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March 20, 2017 Articles

Rule 803(8) and the Increasing Role of the Internet

Courts have largely moved on from the era of "voodoo information"

by Cathleen Hartge

In 1999, a district court judge in Texas unceremoniously rejected a plaintiff’s efforts to overcome a motion to dismiss with “voodoo information taken from the Internet”—a technology that the court “view[ed] . . . largely as one large catalyst for rumor, innuendo, and misinformation.” St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774–75 (S.D. Tex. 1999). While some things haven’t changed much (including the Internet’s capacity for spreading “rumor, innuendo, and misinformation”), others have—including courts’ willingness to entertain arguments that certain Internet records qualify as public records under the hearsay exception in Federal Rule of Evidence 803(8).

Under Rule 803(8), “[a] record or statement of a public office” is not barred under the rule against hearsay if two conditions are met. First, the record must set out “(i) the office’s activities; (ii) a matter observed while under a legal duty to report” (excluding law enforcement observations in a criminal case); or “(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation.” Id. The second requirement is that “the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.” Id.

So Rule 803(8) leaves a trial court with quite a bit of discretion in determining what qualifies for the public records exception. But, unlike the St. Clair court, most trial courts don’t treat Internet records much differently than other purported public records. Courts generally apply the rule’s elements in a commonsense manner, sometimes concluding that the Internet record qualifies—and, sometimes, that it doesn’t. Two recent decisions from federal courts of appeals, reaching opposite conclusions as to the public records status of the Internet record at issue, exemplify nicely this commonsense approach.

In March 2016, in United States v. Iverson, the Tenth Circuit entertained a convicted defendant’s hearsay challenge to an FBI agent’s testimony that, based on research conducted on the website of the Federal Deposit Insurance Corporation (FDIC), a particular bank was FDIC-insured. See 818 F.3d 1015, 1016 (10th Cir. 2016). As part of that challenge, the court had to resolve a “hearsay-within-hearsay” issue—whether the FDIC certificate that the agent viewed on the FDIC’s website was hearsay. See id. at 1019. The court concluded that the certificate was hearsay but that it fell within Rule 803(8)’s public records exception. Id. at 1021. The court first noted that “[t]he website information is ‘a record or statement of [the FDIC].’” Id. (second alteration in original) (quoting Fed. R. Evid. 803(8)). “And the website reports which banks are insured by the FDIC, thereby ‘setting out the office’s activities’ related to deposit insurance.” Id. (alterations omitted) (quoting Fed. R. Evid. 803(8)). In stark contrast with the St. Clair court, the Tenth Circuit then observed matter-of-factly that “[g]overnment records, statements, and reports are continually being placed on the internet to allow easy access to the general public. Their electronic format does not, by itself, prevent them from qualifying as public records.” Id. at 1021–22.

Iverson did not break new ground. The opinion pointed to several other decisions within the past 15 years “rul[ing] that government websites fall within the exception for public records.” Id. As one decision cited in Iverson explained, “[i]ndeed, in an age where so much information is calculated, stored and displayed on a computer, massive amounts of evidence would be inadmissible under [a] characterization of such data as inherently unreliable.” Chapman v. S.F. Newspaper Agency, No. C 01-02305 CRB, 2002 WL 31119944, at *2 (N.D. Cal. Sept. 20, 2002) (cited in Iverson, 818 F.3d at 1021). Another decision cited by the Tenth Circuit stated plainly “that [a challenged trial exhibit] was printed from the Internet does not establish that the information lacks trustworthiness.” U.S. EEOC v. E.I. Du Pont De Nemours & Co., No. Civ. A 03-1605, 2004 WL 2347559, at *1 (E.D. La. Oct. 18, 2004) (cited in Iverson, 818 F.3d at 1021). In other words, a challenger of a particular Internet record’s public records status must do more than just recite an incantation as to the inherent unreliability of information on the World Wide Web.

But, as a recent decision from the D.C. Circuit shows, courts won’t necessarily rubber-stamp printouts from government websites as public records, either. The proponent of a piece of evidence must still do his or her homework. In Gilmore v. Palestinian Self-Government Authority, the D.C. Circuit considered an argument that two statements published on an Israeli government website qualified for the public records exception. See 843 F.3d 958, 969–70 (D.C. Cir. 2016).

Before the district court, the plaintiffs—family members and the estate of Esh Kodesh Gilmore, a U.S. national killed in a shooting attack in Jerusalem—proffered evidence that they said showed that a deceased former Palestinian Authority soldier had killed Gilmore. Id. at 962–63. Among that evidence were two web pages from the Israel Ministry of Foreign Affairs’ website, each of which “identif[ied the author] only as ‘IDF [Israel Defense Forces] Spokesman.’” Id. at 969 (second alteration in original). But the plaintiffs didn’t tell the district court “how the pages conveyed ‘factual findings from a legally authorized investigation’” or otherwise met the requirements of Rule 803(8). Id. at 969–70 (quoting Fed. R. Evid. 803(8)). Not surprisingly, the district court excluded the online statements. The D.C. Circuit affirmed. The webpages’ trappings of officialdom were insufficient, standing alone, to establish that they were public records, where the plaintiffs didn’t “offer . . . information explaining who made the findings or how they were made.” Id.

In short, as with any other piece of evidence you want to admit as a public record under Rule 803(8), do your due diligence on the rule’s requirements, meet your burden under those requirements, and be ready to rebut reasonable trustworthiness challenges that the other side may raise.

And what kind of trustworthiness challenges might a challenger lob your way? In a post–St. Clair world, there is no reason to think that the trustworthiness analysis is meaningfully different for Internet-based records. Most trustworthiness challenges under Rule 803(8) come up as to “factual findings from a legally authorized investigation.” And here are “factors to be considered” listed by the advisory committee in assessing the trustworthiness of such findings: “(1) the timeliness of the investigation. . . ; (2) the special skill or experience of the official. . . ; (3) whether a hearing was held and the level at which [it was] conducted . . . ; and (4) possible motivation problems.” Fed. R. Evid. 803(8) advisory committee’s note (1972) (citations omitted). These factors are no less applicable to investigation findings that may happen to live online instead of (or in addition to) being memorialized in a traditional, paper-and-ink report.

The lesson is simple. If you are interested in getting an Internet source into evidence under the hearsay rule’s public records exception, you probably need not jump through any special hoops to get there. But the normal hoops are still in place. Jump through those, and you will be fine.

Cathleen Hartge is a litigator at Munger, Tolles & Olson LLP in San Francisco, California.

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