By Elana Harris
For better or worse, we live in a digital world. Whether we’re emailing, web conferencing or updating our LinkedIn profile, we spend a lot of our time on the Internet. Each second around the world there are:
- 9,000+ tweets sent
- 50,000+ Google searches
- 2,000,000+ emails sent
- 2,000+ Instagram photos uploaded
- 1,500+ Skype calls
Given the ubiquitous nature of the Internet, it is no surprise that webpage content (e.g., social media pages, corporate sites, blogs, etc.) is now a critical source of evidence. Web evidence is frequently used in intellectual property disputes—copyright, patent and trademark infringement cases—personal injury suits, class actions and many other practice areas.
The growing impact of webpage evidence has created new issues in the legal realm that have yet to be fully addressed. Attorneys seeking to capture and admit web content must be aware of additional considerations specific to web content as courts continue to shape and apply traditional rules of evidence and procedure to fit this new and evolving area.
Consider the complexity of webpages—they are transitory and content can be changed or removed in an instant. In addition, webpages are interactive and collaborative (Facebook posts, blog comments, etc.). Finally, webpage evidence is highly susceptible to alteration or fabrication. For example, you can easily create a fake Facebook profile, Photoshop a web capture or alter the html of a webpage even before you take a local capture on your desktop.
This five-part series will explore how to properly authenticate webpage captures under the Federal Rules of Evidence (FRE) 901(b) in today’s murky legal environment. As an introduction, we will first explore the current state of admissibility of webpage content to provide a framework for the authentication process.
Authentication of Webpage Content – A Work in Progress
FRE 901(a) and its state equivalents deal with authenticating evidence. To satisfy the authentication requirement under FRE 901(a) “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims.” FRE 901(b) provides a non-exhaustive list of authentication methods.
While, in reality, authentication of evidence is a relatively straightforward concept, both court and counsel struggle with authentication as it relates to Electronically Stored Information (ESI), particularly webpage content. Courts are using widely different and even conflicting standards when it comes to authenticating web evidence – from the most lenient to the most demanding – making case law on this issue clear as mud.
Under the lenient approach, a standard screenshot of a webpage can be authenticated by the person who captured the webpage. The witness will testify that the capture accurately reflects the content of the webpage on the date of capture. By contrast, under the more rigorous standard, the proponent must provide sufficient evidence to show a clear and reliable process for capturing, storing, preserving and presenting the webpage evidence. Webpage printouts are simply not enough.
With such a discrepancy in approaches, we’re essentially dealing with the wild, wild west.
Given the ephemeral and dynamic nature of webpages and its unique susceptibility to alteration, the authentication standards developed for ESI may be insufficient for webpage evidence. Discussing this issue, Chief Magistrate Judge Paul W. Grimm, a leader in eDiscovery who authored the groundbreaking Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (2007) decision, notes:
As electronic evidence becomes more ubiquitous at trial, it is critical for courts to start demanding that counsel give more in terms of authentication-and counsel who fail to meet courts’ expectations will do so at their own peril.1
Decisions from the past year dealing with this issue suggest that courts may have already begun to require a more demanding approach for authenticating webpage evidence. There have been several decisions in 2015 alone where courts have rejected the lenient standard. For example, in Linscheid v. Natus Medical Inc., No. 3:12-cv-76-TCB, 2015 WL 1470122, at *5-6 (N.D. Ga. Mar. 30, 2015), the court held that a Linkedin profile page was not authenticated by a declaration from the individual who merely printed the webpage. The message here is clear – proponent beware.
The Four Common Ways to Authenticate Webpage Evidence Under FRE 901(b)
While FRE 901(b) provides a list of ways to satisfy the authentication requirement, when it comes to web content specifically, there are four common authentication methods. Below is a an outline of the four authentication approaches, which will be more fully discussed in the remaining blog series.
FRE 901(b)(1). Testimony of a Witness with Knowledge (Part II)
Under FRE 901(b)(1), a witness with personal knowledge can authenticate webpage evidence.
FRE 901(b)(3). Comparison by an Expert Witness or the Trier of Fact (Part III)
Under FRE 901(b)(3), a computer forensic expert can authenticate web evidence. Alternatively, the finder of fact (in most cases, the jury) can authenticate by comparing the capture to an authenticated specimen.
FRE 901(b)(4). Distinctive Characteristics and the Like (Part IV)
You can satisfy the authentication requirement under FRE 901(b)(4) through distinctive characteristics of the web capture that are considered in light of circumstances.
FRE 901(b)(9). Evidence About a Process or System (Part V)
Finally, you can authenticate web evidence by providing evidence describing a process or system and showing it produces accurate results under FRE 901(b)(9).
Now that we have an understanding of the legal landscape for web evidence, read Part II of our series: Authenticating Social Media Evidence (Part II): Federal Rules of Evidence 901(b)(1).
1 Paul W. Grimm, et al., “Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information,” 42 Akron L. Rev. 357, 366 (2009).
For an earlier look at all of the ways to capture and authenticate web evidence, register for Page Vault’s upcoming ABA webinar on the risks and best practices of capturing web evidence. The webinar will take place on Tuesday, August 18 (2:00 – 2:30 p.m. EST). Registration is free!
Disclaimer: Nothing contained in Page Vault’s site is to be considered as the rendering of legal advice for specific cases or circumstances. Users of this site should consult with their own attorney for legal advice. The material herein is intended for educational and informational purposes only.