Responsive Internet Pages that Party Intends to Introduce Must Be Produced in Discovery — No Defense that They Haven’t Been Printed Out — Someone Other Than Trial Counsel Should Authenticate — Non-Hearsay Uses of Internet Evidence

From Firehouse Restaurant Group, Inc. v. Scurmont LLC, 2011 U.S. Dist. LEXIS 89727 (D.S.C. Aug. 11, 2011):

I: Internet Printouts of Alleged Third Party Use

Firehouse seeks to preclude Calli Baker's from introducing a substantial number of printouts from various Internet websites purporting to identify businesses that use the term "firehouse" in their names. These documents are from various websites, including restaurant websites, search engines, and government websites from which one can search for registrations or corporate records.*** Firehouse objects to a substantial number of these printouts on the basis that they were not timely produced during discovery. Further, it appears that Firehouse objects to all of the printouts on the following grounds: they (a) have not and cannot be authenticated [and] (b) constitute inadmissible hearsay....

I.A: Late Disclosures of Internet Printouts

Firehouse argues that it submitted Requests for Production of documents to Calli Baker's and that the documents referenced on the "Timeline of Undisclosed Materials" ("Timeline"), which was submitted at the motions hearing, were submitted after the close of discovery. Calli Baker's does not appear to dispute this assertion, but argues that it had no duty to disclose any document from the Internet until it actually printed the document. The Court disagrees, as this would defeat the purpose of discovery. However, to the extent that there is no prejudice to Firehouse as explained below, such documents are not excluded as untimely.

Under Rule 37(c)(1),

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; . . . and (C) may impose other appropriate sanctions . . . .

Fed. R. Civ. P. 37(c)(1). "[T]he basic purpose of Rule 37(c)(1) [is] preventing surprise and prejudice to the opposing party." Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003). Thus, the district court has broad discretion to determine whether a nondisclosure of evidence is substantially justified or harmless. Id. at 597. "[I]n exercising its broad discretion to determine whether a nondisclosure of evidence is substantially justified or harmless for purposes of a Rule 37(c)(1) exclusion analysis, a district court should be guided by the following factors: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence." Id. (The first four factors "relate mainly to the harmlessness exception, while the remaining factor . . . relates primarily to the substantial justification exception.").

The parties agree that approximately 290 of the printouts from Defendants' Trial Exhibit #5 were timely disclosed and present no surprise or prejudice to Firehouse. Additionally, Calli Baker's argues that it put Firehouse on notice of approximately 78 URLs of businesses allegedly using the term "firehouse" through its Requests to Admit in or around August 2009 and disclosed between 138 to 150 restaurants allegedly using the term "firehouse" in response to Firehouse's interrogatories in or around November 2009. To the extent that any of these timely disclosures (i.e. the 78 URLs and approximately 150 restaurants) are represented in the remaining printouts comprising Defendants' Trial Exhibits #5 and #104, they present no surprise or prejudice under Rule 37(c)(1) because they were disclosed prior to the close of discovery.

Similarly, with regard to the printouts accompanying "Lesher Aff. (Ex. N)" and Calli Baker's "Exhibits Y - BBB" 2 referenced on the Timeline, there appears to be no prejudice to Firehouse pursuant to Rule 37(c)(1). "Lesher Aff. (Ex. N)" contains 23 pages of websites, and "Exhibits Y- BBB" contain 30 third party registrations. These printouts were disclosed to Firehouse in December 2010, which was only one month after the close of discovery. Additionally, counsel for Calli Baker's represented to the Court that she notified opposing counsel prior to the close of discovery that Calli Baker's would be relying on various registrations with the USPTO as evidence in this case. Firehouse did not dispute this assertion at the hearing. Based on the limited number of printouts in these exhibits and the fact that these printouts were disclosed only one month after discovery closed back in 2010, the Court finds that Calli Baker's failure to disclose, if any, was harmless under Rule 37(c)(1). To the extent there was any surprise, Firehouse has had ample opportunity to cure said surprise, allowing these printouts would not disrupt the trial, the printouts are important to the issue of third party use, and, based on the limited number of printouts and the fact that they were disclosed long ago, there is no prejudice to Firehouse. ***

With regard to the 6 trademark applications contained in the "Supp. Lesher Aff. (Ex. GGG)", counsel for Calli Baker's represented to the Court that some of these applications were not even in existence prior to the close of discovery. Therefore, the late disclosure of these printouts may be "substantially justified" pursuant to Rule 37(c)(1), and the Court will address these printouts on a case-by-case basis at trial as it comes up.

