Commercial Litigation and Arbitration

Newspaper Articles as Hearsay — Website Evidence: Hearsay and Authentication

Southco, Inc. v. Fivetech Tech. Inc., 2013 U.S. Dist. LEXIS 161489 (E.D. Pa. Nov. 12, 2013):

IV. Motion to Supplement

Southco filed a Motion to Supplement the Record (Docket No. 231) with additional evidence allegedly showing that Fivetech sells captive screws with the Five Pentagon mark in the United States. Southco seeks to admit the documents it calls the "Fivetech U.S. Shipping Documents," which include several website printouts from a business periodical, computer parts websites allegedly showing Fivetech merchandise for sale, and shipping documents from several commercial providers of U.S. Customs data.   Southco argues that these documents show shipments of captive screws from Fivetech to Hon Hai Precision Industry in Houston, Texas, with arrival dates in the port of Los Angeles on March 12, 2012, May 15, 2012, and July 24, 2012. Pl. Mot. Supplement, Sluzas Decl. ("Third Sluzas Decl.") ¶ 4, ECF No. 231-1.

In response, Fivetech submitted a declaration stating that Fivetech has not sold any Series 46 captive screws in the United States, other than the one sale to SRI in December 2009. Def. Opp. Mot. Supplement, Ex. A ¶ 5, ECF No. 247-1.

The Court will deny as moot this motion to supplement the record. The considers the evidence submitted by Southco for purposes of this motion, but the Court finds that the supplementary evidence introduced by Southco does not affect the Court's grant of Fivetech's motion for partial summary judgment of trademark noninfringement. First, neither the websites nor the other shipping documents show that Fivetech is selling captive screws with the Five Pentagon mark in the United States. Second, the Fivetech U.S. Shipping Documents have serious admissibility issues.

The evidence that Southco seeks to include in the record presents serious issues with regard to hearsay and authenticity.   First, newspaper articles are considered hearsay and, only in very exceptional circumstances not present here, may be used as evidence during litigation. See May v. Cooperman, 780 F.2d 240, 262 n.10 (3d Cir. 1985).

Internet websites and web postings are also typically inadmissible as hearsay.   United States v. Jackson, 208 F.3d 633, 637-38 (7th Cir. 2000). Although some commentators have argued that websites could be admissible as a business record under Rule 803(6), other federal courts have come out the opposite way. Compare 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:79 (3d ed.), with Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283, 1291 n.3 (11th Cir. 2009).

District courts have also gone both ways with regard to the commercial lists hearsay exception under Rule 803(17). Compare Commercial Credit Grp., Inc. v. Falcon Equip., LLC of Jax, No. 3:09CV376-DSC, 2010 U.S. Dist. LEXIS 1385, 2010 WL 144101, at *12 (W.D.N.C. Jan. 8, 2010), with Rainbow Play Sys., Inc. v. Backyard Adventure, Inc., No. 06-4166, 2009 U.S. Dist. LEXIS 93623, 2009 WL 3150984, at *2-3 (D.S.D. Sept. 28, 2009).

Furthermore, even website evidence admissible under a hearsay exception requires authentication. See St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, No. 8:06CV223TMSS, 2006 U.S. Dist. LEXIS 28873, 2006 WL 1320242, at *2 (M.D. Fla. May 12, 2006)  ("To authenticate printouts from a website, the party proffering the evidence must produce 'some statement or affidavit from someone with knowledge [of the website] . . . for example [a] web master or someone else with personal knowledge would be sufficient.'"  (quoting In re, Inc. Sec. Litig., 347 F. Supp. 2d 769, 782 (C.D. Cal. 2004))); see also Wady v. Provident Life & Accident Ins. Co. of Am., 216 F. Supp. 2d 1060, 1064-65 (C.D. Cal. 2002). This is a common problem with the evidence presented by Southco because no one with personal knowledge has given a sworn statement regarding these websites.

Some of the specific shipping documents that Southco seeks to admit, bills of lading, are themselves admissible under the business records exception with appropriate foundation through affidavit, deposition, or other authentication method. See, e.g., United States v. Collado, 439 F. App'x 845, 848 (11th Cir. 2011); Sea-Land Serv., Inc. v. Lozen Int'l, LLC, 285 F.3d 808, 819-20 (9th Cir. 2002); Morrison Grain Co. v. Utica Mutual Ins. Co., 632 F.2d 424, 432 (5th Cir. 1980); Stein Hall & Co., Inc. v. S.S. Concordia Viking, 494 F.2d 287, 291 (2d Cir. 1974) (quoting Palmer v. Hoffman, 318 U.S. 109, 113, 63 S. Ct. 477, 87 L. Ed. 645 (1943)); United States Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc., 296 F. Supp. 2d 1322, 1327 n.2 (S.D. Ala. 2003); see also CSX Transp. Co. v. Novolog Bucks Cnty., No. 04-4018, 2008 U.S. Dist. LEXIS 83512, 2008 WL 4613862, at *5-6 (E.D. Pa. Oct. 16, 2008). The websites sought to be admitted by Southco add an additional layer of potential hearsay, however, that requires further authentication of the website's source material.


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