Unexplained Gap in Email Chain Defeats Circumstantial Authentication — YouTube Video Authentication Fails Absent Custodian Certification — Text Message Authentication Must Link Cell Numbers to Relevant Persons

Randaza v. Cox, 2014 U.S. Dist. LEXIS 49762 (D. Nev. April 10, 2014):

This cybersquatting case arises out of the alleged targeting of Plaintiffs Marc Randazza, his wife Jennifer, and their young daughter Natalia, by Defendant Crystal Cox, a self-proclaimed "investigative blogger." The Randazzas allege that Cox and Defendant Eliot Bernstein have engaged in an online harassment campaign to extort them by registering dozens of internet domain names that incorporate the Randazzas' names and then demanding they agree to purchase Cox's "reputation management" services to remove this allegedly defamatory material from the internet and rehabilitate their cyber reputations. Cox maintains that this lawsuit was instituted to harass her and stifle her First Amendment freedoms  [*2] of speech and expression.

The Randazza Plaintiffs move for summary judgment on their claims against Cox. But as one of those claims is legally untenable, and genuine issues of material fact preclude summary judgment on the remainder, their motion is denied. Cox has pending her own motion for summary judgment on her original "Counter-Complaint," which has since been stricken and supplanted (in part) by a new amended counterclaim. As the developments since the filing of Cox's motion have rendered it moot, her motion for summary judgment is also denied. Cox has filed three other motions requesting a variety of additional relief. None of the motions comply with the rules of this Court or are founded upon any authority, and the relief they seek has been denied by this Court numerous times. These motions are also denied.

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3. Letters, Emails, and Text Messages

A document may be authenticated by personal knowledge "by a witness who wrote it, signed it, used it, or saw others do so."14 Although circumstantial evidence--like an email's context, email address, or previous  [*9] correspondence between the parties--may help to authenticate an email,15 the most direct method of authentication is a statement from its author or an individual who saw the author compose and send the email.16

14   Orr, 285 F.3d at 774 n.8 (citing references omitted).

15   United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000).

16   United States v. Fluker, 698 F.3d 988, 999 (7th Cir. 2012).

Plaintiffs have authenticated the letter sent from Mr. Randazza to Defendant Bernstein presented in Exhibit A by Randazza's affidavit stating that he wrote and signed the letter. Similarly, Mr. Randazza's curriculum vitae and the "About" page of his blog attached as Exhibits I and J have been properly authenticated because Mr. Randazza is a person with personal knowledge and he wrote his curriculum vitae and the "About" page of his own blog. Plaintiffs have also authenticated via circumstantial evidence the emails between Cox and Mr. Randazza contained in Exhibit H because the email contains sufficient indicia of authenticity by context, the email addresses, and previous correspondence between the parties.

But Plaintiffs have not authenticated the purported emails between Cox and Dylan Energy CEO  [*10] Martin Cain contained in Exhibit C. Although Plaintiffs attempt to authenticate Exhibit C via circumstantial evidence, there is a gap in the email chain. Mjr@randazza.com purportedly received the forwarded email from matt.baer@dylanenergy.com; savvybroker@ yahoo.com (the email associated with Cox) sent the email to dylanchpmc@verizon.net. Therefore, it is unclear how the person in control of the email address matt.baer@dylanenergy.com came to be in possession of an email originally addressed to dylanchpmc@verizon.net. Without some explanation of the gap in this email chain by someone with personal knowledge, there is insufficient circumstantial indicia of authenticity for the Court to consider this document.

Plaintiffs have not authenticated the text message screen shot in Exhibit A either. The screen shot purporting to be a text-message exchange between Messrs. Randazza and Bernstein has not been authenticated because it does not have circumstantial indicia of authenticity. It is unclear which phone numbers sent or received the messages or to whom those phone numbers belonged when the screen shot was taken, or who took the screen shot. Without this type of supporting evidence, the  [*11] Court cannot consider the text message in Exhibit A.

Finally, Exhibit L, which is a compiled listing made by the Plaintiffs of the allegedly infringing domain names, is not evidence, and no realistic effort has been made to render it authentic and worthy of evidentiary consideration.

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5. YouTube Video

Exhibit N is a transcript of a YouTube video. The single court having addressed how to authenticate a Youtube.com video, albeit in a criminal context, found that videos from the online video network are self-authenticating as a certified domestic record of a regular conducted activity if their proponent satisfies the requirements of the business-records hearsay exception.20 To meet this exception, the evidence must be accompanied by "a certification of their custodian or other qualified person that satisfies three requirements: (A) that the records were 'made at or near the time by--or from information transmitted by--someone with knowledge'; (B) that they were 'kept in the course of a regularly conducted activity of a business'; and (C) that 'making the record was a regular practice of that activity.'"21

20   United States v. Hassan, 742 F.3d 104, 132-33 (4th Cir. 2014) (holding the YouTube  [*13] video in question was self-authenticating under Federal Rule of Evidence 902 business records).

21   Id. at 133.

The transcript of the YouTube video contained in Exhibit N has not been properly authenticated. Although Mr. Randazza has attested that it is a true and correct copy of a transcript of a video posted on YouTube.com, he has not established that he is a person with personal knowledge who prepared the transcript, nor has he established when it was prepared and that it is complete and accurate. To the extent that the YouTube.com video itself is offered as evidence, it similarly has not been authenticated because Plaintiffs have not proffered the certificate of YouTube's custodian or other qualified person verifying that the page had been maintained as a business record in the course of regularly conducted business activities. Without this certification, the video has not been properly authenticated and cannot be considered.

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