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The Trouble with Authenticating Internet Postings and Other E-Evidence by Matthew J

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The Trouble with Authenticating Internet Postings and Other E-Evidence by Matthew J The Trouble with Authenticating Internet Postings and Other E-Evidence By Matthew J. Kelly Jr. and William G. Kelly he first questions concerning any prof- Admissibility: Gagliardi, Lorraine, and fer of evidence have always been and, Other Significant Decisions Tfor the foreseeable future, will remain: Printouts and other evidence of Internet postings What is the evidence being offered to prove? are often offered to prove that the company has Is it admissible for that purpose? Whether the made a representation (whether admission of evidence is a bloody glove purportedly from a guilt, a showing of notice, or foreseeability of a crime scene or a printout from a since-vanished potential problem) or a misrepresentation that Internet web page, attorneys must always answer another has acted upon to his or her detriment. these questions. No matter how much money But is such evidence admissible? is spent developing sophisticated databases or To be admissible, potential evidence must first doing computer searches, and regardless of how be authenticated. “The requirement of authenti- many litigation-support personnel are employed, cation or identification as a condition precedent unless these fundamental questions are sufficiently to admissibility is satisfied by evidence sufficient answered, no judge will consider, and no jury will to support a finding that the matter in question ever see, that potential evidence. This article is what its proponent claims.”1 This requirement focuses on the admissibility of Internet postings does not vanish simply because the evidence and, more specifically, on how the foundation for comes from an electronic source. evidence—authentication—remains important In a case involving the admissibility of Internet as electronic discovery in all its forms grows by “chat room” transcripts, the Second Circuit has leaps and bounds. recently indicated that the bar is not necessar- ily high for the offering party. “The proponent The Corporate Website need not rule out all possibilities inconsistent Consider a corporation’s website, where informa- with authenticity, or to prove beyond any doubt tion can take a variety of forms. There are blatant that the evidence is what it purports to be.”2 advertisements that regale browsers with the Rather, the standard for authentication is one benefits of a product or service. Often there are of “reasonable likelihood,” which is described as news and press-release pages that offer the latest “minimal.”3 U.S. v. Gagliardi stated simply, “The reports on positive goings-on, such as quarterly testimony of a witness with knowledge that a earnings and sunny outlooks on potential sales. matter is what it is claimed to be is sufficient to We can also find “blogs” and other interactive satisfy this standard.”4 commentary sections where authorized (or, dan- The Gagliardi standard is forgiving not only in gerously, unauthorized) representatives of the prose but also in practice. In Gagliardi, the defen- Matthew J. Kelly Jr. company answer questions or make statements on dant was accused of enticing a minor to engage behalf of the company. in illegal sexual activity via Internet chat rooms. Each of these aspects of a website is potential The government offered testimony by an infor- fodder for litigation. For example, the blog or mant as well as printouts of “chats” engaged in comments section might contain material mis- by the defendant. Both the informant and an FBI representations of fact about a company looking agent testified as to the printouts’ authenticity. to be acquired or misstatements about products To complicate matters, however, the government for sale. A question might be posted on a seller’s did not use the original version of the emails and website regarding atypical and unforeseen uses chats. Instead, the government cut and pasted William G. Kelly of a product: “I know your ladder says to not certain emails, chat-room lines, and other por- Matthew J. Kelly Jr. is with stand above this step, but I need to stand on top tions of Internet text into word-processing files, Schnader Harrison Segal to reach the ceiling. Is that OK?” A company which, according to the defense argument, not & Lewis LLP in New York, response could potentially turn an unforeseeable only permitted improper editing by the govern- New York. use into a foreseeable one, thereby also turning a ment but also complete fabrication. Yet the William G. Kelly is with safe product into a defective one: “Sure, go ahead Second Circuit gave the defense argument short Goldberg Segalla, LLP in and stand on your tiptoes!” shrift, holding that testimony by the informant White Plains, New York. Published in Proof, Volume 17, Number 2, Winter 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Proof_WI09.indd 5 12/16/08 1:59:46 PM and agent was enough for a reasonable juror