By Alex Sappington
When digital content—such as websites and social media sites—might be introduced as evidence in a case, legal counsel must ensure that the evidence is properly collected and authenticated under the relevant rules of evidence. Taking simple screenshots without authentication can result in the evidence being ruled inadmissible, putting the entire case at risk.
Disney Enterprises, Inc. v. Sarelli, 322 F. Supp. 3d 413 (S.D.N.Y. 2018) exemplifies the critical role that properly authenticated digital evidence plays in legal proceedings—particularly in intellectual property litigation. In Disney, plaintiffs Disney, Marvel, and LucasFilm alleged that defendants had infringed on plaintiffs’ intellectual property rights by operating a party services and entertainment business that used plaintiffs’ copyrighted works and trademarks without permission. Specifically, defendants allegedly uploaded images and videos of various Disney, Marvel, and Star Wars characters on their website and social media sites, and provided customers with live costumed actors portraying such characters.
Plaintiffs moved for partial summary judgment on their trademark infringement, copyright infringement, and trademark dilution claims, which the court denied. In denying plaintiffs’ motion, the court stated:
Based on the current record, this Court cannot conclude that Defendants have infringed Plaintiffs’ copyrighted characters because Plaintiffs do not point to any admissible evidence demonstrating that Defendants have engaged in the alleged infringing conduct.
. . .
For instance, Plaintiffs rely on various poor quality screenshots of [Defendants’] website and other social media sites, including screenshots of older versions of the websites preserved by the Internet Archive, as well as several videos allegedly captured from [Defendants’] website and other social media sites.
. . .
The screenshots and videos, however, have not been properly authenticated and are submitted to this Court through an attorney declaration, which claims in boilerplate fashion that it is “based upon [the attorney’s] personal knowledge of matters detailed [t]herein.” Such evidence is not admissible and cannot be considered in deciding the instant motions for summary judgment.
Id. at 443. Cf. United States v. Gasperini, 894 F.3d 482, 489–90 (2d Cir. 2018); Universal
Church, Inc. v. Universal Life Church/ULC Monastery, No. 14 Civ. 5213 (NRB), 2017 WL 3669625, at *3 (S.D.N.Y. Aug. 8, 2017); Specht v. Google, Inc., 747 F.3d 929, 933 (7th Cir. 2014).
This case highlights the need for attorneys to ensure that evidence is relevant, reliable, and properly authenticated before presenting it in court. Failing to do so can result in the exclusion of evidence, which can harm the outcome of the case.
Creating Admissible Screen Captures
The outcome may have differed if Page Vault’s legally defensible screen captures and video captures were used in this case. Unlike traditional screenshots, Page Vault’s technology ensures that captures are of high quality and include important metadata that can establish the authenticity of the evidence. Page Vault captures also include affidavits that explain when and how the capture was made, in accordance with relevant rules of evidence, taking the burden off of legal teams and avoiding the risk of submitting “boilerplate” declarations as discussed in Disney. Using Page Vault would have increased the likelihood of the court admitting the digital evidence at issue, thereby providing the court with more evidence to support Disney’s claims and potentially resulting in a favorable outcome for the company.
Intellectual property litigation teams should consider using Page Vault’s patented technology to obtain legally-admissible screen captures. Doing so will provide them with high-quality, admissible evidence that can be relied upon in court. This strengthens their case and enhances their credibility with the court.
To recap, Disney is a powerful reminder of the importance of properly authenticated evidence in legal proceedings. Attorneys should take every measure possible to ensure that their digital evidence is of high quality and properly authenticated under the relevant rules of evidence (such as Federal Rules of Evidence 901(b)(9) and 902(13)) before presenting it in court. By using Page Vault for website, social media, and video captures, attorneys can obtain strong, reliable evidence, along with supporting affidavits that comply with the Federal Rules of Evidence, that can materially impact the outcome of a case and help their clients achieve a favorable resolution.