Website Evidence: Testimony of a Witness That She Downloaded Internet Postings and Confirmed Identities of Key Posters Suffices to Authenticate Them As Posted by Relevant Persons

Rivera v. Village of Farmingdale, 2013 U.S. Dist. LEXIS 181890 (E.D.N.Y. Dec. 31, 2013):

In essence, Plaintiffs claim that, in violation of the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., the Village carried out a redevelopment plan for an area populated predominantly by Latinos, intending to discriminate against or, at the very least, having a discriminatory impact on its Latino residents. Plaintiffs' specific allegation is that, pursuant to this plan, the Village facilitated Fairfield Acquisition, LLC's ("Fairfield") privately-funded renovation of--thereby forcing Latino residents, including Plaintiffs, to vacate--a rental apartment building in that area (the "Building" or "150 Secatogue Avenue").

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For the most part, the articles and postings that Plaintiffs propose to put forth at trial [are offered to] show that, historically, Hispanic day laborers, gangs, and immigrants, and their purported effect on the Village, were subjects of concern and hostility in the community. (Pls. Opp., at 4.) What matters is not that the concern and hostility, as reflected in these materials, were real or accurate, but that their mere expression could have set the tone and thus shaped the Village's discriminatory purpose behind its alleged redevelopment plan. See Munafo, 2003 U.S. Dist. LEXIS 13495, 2003 WL 21799913, at *16-17 (holding that an article reflecting the plaintiff's "public criticisms" were admissible for the non-hearsay purpose of showing the defendants' "motive for retaliating against him"); Roniger v. McCall, 119 F. Supp. 2d 407, 410 (S.D.N.Y. 2000) (holding that articles about  a prior incident were not hearsay, if offered to prove the defendant's "state of mind" when firing the plaintiff for another incident, which also revealed a "compromised political independence" between the defendant and the mayor); Jackson v. Jimino, 506 F. Supp. 2d 105, 113-14 (N.D.N.Y. 2007) (denying reconsideration of a summary judgment decision based on its reference to "negative publicity" in several articles, because "most importantly" these articles "reflect the state of mind of [the defendant], who decided not to re-appoint [the plaintiff]"); accord Yarborough v. City of Warren, 383 F. Supp. 676, 682 (E.D. Mich. 1974) (noting that a "series of newspaper articles" were "ostensibly concerned with the issue of motivation," but that, where the housing discrimination claims were based on disparate impact, motivation was not a "subject for inquiry"; and holding that these articles were still admissible "as evidence of the 'historical context'" in which the purported discrimination occurred).

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2. Authentication

The Village argues that, even assuming the internet postings are admissible for the relevant non-hearsay purpose of establishing the context that possibly precipitated the creation of its alleged redevelopment plan, they should be excluded for lack of authentication. (Vill. Br., at 7-8; see Vill. Reply, at 2.)

The "bar for authentication" of the internet postings is "not particularly high," i.e., a "reasonable likelihood" standard. U.S. v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007) (quotations omitted). "The testimony of a witness with knowledge that a matter is what it is claimed to be is sufficient to satisfy this standard." Id. (citing Fed. R. Evid. 901(b)(1)). As long as such testimony is sufficient, these postings should be admitted, "notwithstanding that [they] were editable." Id. (admitting the defendant's "e-mails and transcripts of instant-message chats," despite his claim that these messages were "not originals and could have been subject to editing," as third-party testimony indicated that these messages "were in fact accurate records").

Plaintiffs represent that Janet Liotta, described as an "advocate[] on behalf of the Village's Latino community," will testify that these posting are authentic, because she personally "downloaded all of the postings and confirmed the identities of the key posters." (Pls. Opp., at 8-9, 29.) Liotta's testimony could suffice to authenticate these postings, by showing a "reasonable likelihood" that they were actually posted on the internet by members of an online community comprised of the Village's own residents. Gagliardi, 506 F.3d at 151 (quotations omitted).

Accordingly, this Court denies the Village's motion to exclude the internet postings that Plaintiffs intend to offer at trial on the basis of authentication. If Plaintiffs are unable to authenticate these postings at trial, the Village may renew its objection.

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