Video Authentication — Surveillance Video Not Self-Authenticating, Particularly When Edited, Blurry and Shot from Significant Distance — Rule 59 Standards re Erroneous Evidentiary Ruling — Remittitur Standards

Leo v. L.I. RR, 2015 U.S. Dist. LEXIS 56953 (S.D.N.Y. April 30, 2015):

Plaintiff Brian Leo commenced this lawsuit under the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51 et seq., seeking recovery for physical and other injuries suffered while employed by the defendant Long Island Railroad Company ("LIRR"). Following trial, a jury returned verdicts finding defendant liable and awarding plaintiff a total of $3,189,122.64 in past and future damages.

Following entry of judgment for that amount, defendant has moved for a new trial or a remittitur of portions of the damages award. Plaintiff has opposed. For the reasons that follow, defendant's motion is granted in part.


I. The Pertinent Trial Evidence

A. The Accident

Mr. Leo was employed by the LIRR as an assistant signalman. On November [*2]  2, 2011 he was working to install innerduct1 under a platform at the Kew Gardens station in Queens. While crawling on hands and knees under the platform, he encountered a substantial pile of large broken pieces of concrete, apparently rubble from a pre-existing platform that had never been removed. As he crawled over the broken concrete, a heavy piece of it dislodged and fell onto his right wrist and arm, trapping him in that position. He attempted to pull his hand from under the concrete but was unable to do so. Shortly after, a fellow worker pulled the concrete slab away, freeing his arm. (Tr. 137-38, 142-55, 251, 373).

1   According to plaintiff, innerduct is "a hollow plastic tubing. It basically protects the cables and the fiber-optic that goes through it." (Tr. 142).


III. The Jury Verdict

At the conclusion of the trial, the jury was given a special verdict form (Tr. 439-42), and was instructed inter alia on plaintiff's obligation to attempt to mitigate his damages. (Id. at 432-33). The jury returned with the following findings. With respect to liability, it determined that defendant had been negligent "in arranging or supervising the project on which plaintiff was injured", that plaintiff had been injured as a result of that negligence, and that plaintiff had not been comparatively negligent. (Id. at 446-47). As for damages, it found that plaintiff had suffered lost earnings to date of $189,122.64 and that he would suffer future lost earnings of $2,000,000.00. (Id. at 447). In assessing past non-monetary losses, the jury valued plaintiff's damages based [*15]  on physical pain and suffering and emotional distress to date at $100,000.00, and his future expected losses of this kind at $900,000.00. (Id. at 447-48).10

10   In charging the jury as to future non-economic injuries, we stated that plaintiff had not testified to physical pain beyond "the immediate aftermath of the incident in question" (Tr. 433), an instruction to which plaintiff did not object.

III. Defendant's Current Motion

Defendant has moved for a new trial on two separate grounds. *** Second, defendant argues for a new trial on the premise that the court abused its discretion in refusing to allow admission of an edited surveillance tape, purportedly of plaintiff, which defendant offered without any effort at authentication. (Deft's Mem. 19-22; Deft's Reply Mem. 9-10).



We address defendant's arguments in reverse order, starting with the challenged evidentiary ruling.11 Before taking on that task, we briefly summarize the basic standards for assessing a Rule 59 motion.  

11   We follow this order since upholding defendant's challenge to the exclusion of the surveillance tape would moot the balance of its motion. See, e.g., Ramirez v. New York City Off-Track Betting Corp., 112 F.3d 38, 40 (2d Cir. 1997) ("A remittitur should be granted only when the trial has been free of prejudicial error.").

