How to Authenticate Web Pages and Screenshots as Evidence
Last week in ALM's Internet Law & Strategy newsletter, via Law.com, M. Anderson Berry and David Kiernan provided an excellent analysis of an issue that is of rapidly-growing importance: How can lawyers authenticate Web pages as evidence in court?
The authors pose an interesting and very realistic hypothetical under which a plaintiff sues your client, claiming that his injuries have made him unable to work, travel or bowl. On the eve of trial, "you discover pictures and other details on a social networking website about plaintiff's recent trip to the International Bowling Museum & Hall of Fame, including a picture of plaintiff proudly holding a fluorescent orange bowling ball and a four-foot tall gilded trophy dated four days earlier." As you approach the witness with the smoking-gun printouts of the Web pages, you are met with an objection from opposing counsel: "Lack of foundation."
Now what? Berry and Kiernan explain that the common tactic of taking a screenshot of a key Web page is like taking a photograph of the image as it appears on the monitor. If proper steps are not taken to admit the evidence, however, the value of this information may be lost, as courts are highly suspicious of evidence taken from the Internet. One federal judge even labeled it "voodoo
information," and warned that the Internet is "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).
The article states that the majority of courts now appear to require the proponent to authenticate a Web site under Rule 901(b)(1) of the Federal Rules of Evidence, which permits authentication by "[t]estimony that a matter is what it is claimed to be." This testimony typically must answer the following questions:
- What was actually on the Web site?
- Does the exhibit or testimony accurately reflect it?
- If so, is it attributable to the owner of the site?
The scope of the testimony required varies among federal courts, the article notes. For much more on this subject, including information on how to use screenshots from the amazing Internet Archive, a.k.a. the "Wayback Machine," check out Berry and Kiernan's article here.
Posted by Bruce Carton on January 25, 2010 at 01:01 PM | Permalink
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