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 Defendan t Lance Armstrong to stipulate to the aut henticity of portions of the Sony-produced documentary The Armstrong Lie —and corresponding lines of the official transcript—in which Armstro ng was interviewed. The Court granted this motion, permitting Relator to pose the following i nterrogatory 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 q uestions asked of you and the answers you gave?” Order of Oct. 29, 2015, at 3, ECF No. 447. In responding to this interrogato ry, Armstrong insisted that t he 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 port ions of the questions. Armstrong’s answers have also been edited. Parts o f his answers have been deleted. In other instances, multiple answers have been c ombined so as to appear to be a single answer.

Decl. Paul D. Scott S upp. Relator’s Summ. Disc. Dispute (“Scott Decl.”) Ex. A, at 5–6, ECF No. 478. Similarly, Armstrong asserted t hat the transcript of the documentary provided to him does not reflect the questions asked of Armstrong and the answe rs 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 not2 utter in the film. Words that Armstrong uttered in the film ha ve 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 l earn precisely which questions and answers in the video and transcript are contested. Altern atively, Relator requests that the Court order Armstrong to supplement his interrogatory r esponse by specifying what he con tends the disputed questions and answers actually were. Armstr ong refuses to do so; he maintain s that he has answered Relator’s

Court-drafted interr ogatory in full.

Under Federal Rule of Evidence 901(a), in order to authenticat e an item of evidence, “the proponent must produce evidence su fficient to support a finding that the item is what the proponent claims it is.” This requiremen t can be satisfied by the testim ony of a witness wit h 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 tes timony from parties to the co nversation affirming that the tapes

contained an accurate record of w hat was said.” United States v. Strothers, 77 F.3d 1389, 1392 (D.C. Cir. 1996) (quoting Unite d 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 subpoen as when the discovery sought can be obtained in a way that is “mo re convenient, less burdensome, or less expensive. ” Fed. R. Civ. P. 26(b)(2)(C)(i). The thrust of Armstrong’s inte rrogatory response is that relev ant portions of The Armstrong

Lie have been edited and spliced in a way that renders them too mi sleading 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 a uthorizes courts to exclude relevant evidence that carries too great a danger of “unfair prejud ice” or “misleading the jury.” And under Rule 106, when a party3 introduces only part of a record ed statement, the opposing part y 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 Evi dence treatise has explained, objections that a video or film “ has been edited and is therefo re 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), exemplif ies this approach. In t hat case, the defendant argued that video tapes had not been sufficiently authenticated because the y were “edited and spliced” and “may have therefore been misleading.” Id. at 984. Regardless of whether deletions and rearrangements rendered the fi nished product misleading, the Co urt was “satisfied that the videos fairly depict the actual events that took place.” Id. In shor t, “the tapes fairly and accurately (although perhaps not completely) de pict the events they purpor t to depict, edi ting and splicing not to the contrary.” Id. at 9 85. Affirming this decision on appe al, 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 (6t h Cir. 2005). Similarly , in Asociación de Periodistas de Puerto Rico v. Mueller, 680 F.3d 70 ( 1st Cir. 2012), the plaint iffs described contested videos as “incomplete” and “extensively edited,” but they did “no[t] . . . say that the videos do not show actual footage of the inciden t in question,” id. at 79. For th at reason, there was “no serious basis for disputing the authen ticity of the videos.” Id. at 80; see also Mills v. Riggsbee, Civ. No. 05:12–148– KKC, 2013 WL 6243951, at *3 (E.D. K y. Dec. 3, 2013) (“[E]ven if the video could be sufficiently authenticated, it should be excl uded from trial pursuant to Rul e 403.”). Armstrong has cited no authority f or the proposition that an o therwise authentic video clip may be rendered inauthentic because some actually spoken words have been omitted and others reordered. Of course, Armstrong m ay later move the Court to ex clude certain video footage as4 unduly misleading under Rule 403, a nd at trial he may invoke Ru le 106 to introduce more-complete versions of any footage “that i n fairness ought to be considere d at the same time.” Relator may well wish to obtain raw, unedite d versions of the relevant foot age in anticipation of such challenges. Moreover, based on the legal princi ples articulated in this Opi nion and Order, the Cou rt expects that Armstrong will in good faith stipulate to the authenticity of a ny 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 (re ferring to “Armstrong’s answer s,” “his answers,” “statements that Armstrong made,” and “[w]ords t hat Armstrong uttered”); see als o Decl. Paul D. Scott Supp. Relator’s Summ. Disc. Dispute Ex. B (“Lance Armstrong Depositio n”), at 696:4-5, ECF No. 440 (“[I]f it’s me and I’m talking and my mouth is moving, that’s m e.”). But the Court will not require Armstrong to supplement his inte rrogatory response or to sit fo r further deposition time. Nor will the Court order Armstrong to identify any alleged err ors in the transcript of The Armstrong Lie provided to him by Relator on S eptember 18, 2015. Relator is e qually able to identify discrepancies between t he words actually uttered in th e documentary and the text of a corresponding transcript. If Rela tor wishes to include relevan t portions of the transcript in his trial exhibits, the Court expects him to ensure their accuracy. If n ecessary, Armstrong may object to the accuracy of Relator’s t ranscript designations in advance of tri al. For the foregoing reasons, it is hereby ORDERED that Relator’s Motion to Compel, as reflected in his [478] Summa ry of Discovery Dispute, be DENIED

. SO ORDERED

.

CHRISTOPHER R. COOPER United States District Judge Date: June 8, 2016