Commercial Litigation and Arbitration

Blog Authentication Requires Testimony/Declaration Coupled with Circumstantial Indicia of Authenticity, Such as the Date & Web Address Appearing on Printout — Printouts from Commercial Websites Are Not Self-Authenticating

In re Carrsow-Franklin (Kennerty v. Carrsow-Franklin), 456 B.R. 753 (D.S.C. Bankr. Sept. 16, 2011):

This matter comes before the Court on the Motion for Protective Order (“Motion”) filed by Herman John Kennerty (“Kennerty”). A hearing on the Motion was conducted on September 9, 2011. Cynthia Carrsow–Franklin (“Debtor”) seeks to take the deposition of Kennerty, a former Wells Fargo employee, to discover information relevant to the prosecution of her Objection to a proof of claim filed by Wells Fargo in her bankruptcy case, which is presently pending in the United States Bankruptcy Court for the Southern District of New York. On June 21, 2011, Debtor’s counsel issued a subpoena to Kennerty from the United States Bankruptcy Court for the District of South Carolina.1 In response to the subpoena, Kennerty filed the Motion with this Court, seeking a protective order pursuant to Federal Rule of Civil Procedure 26(c), which is made applicable to bankruptcy cases by Federal Rule of Bankruptcy Procedure 7026.



Kennerty is apparently a resident of York, South Carolina.


Kennerty asserts that Debtor’s counsel plans to publicly disclose his deposition transcript, refuses to limit its use to this litigation only, and seeks testimony beyond the scope of the claims in this case. Accordingly, in order to protect Kennerty from annoyance, embarrassment, oppression, and undue burden, Kennerty requests that the Court enter an order pursuant to Fed.R.Civ.P. 26(c) that (1) prohibits the public disclosure of Kennerty’s deposition transcript; (2) limits the use of Kennerty’s deposition transcript to this litigation only; and (3) limits the scope of Kennerty’s deposition testimony to the issues relevant to the claims in this case.

I. Request for Protective Order Regarding Disclosure & Use of Kennerty’s Deposition

[1] [2] Rule 26(c)(1) provides that “[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken.... The Court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” The party seeking the protective order bears the burden of demonstrating good cause. Felling v. Knight, 211 F.R.D. 552, 554 (S.D.Ind.2003) (citing *756 Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D.Kan.1996)). “To establish good cause, a party must submit ‘a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.’ ” Id. (citing Wilson v. Olathe Bank, 184 F.R.D. 395, 397 (D.Kan.1999) quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981)).

Kennerty asserts that good cause exists to issue a protective order due to the risk of embarrassing or derogatory comments about him being published on the Internet or in national publications if the deposition transcript or his testimony is made publicly available. While Kennerty did not appear or testify at the hearing, as evidence of this risk, Kennerty’s counsel presented four documents showing the types of comments previously published about him or people holding similar job positions as a result of deposition testimony from other mortgage claim litigation being made publicly available. The documents include (1) a blog posting from September 16, 2010 on, (2) a blog posting from November 17, 2010 on, (3) an article entitled, “Mortgage Mess Redux: Robo-signers Return,” from the July 2011 issue of Reuters magazine, and (4) an article entitled, “Invasion of the Home Snatchers,” from the November 25, 2010 issue of Rolling Stone magazine. Debtor objected to the introduction of each of these documents into evidence on authentication and hearsay grounds. Therefore, as a preliminary matter, the Court will address the admissibility of each of these documents.2



Although Debtor appeared to admit in her objection that Kennerty’s prior deposition was released publicly and that it may have caused him embarrassment and concern, Debtor or Debtor’s counsel denied being responsible for the release.


[3] [4] Under Federal Rule of Evidence 901, authentication of evidence is a condition precedent to admissibility. F.R.E. 901(a). “A party seeking to admit an exhibit need only make a prima facie showing that it is what he or she claims it to be. This is not a particularly high barrier to overcome.” Firehouse Restaurant Group, Inc. v. Scurmont LLC, C/A No. 4:09–cv–00618, 2011 WL 3555704, at *4 (D.S.C. Aug. 11, 2011) (quoting Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 542 (D.Md.2007)). Under Rule 901, the court must determine whether the proponent of the evidence has offered a foundation from which the jury could reasonably find that the evidence is what the proponent says it is. Firehouse, 2011 WL 3555704, at *4. Evidence may be authenticated in a number of ways, including through the presentation of testimony of a witness with knowledge of the evidence. See F.R.E. 901(b)(1)-(10) (setting forth a non-exclusive list of examples of authentication methods).

1. September 16, 2010 Blog Posting

[5] [6] Kennerty first seeks to admit the September 16, 2010 blog posting, which is an Internet printout of a comment posted on www. The printout includes the date the printout was printed and the web address where the material was accessed. Printouts from commercial Internet websites are not self-authenticating. St. Luke’s Cataract and Laser Institute, P.A. v. Sanderson, No. 8:06–cv–223–T–MSS, 2006 WL 1320242, at *2 (M.D.Fla. May 12, 2006) (citing Sun Protection Factory, Inc. v. Tender Corp., 2005 WL 2484710, slip op. at 6, n.4 (M.D.Fla. Oct. 7, 2005)). Several courts considering the authentication of Internet printouts have held that a witness declaration in combination with a document’s circumstantial indicia of authenticity (i.e., the date and web address that appear on them) would support *757 a reasonable juror in the belief that the documents are what the declarant says they are. See Firehouse, 2011 WL 3555704, at *4, Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146 (C.D.Cal.2002); United States v. Standring, No. 1:04CV730, 2006 WL 689116 (S.D.Ohio 2006); St. Luke’s, 2006 WL 1320242, at *2 (requiring some statement or affidavit from someone with knowledge of the website; for example, a webmaster or someone else with personal knowledge). Kennerty presented no witness testimony or affidavits to authenticate the September 16, 2010 blog posting, and therefore has not met the requirements for authentication under F.R.E. 901.3 Since the Court concludes that the September 16, 2010 blog posting is not admissible on authentication grounds, it is unnecessary to decide at this time whether the document should be excluded as inadmissible hearsay.



The Court initially orally indicated it would admit this document into evidence on the grounds that Debtor appeared to concede in her pleadings that embarrassing or derogatory materials from an earlier similar deposition of Kennerty had been disseminated on the Internet. However, following additional objections being raised to similar documents on similar grounds, the Court reconsidered its ruling.


2. November 17, 2010 Blog Posting

For the same reasons set forth above regarding the September 16, 2010 blog posting, the November 17, 2010 blog posting would also be inadmissible on the grounds that Kennerty failed to properly authenticate this evidence pursuant to F.R.E. 901.


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