[Courts' previous] reaction[s] ha[ve] ranged from the famous skepticism expressed in St. Clair v. Johnny’s Oyster and Shrimp, Inc., 76 F.Supp.2d 773 (S.D.Tex.1999):
- There, the court stated that, Plaintiff’s electronic ‘evidence’ is totally insufficient to withstand Defendant’s Motion to Dismiss. While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity of the alleged contentions that Plaintiff wishes to rely upon in his Response to Defendant’s Motion. There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in Fed.R.Evid. 807. Instead of relying on the voodoo information taken from the Internet, Plaintiff must hunt for hard copy back-up documentation in admissible form from the United States Coast Guard or discover alternative information verifying what Plaintiff alleges.
to the more permissive approach taken in Perfect 10, 213 F.Supp.2d at 1153-54.
- The court noted that a “reduced evidentiary standard” applied to the authentication of exhibits purporting to depict the defendant’s website postings during a preliminary injunction motion. The court found that the exhibits had been authenticated because of circumstantial indicia of authenticity, a failure of the defendant to deny their authenticity, and the fact that the exhibits had been produced in discovery by the defendant. The court declined to require proof that the postings had been done by the defendant or with its authority, or evidence to disprove the possibility that the contents had been altered by third parties.
The issues that have concerned courts include the possibility that third persons other than the sponsor of the website were responsible for the content of the postings, leading many to require proof by the proponent that the organization hosting the website actually posted the statements or authorized their posting.
- (References United States v. Jackson, 208 F.3d 633, 638 (7th Cir.2000) (excluding evidence of website postings because proponent failed to show that sponsoring organization actually posted the statements, as opposed to a third party));
- St. Luke’s, 2006 WL 1320242 (plaintiff failed to authenticate exhibits of defendant’s website postings because affidavits used to authenticate the exhibits were factually inaccurate and the author lacked personal knowledge of the website);
One commentator has observed “[i]n applying [the authentication standard] to website evidence, there are three questions that must be answered explicitly or implicitly.
- What was actually on the website?
- Does the exhibit or testimony accurately reflect it?
- If so, is it attributable to the owner of the site?
The same author suggests that the following factors will influence courts in ruling whether to admit evidence of internet postings:
- The length of time the data was posted on the site;
- whether others report having seen it;
- whether it remains on the website for the court to verify;
- whether the data is of a type ordinarily posted on that website or websites of similar entities (e.g. financial information from corporations);
- whether the owner of the site has elsewhere published the same data, in whole or in part;
- whether others have published the same data, in whole or in part;
- whether the data has been republished by others who identify the source of the data as the website in question?
The authentication rules most likely to apply, singly or in combination, are:
- 901(b)(1) (witness with personal knowledge),
- 901(b)(3) (expert testimony),
- 901(b)(4) (distinctive characteristics),
- 901(b)(7) (public records),
- 901(b)(9) (system or process capable of producing a reliable result), and
- 902(5) (official publications).
Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).