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

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.

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