Today’s blog is directed a little more toward attorneys than usual. I stumbled across two interesting article in Law.com ( 1 2 ) focusing on presenting evidence found on web pages. One of the problems with introducing this type of evidence is that it is typically introduced in a screen shot (SS) format. In many cases it is either placed into a .pdf or printed. When this happens it has the benefit of capturing the actual information, as well as the URL and the date of the SS. At Ascheman & Smith, we occasionally find ourselves in a situation where we need to present the court with evidence of a given fact (or absence of said fact). To do this, we find ourselves retaining screenshots of the evidence. But having the attorney simply go onto the web, capture a screen shot, and print it causes additional headaches. That evidence needs to be introduced in many cases, and we do not expect the attorney to bounce from the podium to the stand. So the question becomes: Who needs to authenticate the website, and what questions must I ask?
After admitting the basics, the article goes into wonderful detail concerning the authentication required under Federal Rule of Evidence 901.
I will not try to simplify the entire article, but here are some key points: The majority of courts appear to require the proponent to authenticate a website under 901(b)(1). (keep in mind this is federal, not MN or WI). Testimony must answer the following questions:
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?”
Lorraine, 241 F.R.D. at 555-56 (quoting Gregory P. Joseph, “Internet and Email Evidence,” reprinted in 5 Stephen A. Saltzburg et al., Fed. R. Evid. Man., Part 4 at 20 (9th ed. 2006).
That same commentator provides a list of factors that a court may consider:
1) Length of time the data was posted on the site
2) Whether it remains on the Web site for the court to verify
3) Whether the data is of a type ordinarily posted on that Web site or Web sites of similar entities
4) Whether the owner of the site has elsewhere published the same data, in whole or in part,
5) Whether the data has been republished by others who identify the source of the data as the Web site in question.” Id.
Overall, this was a fantastic article by David C. Kiernan and M. Anderson Berry. If you are facing a situation where you need to introduce a SS, make sure you give this a read over.