UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
___________________________________________
)
SECURITIES AND EXCHANGE COMMISSION, )
)
Plaintiff, )
)
v. ) Case No. 1:12-cv-12334-IT
)
SPENCER PHARMACEUTICAL INC., )
J EAN-FRANOIS AMYOT, )
IAB MEDIA INC. and )
HILBROY ADVISORY INC., )
)
Defendants. )
___________________________________________ )
PLAINTIFFS MOTION IN LIMINE
IN SUPPORT OF THE AUTHENTICITY
OF DOCUMENTS PRODUCED BY THE
QUBEC AUTORIT DES MARCHS FINANCIERS
Plaintiff Securities and Exchange Commission (the Commission) submits this motion
in limine in support of the authenticity of certain documents produced by the Qubec Autorit
des Marchs Financiers (the AMF) that the Commission intends to offer as trial exhibits. In
further support of this motion, the Commission submits the accompanying Declaration of J ames
R. Drabick, Esq. The Court has scheduled an evidentiary hearing on the admissibility of the
AMF documents for Wednesday, November 5, 2014.
BACKGROUND
The AMF is the regulatory agency that enforces the securities laws of Quebec. In J une
2011, the AMF executed a search warrant at the offices of defendants IAB Media Inc. (IAB
Media) and Hilbroy Advisory Inc. (Hilbroy) at 1400 rue Bgin, Montreal, Quebec. At the
time, defendant J ean-Franois Amyot was the president of both companies. During the search,
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the AMF seized certain documents, including both electronic and hard copy documents. The
AMF prepared a report memorializing the items seized and provided a copy of the report to
Amyot, who was present during the search. Drabick Decl., Ex. 1 (Rapport dExcution dated
J une 29, 2011). The original hard drives containing the seized electronic documents were
returned to Amyot.
Amyot claims that the computers containing the original hard drives were sold soon
thereafter, and that the documents on those hard drives are no longer in his possession, custody,
or control. Id., Ex. 2 (Letter from J . Uretsky dated Nov. 5, 2013).
In April 2014, pursuant to a motion filed by the Commission, the Court of Quebec sitting
in the District of Montreal issued an order authorizing the Commission to examine and copy the
documents seized by the AMF in J une 2011. Id., Ex. 3 (Order dated April 2, 2014). The
Commission had provided Amyots then-counsel with notice of the motion, and Amyot filed no
opposition to the motion nor stated any objection. The AMF thereafter produced the seized
documents to the Commission, which in turn produced them to Amyot.
The Commissions exhibit list includes several categories of documents that were seized
by the AMF and produced to the Commission. The majority of the documents are emails, but
also included are letters, memoranda, agreements, and invoices. Id., Ex. 4 (Plaintiffs Amended
Exhibit List, which identifies documents by the producing party). Amyot claims that the
documents may have been tampered with by the AMF and/or the vendor that made forensic
images of the hard drives during the search.
Several other parties produced documents to the Commission during the course of its
investigation preceding this matter and in discovery. Included in those productions were many
documents that are identical to the documents (including emails) produced to the Commission by
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the AMF. Id., Exs. 5 & 6 (providing examples of duplicates).
At the hearing on November 5, the Commission will offer testimony from AMF
witnesses about the AMFs search and collection of the seized documents, the AMFs storage of
the seized documents, and the AMFs production of the seized documents to the Commission.
The Commission also anticipates offering AMF testimony establishing that the materials seized
by the AMF are identical to the materials produced to the Commission and identified in the
Commissions exhibit list (using, inter alia, the documents metadata and MD5Hash unique
identifiers, which are included in the Amended Exhibit List at Ex. 4). The Commission also
intends to call Amyot to testify.
ARGUMENT
The testimony that the Commission will offer at the upcoming hearing will be sufficient
to establish that, as required by Rule 901 of the Federal Rules of Evidence, the documents
produced by the AMF have not been tampered with, but rather are authentic copies of documents
that were found in the offices of IAB Media and Hilbroy.
Rule 901(a) of the Federal Rules of Evidence provides that the party offering an item of
evidence must produce evidence sufficient to support a finding that the item is what the
proponent claims it is. The authentication requirement is rarely onerous. Cadles of Grassy
Meadows II, LLC v. MacKinnon, 2010 WL 971871, *4 (D.Mass. Mar. 11, 2010). As the First
Circuit has explained,
The burden of authentication does not require the proponent of the
evidence to rule out all possibilities inconsistent with authenticity, or to
prove beyond any doubt that the evidence is what it purports to be.
Rather, the standard for authentication, and hence for admissibility, is
one of reasonable likelihood.
U.S. v. Savarese, 686 F.3d 1, 11 (1
st
Cir. 2012) (citation omitted). In other words, [i]f the court
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discerns enough support in the record to warrant a reasonable person in determining that the
evidence is what it purports to be, then Rule 901(a) is satisfied. U.S. v. Paulino, 13 F.3d 20, 23
(1
st
Cir. 1994). [A] proper foundation need not be established through personal knowledge but
can rest on any manner permitted by ... Fed. R. Evid. 901(b). Cabrera v. Sovereign Bank, 2014
WL 1803311, *3 (D.Mass. May 7, 2014).
[T]he content of a disputed document may itself furnish indicia of authenticity. U.S. v.
Paulino, 13 F.3d at 24. In Paulino, the rent receipt in question contained the defendants name,
included his correct address, and concerned the time frame when the illegal activity was in
operation. The First Circuit held that these details established the authenticity of the document
for purposes of Rule 901(b)(4). Id. See also U.S. v. Thornton, 197 F.3d 241, 251 (7
th
Cir. 1999),
cert. denied, 529 U.S. 1010 (2000) (utility bills, merchandise receipts, and business cards were
sufficiently distinctive to qualify as self-authenticating under Rule 901(b)(4)). Here, virtually
all the documents at issue refer on their face to the activities of Amyot, IAB Media, Hilbroy,
and/or Spencer, and include such indicia of reliability as email signatures bearing Hilbroys logo,
Amyots signature as J F, and Amyots phone number.
When the evidence consists of items that were seized by government agents, testimony
from agency personnel about the search supports their authenticity. See U.S. v. Thornton, 197
F.3d at 251 (testimony of agents involved in search); U.S. v. Johnston, 127 F.3d 380, 389-90 (5
th