I. Rule 59 Criteria

Rule 59(a)(1)(A) provides that the court "may, on motion, grant a new trial on all or some of the issues -- and to any party -- . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Among those traditional [*17]  grounds for a new trial are errors in the admission or exclusion of evidence, see, e.g., Cameron v. City of New York, 598 F.3d 50, 61-66 (2d Cir. 2010); Tesser v. Board of Educ. of City Sch. Dist., 370 F.3d 314, 318-21 (2d Cir. 2004), although such relief is not to be granted unless the movant demonstrates that the error was not harmless, that is, "[that] 'it is likely that in some material respect the factfinder's judgment was swayed by the error.'" Tesser, 370 F.3d at 319 (brackets in original) (quoting Costantino v. David M. Herzog, M.D., P.C., 203 F.3d 164, 174 (2d Cir. 2000)); see also O&G Industs., Inc. v. National R.R. Passenger Co., 537 F.3d 153, 166 (2d Cir. 2008).12

12   The harmless-error requirement is incorporated in Rule 61, which states:

   Unless justice requires otherwise, no error in admitting or excluding evidence -- or any other error by the court or a party -- is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights.

As the Second Circuit has observed, "[a]n erroneous evidentiary ruling that does not affect a party's 'substantial right' is thus harmless." Tesser, 370 F.3d at 319.

The trial court is also authorized to order a new trial on the basis that the jury verdict is against the clear weight of the evidence. E.g., Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 417 (2d Cir. 2012); Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998). In assessing such a motion, the court may weigh the evidence, including witness credibility, "and [*18]  need not view the evidence in the light most favorable to the verdict winner." Raedel, 670 F.3d at 418 (citing United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998)). The Second Circuit has cautioned, however, that "'a decision is against the weight of the evidence . . . if and only if the verdict is [(1)] seriously erroneous or [(2)] a miscarriage of justice. . . .'" Raedel, 670 F.3d at 417-18 (quoting Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002)). Consistent with that caution and the principle that trial judges should be very reluctant to second-guess jury assessments of witness credibility, our circuit court has opined that "jury verdicts should be disturbed with great infrequency." Raedel, 670 F.3d at 418 (citing cases).

These caveats are particularly salient when the jury verdict clearly rests substantially or solely on witness credibility. Id. at 418-19. Where the challenge is not to a jury's credibility assessment, but rather to the size of its award of damages, the analysis is somewhat different, although caution remains a watchword.

Under Rule 59(a) the court may overturn an excessive award and either unconditionally order a new trial or condition a new trial on the plaintiff's refusal to accept a reduction, or remittitur, in the award. See, e.g., Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 433 (1996); Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 167-68 (2d Cir. 2014); Rangolan v. Cnty. of Nassau, 379 F.3d 239, 243-44 (2d Cir. 2004). A remittitur may be authorized in at least two circumstances:

   (1) where the court can identify an error that caused [*19]  the jury to include in the verdict a quantifiable amount that should be stricken, . . . and (2) more generally, where the award is 'intrinsically excessive' in the sense of being greater than the amount that a reasonable jury would have awarded, although the surplus cannot be ascribed to a particular, quantifiable error.

Kirsch, 148 F.3d at 165.

In the absence of a "particular discernible error," as a general matter the court may not set aside the jury's award as excessive unless "the award is so high as to shock the judicial conscience and constitute a denial of justice." Id. (quoting O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1989)); accord Turley, 774 F.3d at 162.13 In assessing whether the award is so excessive, "the court must 'accord substantial deference to the jury's determination of factual issues.'" Frank Sloup and Crabs Unlimited, LLC v. Loeffler, 745 F. Supp. 2d 115, 136 (E.D.N.Y. 2010) (quoting Martell v. Boardwalk Enters., 748 F.2d 740, 750 (2d Cir. 1984)). That said, and granted that the jury has broad discretion in measuring damages, "it 'may not abandon analysis for sympathy for a suffering plaintiff and treat an injury as though it were a winning lottery ticket.'" Scala v. Moore McCormick Lines, Inc., 985 F.2d 680, 684 (2d Cir. 1993) (quoting Nairn v. Nat'l R.R. Passenger Corp., 837 F.2d 565, 568 (2d Cir. 1988)). In short, the court must discern "an upper limit" and assess whether the jury has surpassed it. See, e.g., Sloup, 745 F. Supp. 2d at 136 (quoting Dagnello v. Long Island R.R. Co., 289 F.2d 797, 806 (2d Cir. 1961)).