to Company, a 2007 decision from the U.S. District deduce that the evidence accurately represented Court of Maryland, Chief Magistrate Judge Paul the defendant’s Internet conversations.5 Grimm attempted to provide a road map for Gagliardi has serious implications for corporate authenticating and admitting electronic evi- litigation. A court following Gagliardi could per- dence.11 The 101-page opinion explores various mit the jury to decide the authenticity of cut-and- forms of electronic discovery, from chat room pasted compilations of Internet evidence—the transcripts to email to website postings. Judge common “it goes to weight, not admissibility” Grimm surveyed the range of decisions on the A court following scenario—even if the web page or chat room no subject handed down by other courts, noting that longer exists.6 courts can be quite harsh in their distrust of the Gagliardi could Not all jurisdictions admit this kind of evi- Internet: “While some look to the Internet as an dence so easily. Some courts have held that tes- innovative vehicle for communication, the Court permit the jury timony from a mere visitor to a website may not continues to warily and wearily view it largely be enough to authenticate web page printouts. as one large catalyst for rumor, innuendo, and Examples are Internet Specialties West, Incorporated misinformation.”12 Yet at times, courts can also to decide the v. ISPWest,7 which held that printouts of third- be overly forgiving, as with Perfect 10’s “reduced party websites were properly authenticated by a evidentiary standard.”13 authenticity of visitor to a website who could not establish the Judge Grimm addressed evidentiary issues spe- accuracy of the printouts, and United States v. cific to websites, most notably “the possibility that cut-and-pasted Jackson,8 which held that evidence taken from third persons other than the sponsor of the website the Internet had not been properly authenticated were responsible for the content of the postings.” compilations of where the offering party was unable to show that This possibility, Judge Grimm noted, has caused the information had been posted by the organiza- some courts, such as the Seventh Circuit, to Internet tions to which she attributed it. require the proponent to prove that the Internet Internet Specialties West and Jackson suggest host actually posted or authorized the posting of evidence. that a party cannot personally authenticate a the statements sought to be admitted.14 printed web page. Nor could a party authenticate To provide clear guidance on introducing the proffered Internet content merely by print- Internet postings into evidence, Judge Grimm ing out—or worse, cutting and pasting excerpts adopted the three-step inquiry proposed by Gregory from—blogs or other comment web pages, even P. Joseph.15 The three questions to be posed are if the party himself or herself had directly par- “(1) What was actually on the website? (2) Does ticipated in the online conversation. Authorities the exhibit or testimony accurately reflect it? like these suggest that to authenticate Internet (3) If so, is it attributable to the owner of the content, testimony would be required either from site?”16 Judge Grimm also adopted the following the author of the content—that is, the webmaster factors for consideration: the length of time the who placed the content online—or from a blogger data was posted on the site; whether other per- or browser of the content who possesses founda- sons report having seen it; whether the data has tional knowledge sufficient to authenticate the remained on the website for the court to verify; entire content. whether the data is of a type ordinarily posted on A case in point is Perfect 10, Incorporated v. that website or websites of similar entities (e.g., Cybernet Ventures, Incorporated.9 In Perfect 10, the financial information from corporations); whether proponent declared that certain printouts, which the owner of the site has elsewhere published the contained appropriate web addresses and dates of same data, in whole or in part; whether others printing, were true and accurate copies of Internet have published the same data, in whole or in part; content. This declaration was deemed sufficient and whether the data has been republished by to authenticate the web pages. The court stated others who identify the source of the data as the that if the proffered documents bear “circum- website in question.17 stantial indicia of authenticity (such as the dates Judge Grimm posited that the authentication and web addresses that appear thereon)” and the rules most likely to apply to Internet postings declarant is credible, a court would likely find an are Federal Rules of Evidence 901(b)(1) (witness adequate foundation.10 with personal knowledge), 901(b)(3) (expert tes- These latter decisions, however, appear to have timony), 901(b)(4) (distinctive characteristics), relied largely on the personal knowledge of the 901(b)(7) (public records), 901(b)(9) (system or witness authenticating the proposed printouts.
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