Commercial Litigation and Arbitration

Website Evidence — Self-Authentication

The case law is fairly uniform that printouts from government websites are self-authenticating under Fed.R.Evid. 902. See the article entitled Internet and Email Evidence 2008 on the Recent Articles page ( That doesn’t mean anything goes. There are still some hoops to be jumped. From Owens v. Dillihay, 2008 U.S. Dist. LEXIS 85903 (M.D. Ala. Oct. 23, 2008):

The Defendants object to Exhibits # 70, 71, 72 which purport to be print-outs from websites from Georgia and Tennessee. The Defendants state that there is no witness listed who can authenticate that the exhibits identified by the Plaintiffs are what Benson looked at during the relevant time period. The Defendants state that these pages from the websites were printed by Plaintiffs' counsel.

The Plaintiffs point to Benson's deposition in which she was shown Plaintiffs' Exhibit # 70 and testified that she remembered printing it off and that she recalled looking at Plaintiffs' Exhibit # 71. The Plaintiffs argue that the documents are admissible under Rule 803(8) because they were obtained from government websites and can be authenticated by witness testimony. The court has not been pointed to testimony regarding Exhibit # 72.

At least one court has concluded that print-outs from a web site do not bear the indicia of reliability demanded for other self-authenticating documents under Fed. R. Evid. 902. To be authenticated, some statement or affidavit from someone with knowledge is required. In re, Inc. Securities Litigation., 347 F. Supp.2d 769, 782 (C.D. Cal. 2004).

In this case, however, Benson testified that the exhibits shown her were, at least Plaintiffs' Exhibits # 70 and # 71, what she looked at during the relevant time. If Benson testifies at trial consistently with her deposition on this point, the court may admit these exhibits, but with a limiting instruction to the jury as to the purpose for which the jury can consider them.

This decision is both right and wrong. It is right on the relevance issue. If these are not the documents that the plaintiff actually saw, then they are not relevant. It is right that there should be an affidavit from someone setting forth that he or she typed in the website address, saw the exhibits, and downloaded them, and that the exhibits fairly and accurately depict what was on the website. It is wrong on the self-authentication issue. Homestore was not dealing with a government website, and it required a “web master or someone else with personal knowledge” to authenticate that corporate press releases on the website were authentic precisely because they were not self-authenticating. (As noted in the above-referenced article, webmasters may be necessary, particularly if authenticity is genuinely in question or there is a temporal issue as to what was on a website when. Ordinarily, they are not necessary witnesses.) In all events, this case teaches that there are judicial skeptics, and they must be satisfied.

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