13   This "shock the conscience" standard applies in cases involving claims under federal law. When the claim generating a damages [*20]  award arises under New York law, the court is to look to state law for remittitur standards, and that test -- embodied in N.Y. C.P.L.R. § 5501(c) -- asks whether the award "deviates materially from what would be reasonable compensation", a standard that is considered less deferential to jury decisions than the federal test. See, e.g., Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003, 1010-12 (2d Cir. 1993). See also Stampf v. Long Island R.R. Co., 761 F.3d 192, 206-07 (2d Cir. 2014).

II. The Surveillance Videotape

During defendant's case, its counsel proposed to offer into evidence a so-called surveillance tape that he represented had been made in its original form by a team of Florida videographers over ten days in July and August 2014 and then edited in unspecified respects, reducing it from three hours to 28 minutes, a process performed by an "audiovisual man" under the direction of defendant's attorney. (Tr. 220-23, 227-28). According to LIRR's counsel, the tape was taken of plaintiff, who had testified that he was currently living in Florida. (Id. at 222, 225-26). Because defendant was proposing to offer the tape without testimonial or other authentication (id. at 222-23) and had also failed to list the item on the joint pretrial order or to provide it during discovery, plaintiff objected. (Id. at 221, 226-27; In Limine Motion at 1-6 [Ex. E to Blumenschein Decl.].14

14   Defendant's counsel [*21]  had apparently provided plaintiff's attorney the unedited tape less than one month before the trial (Sept. 9, 2014 letter from William J. Blumenschein, Esq. to Mark T. Wietzke, Esq. [appended to Ex. E to Blumenschein Decl.]), and plaintiff did not move in limine for its exclusion before trial because he did not learn until mid-trial that defendant proposed to introduce it without authentication. (Tr. 220-21; see In Limine Motion at 4).

Following oral argument, and in an effort to ensure a comprehensive record, the court reviewed the entire edited videotape, which lasted about 28 minutes. (Tr. 307-08). The edited film portrayed a man who bore at least a strong resemblance to plaintiff. For a portion of the tape, he stood in a bar or juice bar or similar facility, drinking a beverage from a glass that he held principally in his left hand, while occasionally appearing to stroke the back of his neck with his right hand. Then, in a separate segment, the tape showed him walking down the street, holding a small plastic bag or other white object, which at least for some of the time he held in his right hand.15

15   It bears mention that in plaintiff's testimony he never suggested that he was incapable [*22]  of engaging in any of the activities portrayed in the videotape. (See, e.g., Tr. 168-70).

At the conclusion of the viewing and after some additional argument, the court sustained plaintiff's objection. (Id. at 308-12). In doing so, we observed that defendant was proffering the tape without testimony by either the videographer or the tape's editor or anyone else to authenticate it. As for what is required under Rule 901, we noted that the Advisory Committee Notes indicated that reference to the common law is appropriate, see Fed. R. Evid. 901(b), 1972 Advisory Committee Notes at 501 (Thompson Reuters 2015), and on that basis we referred to the New York Court of Appeals decision in Zegarelli v. Hughes, 3 N.Y.3d 64, 781 N.Y.S.2d 488 (2004), which indicated that the requirement of authentication could be satisfied by testimony, whether from the videographer or another competent witness, to the effect "that a videotape truly and accurately represents what was before the camera". Id. at 69, 781 N.Y.S.2d at 491. (See Tr. 310-11). Characterizing defendant's stated position as "treat[ing] this videotape as self-authenticating", we observed that Rule 902, which governs self-authentication, does not cover this type of evidence. (Id. at 311).

As further support for declining to admit the videotape without supporting evidence, we noted that much of the film was quite blurry16, and that it had concededly [*23]  been edited and yet defendant had presented no evidence as to what had been edited out or in. We further noted that current technologies allow for substantial alterations and substitutions of material in videotapes, and that the record was silent even as to whether the tape was digital and thus lent itself to ready manipulation. (Id. at 311).

16   That fact is borne out by still shots from the videotape that defendant has proffered on its current motion. (Blumenschein Decl. Ex. G).

As for what was observed on the tape, we noted that none of it "was clearly inconsistent with plaintiff's testimony", though we did observe that, with proper authentication, the tape would be sufficiently relevant to be admitted. (Id.). We then sustained the objection. (Id.).

