From Website into Evidence

135874637Many courts view the content of Internet websites with skepticism, or as one court put it, the Internet is a “large catalyst for rumor, innuendo, and misinformation.” Lorraine v Markel Am. Ins. Co. (D Md 2007) 241 FRD 534, 555 n30. Watch out—this attitude might impact your efforts to authenticate and get website postings into evidence. 

Printouts of website postings are subject to more rigorous authentication requirements than other electronic printouts. Here are the California statutory sections you can use to authenticate them:

  • Witness of creation or execution (Evid C §1412);
  • Distinctive characteristics (Evid C §1421);
  • Expert testimony comparison (Evid C §1418); and
  • Business or official record exceptions (Evid C §§1271 and 1280).

You can also use the circumstantial evidence catchall provision (Evid C §1410), which provides courts with broad discretion to admit website printouts.

Commentator Gregory Joseph suggests that those seeking to authenticate printouts of Internet websites should offer testimony that a witness:

  1. entered the URL address associated with the website,
  2. reviewed the contents of the website, and
  3. confirms that the offered printout accurately reflects the website content that he or she reviewed.

The person who manages the website can establish that a particular file of identifiable content was placed on the website at a specific time. This may be done through that individual’s direct testimony or through documentation generated automatically by the software of the web server. You may need to use a second witness to authenticate the evidence if the author of the material provided was someone other than the person who installed the file on the web.

Never count on a URL or website printout alone being sufficient. In In re Homestore.com Sec. Litig. (CD Cal 2004) 347 F Supp 2d 769, 782, the court held that an individual with personal knowledge of a website’s contents is required to authenticate printouts because printouts don’t bear “indicia of reliability.” See also McGarry v Sax (2008) 158 CA4th 983, 990 (court rejected plaintiff’s attempt to authenticate search engine results using only website printouts).

For everything you need to know about authenticating writings and the admissibility of electronic evidence, turn to CEB’s Jefferson’s California Evidence Benchbook, chaps 31 and 33 and Effective Introduction of Evidence in California, chap 11.

Related CEBblog™ posts:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

6 Responses

    • Just as technology is behind the problem, technology offers a solution; creating an authenticable record of exactly what was online and when. This is not just a simple screen capture, but all the metadata, as well as 3rd party digital signatures.

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