United States v. Safavian United States District Court District of Columbia November 29, 2010 Jonathan Weiner

Parties United States Government – Charging Safavian with making false statements and obstruction of justice during an investigation David Safavian – Submitted a motion in limine to deny government’s Rule 902(11) authentications for evidence

Facts Defendant was indicted on 12/5/2005 for allegedly making false statements and obstructing the investigation into his dealings with lobbyist Jack Abramoff while he was chief of staff for the General Services Administration Government now seeks to present at trial correspondences between Defendant and Abramoff Government wishes to use Jay Nogle the custodian of records at GreenBerg Turig LLP – the law firm that once employed Abramoff to authenticate the correspondences

From left to right: convicted lobbyist Jack Abramoff, golf organizer Jason Murdoch, former Christian Coalition leader Ralph Reed, convicted former Bush administration official David Safavian and convicted former Congressman Bob Ney

Legal Framework (Rules) FRE 901 – Requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims Ways a document can be authenticated – 901(b)(4) » Examine the evidence’s distinctive characteristics and the like including appearance / contents / substance / internal patterns / other distinctive characteristics – 901(b)(3) » Evidence may be authenticated by comparison by the trier of fact with specimens which have been otherwise authenticated FRE 902 – Lists documents that are self authenticating (do not require extrinsic evidence of authenticity) 902(11) – Foundation requirements of 803(6) can be satisfied under certain circumstances without the expense and inconvenience of producing time consuming foundation witnesses – goes hand in hand with business records exception

Case Analysis A motion in limine was filed claiming that Nogle should not be allowed to authenticate the s – Defendant argues that Nogle can only authenticate if the s were submitted pursuant to the business records exception to hearsay – Government wishes to have the s entered in under a different exception (not business records, 803(6)) – 902(11) was intended as a means of authenticating only that evidence which is being offered under the business records exception thus Nogle cannot authenticate Government also sought to have authentication under 901 – Must ask if there is sufficient evidence to support a finding that the matter in question is what its proponent claims – Methods of authentication under 901 Distinctive characteristics symbol identifies document as an – Contains name of persons connected to the address » s contain name and recipient in the body of the / headings / signature Content – Discussion of various identifiable matters » Safavian’s work at GSA / Abramoff’s work as a lobbyist / personal and professional matters Comparison – 901(b)(3) – The s that lacked distinctive characteristics and content could be verified by comparing them to s that were already authenticated – MerrittDC address » Alone does not demonstrate who is the sender » When compared to Exhibit 100 which includes the senders name and name of business we can conclude who owned the address Trustworthiness of forwarded s called into question by defendant – Possibility of alteration does not and cannot be the basis for excluding s as unidentified or unauthenticated Defendant also raises issue of how the s may be proffered to the jury – Court was aided in reaching conclusions about the s based on proffers by government lawyers – Government lawyers and witnesses may only testify to facts within their personal knowledge EX – MerrittDC address versus exhibit 100 / incomplete s – exchanges – Court will not permit any testimony beyond the bare fact of what words appear on a particular by a case agent or summary witness who neither composed nor received these s

E-Discovery Issues How can electronically discoverable evidence be authenticated? – Self authenticating (902)(11) via 803(6) Business Records Exception – (901)(a) Showing there is sufficient evidence to support a finding that the matter in question is what its proponent claims Limitations on what can be proffered to the jury by the party submitting electronically discovered evidence – Government cannot testify to anything more than the bare fact of what words appear on a particular by a case agent or summary witness who neither composed nor received these s

Conclusion Defendants motion in limine to deny the governments Rule 902(11) certification by Jay Nogle was GRANTED Defendants motion in limine to deny certification by other means under Rule 902(11) was DENIED Testimony must be to bare facts of what words appear on the s

Discussion Questions 1. – Should s containing the name of the sender and receiver need to be authenticated? 2. – Should the possibility of alteration be a basis for exclusion of electronically discovered evidence?