Commercial Litigation and Arbitration

Internet Evidence — Terrorist Website Authenticated by Fact Governments Rely on It, Language and Facts in Postings, Exclusive Interviews, Non-Public Details re Leaders, and Official Seals — No Chain of Custody Needed for Accurate Video

Linde v. Arab Bank, 2015 WL 1565479 (E.D.N.Y. April 8, 2015):

VII. Evidentiary Rulings

A. Authentication Generally

Federal Rule of Evidence 901 “does not erect a particularly high hurdle” for authenticating evidence. United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir.2001).“[T]he standard for authentication is one of ‘reasonable likelihood,’ and is ‘minimal.’”United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir.2007).“Generally, a document is properly authenticated if a reasonable juror could find in favor of authenticity.”Id. The proponent does not need to eliminate “all possibilities inconsistent with authenticity or to prove beyond any doubt that the evidence is what it purports to be.”Id. (quotations omitted). The hurdle for authenticating evidence may be cleared by circumstantial evidence. See Dhinsa, 243 F.3d at 659. Although Rule 901(b) sets forth examples of evidence that satisfy the authentication requirement, these methods are not exhaustive. See id.

Most relevant here is Rule 901(b)(4), which permits authentication by “[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”The Advisory Notes to Rule 901(b)(4) state that “[t]he characteristics of the offered item itself, considered in the light of circumstances, afford authentication techniques in great variety.”

1. Authentication of Website Postings

A proponent seeking to authenticate a website posting must show a reasonable likelihood that the information was posted by the individual or organization to which the postings were attributed. See, e.g., Boim III, 549 F.3d at 703 (explaining that authentication of similar web postings “would typically require some type of proof that the postings were actually made by the individual or organization to which they are being attributed—in this case, Hamas—as opposed to others with access to the website”) (quoting Boim v. Holy Land Found. for Relief and Dev., 511 F.3d 707, 752–54 (7th Cir. 2007)).

*42 In this case, plaintiffs’ expert Evan Kohlmann authenticated two websites, and, as authentic mouthpieces for Hamas. Mr. Kohlmann has given similar testimony in criminal prosecutions, see United States v. Ali, 2011 WL 4583826, and was more than qualified to give such testimony in the context of this civil case.

At trial, Mr. Kohlmann testified in detail as to the factors, both extrinsic and intrinsic, that led him to conclude that these two websites were authentic. Those factors included: the reliance of the United States and other governments on the webpages as authentic sources of Hamas communications; the language and facts used in postings; the posting of exclusive interviews with Hamas leaders and nonpublic details of their lives; and the fact that the websites contained official Hamas seals and watermarks. Cf. United States v. Vayner, 769 F.3d 125, 131 (2d Cir. 2014) (finding a website to be inadequately authenticated where witness testified only that he visited the website and that it was presently accessible, without providing evidence that the defendant was the webpage’s author or otherwise tying the webpage to the defendant). In Mr. Kohlmann’s expert opinion, Hamas had posted authentic claims of responsibility for each of the 24 attacks at issue in this case. His testimony was sufficient to show a “reasonable likelihood” that the postings were authentic, and to allow a reasonable jury to conclude that the claims of responsibility were indeed issued by Hamas.

2. Authentication of Videos

The Court also admitted certain video recordings at trial. Videos may be authenticated “on the same principles as still photographs,”Mikus v. United States, 433 F.2d 719, 725 (2d Cir.1970) (citations omitted), and still photographs may be authenticated by a witness familiar with what is pictured. See Kleveland v. United States, 345 F.2d 134, 137 (2d Cir.1965) (“The witness qualifying a photograph, however, does not need to be the photographer or see the picture taken. It is only necessary that he recognize and identify the object depicted and testify that the photograph fairly and correctly represents it.”).“Evidence of how the tapes were made and handled” before they came into the proponent’s possession is not necessarily required to authenticate them. United States v. Damrah, 412 F.3d 618, 628 (6th Cir.2005) (district court did not err in admitting video tapes seized from a third party that depicted the defendant speaking at Palestinian Islamic Jihad fundraising events, where defendant offered no proof that the Government had altered the tapes after their seizure, and there was no dispute that they accurately depicted the defendant’s likeness and words). As described below, the circumstantial evidence in the record was sufficient such that a reasonable juror could find that the video recordings were authentic.


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