With such an incredible amount of published webpages, websites and social media content, it can be a lot of work to sort out the content that is relevant in a legal case. However, once content is found, an attorney might ask whether or not it can be used as admissible evidence in court. The answer is likely yes, if it complies with the Federal Rules of Evidence, as well as web evidence collection best practices to strengthen its authenticity.
Federal Rules of Evidence
In late 2017, the Federal Rules of Evidence were amended to add two new sections (Rules 902(13) and (14)) that allow for the self-authentication of web evidence and other kinds of electronically stored information. Prior to these amendments, an attorney would have needed an expert sworn in to testify to the authenticity of the web evidence. Now, a certification from a qualified e-Discovery collection expert can attest to the authenticity.
(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).
(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).
How to Follow Self-Authenticating Web Evidence Rules
Here are some of the best practices to follow, as well as the elements of a webpage that an attorney should make sure is captured during the collection:
- Capture the entire webpage, website or social media profile so as not to miss documenting content that might be relevant later and to provide the full context of the content. If a webpage has a continuous scroll element where more content automatically loads each time you reach the end of the page, leverage a web collection expert who has the technology to quickly and accurately capture the entire webpage.
- Documenting the webpage and website HTML will reduce the risk of later attempting to retrieve content that may disappear or get deleted. Once the content is gone, it is unlikely there will be a way to recover it!
- Collect other elements within a webpage, such as videos, pop ups, images and documents like PDFs.
- If collecting a blog, an attorney should capture all of the blog posts, including any dates and author names. It’s important to note that some blogging tools allow a user to backdate posts so capturing as much metadata about the webpage as possible will help to authenticate it.
Collection Best Practices:
- For most webpages and websites, a PDF file of the page capture is the best option. But, for times when an attorney needs to show the interactivity of a webpage or website offline, it’s best to also have the capture in a WARC file format.
- It’s always a good idea to monitor a webpage, website or social media profile, like Facebook, through a web collection expert to save time and lessen the risk of missing any content evidence if/when it changes.
- Capture all metadata associated with the content to prove authenticity (IP addresses, timestamps, URLs, etc.).
- Leverage a web collection expert to ensure the attorney and their staff are kept out of the chain of custody.
- Obtain an affidavit to verify the authenticity of the web capture technology and the capture method.
- Capture a true and accurate representation of the web content so that when saving or printing, it looks exactly like it appears online.
About Page Vault
Page Vault helps legal professionals to capture and preserve web content such as webpages, websites, social media, videos, images, and documents. Users can have confidence in knowing that Page Vault’s collection experts accurately preserve all necessary content and supporting data within the requested output format. Whether using their in-house software or vendor services, Page Vault can accommodate projects of any volume or complexity.