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November 30, 2015 Practice Points

Recent Federal Court Ruling on Admissibility of Online Evidence

"Don't waste your time capturing online evidence" means that attorneys need to acquire it in a usable format so that, if needed, it will be admissible evidence

by Madison Fischer

"Don't waste your time capturing online evidence," does not mean that gathering online evidence is not extremely important. To the contrary, the majority of today's law practice is centered around electronic evidence including online evidence. Instead, "don't waste your time capturing online evidence" means that attorneys need to capture online evidence in a usable format to ensure that, if needed, their captures will be admissible evidence.

There are a number of nightmares associated with the practical aspects of capturing online evidence. Printing documents can leave off information that was displayed on the webpage. Screenshotting a webpage can be time consuming as it requires constant screenshotting and saving or printing as you scroll down a page. Additionally, both of those methods provide little or no metadata which is useful and sometimes required for admissibility.

There are also a number of evidentiary issues associated with websites. Authentication under Fed. R. Evid. 901 requires the proponent of the evidence to show that the capture offered is a picture of how the webpage appeared on the day they so claim. As one federal district court recently noted, generally, an affidavit of a witness who captured or printed the webpage, along with some circumstantial evidence of authenticity—such as the URL, date of printing, title of the website, author of the website, or other identifying information—will be enough to meet the authenticity requirement. United States Sec. & Exch. Comm'n v. Berrettini, 2015 WL 5159746 (N.D. Ill. Sept. 1, 2015). Courts have made clear that this requirement can be a hurdle.

Proponents of online evidence have faced difficulty with the personal knowledge requirement of Fed. R. Evid. 602. One federal court previously ruled that a person who has seen a printout of a webpage, but could not testify from personal knowledge that the printout accurately reflected the website, was insufficient to establish authenticity. See Cook v. J & J Snack Foods Corp., 2010 WL 3910478, at *5 (E.D. Cal. 2010). In September 2015, another federal court went a step further by excluding printouts of online news articles even with a witness who was able to say that the printout appeared as they did on the webpage. See Berrettini, 2015 WL 5159746. First, the court noted that printouts from Westlaw or other archives of articles that were previously published by separate newspapers or periodicals were not self-authenticating. Id. Additionally, it held that with regard to archive websites such as Westlaw, "any attempt by a user of the website to authenticate from memory must fail" because there needs to be personal knowledge of the reliability of the archive source. Id.

There are a number of technology vendor tools that may help attorneys cure some of the practical and evidentiary problems associated with online evidence. For example, the Wayback Machine is an internet archive source that helps attorneys capture webpages that have been deleted. Another helpful tool is the use of capturing software like Page Vault. Capturing software can help with practical aspects of capturing a webpage including allowing a one click capture of the whole page so that additional time is not wasted by scrolling and printing each screenshot. Additionally, they can capture metadata including the URL, date of printing, title of the website, and other identifying information that will likely be required for authenticity.

To confront the issues addressed in Berrettini, attorneys need to make sure that they will be able to acquire affidavits, if needed, from any archive sources they use. Thus, with the increase of online evidence, attorneys need to understand how to capture the evidence in a useful way.

Keywords: admissibility, authentication, commercial and business, evidence, Fed. R. Evid. 602, Fed. R. Evid. 901, online evidence, litigation

Madison Fischer is with Spencer Fane LLP in Kansas City, Missouri.

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