Defendant's attorney then sought to reopen the argument by asserting once again that the jury should be left to judge the tape as is. (Id. at 312). He did not suggest that we had mischaracterized defendant's position that the tape should be admissible without testimonial support, and we simply noted that we had already ruled, and adhered to our ruling. (Id.).

Defendant's current challenge to this ruling is groundless. Rule 901(a) states that, "[t]o satisfy the requirement [*24]  of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what proponent claims it is." In Rule 901(b), the drafters provide a set of ten "examples . . . of evidence that satisfies the requirement" for various types of exhibits that a party may seek to introduce. Of these evidentiary examples, two seem pertinent here. Of principal relevance in this case, the first listed example refers to "testimony of a witness with knowledge" that "an item is what it is claimed to be". Fed. R. Evid. 901(b)(1). The other pertinent example, listed ninth, refers to "[e]vidence describing a process or system and showing that it produces an accurate result." Fed. R. Evid. 901(b)(9).17

17   The other eight examples include "Nonexpert Opinion About Handwriting", "Comparison by an Expert Witness or the Trier of Fact", "Distinctive Characteristics and the Like", "Opinion About a Voice", "Evidence About a Telephone Conversation", "Evidence About Public Records", "Evidence About Ancient Documents or Data Compilations" and "Methods Provided by a Statute or Rule". The reference to comparisons by a trier of fact is apparently focused on assessments of handwriting exemplars. See Fed. R. Evid. 901(b)(3), 1972 Advisory Committee Notes at 502 (West 2015). See also United States v. Sliker, 751 F.2d 477, 497-98 (2d Cir. 1984) (discussing [*25]  court's role in gatekeeping regarding introduction of audio recordings based on voice similarities).

In the companion Rule 902, we find a list of items that are deemed "self-authenticating", that is, "they require no extrinsic evidence of authenticity in order to be admitted." None of these categories encompasses pictographic materials, whether videotapes or photographs or similar items.18

18   The listed items include "Domestic Public Documents That are Sealed and Signed", "Domestic Public Documents That are Not Sealed but Are Signed and Certified", "Foreign Public Documents", "Certified Copies of Public Records", "Official Publications", "Newspapers and Periodicals", "Trade Inscriptions and the Like", "Acknowledged Documents", "Commercial Paper and Related Documents", "Presumptions Under a Federal Statute", "Certified Domestic Records of a Regularly Conducted Activity" and "Certified Foreign Records of a Regularly Conducted Activity". Fed. R. Evid. 902(1)-(12).

Under Rule 901 the courts have consistently adhered to the general proposition -- evident in the wording and purpose of the rule -- that the offering party must provide "sufficient proof . . . so that a reasonable juror could find in favor of authenticity or identification." [*26]  United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir. 1991). See, e.g., United States v. Vayner, 769 F.3d 125, 129-30 (2d Cir. 2014); United States v. Whitingham, 346 F. App'x 683, 685 (2d Cir. 2009); United States v. Tin Yat Chin, 371 F.3d 31, 38 (2d Cir. 2004); United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir. 2001). Because of the particular characteristics of pictographic exhibits -- which may be less than crystal-clear, may depict objects other than what the proponent contends is portrayed, and (especially with the growth of computer-based technologies for altering the item) may have been altered or manipulated -- the courts have looked to the requirements of Rules 901(b)(1) and (9) as defining the base-level burden for their admission into evidence:

   A party seeking to admit an item into evidence -- whether a document, weapon, photograph, audio or video recording or other item -- must first establish the item's genuineness. Fed. R. Evid. 901. This requires the proponent to "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901. . . .

The admitting party's burden of making a prima facie showing that the item is genuine can be satisfied in several ways, including the testimony of a witness with knowledge or evidence showing that a process or system produces accurate results. Fed. R. Evid. 901; see United States v. Fluker, 698 F.3d 988, 999 (7th Cir. 2012). For video recordings, like tape recordings, the proponent should also show that the camera functioned properly, the operator was competent in operating the equipment, and [*27]  the recording accurately represented the scene depicted. Cf. United States v. Eberhart, 467 F.3d 659, 667 (7th Cir. 2006).

