Website and Email Authentication — Direct, Circumstantial and Forensic Authentication Techniques
O’Connor v. Newport Hosp., 2015 R.I. LEXIS 35 (R.I. Sup. Ct. Mar. 17, 2015):
a. Web Pages
Exhibits A and B consist of printouts of web pages purportedly printed from the ABEM website. One commentary on Rule 901 of the Federal Rules of Evidence, which essentially mirrors Rule 901 of the Rhode Island Rules of Evidence,5 suggests that:
"To authenticate a printout of a web page, the proponent must offer evidence that: (1) the printout accurately reflects the computer image of the web page as of a specified date; (2) the website where the posting appears [*12] is owned or controlled by a particular person or entity; and (3) the authorship of the web posting is reasonably attributable to that person or entity. Evidence that may corroborate these points could include testimony of others who saw the posting on the website, continuation of the posting on the website so that it is available to be seen by the court, or evidence that the party to whom the posting is attributed made similar postings or published the same information elsewhere." Christopher B. Mueller and Laird C. Kirkpatrick, 5 Federal Evidence § 9:9 (4th ed.) (database updated May 2014).
5 When, as here, the Rhode Island rule is substantially similar to the federal rule, we often look to federal courts' decisions for guidance and interpretation. Miller v. Metropolitan Property and Casualty Insurance Co., 88 A.3d 1157, 1161 (R.I. 2014); Greensleeves, Inc. v. Smiley, 942 A.2d 284, 290 (R.I. 2007); Crowe Countryside Realty Associates, Co., LLC v. Novare Engineers, Inc., 891 A.2d 838, 840 (R.I. 2006). We find federal treatises to be similarly instructive.
Here, there is no indication on the record that Dr. Pensa and NEP's counsel made any representations to the trial justice regarding when or by whom the documents reflected in exhibits A and B were accessed and printed from the ABEM website. Counsel did not offer, by affidavit or otherwise, a witness to confirm that the exhibits in question accurately reflected what the witness saw after [*13] he or she logged onto the ABEM website. Instead, defendants attempted to admit the exhibits through the testimony of Dr. Lang himself by merely showing him the documents and asking him if it was "something taken directly off a public website."
It is clear from the record that counsel simply asked Dr. Lang a few leading questions about the content of the documents, the answers to which were based on Dr. Lang's cursory review of the documents in the moments prior to the posing of the questions. Alternatively, defendants could have provided a witness with personal knowledge to testify to the source of the exhibits. See United States v. Bansal, 663 F.3d 634, 667 (3d Cir. 2011) (holding that screenshots from a website were properly authenticated when the proponent of the evidence called a witness who explained the website's archive process and testified, based on personal knowledge, that the screenshots were authentic); United States v. Jackson, 208 F.3d 633, 638 (7th Cir. 2000) (affirming a trial justice's exclusion of web postings on the basis of lack of authentication because the defendant had not shown that the postings were actually created by the group that the defendant claimed). Another option would have been to obtain a copy of the policies and guidelines purportedly contained within exhibits [*14] A and B that had been either certified by the keeper of records at ABEM, or attached to an affidavit that attested to the accuracy of the copies.
McCormick on Evidence states that "[p]rintouts of [w]eb pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at which the printout was made. Testimony of a percipient witness, even the trial judge, can testify to such accuracy." 2 Kenneth S. Broun et al., McCormick on Evidence § 227 at 74 (6th ed. 2006). Here, the trial justice did not make any comments or findings with respect to authentication of any of the documents in overruling plaintiff's objections to the exhibits. It is our considered opinion that insufficient evidence was proffered to support the authenticity of the two printouts of the ABEM web pages and that, accordingly, the admission of exhibits A and B into evidence was clearly erroneous.
Exhibit C is a printout of a purported email from the Associate Executive Director of the Academic and Board Relations section of the ABEM to "K. Lafontaine." Doctor Lang was asked questions about the contents of the email, and it was admitted into evidence without any attempt on the [*15] record to verify its authenticity. Doctor Lang simply answered the questions about the identity of the sender of the email and the message contained therein--answers that were based on his reading of the email to himself at counsel's request during the few moments before the questions were asked. There was no indication that Dr. Lang had previously seen this email, or that he had any familiarity with either the sender or recipient of the email.
Clearly, an email, like any other item of evidence, may be authenticated in any number of different ways, by either direct or circumstantial evidence. Perhaps the most direct method would be through the testimony of a witness with personal knowledge that the proffered exhibit is what it is claimed to be, such as the author or recipient of the email. See Rule 901(b)(1). Additionally, Rule 901(b)(4) provides for a variety of ways that an email might be authenticated by circumstantial evidence, including "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." If an email is not clearly identifiable on its own, and if there is no witness with personal knowledge, a forensic expert witness might be able to trace [*16] an email back to the Internet address from which it originated. As one well-respected treatise on evidence instructs:
"E-mails can be authenticated by their authorship. The electronic signature that they bear may not be sufficient, however, because of the risk of manipulation of e-mail headers. Additional data such as the address that an e-mail bears, the use of the 'reply' function to generate the address of the original sender, the content of the information included in the e-mail and other circumstances, can suffice." 2 Kenneth S. Broun, § 227 at 73.
Here, Dr. Lang was neither the sender nor the recipient of the email. Doctor Lang's mere recitation of the identity of the purported sender of the email and summary of its message (viz., that one with Dr. Lang's credentials would not be eligible for board certification by the ABEM) was insufficient to authenticate the email. Moreover, the record is silent as to any distinctive features of the email that would support its authentication, and our review of exhibit C does not reveal any characteristic that would authenticate it as an email sent from a representative of ABEM.
While we have not set a "high hurdle to clear" with respect to authentication, [*17] McGovern, 91 A.3d at 860, we hold that the trial justice abused his discretion by admitting exhibits A-C based solely on the brief testimony of one witness who was clearly unfamiliar with all three documents.
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