now labeled Exhibit 131 but do not propose to admit).

Exhibit 132 is a November 14, 2006, record that appears to recode Judicial Watch and
non-Judicial Watch donor lists from which Response Unlimited is drawing names for a Saving
Judicial Watch mailer. Exhibit 133 is also a November 14, 2006, record, this one identifying other
lists, associated with other organizations, from which Response Unlimited also appears to draw
records for a Saving Judicial Watch mailer. Exhibit 134 is an April 26, 2007, record, likewise for
a Saving Judicial Watch mailer, that Mr. Zodhiates says contains “the names used for mailing,”
specifically referring to a list that originally came from Judicial Watch. Id. at 72:7-73:2. Exhibit
135 is a May 3, 2006, record for a Saving Judicial Watch mailer that refers again to a Judicial
Watch list and this time appears to code certain donors by dollar amount.

Counter-Defendant objects that the exhibits appear to contain only portions of the relevant
documents, but the Court finds no support for that argument. Rather, the Court is concerned with
Mr. Zodhiates’s comments that not only is he unfamiliar with the specific documents at issue, but
these documents are atypical of Response Unlimited’s processes. For example, when he is asked
about Exhibit 131 (deposition Exhibit 4-A), he says this “[l]ooks like a purchase order,” but “[w]e
actually don’t use them much for production,” and it “is probably actually something that Larry
required, I would assume.” Id. at 70:5-70:17. The Court understands the comments to refer more
broadly to the type of purchase orders also at issue in Exhibits 132-35. For example, Mr.
Zodhiates indicates that “most of this documentation I’ve never seen before,” clarifying that he
refers to “[a]ny orders and stuff like that” in Exhibit 131/Exhibit 4-A and Exhibits 132-35. Id. at
73:14-73:19. It is hard to qualify these exhibits as business records where the purported custodian
demonstrates such uncertainty.

This is a borderline instance, but ultimately, in an exercise of its discretion the Court shall
deem these exhibits authenticated based on the low threshold in the general Rule 901(a). Mr.
Zodhiates appears to recover from his uncertainty about the type of documents, which he finds
rather unfamiliar, to clearly identify these documents as Response Unlimited documents created
by Response Unlimited employees, likely one of two in particular. Id. at 73:20-74:12. Moreover,
at trial Plaintiff may raise objections to the competence of the witness or of the testimony. Fed.
R. Civ. P. 32(d)(3)(A); see also Order, ECF No. 486, at 4 (discussing scope of Rule 32(d)(3)
waiver).

Accordingly, the Court finds sufficient evidence that Exhibits 132-35 are
authenticated. Deposition testimony for Exhibit 4-A through 4-E should be read to supply

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sufficient context before Counter-Plaintiffs move for the admission of any of the exhibits,
notwithstanding that they do not intend to introduce Exhibit 131, which was deposition Exhibit 4-
A.

b. Exhibits 143-45

Exhibits 143-45 consist of three email chains involving Mr. Zodhiates and those who
appear to be his colleagues and another vendor, on the one hand, and Counter-Defendant and his
wife, Diana Klayman, on the other hand. In Exhibits 143 and 144, the participants exchange
recriminations about who owes whom money. Exhibit 145 concerns Counter-Defendant’s request
for payment of the funds collected by Response Unlimited. These exhibits were shown to Mr.
Zodhiates as deposition Exhibits 5-H, 5-I, and 5-J, respectively.

With respect to Exhibit 143, Mr. Zodhiates is a recipient of the last email, sender of the
penultimate email, and at a different point in the deposition identifies Response Unlimited’s
accountant as the person who evidently printed this email, judging by that individual’s name
appearing at the top. With respect to both Exhibits 144 and 145, Mr. Zodhiates is the sender of
the last email in the respective chain. 3 Mr. Zodhiates’s recollection of the specific emails comes
across in the testimony as hazy, but his responses to each of the exhibits makes clear that he is
keenly aware of the underlying circumstances, namely specific issues in the company’s
relationship with Counter-Defendant and his wife.

Aspects of the business records exception to the hearsay rule support a finding that these
emails are authentic. The emails are records contemporaneous with the relevant factual
developments, which clearly have been maintained since the time at which the emails were sent.
While Mr. Zodhiates cannot attest much to the specific emails, he demonstrates awareness of the
circumstances, and the Court is unaware of any reason to doubt that the email chain does in fact
consist of what appears in these exhibits. Accordingly, the Court finds sufficient evidence that
Exhibits 143-45 are authenticated.

c. Exhibits 146-50

Exhibit 146 appears to the Court to be a partial draft and full final version (with redacted
addressee) of a Saving Judicial Watch letter, reply device, and reply envelope (the last of which is
addressed to “Judicial Watch”). Previously, the Court found that Exhibit 6, 4 which appears to be
a duplicate of the full final version, was authenticated. Mem. Op. and Order, ECF No. 508, at 4.

