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Using Federal Rules of Evidence to Authenticate Website Content by Adriel J

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Using Federal Rules of Evidence to Authenticate Website Content by Adriel J THE OLDEST LAW JOURNAL IN THE UNITED STATES 1843-2014 PHILADELPHIA, FRIDAY, OCTOBER 24, 2014 VOL 250 • NO. 82 CYBERLAW Using Federal Rules of Evidence to Authenticate Website Content BY ADRIEL J. GARCIA that the exhibit is what he or she purports ADRIEL J. GARCIA is an Special to the Legal it to be, at which point “the court need associate in the litigation department at Stradley not find that the evidence is necessarily hen it comes to proffering into Ronon Stevens & Young, what the proponent claims, but only that evidence material taken from where he is a member of there is sufficient evidence that the jury websites, the authentication the firm’s e-discovery team might ultimately do so.” However, some W and securities litigation requirement is often the least understood courts maintain that electronic evidence is and enforcement practice and most overlooked hurdle to admissibil- group. He can be reached at inherently unreliable and “requires greater ity. Ultimately, electronic evidence is sub- [email protected] or 202-419-8408. scrutiny” than paper documents, as in ject to the same rules of evidence as paper Griffin v. State, 19 A.3d 415, 423 (Md. documents, but although a party seeking to 2011). As a result, practitioners should be admit an exhibit “need only make a prima Evidence 901(a), authentication “is sat- ready to prove that the website informa- facie showing that [the exhibit] is what he isfied by evidence sufficient to support tion is definitively authentic.A n under- or she claims it to be,” practitioners often a finding that the matter in question is standing of the methods of authenticating fail to meet “even this minimal showing” what its proponent claims.” For example, website content will help ensure that even when attempting to introduce electronically a proponent offering evidence obtained these courts find the proffered website stored information (ESI), as in Lorraine v. from the opposing party’s website must content authentic and admissible at trial. Markel American Insurance, 241 F.R.D. also offer evidence that the website is 534, 542 (D. Md. 2007). According to e- controlled by the opposing party. Once THE AVAILABLE METHODS OF discovery expert U.S. District Judge Paul the proponent produces sufficient evi- AUTHENTICatION W. Grimm of the District of Maryland, dence to convince a reasonable juror The Federal Rules of Evidence provide “The inability to get evidence admitted that the proffered evidence is authentic, a nonexhaustive list of methods to authen- because of a failure to authenticate it al- the burden of production shifts to the ticate electronically stored information most always is a self-inflicted injury which objecting party to prove that the evi- and website content. In Lorraine, Grimm can be avoided by thoughtful advance dence is fraudulent. (See “Authentication identified the following five methods as preparation.” With an understanding of the of Social Media Evidence,” by Grimm, the most common and most useful ways authentication requirement, knowledge of Lisa Yurwit Bergstrom and Melissa M. of authenticating website content under the available methods of authentication, O’Toole-Loureiro.) If a reasonable juror the Federal Rules of Evidence: and a little planning, practitioners have the could find for either party, the trial judge • Rule 901(b)(1): Testimony of a tools to successfully authenticate website may then admit the evidence condition- Witness With Knowledge. content at trial. ally and allow the jury to determine This rule permits authentication by whether to accept or reject the evidence. “testimony that an item is what it is THE AUTHENTICatION REQUIREMENT Authentication “is not a particularly claimed to be.” Although the testimony Website content must be authentic to high barrier to overcome”—the proponent of a witness that actually drafted the be admissible. Under Federal Rule of need only make a prima facie showing website content, such as the owner of the website, will suffice, it is not required create a form of electronic “Bates stamp.” that the evidence is in fact from a public that the authenticating witness have per- Similarly, metadata, such as a website’s office authorized to keep such a record.” sonal knowledge of the making of the address and its permissions, can also be Relatedly, under Rule 902(5), extrinsic specific website so long as the witness used to authenticate a website’s contents evidence of authenticity is not required has personal knowledge of how that type under this rule. for “publication[s] purporting to be is- of website is routinely made. However, • Rule 901(b)(9): System or Process sued by a public authority.” Under this it is necessary that the authenticating Producing Reliable Results. rule, “a proponent of ESI could use witness provide factual specificity about This rule is satisfied by “evidence de- the URL, date, and/or official title on a the process by which the electronically scribing a process or system and showing printed Web page to show that the in- stored information is created, acquired, that it produces an accurate result.” This formation was from a public authority’s maintained and preserved without altera- rule is especially useful when seeking to website, and therefore, self-authenticat- tion or change, or the process by which admit historical website content from an ing,” according to Williams v. Long, 585 it is produced if the information is the Internet cache or archive. It requires a wit- F. Supp. 2d 679, 689 (D. Md. 2008). result of a system or process that does so. ness who either has personal knowledge • Rule 901(b)(3): Comparison by an to explain how the website content was PLANNING TO AUTHENTICatE Expert Witness or the Trier of Fact. captured or, alternatively, is an expert who WEBSITE CONTENT This rule allows authentication by can provide opinion testimony about the The method of authentication chosen “comparison with an authenticated spec- reliability of the capture process. will depend on the facts of the case, imen by an expert witness or the trier of so practitioners will need to plan in fact.” As long as there is a previously advance if they want to successfully authenticated exhibit in the record avail- Assume that the court authenticate website content. Early in able for comparison, this rule remains the case, practitioners should keep the a valid option for authenticating new will be distrusting of following points in mind: electronic evidence, including website website content, and as- • Assume that the court will be distrust- content. A computer forensic expert can ing of website content, and assume that frequently be hired to authenticate web- sume that the court will the court will require proof that the web- site content under this rule, but it may require proof that the site content is definitively authentic. come at a substantial cost. Alternatively, • In discovery, collect all metadata sur- the rule allows a fact-finder to make website content is de- rounding the website content. Metadata the comparison, but there is no way to finitively authentic. may allow an expert to authenticate under know how the fact finder will ultimately Rule 901(b)(3), or it may provide distinc- decide until it is too late. tive circumstances or characteristics to • Rule 901(b)(4): Distinctive • Rule 901(b)(7) and/or Rule 902(5): authenticate under Rule 901(b)(4). Circumstances and Characteristics. Evidence About Public Records and/or • Question the purported creator of This rule permits authentication by “ap- Official Publications. the website during deposition, as it may pearance, contents, substance, internal Under Rule 901(b)(7), website content provide foundational evidence consistent patterns, or other distinctive character- can be authenticated by evidence that the with Rule 901(b)(1). istics of the item, taken together with website was created or kept by a public Ultimately, proper planning is essen- all the circumstances.” This rule can be office as authorized by law. The pro- tial, and with a firm grasp of the tools satisfied through circumstantial evidence ponent “need only show that the office above, practitioners can avoid “self-in- of authenticity, including hash values and from which the records were taken is the flicted injury” and introduce website metadata. Hash values are unique nu- legal custodian of the records,” which content successfully at trial. • merical identifiers “so distinctive that the can be accomplished by “a certificate of chance that any two data sets will have the authenticity from the public office; the Reprinted with permission from the October 24, 2014 edition of THE LEGAL INTELLIGENCER © 2014 same hash value, no matter how similar testimony of an officer who is autho- ALM Media Properties, LLC. All rights reserved. they appear, is less than one in one bil- rized to attest to custodianship, [or] the Further duplication without permission is prohibited. For information, contact 877-257-3382, [email protected] or lion,” and can be used during discovery to testimony of a witness with knowledge visit www.almreprints.com. # 201-10-14-11.
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