Uncertainties of Internet
Evidence Create Challenges
Technological innovations have raised numerous issues relating to the treatment and admissibility of e-mails, instant and text messages and web page content—be it first or third-party related.
Over the past several years, litigators have questioned the treatment of various types of digital records under the rules of evidence. Their focus isn’t so much on the idea that the rules of evidence need to be changed (though the topic has been raised), but, rather, on how litigators can effectively advocate positions regarding digital evidence under the existing legal framework. An increased knowledge of the underlying technology will vastly improve a litigator’s arguments concerning authenticity and hearsay objections surrounding Internet evidence.
Authenticity of Website Data
Establishing the authenticity of data found on a website is an issue faced in many types of modern litigation. A suggested framework for establishing the authenticity of a web page that a witness has “visited” involves a number of steps. The witness should attest to the fact that he or she typed in the site’s Uniform Resource Locator (more commonly referred to as the URL—the “www” address), was actually logged on to the site and reviewed the content that was contained on that particular site. He or she should also testify that the printout or other exhibit fairly and accurately reflects the data at issue.
A distinction is typically drawn between testimony as to information produced from a witness’ own website, as opposed to information generated from a third-party’s website. With the former, information is considered prima facie authentic, but this is not the case with information gleaned from a third-party’s site.
Evidentiary Treatment of E-mails
As a general proposition, e-mails produced from a party’s own e-mail servers are typically presumed to be authentic. A federal district court came to this conclusion in Sklar v. Clough (DC-Ga., 7/6/2007). The court held that certain e-mails were “deemed authentic when offered by a party opponent” by virtue of the fact that they had been produced by the defendant during discovery. There remain, however, a host of potential objections to the admission of e-mails into evidence.
One major concern may be whether an e-mail constitutes a business record. Many courts have held that there is no business practice of documenting some of the content that may make it into an e-mail. Accordingly, there may be a finding that a particular e-mail is not a business record or, perhaps, that it may be only partially a business record. Since there is heightened scrutiny surrounding Internet evidence, some jurisdictions require that a multiple-step test be satisfied in order to authenticate computerized business records.
An e-mail may also be found to constitute an admission or present sense impression. Complexities arise where—within the context of a web page’s content or a “string of e-mails”—hearsay issues need to be separately analyzed for each e-mail within a string or each web page’s content.
Conclusion
Some courts have expressed particular concerns regarding the authenticity and reliability of evidence obtained from the Internet. As this is an evolving area of the law, litigators need to be cognizant of what steps may be necessary—including satisfying complex procedures—to introduce certain types of electronic evidence. Please contact a member of Somerset's Litigation & Valuation Team for your litigation support needs.
Technological innovations have raised numerous issues relating to the treatment and admissibility of e-mails, instant and text messages and web page content—be it first or third-party related.
Over the past several years, litigators have questioned the treatment of various types of digital records under the rules of evidence. Their focus isn’t so much on the idea that the rules of evidence need to be changed (though the topic has been raised), but, rather, on how litigators can effectively advocate positions regarding digital evidence under the existing legal framework. An increased knowledge of the underlying technology will vastly improve a litigator’s arguments concerning authenticity and hearsay objections surrounding Internet evidence.
Authenticity of Website Data
Establishing the authenticity of data found on a website is an issue faced in many types of modern litigation. A suggested framework for establishing the authenticity of a web page that a witness has “visited” involves a number of steps. The witness should attest to the fact that he or she typed in the site’s Uniform Resource Locator (more commonly referred to as the URL—the “www” address), was actually logged on to the site and reviewed the content that was contained on that particular site. He or she should also testify that the printout or other exhibit fairly and accurately reflects the data at issue.
A distinction is typically drawn between testimony as to information produced from a witness’ own website, as opposed to information generated from a third-party’s website. With the former, information is considered prima facie authentic, but this is not the case with information gleaned from a third-party’s site.
Evidentiary Treatment of E-mails
As a general proposition, e-mails produced from a party’s own e-mail servers are typically presumed to be authentic. A federal district court came to this conclusion in Sklar v. Clough (DC-Ga., 7/6/2007). The court held that certain e-mails were “deemed authentic when offered by a party opponent” by virtue of the fact that they had been produced by the defendant during discovery. There remain, however, a host of potential objections to the admission of e-mails into evidence.
One major concern may be whether an e-mail constitutes a business record. Many courts have held that there is no business practice of documenting some of the content that may make it into an e-mail. Accordingly, there may be a finding that a particular e-mail is not a business record or, perhaps, that it may be only partially a business record. Since there is heightened scrutiny surrounding Internet evidence, some jurisdictions require that a multiple-step test be satisfied in order to authenticate computerized business records.
An e-mail may also be found to constitute an admission or present sense impression. Complexities arise where—within the context of a web page’s content or a “string of e-mails”—hearsay issues need to be separately analyzed for each e-mail within a string or each web page’s content.
Conclusion
Some courts have expressed particular concerns regarding the authenticity and reliability of evidence obtained from the Internet. As this is an evolving area of the law, litigators need to be cognizant of what steps may be necessary—including satisfying complex procedures—to introduce certain types of electronic evidence. Please contact a member of Somerset's Litigation & Valuation Team for your litigation support needs.
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Since technical information is presented in generalized fashion, no
final conclusion on these topics should be made without further review.
For additional information on the issues discussed, please contact
Steve Riddle,
Tom
Thieme,
Rex Collins or
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Litigation & Valuation Team.
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