UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

UNITED STATES ex rel. LANDIS, et al., 

 

Plaintiffs, 

v. 

TAILWIND SPORTS CORP., et al., 

 

Defendants. 

 

 Case No. 1:10-cv-00976 (CRC) 

OPINION AND ORDER 

 In October 2015, Relator Floyd Landis moved to compel Defendant Lance Armstrong to 

stipulate to the authenticity of portions of the Sony-produced documentary The Armstrong Lie—and 

corresponding lines of the official transcript—in which Armstrong was interviewed. The Court 

granted this motion, permitting Relator to pose the following interrogatory to Armstrong: “Do both 

the video footage of you in the 2013 documentary The Armstrong Lie and the transcript of that 

documentary previously provided to you accurately reflect the questions asked of you and the 

answers you gave?” Order of Oct. 29, 2015, at 3, ECF No. 447. 

 In responding to this interrogatory, Armstrong insisted that the documentary footage 

does not accurately reflect the questions asked of him and the answers he gave. 

Questions to which answers are given have been edited out. The content of the 

questions themselves ha[s] been edited, including deleting portions of the 

questions. Armstrong’s answers have also been edited. Parts of his answers have 

been deleted. In other instances, multiple answers have been combined so as to 

appear to be a single answer. 

Decl. Paul D. Scott Supp. Relator’s Summ. Disc. Dispute (“Scott Decl.”) Ex. A, at 5–6, ECF No. 

478. Similarly, Armstrong asserted that the transcript of the documentary provided to him 

does not reflect the questions asked of Armstrong and the answers he gave. . . . 

Portions of Armstrong’s answers that appear in the film do not appear in the 

transcript. Entire statements that Armstrong made in the film are missing from 

the transcript. The transcript contains words and phrases that Armstrong did not 
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utter in the film. Words that Armstrong uttered in the film have been replaced 

with words he did not. 

Id. at 6. Dissatisfied with these responses, Relator now moves the Court to reopen Armstrong’s 

deposition so that Relator can learn precisely which questions and answers in the video and 

transcript are contested. Alternatively, Relator requests that the Court order Armstrong to 

supplement his interrogatory response by specifying what he contends the disputed questions and 

answers actually were. Armstrong refuses to do so; he maintains that he has answered Relator’s 

Court-drafted interrogatory in full. 

 Under Federal Rule of Evidence 901(a), in order to authenticate an item of evidence, “the 

proponent must produce evidence sufficient to support a finding that the item is what the proponent 

claims it is.” This requirement can be satisfied by the testimony of a witness with knowledge “that 

an item is what it is claimed to be.” Id. 901(b)(1). Under D.C. Circuit precedent, video or audio 

tapes may be authenticated “by testimony from parties to the conversation affirming that the tapes 

contained an accurate record of what was said.” United States v. Strothers, 77 F.3d 1389, 1392 

(D.C. Cir. 1996) (quoting United States v. Dale, 991 F.2d 819, 843 (D.C. Cir. 1993)) (internal 

quotation marks omitted). Relator’s present motion is premised on the commonsense principle that 

third parties should not be unnecessarily burdened with subpoenas when the discovery sought can 

be obtained in a way that is “more convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 

26(b)(2)(C)(i). 

 The thrust of Armstrong’s interrogatory response is that relevant portions of The Armstrong 

Lie have been edited and spliced in a way that renders them too misleading to serve as reliable tools 

in a search for the truth. But addressing this concern is the function of two other Federal Rules of 

Evidence, not Rule 901. Rule 403 authorizes courts to exclude relevant evidence that carries too 

great a danger of “unfair prejudice” or “misleading the jury.” And under Rule 106, when a party 
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introduces only part of a recorded statement, the opposing party may require the immediate 

introduction of any other part (or of another statement) “that in fairness ought to be considered at 

the same time.” 

 Authorities amply bear out this distinction. As a leading Evidence treatise has explained, 

objections that a video or film “has been edited and is therefore misleading” are to be “resolved 

pursuant to Rule 403.” 2 McCormick on Evidence § 216 (7th ed.). United States v. Damrah, 334 

F. Supp. 967 (S.D. Ohio 2004), exemplifies this approach. In that case, the defendant argued that 

video tapes had not been sufficiently authenticated because they were “edited and spliced” and 

“may have therefore been misleading.” Id. at 984. Regardless of whether deletions and 

rearrangements rendered the finished product misleading, the Court was “satisfied that the videos 

fairly depict the actual events that took place.” Id. In short, “the tapes fairly and accurately 

(although perhaps not completely) depict the events they purport to depict, editing and splicing not 

to the contrary.” Id. at 985. Affirming this decision on appeal, the Sixth Circuit noted that the 

defendant did “not question the fact that he and his words are depicted in the videotapes.” United 

States v. Damrah, 412 F.3d 618, 628 (6th Cir. 2005). Similarly, in Asociación de Periodistas de 

Puerto Rico v. Mueller, 680 F.3d 70 (1st Cir. 2012), the plaintiffs described contested videos as 

“incomplete” and “extensively edited,” but they did “no[t] . . . say that the videos do not show 

actual footage of the incident in question,” id. at 79. For that reason, there was “no serious basis for 

disputing the authenticity of the videos.” Id. at 80; see also Mills v. Riggsbee, Civ. No. 05:12–148–

KKC, 2013 WL 6243951, at *3 (E.D. Ky. Dec. 3, 2013) (“[E]ven if the video could be sufficiently 

authenticated, it should be excluded from trial pursuant to Rule 403.”). 

 Armstrong has cited no authority for the proposition that an otherwise authentic video clip 

may be rendered inauthentic because some actually spoken words have been omitted and others 

reordered. Of course, Armstrong may later move the Court to exclude certain video footage as 
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unduly misleading under Rule 403, and at trial he may invoke Rule 106 to introduce more-complete 

versions of any footage “that in fairness ought to be considered at the same time.” Relator may 

well wish to obtain raw, unedited versions of the relevant footage in anticipation of such challenges. 

Moreover, based on the legal principles articulated in this Opinion and Order, the Court expects that 

Armstrong will in good faith stipulate to the authenticity of any video clips in which he appears to 

be speaking. Indeed, Armstrong’s interrogatory response leaves him little room to do otherwise. 

See Scott Decl. Ex. A, at 5–6 (referring to “Armstrong’s answers,” “his answers,” “statements that 

Armstrong made,” and “[w]ords that Armstrong uttered”); see also Decl. Paul D. Scott Supp. 

Relator’s Summ. Disc. Dispute Ex. B (“Lance Armstrong Deposition”), at 696:4-5, ECF No. 440 

(“[I]f it’s me and I’m talking and my mouth is moving, that’s me.”). But the Court will not require 

Armstrong to supplement his interrogatory response or to sit for further deposition time. 

 Nor will the Court order Armstrong to identify any alleged errors in the transcript of The 

Armstrong Lie provided to him by Relator on September 18, 2015. Relator is equally able to 

identify discrepancies between the words actually uttered in the documentary and the text of a 

corresponding transcript. If Relator wishes to include relevant portions of the transcript in his trial 

exhibits, the Court expects him to ensure their accuracy. If necessary, Armstrong may object to the 

accuracy of Relator’s transcript designations in advance of trial. 

 For the foregoing reasons, it is hereby ORDERED that Relator’s Motion to Compel, as 

reflected in his [478] Summary of Discovery Dispute, be DENIED. 

SO ORDERED. 

 

CHRISTOPHER R. COOPER 

United States District Judge 

Date: June 8, 2016