3
The last email in the chain in Exhibit 144 has either been forwarded or replied to, but this further
communication has largely been truncated.
4
The operative version of Exhibit 6 is now the version that was attached to the Amended
Counterclaim. See Mem. Op. and Order, ECF No. 508, at 4.

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Accordingly, the Court expects here some confirmation of the draft copy and their linkage together
in an exhibit attributable to Response Unlimited.

But Mr. Zodhiates was unable to say whether Exhibit 146, marked as separate Exhibits 6A
and 6B for the deposition, reflected draft or final copy of a letter to be sent on Counter-Defendant’s
behalf. See Dep. of Philip Zodhiates at 94:13-95:8. He also was unable to confirm that he had
seen Counter-Defendant’s letters as mailed, or even that these were in fact Response Unlimited
work product. See id. at 96:11-97:7. He appears to have no knowledge of any Saving Judicial
Watch mailings that contained reply envelopes addressed to “Judicial Watch.” Id. at 97:17-20
(“[Question] Is that a copy of what the envelope would look like for the return envelope for donors?
[Answer] I should hope not because it says Judicial Watch.”). Nor is there any explanation of why
the seeming draft version is only partial. The Court finds that Mr. Zodhiates has not established
sufficient foundation to authenticate this composite document. Accordingly, the Court shall
exclude Exhibit 146 on the present record.

Mr. Zodhiates identifies Exhibits 147-49 5 as Response Unlimited’s job approval forms for
a Saving Judicial Watch mailing, indicates that a signature on such forms was required for Counter-
Defendant’s projects, and notes that the signature “looks like” Counter-Defendant’s. 6 Dep. of
Philip Zodhiates at 98:22-99:12; 101:8-101:10. Moreover, language on the document itself
suggests that Mr. Zodhiates is in a position to know: “Client will sign and return (via email) all
related job approval forms within one business day to Philip Zodhiates, Maureen Otis, and Joel
Baugher.” E.g., Ex. 147 (emphasis added). While the deposition provides little further detail about
these exhibits, the Court is satisfied that Counter-Plaintiffs have furnished “evidence sufficient to
support a finding that the item is what the proponent claims it is,” Fed. R. Evid. 901(a), if not also
to prove these are authentic as business records under Rule 803(6). Accordingly, the Court finds
sufficient evidence that Exhibits 147-49 are authenticated.

Exhibit 150, labeled deposition Exhibit 7-D, is an email thread between a Response
Unlimited employee and Counter-Defendant, on which Mr. Zodhiates is copied, that solicits and
obtains Counter-Defendant’s sign-off on a Saving Judicial Watch letter. Mr. Zodhiates attests to
the relevant elements of the email without incredulity, unlike with respect to some of the other
exhibits. He cannot say whether this approval thread is specifically associated with the job
approval forms in Exhibits 147-49. See Dep. of Philip Zodhiates at 100:20-101:7. But in light of
the testimony regarding this exhibit and Exhibits 146-49, the Court finds sufficient evidence that
this thread of emails is what it claims to be. Accordingly, the Court finds sufficient evidence
that Exhibit 150 is authenticated.

5
At the deposition, Exhibits 147-49 were labeled Exhibits 7-A, 7-B, and 7-C, respectively.
6
There is some ambiguity as to which exhibit specifically contained the signature that Mr.
Zodhiates was identifying. But since the signature on each of Exhibits 147-49 looks the same,
and there is no signature on Exhibit 150 that is also discussed at that point in the deposition, the
Court interprets deponent’s identification to apply to Exhibits 147-49.

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 d. Exhibits 153 and 154

Exhibit 153, also labeled deposition Exhibit 8-C, is another email thread between Counter-
Defendant and a Response Unlimited employee on which Mr. Zodhiates is copied and about which
Mr. Zodhiates does not have specific recollection. But Mr. Zodhiates attests in reasonable detail
to the subject matter, namely Counter-Defendant’s recurring requests for payment from an escrow
account that contained Response Unlimited’s fundraising from Saving Judicial Watch. See id. at
101:19-104:16. The Court has no reason to find that this is not an authentic email thread
concerning the subject matter to which Mr. Zodhiates testifies. Accordingly, the Court finds
sufficient evidence that Exhibit 153 is authenticated.