United States v. Cejas, 761 F.3d 717, 723 (7th Cir. 2014). See, e.g., United States v. Ikezi, 353 F. App'x 482, 483 (2d Cir. 2009) (referring to Rule 901(b)(9) as a basis for authenticating a videotape); , 555 F. App'x 389, 395-96 (5th Cir. 2014) (upholding the admission of a surveillance video that had been authenticated by a witness who testified "that the video was an accurate depiction of the events"); United States v. Capers, 708 F.3d 1286, 1306-07 (11th Cir. 2013) (videotape and audio recording). Cf. Arizona Dep't of Law, Civil Rights Division v. ASARCO, LLC, 844 F. Supp. 2d 957, 979 (D. Ariz. 2011) (quoting Lucero v. Stewart, 892 F.2d 52, 55 (9th Cir. 1989)) (authenticating photograph). See generally United States v. Barone, 913 F.2d 46, 49 (2d Cir. 1990) (Government may authenticate tape recording "through the testimony of the technician who actually made it"); United States v. Hemmings, 482 F. App'x 640, 642-43 (2d Cir. 2012) (authentication of audio tapes by agent who recognized voices); Sliker, 751 F.2d at 497-500 (relying on Fed. R. Evid. 901(b)(5) for authenticating voice on the recording); Roy v. Bd. of Cnty. Comm'rs, 607 F. Supp. 2d 1297, 1307 n.24 (N.D. Fla. 2009) (excluding a video clip "because there is no testimony in the record to authenticate it and it is not self-authenticating"). As recently, and helpfully, summarized in a decision quoted by plaintiff:

   The plurality of jurisdictions agree that a video recording may be authenticated by testimony from the operator, recorder, installer, or maintainer of the equipment that the videotape is an accurate representation of the subject matter depicted. 32A C.J.S. Evidence § 1258 (collecting cases). In general, a party may provide proper foundation for the admission of a videotape by providing [*28]  1) testimony demonstrating that the videotape fairly and accurately illustrates the events filmed; 2) testimony regarding the checking, operation, and handling of the recording equipment; 3) testimony that the videotape admitted at trial is the same as the one the witness inspected previously, or 4) testimony that the videotape has not been edited and fairly and accurately recorded the actual appearance of the area and events that transpired.

James v. Virgin Islands, 2013 WL 6585638, *5 (Sup. Ct. V.I. Dec. 12, 2013) (case cites omitted).19

19   The New York Court of Appeals follows the same approach. Thus it has noted that authentication of a videotape may "normally" be accomplished by "[t]estimony from the videographer that he took the video, that it correctly reflects what he saw, and that it has not been altered or edited . . . . Where the videographer is not called 'testimony, expert or otherwise, may also establish that a videotape "truly and accurately represents what was before the camera."'" Zegarelli, 3 N.Y.3d at 69, 781 N.Y.S.2d at 491 (quoting, inter alia, People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 104 (1999)).

Notably, defendant has been unable to cite any court decisions that have treated videotapes as self-authenticating. This is hardly surprising in view of the limited scope of Rule 902. As noted, the drafters of the Federal Rules of Evidence anticipated that, in specified [*29]  circumstances, certain types of exhibits may be so evidently that which the proponent claims them to be that they may be deemed authentic without extrinsic evidence. See Fed. R. Evid. 902, 1972 Advisory Committee Notes at 503 (Thompson Reuters 2015). That list -- which is not open-ended -- does not include videotapes, photographs or any pictographic or oral items of evidence.

We acknowledge that there are a handful of cases that, at first blush, appear to suggest that videotapes can be considered "self-authenticating." See, e.g., United States v. Hassan, 742 F.3d 104, 132-33 (4th Cir. 2014) (affirming the trial court's finding that "YouTube videos were self-authenticating under Federal Rule of Evidence 902(11)"); United States v. Damrah, 412 F.3d 618, 628 (6th Cir. 2005) ("The district court did not abuse its discretion in holding that the tapes were 'self-authenticating.'"); United States v. Van Sach, 2009 WL 3232989, *3 (N.D. W. Va. Oct. 1, 2009) ("A videotape which clearly identified the persons depicted in it may be self-authenticating.").

