In today's world litigators, in preparation for trial, routinely scan the internet to build up evidence for their case. It is common place to search internet sites like Linkedin, Myspace, Facebook, Twitter, Google, and even the blogashpere to find dirt on a party opponent. But when you find a golden nugget of evidence, how does one proceed to capture that evidence so it can be properly authenticated and admitted as probative evidence in your case. A recent article written over on law.com back in January goes into an in depth explanation of this issue and some emerging trends in the law on how some courts are dealing with it. I recommend reading the article as it is well written and provides a base of knowledge on the issue I am about to delve into as it pertains to federal courts in the Sixth Circuit.
As the article explains, courts generally fall into three camps with respect to the scope of testimony that FRE 901(b)(1) requires in order to authenticate and admit evidence of web pages and screen shots. Since the Sixth Circuit Court of Appeals has yet to announce a formal standard, it is important to consider all three approaches and how courts within the Sixth Circuit have ruled on the issue so far. The first camp takes a more stringent and conservative approach, requiring testimony showing that the information proffered was actually posted by the individual to whom the information is attributed to, in the form of a "statement or affidavit from ... [the website's] web master or someone else with personal knowledge." In Re Homestore, Inc. Sec. Litig., 347 F.Supp. 2d 769, 782 (C.D. Cal. 2004); see also, Wady v. Provident Life and Accident Ins. Co of Am., 216 F. Supp. 2d 1060 (C.D. Cal 2002) (sustaining objection to affidavit because affiant lacked personal knowledge of who maintained the website or authored the documents). As stated in the above referenced law.com article, this is similar to authenticating a letter, which requires showing that it was written by the individual to whom it is attributed. So far, I have not come across authority in the Sixth Circuit that requires this type of showing. The second approach taken by courts is much more permissive and all that is typically required to introduce web page and screen shot evidence is testimony from the person who created the screen shot that the image "accurately reflects the content of the Web site and the image of the page on the computer at which the [screen shot] was made." Toytrackerz LLC v. Koehler, 2009 WL 2591329, at 6 (D. Kan. Aug. 21, 2009); see also, Nightlight Sys., Inc. v. Nitelites Franchise Sys., Inc., 2007 WL 4563875, at 5-6 (N.D. Ga. May 11, 2007)). This is basically the same standard as what is applied to photographs and the party proffering the evidence does not have to authenticate the information as authored or sponsored by the individual to whom it is attributed. All that needs to be shown is that the screen shot or web page accurately reflects what was on the site. Solo, Inc. v. Catona, 2008 WL 4906115, at 1, n.5 (C.D. Cal. Nov. 10, 2008) (court admitted screen shot noting that although the declarant "may not have [had] knowledge as to how the Web site works on a technological level, his declaration establishes sufficient knowledge to attest that the screen shots are an accurate representation of what he encountered upon visiting the web site."); Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3rd Cir. 2007). From what I have found through my research, courts in the Sixth Circuit fall into the second camp and, they tend to be even more permissive than the courts noted above. In Schneider Saddlery Co. v. Best Shot Pet Prods. Int., LLC., 2009 U.S. Dist. LEXIS 27227, at *25 (N.D. Ohio March 31st, 2009), the Northern District of Ohio, was faced with the issue of whether unauthenticated images taken from web pages could be considered by the court in a motion for summary judgment. Citing Nightlight Sys., supra at *16, for support, the Northern District found that the images were not admissible and needed to be authenticated by presenting evidence from a "percipient witness stating that the printout accurately reflected the content of the page and the image of the page on the computer at which the printout was made.". citing, cf., Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 561 (D. Md. 2007) ("Photographs have been authenticated for decades under Rule 901(b)(1) by testimony of a witness familiar with the scene depicted in the photograph who testifies that the photograph fairly and accurately represents the scene). The Middle District of Tennessee appears to have taken the same approach as the Schneider court. See Smith v. Pfizer Inc, 2010 U.S. Dist. LEXIS 47698, *17 (M.D. Tenn. 2010) (court allowed authentication of e-mails lacking any routing or contact information because " document[s] can... be authenticated by '[t]estimony that a matter is what it is claimed to be' [citation ommitted] and [the proponents] ... testimony [was enough to] authenticate the document.");Capital Confirmation, Inc. v. Auditconfirmations, LLC, 2009 U.S. Dist. LEXIS 77440 (M.D. Tenn 2009) (screen shots of website that confirmed the statements of affiants and broader arguments were properly considered by the court). The Southern District of Ohio, in United States v. Standring, 2005 U.S. Dist. LEXIS 41330 (S.D.Ohio March 15, 2006), allowed evidence of documents from third-party websites without any testimony and held that evidence of this type can be authenticated with merely a declaration. The court held that a declaration attesting to the evidence, "when view in combination with the documents' circumstantial indicia of authenticity (such as the dates and web addresses that appear thereon)... would support a reasonable juror in the belief that the documents are what [the proponent] says they are." id. at *5, citing Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp.2d 1146, 1154 (C.D. Cal. 2002) ("computer printouts are the only practical method by which the allegations of the complaint can be brought before the Court and there is generally a reduced evidentiary standard in preliminary injunction motions"),United States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000). This type of authentication is done under FRE 901(b)(4) rather than 901(b)(1). The Schneider, supra, court also considered and allowed printouts from parties' web-sites that were unauthenticated. Because the dispute was over trademarks, the court took judicial notice of the images on the parties' websites that were the subject of the dispute. Id. at *23-24. But this was mainly because there was no contention by either party that the images were inaccurate or could not be properly admitted before a jury. citing, Comedy III Prods., Inc. v. New Line Cinema, 200 F.3d 593, 594 (9th Cir. 2000) ("[T]he district court took judicial notice of the motion picture's contents."); cf. Thomas v. Walt Disney Co., 2008 U.S. Dist. LEXIS 14643, at *5 (N.D. Cal. Feb. 14, 2008) ("[T]he Court grants Defendants' request for judicial notice of the text of 'Squisher the Fish' and the motion picture 'Finding Nemo'."). Therefore it is also possible for judicial notice to used as a tool for authentication in some instances. As stated on in the law.com article referenced earlier, the third camp lies somewhere between the first and the second, and the evidence required typically depends on the circumstances. For Example, in United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000), a white supremacist group claimed responsibility on its website for the alleged actions of the defendant. The court refused to admit screen shots of the supremacist group's website offered by the defendant because the defendant did not prove the website's owner actually posted the information. The court noted, however, that the type of evidence required to meet the prima facie burden depends on the proponent's incentive and ability to falsify evidence. In that case, the proponent, the defendant, was a sophisticated computer user and had every incentive to try to place the blame on someone else. Therefore, because of the incentive, the court required the defendant to link the information directly to the website's sponsor. For lawyers practicing in the Sixth Circuit who wondered where the Circuit stood on the issue of authenticating web sites and screen shots, I hope this post, read in conjunction with the law.com article, was able to shed some light on the issue. www.defamationremovallaw.com