                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

UNITED STATES ex rel. LANDIS, et al.,

                      Plaintiffs,

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

TAILWIND SPORTS CORP., et al.,

                      Defendants.


                                    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
       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

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