We easily distinguish each of these decisions, however. In Hassan, the Fourth Circuit upheld the admission of a YouTube clip under Rule 902(11) -- "Certified Domestic Records of a Regularly Conducted Activity" -- and only because the clip satisfied each of the requirements contained within that rule. 742 F.3d at 132-33.20 Accord Randazza v. Cox, 2014 WL 1407378, *4 (D. Nev. April 10, 2014) (excluding the transcript of a YouTube clip for failing to meet the requirements of Rule 902(11)). In Van Sach, the Government did call "the custodian of [*30]  the record . . . to testify that the recording is what the United States claims it is." 2009 WL 3232989 at *3. Thus, that court's description of the admitted video as "self-authenticating" was perhaps somewhat inartful.

20   Rule 902(11) specifically deems the following to be self-authenticating:

   The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record -- and must make the record and certification available for inspection -- so that the party has a fair opportunity to challenge them.

Damrah is slightly less off-point, although still ultimately unpersuasive for our purposes. In that case, a number of videotapes depicted relevant scenes from the early 1990s. 334 F. Supp. 2d 967, 984 (N.D. Ohio 2004). The Government had acquired these tapes in 1995 and "edited and spliced" them for purposes of trial. Id. There was no testimony offered that spoke to either the creation of the tapes or their editing. Id. The district court nevertheless admitted the tapes. Id. In that case [*31]  too, however, there did exist some measure of authenticating evidence to suggest that the tapes depicted what the Government asserted they depicted, including the defendant's own stipulation to the accuracy of Arabic-to-English translations made of the tapes and the Government's proffer of a witness who testified to the identities of some of the individuals shown in the video. Id. This may very well have been sufficient to assure the trial court that "the tapes fairly and accurately (although perhaps not completely) depict the events they purport to depict." Id. at 985. Moreover, despite the Sixth Circuit's characterization of the trial court's ruling as deeming the tapes "self-authenticating,"21 we note that the trial judge -- in upholding his earlier, at-trial admission of the tapes -- relied entirely on two decisions from the Second and Third Circuits -- United States v. Goldin, 311 F.3d 191, 197 (3d Cir. 2002), and Louis Vuitton S.A. v. Spencer Handbags Corp., 765 F.2d 966, 973-74 (2d Cir. 1985) -- neither of which stands for the proposition that videos can ever be self-authenticating and both of which make clear reference to the authentication testimony proffered at their respective trials.22

21   The Sixth Circuit appears to be quoting the trial judge himself when it labels the video as "self-authenticating." Damrah, 412 F.3d at 628. It is likely [*32]  that this terminology stemmed from the trial judge's usage of the term at the trial itself, although no citation is provided. However, we note that the trial judge carefully avoided describing the tapes as self-authenticating in its subsequent decision on a motion for a new trial that was premised, in part, on his earlier admission of the tapes. See Damrah, 334 F. Supp. 2d at 984-85.

22   We note also that the Damrah panel referred to the trial court ruling as not an "abuse of discretion", reflecting the assumption that the court was not compelled to admit such evidence as self-authenticating. For reasons noted here, see supra pp. 21-22, we found the proffered videotape to be too problematic to be admitted without supporting testimony. See infra pp. 32-33.

Moreover, to the extent that Damrah could colorably be used to argue that, as a general matter, videotapes may be deemed self-authenticating, we note that this proposition is inconsistent with caselaw both in this Circuit and beyond. See supra pp. 25-28. See also Linde v. Arab Bank, PLC,     F. Supp. 3d    ,    , 2015 WL 1565479, *42 (E.D.N.Y. April 8, 2015) ("Videos may be authenticated 'on the same principles as still photographs.'") (quoting Mikus v. United States, 433 F.2d 719, 725 (2d Cir. 1970)). The exclusion of such items from self-authentication is entirely justified in view of the potential for unreliable or even seriously misleading material [*33]  being presented in this format. Accord United States v. Ida, 1997 WL 122753, *2 (S.D.N.Y. March 18, 1997) ("In view of the strong impact that recorded evidence may have on juries . . . the Second Circuit requires that the government produce clear and convincing evidence of authenticity and accuracy as a foundation for the admission of such recordings.") (internal quotation omitted).23

