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Archive for the ‘FRE 901(b)(7)’ Category

Case Blurb: Lorraine; Authenticating Internet Website Postings

Posted by rjbiii on September 21, 2007

[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.

  1. What was actually on the website?
  2. Does the exhibit or testimony accurately reflect it?
  3. 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).

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Posted in 3d Circuit, Admissibility of ESI, Authentication, Case Blurbs, D. Md., FRE 901(b)(1), FRE 901(b)(3), FRE 901(b)(4), FRE 901(b)(7), FRE 902(5), Magistrate Judge Paul W. Grimm, Websites | Leave a Comment »

Case Blurb: Lorraine; Authenticating ESI under 901(b)(7) as public records or reports

Posted by rjbiii on September 18, 2007

[Rule 901(b)(7)] permits authentication by: Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

The commentary to Rule 901(b)(7) recognizes that it applies to computerized public records, noting that “[p]ublic records are regularly authenticated by proof of custody, without more.

[Rule 901(b)(7) ] extends the principle to include data stored in computers and similar methods, of which increasing use in the public records area may be expected.”

To use this rule the “proponent of the evidence need only show that the office from which the records were taken is the legal custodian of the records.” This may be done by:

  • “A certificate of authenticity from the public office;
  • [t]he testimony of an officer who is authorized to attest to custodianship, [or] the testimony of a witness with knowledge that the evidence is in fact from a public office authorized to keep such a record.”

Courts have recognized the appropriateness of authenticating computer stored public records under Rule 901(b)(7) as well, and observed that under this rule, unlike Rule 901(b)(9), there is no need to show that the computer system producing the public records was reliable or the records accurate.

For example, in United States v. Meienberg, the court rejected defendant’s challenge to the admissibility of a law enforcement agency’s computerized records. Defendant argued that the only way they could be authenticated was under Rule 901(b)(9), through proof that they were produced by a system or process capable of producing a reliable result. Defendant further argued that the records had not been shown to be accurate. The appellate court disagreed, holding that the records properly had been authenticated under Rule 901(b)(7), which did not require a showing of accuracy. The court noted that any question regarding the accuracy of the records went to weight rather than admissibility. 263 F.3d at 1181.

Thus, a decision to authenticate under Rule 901(b)(7), as opposed to 901(b)(9) may mean that the required foundation is much easier to prove. This underscores the importance of the point previously made, that there may be multiple ways to authenticate a particular computerized record, and careful attention to all the possibilities may reveal a method that significantly eases the burden of authentication.

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Posted in 3d Circuit, Admissibility of ESI, Authentication, Case Blurbs, D. Md., FRE 901(b)(7), Magistrate Judge Paul W. Grimm | Leave a Comment »