Exhibit 154, also labeled deposition Exhibit 9-A, is likewise an email thread between
Counter-Defendant and Response Unlimited on which Mr. Zodhiates is copied, and in which he
participates in a discussion of targeted outreach to potential donors. The participants refer to using
a Judicial Watch list of names for other clients. Mr. Zodhiates indicates that he is “vaguely”
familiar with this particular thread, that he “remember[s] the idea being brought up,” and notes
that “obviously, we acted upon it.” Id. at 107:22-108:5. Counter-Defendant has not raised an
objection to this exhibit. Accordingly, the Court shall deem Exhibit 154 admitted without
objection.

e. Exhibits 156-58

Exhibits 156-587 are further email threads between Counter-Defendant and Response
Unlimited staff, this time discussing preparation and sign-off on Saving Judicial Watch letters.
Mr. Zodhiates does not specifically remember the email threads in Exhibits 156 and 158, and he
is not asked that question with respect to Exhibit 157.

As to Exhibit 156, Mr. Zodhiates testifies that he generally remembers sending final copies
of draft letters for Counter-Defendant’s approval, and that Counter-Defendant “[t]ypically . . .
would send things through me,” rather than directly to Mr. Zodhiates’s staff. Id. at 111:6-112:13.
In light of the simplicity of this email thread—simply one exchange between Mr. Zodhiates and
Counter-Defendant—the Court finds that the general process to which Mr. Zodhiates attested
suffices to lay foundation. Accordingly, the Court finds sufficient evidence that Exhibit 156
is authenticated.

However, the identification of Exhibit 157 is problematic. Mr. Zodhiates identifies it as a
duplicate of Exhibit 154, with the inclusion of the bottom of the thread. The deposing attorney
then moves on to the next exhibit. Id. at 112:19-113:13. But there is no discussion of what appears
to be some duplication of the bottom part of the email chain (i.e., repeating the donor breakdown
verbatim), and Mr. Zodhiates does not recognize that the final email or two in each thread differs.
There is virtually no foundation laid beyond indicating that Exhibit 157 is a further entry on the
thread in Exhibit 154. Accordingly, the Court shall exclude Exhibit 157 on the present record.

7
At the deposition, Exhibits 156-58 were labeled Exhibits 9-C, 9-D, and 9-E, respectively.
7
 The email thread in Exhibit 158 concerns the separation of Saving Judicial Watch and
Freedom Watch projects, and goes into further detail regarding an anticipated Saving Judicial
Watch letter. Mr. Zodhiates is unable to identify the thread, specifically remember it, or recall the
general context. See id. at 113:18-114:11. No further questioning takes place. Notwithstanding
the similar context of this exhibit to others in the batch, absent some affirmative foundation laid
through the deponent, the Court finds that there is insufficient evidence to authenticate this email.
Accordingly, the Court shall exclude Exhibit 158 on the present record.

f. Exhibits 160 and 161

On March, 6, 2018, the Court reserved decision as to the authenticity of Exhibits 160 and
161 in order to permit Counter-Plaintiffs to determine whether the handwriting thereon was shown
to Mr. Zodhiates during his deposition. Counter-Plaintiffs have since identified the relevant
excerpts of the deposition transcript, which Counter-Defendant has provided in full to the Court.
See generally Dep. of Philip Zodhiates.

It is clear that Mr. Zodhiates was shown two exhibits, marked for deposition as Exhibits
12 and 13, which Counter-Plaintiffs represent now to be the proposed Exhibits 160 and 161,
respectively. Each exhibit consists of a November 2006 fax cover sheet and an underlying
document. In each exhibit, the letterhead on the fax cover sheet is “The Klayman Law Firm, P.A.”
Each cover sheet also has a handwritten note; one is legibly from “Larry” and the other appears,
by reference to previously authenticated exhibits, to be Counter-Defendant’s signature. Each
exhibit purports to convey edits to draft fundraising material that appears to be for Counter-
Defendant’s Saving Judicial Watch campaign.

The line of questioning assumes, and Mr. Zodhiates’s responses suggest, his belief that
Exhibits 160 and 161 are documents that come from Counter-Defendant, but Mr. Zodhiates is
unable to answer some of the basic questions to which the Court would expect affirmative answers
to provide sufficient foundation for his testimony. For example, Mr. Zodhiates indicates that he
does not remember receiving the document contained in Exhibit 160, that “in actuality, [he] may
have never seen this” document, and that “[i]t might have never even come to my desk.” Id. at
117:11-118:7. With respect to Exhibit 161, Mr. Zodhiates’s comments suggest that it is typical
of correspondence with Counter-Defendant but it is not clear that Mr. Zodhiates saw this particular
document. See, e.g., id. at 118:11-118:13 (“This is a copy of approval, and he’s indicating he
wants to see final copy once these changes are made. . . . It was usually handwritten like this on a
fax, in a fax. He would fax it.”).

