Commercial Litigation and Arbitration

Authenticated Website Evidence Excluded as Hearsay

From Osborn v. Butler, 2010 U.S. Dist. LEXIS 46083 (D. Idaho May 11, 2010):

[Plaintiff filed a] motion to strike Exhibit 1 and paragraph 3 of the Skinner Affidavit on the grounds that the exhibit, which purports to be a website prepared by Plaintiff Michael Osborn, contains inadmissible hearsay and the factual assertions based thereon are therefore inadmissible. ***

Defendants contend that the statements made in the website printout attributable to Michael Osborn are admissible as statements of a party opponent under Fed. R. Evid. 801(d)(2)(D). Defendants contend that the contents of the website show that Osborn had knowledge that the Parole Commission considered the Polygraph Report, and therefore knew his injury occurred in 2004 as a result of the Polygraph Report. Defendants rely upon the statements made therein in support of their argument that the statute of limitations bars this action.

There are two aspects to the determination of whether the website printout attached to the Skinner Affidavit as Exhibit 1 is admissible. The first aspect is authentication, and the second aspect is the admissibility of the website contents. Mr. Skinner represents that he printed the website, "," in its entirety as it was maintained at that internet address on September 24, 2009. *** U.S. v. Tank, 200 F.3d 627, 630 (9th Cir. 2000) held that a prima facie showing of authenticity for a printout of chat room logs had been established when the officer who printed them explained how he created the logs with his computer and stated that the printouts appeared to be an accurate representation of the chat room conversations. Under Fed. R. Evid. 901(a), the court held that the chat room logs were sufficiently authenticated and therefore admissible, since a reasonable juror could find that the chat room log printouts were what they purported to be. In this case, Mr. Skinner's affidavit satisfies the standard for admissibility under Fed. R. Evid. 901(a), because he explains that he printed the website, gave the website address, and represented that it had not been altered or changed from the form maintained at the website address.

However, Defendants do not just offer the website to show that Osborn maintained a website, but rely upon the statements contained within the website pages, contending that the statements were "made by Michael Osborn" and therefore qualify as admissions of a party opponent. The website contains a statement that the "[s]tories from authors are in their own words." *** Osborn contends that the statements made in the website are inadmissible hearsay under Fed. R. Evid. 801(c). The Court agrees.

The cases Defendants rely upon to support their argument that the statements made on the website pages are admissions of a party opponent do not apply to this case. In Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1155 (C.D. Cal. 2002), the court admitted the written content of website pages as admissions of a party opponent because there was a statement by the defendant verifying the individual website as its website. In Van Westrienen v. Americontinental Collection Corp., 94 F.Supp.2d 1087, 1110 (D. Or. 2000), the court admitted the website content as an admission of a party opponent because the defendant's own correspondence identified the website as one it published. And in Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003), the court considered a diary written by the plaintiff, which was inadmissible hearsay, admissible upon summary judgment because the contents of the diary were recitations of events within the plaintiff's personal knowledge and, "depending on the circumstances, could be admitted into evidence at trial in a variety of ways," such as a recorded recollection under Fed. R. Evid. 803(5).

In this case, while there may be photos of Plaintiff on the website and a statement by a third party that the stories recounted therein are in the author's own words, the website does not identify Michael Osborn or Laura Osborn as the author of the website, and Michael and Laura Osborn do not otherwise identify themselves as the website's authors. In the cases Defendants cited, the author of the materials verified that he or she wrote the content, either on the website itself, in written correspondence, or in the case of Fraser, admitted to being the author of the diary. Without verification by Osborn that he authored the contents, the website is admissible for the limited purpose of showing that a website such as the one Mr. Skinner printed exists or did exist at the purported website address, but the statements made therein are not sufficiently identified as Osborn's statements. The verification in this case comes from a third party. Therefore, the written content of the website pages is inadmissible hearsay under Fed. R. Evid. 801(c), and Plaintiff's motion to strike will be granted. The Court did not consider the statements made within the website, or the factual assertions based upon the website content, in any part of its decision.

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