The remaining printouts referenced as "Scurfield Aff. (Ex. EEE)" 4 and "Scurfield Supp. Aff. (Ex. FFF)" on the Timeline are excluded as untimely and prejudicial to Firehouse. Calli Baker's has failed to show that these late disclosures were harmless or substantially justified under Rule 37(c)(1). ***

I.B: Authentication

As to the printouts that survive Rule 37(c)(1) scrutiny, Firehouse also objects to these documents on the basis that they have not and cannot be authenticated. Resolution of whether evidence is authentic is governed by Federal Rule of Evidence 104(b). United States v. Branch, 970 F.2d 1368, 1370 (4th Cir. 1992). First, "the district court must determine whether its proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic." Id. (citations omitted). Then, "because authentication is essentially a question of conditional relevancy, the jury ultimately resolves whether evidence admitted for its consideration is that which the proponent claims." *** Records from government websites are generally considered admissible and self-authenticating. See Williams v. Long, 585 F. Supp. 2d 679, 686-88 & n.4 (D. Md. 2008) (collecting cases indicating that postings on government websites are inherently authentic or self-authenticating). To authenticate exhibits containing information from other Internet websites, there are several methods of authentication that can be used; however, "[t]he authentication rules most likely to apply, singly or in combination, are 901(b)(1) (witness with personal knowledge), 901(b)(3) (expert testimony), 901(b)(4) (distinctive characteristics), 901(b)(7) (public records), 901(b)(9) (system or process capable of producing reliable result), and 902(5) (official publications)." Lorraine, 241 F.R.D. at 556.

In this case, Calli Baker's has represented that most of its printouts have dates and web addresses on them, and cites to Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002) for the proposition that courts may consider "circumstantial indicia of authenticity" such as the presence of the date and identifying web address for purposes of authentication. Calli Baker's argues that most of the printouts at issue contain these distinctive characteristics, and these circumstantial cues are sufficient to make a prima facie showing of authenticity.

Additional support for this argument can be found in United States v. Standring, No. 1:04CV730, 2006 WL 689116 (S.D. Ohio 2006). Both cases appear to hold that a witness declaration, when viewed in combination with the documents' circumstantial indicia of authenticity (i.e., the date and web address that appear on them), would support a reasonable juror in the belief that the documents are what the declarant says they are. This Court agrees and believes that Calli Baker's has made a prima facie showing as to the authenticity of the printouts that contain these distinctive characteristics. However, as noted in Branch and Lorraine,

[a]n in camera hearing addressing authenticity does not replace the presentation of authenticating evidence before the jury; the district court must revisit the issue at trial. Thus, even though the district court may have ruled during an in camera proceeding that the proponent had presented sufficient evidence to support a finding that [the evidence] was authentic, evidence that would support the same ruling must be presented again, to the jury, before the [evidence] may be admitted.

*** While Calli Baker's foundational evidence is sufficient for a prima facie showing, it is unclear to the Court as to whether some printouts will ultimately be admissible since it is unclear which declarant/witness will be used with regards to proving authentication in front of the jury. The Court notes that on the Timeline, the third party printouts referenced as "Lesher Aff. (Ex. N)", "(Exhibits Y - BBB)", and "(Supp. Lesher Aff. (Ex. GGG))," presumably involve Mr. Lesher as the declarant. However, Mr. Lesher is an attorney of record in this case for Calli Baker's and cannot testify as a witness. Thus, to the extent that any of the printouts contain a date and web address, Calli Baker's has made a prima facie showing of authenticity pursuant to Rule 104(b); however, this ruling is without prejudice to Firehouse's right to raise any appropriate objection regarding whether the proper foundation for authentication has been presented before the jury by a proper declarant/witness.

I.C: Hearsay

Firehouse has also moved to exclude the printouts as inadmissible hearsay. "Hearsay," which "is a statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter asserted," is generally not admissible. Fed. R. Evid. 801(c) & 802. In the instant matter, most of the Internet printouts simply depict a logo or the use of the word "firehouse" in a business name; as such, these are not "statements" and therefore not hearsay. Even those printouts that do contain "statements" do not appear to be hearsay because they are not offered for the truth of the matter asserted, but rather to show what a consumer would find when searching the Internet. See Ale House Mgmt., Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 141 (4th Cir. 2000) ("[T]o the extent that Raleigh Ale House relied on the fact that 'ale house' was used or 'listed' in public advertising and other media [including an internet search revealing over 100 facilities denominated as "ale houses"], the evidence was not presented for its truth but for the fact that it was so listed."). Thus, the Court denies Firehouse's motion in limine to exclude the printouts on this ground. However, the parties are instructed to consult and be prepared to redact any other statements in the printouts that might pose other evidentiary hearsay, relevancy, or Rule 403 concerns (e.g., a statement in a printout that a certain business was established on a certain date).

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