Commercial Litigation and Arbitration

Evidence Drawn from Corporate Defendant’s Website Excluded

From McReynolds v. Lowe’s Cos., 2008 U.S. Dist. LEXIS 100594 (D. Idaho Dec. 12, 2008):

Lowe's objects to Plaintiffs' Exhibits F, G, I, and L - W which are attached to the affidavit of Plaintiffs' counsel in response to the motion to dismiss arguing they are unauthenticated. Plaintiffs' counsel purports to authenticate the documents by stating that he obtained them from Lowe's website. Lowe's seeks to strike these exhibits arguing Plaintiffs' counsel has no personal knowledge of who maintains the website, who authored the documents, or the accuracy of their contents as required by Federal Rule of Evidence Rule 901(a). Rule 901(a) states that documents are sufficiently authenticated by evidence that will support a finding that they are what their proponent claims them to be. Fed. R. Evid. 901(a). When it comes to information from a website, "[a]nyone can put anything on the internet... [and] hackers can adulterate the content on any web-site from any location at any time." Wady v. Provident Life and Accident Ins. Co. of America, 216 F.Supp.2d 1060, 1064 (C.D. Cal. 2002). Thus, authentication requires that someone with knowledge of the accuracy of the contents of the internet print-outs to testify as to the authenticity of the content. See In re, Inc., Securities Litigation, 347 F.Supp.2d 769, 782 (C.D. Cal. 2004).

This Court agrees that Plaintiffs' counsel's affidavit does not authenticate these documents as statements of Lowe's. See Wady, 216 F.Supp.2d at 1064-65 (citing United States v. Jackson, 208 F.3d 633, 638 (7th Cir. 2000) (finding that evidence taken from the Internet lacked authentication where the proponent was unable to show that the information had been posted by the organizations to which she attributed it); St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 775 (S.D. Tex. 1999) ("Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing...")). As such the Court will grant the motion to strike for purposes of this motion.

I suspect that the explanation for this ruling is that the Court — which had earlier in the opinion denied Lowe’s motion to dismiss — saw no reason to rely on challenged evidence. While details are scant, the website data would appear to have been easily authenticated by an affidavit of anyone who visited the website reciting that the witness typed in the URL associated with the website (usually prefaced with www); that he or she logged on to the site and reviewed what was there; and that a printout or other exhibit fairly and accurately reflects what the witness saw. See the authorities cited in the article Internet and Email Evidence 2008 on the Recent Articles page ( Note that all of the cases cited in this opinion are dated and the premises are, in differing part, factually incorrect.

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