Mr. Zodhiates did address some of the handwriting at the deposition. As to Exhibit 160,
the deponent was specifically asked to identify the handwriting, which he replied “looks like”
Counter-Defendant’s. Id. at 117:17. However, in light of Mr. Zodhiates’s above-described general
unfamiliarity with this document and apparently others that may have reached his desk, and absent
a more definitive identification of Counter-Defendant’s handwriting, the Court is not satisfied that
Mr. Zodhiates’s comments sufficiently confirm this handwriting. See, e.g., Fed. R. Evid 901(b)(1)
(“Testimony of a Witness with Knowledge”); id. 901(b)(2) (“Nonexpert Opinion About

8
Handwriting”). When identifying Exhibit 161, on the other hand, Mr. Zodhiates is not asked to
identify the handwriting thereon, nor does Mr. Zodhiates clearly do so.

Mr. Zodhiates is not sufficiently specific in identifying the particular documents in
Exhibits 160 and 161 for the Court to find that they have been authenticated. For the foregoing
reasons, the Court shall exclude Exhibits 160 and 161 on the present record.

The Court does not exclude the possibility that Counter-Plaintiffs could lay foundation for
these exhibits through a combination of Mr. Zodhiates’s deposition testimony and that of another
witness who can be shown Exhibits 160 and 161 and can better confirm Counter-Defendant’s
handwriting. Counter-Plaintiffs may either put on the handwriting witness first, or, if they first
would like to show the exhibit during the course of reading the deposition, then they may redact
the handwriting. If after reading the deposition and showing the redacted version of the exhibit,
they later provide adequate foundation for the handwriting, then the unredacted exhibit may be
admitted.

g. Exhibits 168-70

Exhibit 168, deposition Exhibit 16, is an August 2007 email thread discussing mailing
costs and cost approval forms for the “SJW Emergency Appeal” package. While Mr. Zodhiates
does not recall this specific thread, he does recall discussing the use of First Class mail, and he
proceeds in the deposition to elaborate on the significance of that decision for the success of the
appeal. See Dep. of Philip Zodhiates at 122:15-124:3. Coupled with this testimony, and in light
of Mr. Zodhiates’s close engagement in the email thread, the Court finds adequate foundation.
Accordingly, the Court finds sufficient evidence that Exhibit 168 is authenticated.

Exhibit 169, deposition Exhibit 17, contains job approval forms for the “SJW Emergency
Appeal 8-07.” It appears to combine Exhibits 147-49, which the Court above found to be
authenticated. Mr. Zodhiates does not provide as much foundation this time, and he appears not
to recognize that these exhibits are the same. It now appears that the job approval forms were
attached to the latest email to Counter-Defendant in the Exhibit 168 thread, so presumably they
would not be signed by Counter-Defendant yet. But the approval forms in Exhibit 169 are signed
by what appears to be Counter-Defendant’s hand. Accordingly, it is not clear that these are the
self-same attachments included in the Exhibit 168 email. Due in part to redundancy and a
possibility for confusion, the Court shall exclude Exhibit 169 on the present record.

Exhibit 170, deposition Exhibit 170, is an email thread between Counter-Defendant and
Mr. Zodhiates that the latter again does not specifically remember. But he speaks at length about
his memory of the subject matter, namely that he “was floored” with the “quite spectacular” early
results of the Saving Judicial Watch campaign. Id. at 125:5-127:18. There does appear at the
bottom of the email to be an extraneous repeat of the bottom email, but this does not detract from
the foundation laid. Based on the consistency of the subject matter of the email with Mr.
Zodhiates’s memory of discussions around that time, the Court finds adequate foundation.
Accordingly, the Court finds sufficient evidence that Exhibit 170 is authenticated.

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 ***

ORDER

The following exhibit proposed for introduction through the deposition testimony of Philip
Zodhiates has been admitted without objection: Exhibit 154.

The following exhibits proposed for introduction through the deposition testimony of Mr.
Zodhiates have been authenticated on the above-cited grounds: Exhibits 132-35, 143-45, 147-
50, 153, 156, 168, and 170.

The following exhibits are not authenticated on the present record: Exhibit 146, 157-58,
160-61, and 169.

SO ORDERED.

Dated: March 9, 2018

/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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