23   While the "clear and convincing" standard seems to apply only in criminal cases, see, e.g., S.E.C. v. Badian, 822 F. Supp. 2d 352, 364 (S.D.N.Y. 2011), the requirement of authentication applies in civil cases as well, under the less burdensome requirement of providing authentication that is "sufficient to support a finding" that the proffered evidence is what its proponent asserts it to be. See, e.g., Ricketts v. City of Hartford, 7 F.3d 1397, 1410 (2d Cir. 1996).

The justification for the exclusion of these categories of evidence from a rule of self-authentication is well-illustrated in this case. As noted, the videotape, as offered, was in parts blurry and often shot from what appears to have been a considerable distance, leaving it unclear whether the subject was in all instances in fact the plaintiff and what actions were being portrayed. (See Ex. G to Blumenschein Decl.; Tr. 311). In addition, the film was, as defendant's counsel admitted, heavily edited by his staff (Tr. 221-22), [*34]  and there was no way -- in the absence of testimony by the editor or someone else with personal knowledge -- to determine how it had been edited and whether portions supportive of plaintiff's case had been deleted.24 Further, as noted, we were not favored with any information as to the technology involved and whether, given its nature, it lent itself to manipulation of the product, much less whether such manipulation had actually been employed.

24   Presumably, if defendant had produced the tape during the discovery period -- which ended in the Spring of 2014 (or by the latest as of July 1, 2014)(see Docket nos. 9 & 14) -- plaintiff's counsel could have undertaken the necessary inquiries. Defendant chose, however, to delay disclosure (and, indeed, the creation of the tape) until well after the end of that period. (See Sept. 9, 2014 letter from William J. Blumenschein, Esq. to Mark T. Wietzke, Esq.).

Under the circumstances, we properly concluded that defendant had failed to justify introduction of the tape. Indeed, to do otherwise would have been grossly unfair to plaintiff and potentially highly misleading to the jury.

In an effort to avoid this conclusion, defendant now asserts that authentication [*35]  could have been achieved if plaintiff himself had been called to testify as to whether the video in fact was of him and whether it accurately portrayed his activities on the days in question. (Deft's Mem. 20). Defendant further asserts that this procedure was in fact utilized in one of the cases cited by defendant's trial attorney during colloquy. (Id. (referring to Tr. 224 (citing Hairston v. Metro-North Commuter R.R., 6 Misc.3d 399, 786 N.Y.S.2d 890 (Sup. Ct. N.Y. Cty. 2004))).

There are two short answers to this argument. First, defendant misreads Hairston, which involved the introduction of a videotape proffered by the plaintiff, to which defendant objected.25 The court conducted a hearing at which the plaintiff testified as to the accuracy of the tape, and on the basis of that testimony the court allowed her to introduce it over defendant's objection. Id. at 401, 786 N.Y.S.2d at 892. In short, this ruling makes plain that the proponent of the videotape bears the burden of authenticating it, which the plaintiff did in Hairston -- in contrast to our case, in which defendant failed to do so.

25   The videotape had been made by defendant and turned over to plaintiff in discovery. Apparently finding it favorable to her case, plaintiff offered it at trial. 6 Misc.3d at 400, 786 N.Y.S.2d at 891-92.

