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How True is that Voodoo? Authenticating Internet Sources of ESI




by:
Erin E. Graham
Alison A. Grounds
Troutman Sanders LLP - Atlanta Office

 
October 14, 2010

Previously published on October 8, 2010

It is now common practice for litigators to conduct internet research to work up a case and find evidence for trial. And yet, some courts are still suspicious of information obtained from the internet, with one federal judge going so far as to label such information “voodoo information.” In light of courts’ suspicions about information taken from the internet, parties hoping to use such information as evidence at trial should be prepared to overcome some admissibility hurdles.

Generally, these hurdles take the form of arguments over authenticity. Federal Rule of Evidence 901(a) requires a proponent of evidence to “authenticate” evidence by showing that the evidence is what it is purported to be. Federal Rule 901(b) provides a non-exhaustive list of ten methods available for making this authenticity showing. Proponents of internet evidence, which most commonly takes the form of webpage screenshots, are generally limited to two of these listed authentication methods: (1) authentication based on witness testimony that the evidence is what it is purported to be and (2) authentication based on the distinctive characteristics (appearance, content, substance, etc.) of the evidence.

As indicated above, many courts still harbor lingering suspicions about the reliability of information obtained from the internet. It is not surprising, therefore, that of the methods of authentication available to proponents of internet evidence, courts generally prefer that such evidence be authenticated by witness testimony. Having a witness testify as to whether the proffered evidence accurately reflects what was originally on a particular website will help a party clear not only the authentication hurdle, but also the associated reliability hurdle.

Recent cases suggest that although these hurdles to admissibility still exist, they may be becoming a tad bit easier to overcome. For example, in Griffin v. Maryland, the Maryland Court of Special Appeals allowed a printout of a woman’s Myspace page to be admitted into evidence over objections that the webpage was not properly authenticated. Citing Maryland’s low threshold requirements for authentication, the court ruled that the page was sufficiently authenticated even without witness testimony because it: (1) contained a clear photo of the woman; (2) stated the woman’s actual birthdate; (3) made references to the woman’s children; and (4) referenced the unique nickname that the woman called her boyfriend. Additionally, in State in the Interest of J.B., a New Jersey appeals court allowed Google Earth images to be admitted into evidence as both distinct evidence of the distance between two local landmarks and as support for a witness’ testimony as to this issue. Although opposing counsel objected to the admission of the Google Earth images on the basis of authenticity and reliability, the appellate court held that it was not an abuse of discretion for the lower court to admit these images as replicas or illustrations.

Despite these rulings, parties looking to introduce information obtained from the internet at trial should begin thinking about admissibility issues early so that they can develop an effective discovery strategy that will allow for easier authentication.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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