Cir. 1997), cert. denied, 522 U.S. 1152 (1998) (same). Here, the AMF testimony will describe
the circumstances of the search and seizure at the offices of IAB Media and Hilbroy.
A testimonial tracing of the chain of custody furthers support authenticity and is
needed if the evidence is is susceptible to alteration. U.S. v. Espinal-Almeida, 699 F.3d 588,
609 (1
st
Cir. 2012), cert. denied, 133 S.Ct. 1837 (2013). Here, notwithstanding the fact that the
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electronic documents at issue are not easily susceptible to alteration, the AMF testimony will
describe the chain of custody leading from the execution of the search warrant at the offices of
IAB Media and Hilbroy in J une 2011 to the AMFs production of the documents to the
Commission in April 2014.
Further supporting the conclusion that the documents are genuine and authentic are the
numerous examples of identical documents produced to the Commission by third parties.
Drabick Decl., Exs. 5 & 6. The many identical documents reinforce the testimony to be offered
by the AMF witnesses that the documents were not tampered with, but rather were produced to
the Commission in the same form as when they were found in the offices of IAB Media and
Hilbroy. The identical documents also undercut Amyots wild and baseless speculation, most
recently asserted in his motion in limine served on October 23, 2014, that the AMF or its vendor
may have manufactured or otherwise tampered with the documents. See Defendants Motion in
Limene [sic] to Exclude Evidence, 5-6.
1

CONCLUSION
For the reasons set forth above, following the evidentiary hearing on November 5
th
, the
Court should find that the authentication requirement has been satisfied for the documents on the
Commissions Amended Exhibit List produced by the AMF, or, at a minimum, that Amyot is not
permitted to contest their authenticity at trial on the basis that they may not be genuine, accurate
copies of documents seized from the offices of IAB Media and Hilbroy.


1
The Commission will file an opposition to Amyots motion in limine which also argues, among
other things, that the documents produced by the AMF should be excluded because they were seized
illegally on or before November 3, 2014, as called for by the Courts scheduling order.
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Respectfully submitted,
/s/ J ames R. Drabick
Rua M. Kelly (Mass. Bar No. 643351)
J ames R. Drabick (Mass Bar No. 667460)
Attorneys for Plaintiff
SECURITIES AND EXCHANGE COMMISSION
33 Arch Street, 23
rd
Floor
Boston, MA 02110
(617) 573-4535 (Drabick direct)
(617) 573-4590 (fax)
drabickj@sec.gov (Kelly email)

Dated: October 27, 2014


CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 7.1(A)(2)

The undersigned counsel hereby certifies that a good faith attempt was made to eliminate
and narrow the issues raised in this Motion by conferring with the defendant.

Dated: October 27, 2014 /s/ J ames R. Drabick



CERTIFICATE OF SERVICE

I hereby certify that on October 27, 2014, the foregoing Supplemental J oint Pretrial
Memorandum Containing Certain Stipulations was filed electronically with the Court and was
served upon J ean-Franois Amyot, the remaining individual defendant who is appearing pro se,
by electronic means.
/s/ J ames R. Drabick
J ames R. Drabick

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