Website Evidence — Hearsay — Admissibility under Business Records (Rule 803(6)) and Commercial List (803(17)) Exceptions (Case Law Splits) — Authentication Issues

Southco, Inc. v. Fivetech Tech., Inc., 2013 U.S. Dist. LEXIS 161489, 109 U.S.P.Q.2D (BNA) 1763 (E.D. Pa. Nov. 12, 2013):

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 Homestore.com, 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. 3

3   Southco does offer the signed affidavit of the co-founder and managing director of one of the websites compiling U.S. Customs Records, but that affidavit was filed in the Eastern District of Wisconsin in 2010 in an unrelated case. Pl. Reply Mot. Supplement, Sluzas Decl. ("Fourth Sluzas Decl."), Ex. C, ECF No. 248-1.

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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