Self-Authentication of Evidence Downloaded from Public Authorities’ Websites — Who Must Create It & What Is a Public Authority?

From Williams v. Long, 2008 U.S. Dist. LEXIS 91110 (D. Md. Nov. 10, 2008):

Exhibit # 1 was a copy of printed search results from the Maryland Judiciary Case Search website, which was not authenticated by affidavit or other extrinsic evidence. The printed webpages contained information pertaining to three independent lawsuits….

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Exhibit # 3 was similar to Exhibit # 1, and displayed printed case search results from the website of the Employment Standards Service of the Division of Labor and Industry, in the Maryland Department of Labor, Licensing and Regulation ("MDLLR")….

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"Rule 902(5) is silent on what level of government must authorize the publication." ... Even though the rule may be unclear, Rule 902(5) is most often construed to cover the governmental bodies listed in Fed. R. Evid. 902(1), which provides for self-authentication of domestic publication documents under seal. As such, these entities would be regarded as public authorities: "(1) the United States, (2) any State, (3) any district, commonwealth, territory, or insular possession of the United States, (4) the Panama Canal Zone, (5) the Trust Territory of the Pacific Islands, or (6) a political subdivision, department, officer, or agency of any of the preceding bodies." ***

Cases following Sannes [v. Jeff Wyler Chevrolet, Inc., No. C-1-97-930, 1999 WL 33313134 (S.D. Ohio Mar. 31, 1999)] showed approval of the decision, and a willingness to accept postings on "government websites" as inherently authentic. For example, in Hispanic Broad. Corp. v. Educ. Media Found., No. CV027134CAS (AJWX), 2003 WL 22867633 (C.D. Cal. Oct. 30, 2003), the court noted how "exhibits which consist of records from government websites, such as the FCC website, are self-authenticating." ... Subsequently, in Shell Oil Co. v. Franco, No. CV 03-8846 NM (PJWx), 2004 WL 5615656 (C.D. Cal. May 18, 2004), the court remarked that "records from government websites are self-authenticating," and permitted the plaintiff to introduce internet reports from the U.S. State Department website….

[Footnote] 4. See also Estate of Gonzales v. Hickman, No. ED CV 05-660 MMM (RCx), 2007 WL 3237727, at *2 n.3 (C.D. Cal. May 30, 2007) (holding Office of the Inspector General's report to be self-authenticating due to availability on the Internet); but see In re Poirier, 346 B.R. 585, 588-89 (Bkrtcy. D. Mass. 2006). In the latter case, the United States Bankruptcy Court, District of Massachusetts, was asked to take judicial notice of information posted on the Department of Education's ("DOE") website. The court declined this request, noting it would result in a "relaxation of Fed. R. Evid. 902." ... The court remarked that the DOE website had too many links to various "documents," which although part of the website, could not reasonably be identified as "official records," "reports," or a "publication issued by a public authority." ... These "documents" included: "[E]mergency planning for a pandemic flu, teaching aids, surveys to rate user satisfaction with the DOE website, advice about career colleges and technical schools in addition to information about educational loans." ... The correctness of the conclusion reached by the In re Poirier court is questionable. Rule 902(5) provides for self-authentication of "other publications," and it is the act of posting information on the Internet by a qualifying public authority that is the act of publication. Because the DOE is a department of one of the governmental bodies listed in Rule 902(1), then the DOE would also be considered a public authority. Thus, when the DOE posted information on its site, it vouched for its authenticity, thereby making it self-authenticating under Rule 902(5). There is nothing in the rule that states the public authority publishing the information (whether in print form, or online) must originate the information posted. Rather, the publication must have actually been approved by the public authority, or, as some would say, "made official." Thus, the information's adoption by reference by the public authority seems sufficient to meet the requirements of Rule 902(5).

The case of U.S. EEOC v. E.I. DuPont de Nemours & Co., No. Civ.A. 03-1605, 2004 WL 2347559 (E.D. La. Oct. 18, 2004), may prove to be the most helpful case in determining what is self-authenticating ESI under Rule 902(5). In that case, the defendant sought to exclude the plaintiff's proposed exhibit — a printout of a table from the website of the U.S. Census Bureau…. The court denied the defendant's motion, holding that data posted on a government website would be self-authenticating under the rule….

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… [T]he court accepted the printout containing the "internet domain address" and the "date on which it was printed" as sufficient for authentication under Rule 901(a), and because the webpage was available on a government website, concluded that this would also permit self-authentication under Rule 902(5).

These two points are not mutually exclusive, however. A proponent of ESI could use the URL, date, and/or official title on a printed webpage to show that the information was from a public authority's website, and therefore, self-authenticating. Similarly, the public authority's selection of the posted information for publication on its website will act as the necessary "seal of approval" needed to establish that the information came from a public authority for purposes of Rule 902(5). Cf. Schaghticoke Tribal Nation v. Kempthorne, No. 3:06-cv-00081 (PCD), 2008 WL 4000179, at *3 (D. Conn. Aug. 26, 2008) (noting government press release was self-authenticating because petitioner included the web address for press releases in its Local Rule 56(a)(1) statement, thereby allowing the court to verify that the press release in the record was a copy of an official document issued by a public authority).

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