Second, in our case defendant's counsel was free to call plaintiff [*36]  as a witness to authenticate the videotape even though Mr. Leo was not a proponent of the tape, but counsel never sought to do so. Indeed, counsel made plain throughout our colloquy that defendant viewed the videotape as self-authenticating, and that no extrinsic evidence was required. Thus, plaintiff's in limine motion reflected the understanding that defendant was proposing to offer the tape without testimonial support (In Limine Motion at 1, 4), and yet defendant proceeded to argue that the tape was admissible on that basis. (E.g., Tr. 221-22) (proposing that court simply review the tape). Moreover, even after plaintiff's attorney pointed out that the plaintiff in Hairston had chosen to testify to support her proffer of a videotape (see id. at 226 (plaintiff's counsel referring to Hairston as demonstrating "there's got to be a body to create a foundation; it doesn't just come in")), defendant's counsel never asked to call Mr. Leo. Indeed, after we had reviewed the edited video, plaintiff's counsel reiterated both the point that "there's no foundation being offered" and his objection. (Id. at 308). In response, LIRR's attorney did not disagree or suggest that he was prepared to lay such a foundation. [*37]  Rather, he simply stated that "[w]hat counsel said is really irrelevant." (Id.). Finally, plaintiff's lawyer reviewed some of the cases, "all of which require testimony of some form, even basic foundation. I'm not saying it requires a lot, but there does have to be something." (Id. at 309). Defendant's attorney's only response was to suggest (inaccurately) that these cases were "referring to perhaps the videos that are done in criminal matters. . . . But I don't think that's appropriate here." (Id. at 309-10).

In light of this crystal-clear record, when rendering our oral ruling we articulated defendant's position to be that it could simply proffer the film without authenticating evidence of any kind. (Id. at 311) ("Defendant proposes, in effect, to treat this videotape as self-authenticating."). Notably, although counsel sought to reopen the argument, he did so on the same basis and did not suggest that we had misunderstood his position. (Id. at 312).

Defendant now seeks to avoid the consequence of its trial attorney's quiescence on this point by noting that he had cited Hairston during colloquy before our ruling, and that the Hairston court had held a hearing to assess admissibility, with the plaintiff testifying. (See [*38]  Deft's Mem. 20, 22). Defendant thus seems to imply that its attorney was subtly signaling that we should hold such a hearing and compel plaintiff to testify. If this is defendant's current argument, it is seriously misguided. As the transcript reflects, in referring to Hairston, defendant's counsel was arguing that there was no need for a videographer's testimony, and he cited Hairston -- and several other cases -- solely for that proposition. (Tr. 224).26 The court did not dispute that point but rather relied on the fact that defendant was taking the indefensible position that the videotape was admissible without any authentication. Consistent with that posture, defendant's lawyer never asked to call plaintiff, and never so much as hinted that he wished to do so.

26   In any event, as noted, the plaintiff in Hairston was the party seeking to introduce the videotape, and hence she testified in support of her own application. 6 Misc.3d at 401, 786 N.Y.S.2d at 892.

At base, then, defendant appears implicitly to be arguing that the court should sua sponte have called plaintiff to testify for defendant on voir dire or should have made that suggestion to defendant's attorney. Plainly neither proposition is correct. The court functions [*39]  as a neutral arbiter, and it goes beyond its role if it takes on the obligation of either counseling a litigant, particularly one that is being represented by a presumptively competent attorney, or advising that attorney.27

27   We note that the court was fully aware at the time that one option for defendant was to call plaintiff to testify, but whether to do so was of course a matter for defendant's attorney to decide.

In sum, defendant's motion for a new trial, insofar as it is premised on the court's evidentiary ruling, is denied.28

28   In view of the meritlessness of defendant's evidentiary argument, we need not decide whether the error that defendant purports to discern was harmless. That said, given the substance of the tape, if called upon to determine that question, we would find that the tape would, in all likelihood, not have affected the verdict since the actions that the tape portrayed were not inconsistent with plaintiff's own testimony as to his physical limitations.

III. The Damages Awards



For the reasons stated, defendant's motion for a new trial is granted in part and denied in part. We direct that a new trial on damages be conducted unless plaintiff agrees to entry of a judgment for (1) $189,122.64 in past economic damages, (2) $1.5 million in future economic damages, (3) $100,000.00 in past non-economic damages, and (4) $200,000.00 in future non-economic damages. If plaintiff chooses to accept the foregoing terms for a judgement, he is to submit a form of judgment within two weeks. If he chooses not to do so, he is to advise the court accordingly within two weeks.

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