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YouTube Video Inadmissible on Motion to Dismiss Absent 902(11) Certification from Custodian of Records or Alternate Theory of Prima Facie Authenticity

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Ratner v. Kohler, 2018 U.S. Dist. LEXIS 30761 (D. Hawaii Feb. 26, 2018):

ORDER DENYING DEFENDANT MELANIE KOHLER'S MOTION TO DISMISS THE COMPLAINT FILED NOVEMBER 1, 2017 and HOLDING IN ABEYANCE DEFENDANT MELANIE KOHLER'S SPECIAL MOTION TO STRIKE THE COMPLAINT FILED NOVEMBER 1, 2017 (ECF No. 26)

On or about October 20, 2017, Defendant Melanie Kohler, who is a resident and citizen of the State of Hawaii, posted a statement on her Facebook page. The statement claimed that Hollywood film director and producer Brett Ratner raped Defendant Kohler while she was living in California in either 2004 or 2005. [*2] 

Plaintiff Brett Ratner filed a Complaint against Defendant Kohler, alleging a claim for defamation based on her Facebook post.

Defendant Kohler filed a Motion to Dismiss and a Special Motion to Strike pursuant to a California statute barring strategic lawsuits against public participation ("anti-SLAPP statute").

Defendant Kohler requests that the Court dismiss Plaintiff Ratner's lawsuit on the basis that he failed to sufficiently plead a defamation claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant also seeks to strike the Complaint pursuant to the California anti-SLAPP statute.1

Defendant's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is DENIED.

Defendant's Special Motion to Strike pursuant to the California anti-SLAPP statute is HELD IN ABEYANCE.

PROCEDURAL HISTORY

On November 1, 2017, Plaintiff filed a Complaint. (ECF No. 1).

On January 2, 2018, Defendant filed DEFENDANT MELANIE KOHLER'S MOTION TO DISMISS THE COMPLAINT FILED NOVEMBER 1, 2017, AND TO STRIKE THE COMPLAINT FILED NOVEMBER 1, 2017. (ECF No. 26).

On January 8, 2018, the Court set a briefing schedule and set the hearing on Defendant's Motion for Monday, February 12, 2018. (ECF No. 31).

On January 10, 2018, the hearing was advanced to Thursday, February 8, 2018, [*3]  at the Defendant's request. (ECF No. 33).

On January 22, 2018, Plaintiff filed PLAINTIFF BRETT RATNER'S MEMORANDUM IN OPPOSITION TO DEFENDANT MELANIE KOHLER'S MOTION TO DISMISS COMPLAINT FILED NOVEMBER 1, 2017, AND TO STRIKE THE COMPLAINT FILED NOVEMBER 1, 2017. (ECF No. 34).

On February 5, 2018, Defendant filed DEFENDANT MELANIE KOHLER'S REPLY TO PLAINTIFF BRETT RATNER'S MEMORANDUM IN OPPOSITION TO DEFENDANT MELANIE KOHLER'S MOTION TO DISMISS COMPLAINT, FILED NOVEMBER 1, 2017, AND TO STRIKE THE COMPLAINT, FILED NOVEMBER 1, 2017. (ECF No. 35).

On February 8, 2018, the Court held a hearing on Defendant Kohler's Motion to Dismiss and to Strike (ECF No. 26). At the hearing, the Court denied Defendant's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). This Order sets forth the basis for the oral ruling at the February 8, 2018 hearing.

BACKGROUND

The Complaint asserts that Plaintiff Brett Ratner "is an accomplished and well known film director and producer who resides in Los Angeles and is and has been a citizen of the State of California at all times relevant hereto." (Complaint at ¶ 4, ECF No. 1). The Complaint states Defendant Melanie Kohler is a resident and citizen of the State of Hawaii. (Id. at ¶ 5).

 [*4] Plaintiff alleges that on or about October 20, 2017, Defendant Melanie Kohler "recklessly and/or intentionally posted a statement on her Facebook page claiming that 'Brett Ratner raped [her]'." (Id. at ¶ 7). The entirety of the Facebook post is attached to Defendant's Motion, as follows:

My hands are shaking even as I try to write this. It's not something I've ever told anyone in my entire life.

Not even my closest friends at the time.

Brett Ratner raped me. He is a famous director and producer in Hollywood.

If there is any chance of changing the hollywood culture, the american culture, it has to happen now while people are listening.

I tell this story in hopes that if he's done it to others that they might have the confidence to come forward.

And if he hasn't, that maybe he can be accountable for the way he's treated the nobodies of the world or at least the way he treated me.

Even if he treats all the somebodies of the world with respect and decency, he is not a public monster like Harvey and I don't think anyone has much bad to say about him professionally, that doesn't mean he can do this in the dark shadows of the night when he thinks no one is looking. He was a predator and a rapist on at least on one night in Hollywood about 12 years ago.

