Commercial Litigation and Arbitration

Authentication of Internet Evidence as Dependent on Purpose of Proffer and Source — Typical Web vs. Internet Archive

From Saadi v. Maroun, 2009 U.S. Dist. LEXIS 102879 (M.D. Fla. Nov. 4, 2009):

Federal Rule of Evidence 901 requires that before a court may admit evidence in trial, a party must present evidence sufficient to show "that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). A party can authenticate evidence in several different ways, including by presenting testimony of a witness with knowledge of the evidence. Fed. R. Evid. 901(b).

Saadi testified at trial that he printed from the Internet various postings that contained derogatory statements about him. Saadi had personal knowledge of the content of the Internet postings on the day that he printed the postings off the world wide web. Importantly, Saadi did not offer the Internet postings to prove that Maroun wrote the postings, or even that the postings reflected the work of a specific website. Instead, Saadi offered the postings for the limited purpose of proving that the postings had appeared on the world wide web on the days that Saadi personally saw the postings and printed them off the computer.

Maroun argues that the Court erred in admitting the Internet postings into evidence without requiring Saadi to call a website owner or webmaster to authenticate the postings. The Court agrees that Rule 901 would have required Saadi to authenticate the Internet postings by calling a website owner or webmaster if Saadi had offered the postings to prove that the postings came from a specific person or organization. But Saadi offered the website printouts for a narrower purpose. Thus, his testimony satisfied the admissibility requirements of Rule 901.

Maroun cites to St. Luke's Cataract and Laser Institute, P.A. v. Sanderson, No. 8:06-cv-223-T-MMS, 2006 WL 1320242 (M.D. Fla. May 12, 2006) (Scriven, J.), for the proposition that Saadi should have called a webmaster to authenticate the Internet postings. However, St. Luke's Cataract and Laser Institute dealt with a different issue than the one in this case. In St. Luke's, the Plaintiff attempted to offer printouts from the Internet Archive website to prove how two other websites looked at various times in the past. The Internet Archive site captures past images from websites, and then creates an archive of how websites look over time. The court held that the Plaintiff would need to present evidence from an Internet Archive official with personal knowledge of how the archive worked. In this case, Saadi had personal knowledge of how the sites looked on the dates in question because he testified that he saw the Internet postings and then printed them out from his computer. He did not rely on a third party—such as the Internet Archive website—to provide the evidence needed for admissibility of the postings. Saadi had personal knowledge of the existence of the Internet postings, unlike the witness in Sun Protection Factory, Inc. v. Tender Corporation, No. 6:04-cv-732-ORL-19-KRS, 2005 WL 2484710, at *6 (M.D. Fla. Oct. 7, 2005) (Fawsett, C.J.), another case cited by Maroun. In Sun Protection Factory Inc., the witness did not testify that he actually viewed the websites on the dates in question. Similarly, the Plaintiff in In re Inc. Securities Litigation, 347 F. Supp. 2d 769, 782-83 (C.D. Cal. 2004), offered website printouts of press and earning releases to prove that the releases came from a specific company. Saadi did not offer the postings to prove that Maroun authored them; he only offered the exhibits to prove that the derogatory statements had been published on the world wide web on the dates he saw them.

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