Website Evidence — Posting Self-Laudatory Article and Other Hearsay on Website as Adoptive Admission

The plaintiff physician sued the defendant lawyer for defamation in Momah v. Bharti, 2008 Wash. App. LEXIS 940 (Wash. App. April 28, 2008). Some of the allegedly defamatory statements were contained in newspaper articles that quoted and discussed the defendant and which the defendant posted on his website. Among other holdings (including that the intended use of the materials was largely non-hearsay), the Washington Court of Appeals held that posting these articles and other extrajudicial statements from third parties on his website constituted a manifestation of belief in their truth by the attorney:

Under evidence rule (ER) 801(d)(2), an admission by a party-opponent is not hearsay. Statements considered admissions include the party’s own statement or “a statement of which the party has manifested an adoption or belief in its truth.” ER 801(d)(2)(i), (ii). By posting on his website, Bharti has taken affirmative steps to provide the information to inform the public about himself and his legal practice. He would not use this information to represent himself if he did not expect the public to believe its truthfulness. Bharti does not dispute that the website belongs to him or contend that he does not control the content of the website. By providing the content as a means of publicizing himself, Bharti effectively manifests his belief in the truth of the information. Even if the biographical information, newspaper articles, and client comments contain hearsay, Bharti has manifested his belief in the truth of those statements. They are not hearsay under ER 801(d)(2).

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