New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Request for Admission to Authenticate Website Evidence — Attaching Printouts Not Enough — Responding “Document Speaks for Itself” to RFA “Evasive” — Private Websites Not Self-Authenticating

Download PDF

From Adobe Sys. Inc. v. Christenson, 2011 U.S. Dist. LEXIS 16977 (D. Nev. Feb. 7, 2011):

Request No. 163 asks Defendants to admit that "the reviews attached hereto as Exhibit C were posted on "resellerratings.com." Request No. 178 asks Defendants to admit that "the reviews attached hereto as Exhibit D were posted on "Eopinions.com." According to the information in Exhibit C, "resellerratings.com" is a website that provides "[c]onsumer reviews of online stores." "Eopinions.com" appears to provide a similar service. Exhibits C and D contain reviews or comments that were allegedly posted on these websites by individuals who had purchased products from "www.softwaresurplus.com." Request Nos. 164, 165, 179 and 180 ask Defendants to admit that individuals identifying themselves as Defendants' customers posted complaints about Defendants on these internet websites. Request Nos. 166-177, and 181-191, further ask Defendants to admit that certain specific comments, such as "THIS IS A SCAM" (Request No. 166), were posted on the websites on the dates indicated in the postings. Request Nos. 192 and 193 ask Defendants to admit that links for the reviews at "resellerratings.com" and "Eopinions.com" appear on the first page of a Google search for the search terms "software surplus." ***

One purpose of Rule 36 is to establish the genuineness of described documents. A copy of the document must accompany the request unless it has been otherwise furnished or made available for inspection and copying. Fed.R.Evid. 901(a) states that "the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Rule 901(b) provides several illustrations of how various types of evidence can be authenticated. Fed.R.Evid. 902 states that certain types of evidence listed in the rule are "self-authenticating" and do not require "[e]xtrinsic evidence of authenticity as a condition precedent to admissibility." This includes "printed materials purporting to be newspapers or periodicals." Rule 902(6). According to the 1972 Notes to this subsection, "[t]he likelihood of forgery of newspapers or periodicals is slight indeed. Hence, no danger is apparent in receiving them." Even as to printed newspapers and periodicals, this statement is antiquated. Wright & Gold, 31 Federal Practice and Procedure: Evidence §7140, states in this regard: "Given the widespread availability of computers, scanners, publishing software, and access to newspapers and periodicals on the internet, it is now relatively easy to create a convincing forgery of such an item. Perhaps a more convincing rationale for Rule 902(6) today is that forgeries of newspapers and periodicals are easy to expose because genuine copies usually are readily available for comparison."

Courts do not treat printouts from internet websites as self-authenticating or admit them without foundation or authentication. [Note: This sentence is written in the context of non-governmental websites; a different rule applies to governmental websites.] The court in In re Homestore.com., Inc. v. Securities Litigation, 347 F.Supp.2d 769, 782-783 (C.D. Cal. 2004), states in this regard:

Printouts 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; for example, Homestore's web master or someone else with personal knowledge would be sufficient.

See also Victaulic v. Tieman, 499 F.3d 227, 236 (3rd Cir. 2007); In re Easysaver Rewards Litigation, F.Supp.2d , 2010 WL 3259752 at 5 (S.D.Cal. 2010); Novak v. Tucows, Inc., 2007 WL 922306 at *5 (E.D.N.Y. 2007); Sklar v. Clough, 2007 WL 2049698 at *6 (N.D.Ga. 2007); and Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1153-54 (C.D. Cal. 2002) (holding that plaintiff provided a sufficient declaration to authenticate exhibits printed from the internet.).

In Lorraine v. Markel American Insurance Co., 241 F.R.D. 534, 553 (D. Md. 2007), the court noted that "[a]uthentication also can be accomplished in civil cases by taking advantage of FED.R.CIV.P. 36, which permits a party to request that his or her opponent admit the 'genuineness of documents.'" A party, however, cannot use Rule 36 to shift the burden of authenticating third party documents to the opposing party. FDIC v. Halpern, supra. Some proof of authenticity of the website information must accompany the request in order to obligate the responding party to admit or deny the authenticity of the document or the information contained therein.