It happened when I worked at Endeavor [*5]  Talent Agency in hollywood. It was 2004 or 2005. I won't go into the details here to spare the people who don't want to hear them but I'm willing to share my story with anyone who needs to hear it.

Long story short, he preyed on me as a drunk girl who was alone at a club at the end of the night, he took me back to Robert Evans house, he forced himself upon me after I said no and no and no again, and then left me there. He just got up, didn't say a word, got in his car and left and I laid there humiliated and broken on the floor. The rest of the night is fuzzy, I must have stumbled out of the house and called a cab and I went home and erased it from my mind.

I'm embarrassed, humiliated, ashamed, and wish I could go back to forgetting it ever happened. But if I do that, if we all do that, then it keeps happening. We have to come forward. I can't be an advocate for women speaking out if I don't speak out too.

Brett Ratner raped me. I'm saying his name, I'm saying it publicly. Now at least I can look at myself in the mirror and not feel like part of me is a coward or a hypocrite. I'm standing up and saying this happened to me and it was not ok.

Come what may, it is the right thing to do.

(Melanie [*6]  Kohler Facebook post, attached as Ex. A to Def.'s Motion, ECF No. 26-4).

Plaintiff Ratner alleges the statement is "entirely false, fabricated, and fictional." (Complaint at ¶ 8, ECF No. 1). The Complaint asserts that Defendant Kohler made the statement "with knowledge of its falsity, maliciously, and with the intent to harm Plaintiff's reputation and standing." (Id. at ¶ 9).

The Complaint states that Plaintiff believes that the Facebook statement constitutes "libel per se." (Id. at ¶ 10). The Complaint alleges that as a result of Defendant Kohler's post Defendant Ratner "has suffered injuries to his personal and professional reputations in amounts to be proven at trial." (Id. at ¶ 12).

***

1. Plaintiff's Citation To A YouTube Video Is Not Evidence

In his Opposition, Plaintiff cites to a YouTube video. Plaintiff states the video is "Good Morning America: Filmmaker Sues Sex Assault Accuser (ABC News broadcast Nov. 8, 2017), available at https://www.youtube.com/watch?v=H6Xs7umx CU." (Pla.'s Opp. at pp. 16-17, ECF No. 34). Plaintiff asserts that the video supports a finding that Defendant has made inconsistent statements about the alleged rape.

Plaintiff has not demonstrated that the YouTube video he cites to constitutes admissible evidence for purposes of an anti-SLAPP motion to strike. Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 840 (9th Cir. 2001).

Courts have held that YouTube videos are self-authenticating under Federal Rule of Evidence 902(11) if the party offering the video provides certification by the custodian of the records that the records meet the requirements of Fed. R. Evid. 803(6)(A)-(C). United States v. Hassan, 742 F.3d 104, 132-34 (4th Cir. 2014). The records must be (A) made near the time by—or from information transmitted by—someone with knowledge, (B) kept in the course of a regularly conducted activity of a business, and (C) making the record [*27]  was a regular practice of that activity. Id.

Plaintiff has not provided a physical copy of the YouTube video with a certification from the custodian of records that would support a finding that the YouTube video constitutes admissible evidence.

In Randazza v. Cox, 2014 U.S. Dist. LEXIS 49762, 2014 WL 1407378, *4 (D. Nev. April 10, 2014), the federal district court found a YouTube video inadmissible because the plaintiff had 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. Plaintiff has not provided any other theory or basis to find the YouTube video is admissible evidence. Plaintiff has not made the Fed. R. Evid. 901(a) prima facie showing of genuineness that would allow for the video's admissibility. See United States v. Broomfield, 591 Fed. Appx. 847, 851-52 (11th Cir. 2014); Carucel Investments, L.P. v. Novatel Wireless, Inc., 2017 U.S. Dist. LEXIS 50855, 2017 WL 1215838, *19 (S.D. Cal. Apr. 3, 2017).

 

1 Plaintiff argues in his Opposition that Defendant's anti-SLAPP motion was "improperly filed as part of her 12(b)(6) motion to dismiss." (Pla.'s Opp. at p. 12, ECF No. 34). Plaintiff is incorrect. Federal courts have found that it is proper procedure for a defendant to combine a 12(b)(6) motion and an anti-SLAPP motion to strike into one pleading as long as the separate motions are properly designated in the filing, as was done here. Espinoza v. City of Imperial, 2009 WL 10671316, *10 (S.D. Cal. March 4, 2009); cf. Phillips v. KIRO-TV, Inc., 817 F.Supp.2d 1317, 1328 (W.D. Wash. 2011).

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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