In this case, Plaintiff has only attached printouts from the "resellerratings.com" and "Eopinions.com" websites. These printouts are insufficient to establish the authenticity of the exhibits, themselves, or of the customer reviews and comments contained therein. Assuming that Defendants do not possess independent knowledge concerning the subject websites and their content, they have no duty to investigate the authenticity of the printouts or whether the referenced reviews and comments were, in fact, posted on the websites. Defendants' objections to Request Nos. 163-191 based on lack of authentication, and their statement that they do not have sufficient information to admit or deny the requests are therefore sustained.

Although Defendants can probably determine, with little difficulty, whether a current Google search for the search terms "software surplus" provides links on the first page for the "resellerratings.com" and "Eopinions.com" websites, this would not prove that such a search would have resulted in such a link at a prior point in time. It is Plaintiff's burden to prove this proposition to the extent it is relevant and admissible. The Court therefore also sustains Defendants' objections and responses to Request Nos. 192 and 193.

Request No. 197 asks Defendants to admit that the PRESS RELEASE does not state that Defendants sold "counterfeits." Defendants did not object to this Request, but respond only by stating that the PRESS RELEASE "speaks for itself." Request Nos. 198-201 ask Defendants to admit that they were sued by Adobe for copyright infringement, trademark infringement, and for the sale of unauthorized copies of Adobe's software. Request No. 202 asks Defendants to admit that Adobe's Complaint charges them with knowingly engaging in copyright infringement through fraudulent sale of Adobe software. Defendants objected to these requests on the grounds that they are vague and ambiguous and state that the Complaint "speaks for itself."

In FDIC v. Halpern, 271 F.R.D. 191 (D.Nev. 2010), this court held that the statement "the document speaks for itself" in response to a request for admission characterizing the content or meaning of a contract document was evasive. Requests that characterize or construe the meaning of material documents in the case may serve to establish what issues are actually in dispute. In this case, Defendants may or may not contend that the PRESS RELEASE accused them of selling counterfeits. Defendants should therefore admit or deny Request No. 192.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

(1) Spoliation: Sanctions Are Warranted Only If the Movant Establishes That A Reasonable Trier of Fact Could Find That The Destroyed Evidence Would Support A Claim Or Defense — § 1927 Sanctions: “Courts Often Refuse to Award Sanctions When Both Parties Contributed to the Waste of Judicial Resources” (Good Quote)

No Sanctions Imposed on Counsel Who Submitted A.I.-Generated Phony Cases Without Checking Them in Good Faith on The Mistaken Assumption They Had Been Provided by Highly Respected Co-Counsel Rather Than His Criminally-Convicted, Disbarred Client — No Sanctions on Client Who Had No Access to LEXIS or Westlaw to Check the Phony Cases and Submitted Them in Good Faith: “It Would Have Been Downright Irrational For Him To Provide Fake Cases For [His Lawyer] To Include In The Motion Knowing They Were Fake —

(1) Electronic Spoliation — Rule 37(e)(2) Dismissal Sanction — Temporal Proximity of Spoliation to Production Due Date = Circumstantial Evidence of Intent; (2) While Discovery Sanctions Are Reviewed For Abuse Of Discretion, Findings Of Fact Related To Discovery Sanctions Are Reviewed For Clear Error; (3) Dismissal under Rule 37(e)(2) Plus Attorney’s Fees under Inherent Power Appropriately Combined [But see 2015 Advisory Committee Note: “New Rule 37(e) … authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. forecloses reliance on inherent authority or state law to determine when certain measures should be used.”]; (4) Compensatory Sanctions under Goodyear v. Haeger Appropriately Include Fees and Costs Resulting from Attempts to Settle Spoliation Motion

(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

(1) § 1927 and Inherent Power Sanctions — Extrajudicial Misconduct After Obtaining Verdict: Filing Lis Pendens Based on False Statements and in Violation of Governing Law, Filing Fraudulent Abstracts of Judgment That Represented They Had Been Court-Issued; (2) Rule 37 Sanctions for Baseless Motion to Compel Required Unless Target Shows That the Motion Was Substantially Justified Or Other Circumstances Make An Award Of Expenses Unjust

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice