Commercial Litigation and Arbitration

Emails May Be Authenticated Circumstantially—Party’s Emails Are Admissions, 3rd Parties’ OK for Context — Wayback Machine Authenticable by Custodian Testimony, and Other Website Printouts by Testimony from Person Who Downloaded It

United States v. Gasperini, 2017 U.S. Dist. LEXIS 114166 (E.D.N.Y. July 21, 2017):

Defendant Fabio Gasperini is charged with two counts of computer intrusion, one count of conspiracy to commit wire fraud, one count of wire fraud, and one count of conspiracy to commit money laundering. (See Indictment ("Ind.") (Dkt. 3) ¶¶ 11-21.) The charges stem from Defendant's alleged creation of a "botnet" to further a "click fraud" perpetrated against advertising companies. (Id. ¶¶ 1-10.) Stated briefly, the Government alleges that Defendant and others obtained unauthorized access to computers in the U.S. and around the world and remotely directed those computers to fraudulently inflate the number of times that online advertisements were "viewed." The court assumes familiarity with the allegations against Defendant, which are discussed in previous opinions. (See, e.g., May 31, 2017, Mem. & Order (Dkt. 45) at 2-3.)

Defendant has filed numerous [*2]  motions in limine seeking exclusion of certain proposed trial evidence. (1st Mot. in Lim. ("1st MIL") (Dkt. 65); 2d Mot. in Lim. ("2d MIL") (Mt. 105); 3d Mot. in Lim. ("3d MIL") (Dkt. 111).) For the reasons set forth below, Defendant's motions in limine are GRANTED IN PART and DENIED IN PART, with ruling on certain questions RESERVED until trial.


A. Motions in Limine

"The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence." Gorbea v. Verizon N.Y., Inc., No. 11-CV-3758 (KAM), 2014 U.S. Dist. LEXIS 87295, 2014 WL 2916964, at *1 (E.D.N.Y. June 25, 2014) (citing Luce v. United States, 469 U.S. 38, 40 n.2, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996); National Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F. Supp. 276, 283 (S.D.N.Y. 1996)). "Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds." United States v. Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001). "[C]ourts considering a motion in limine may reserve decision until trial, so that the motion is placed in the appropriate factual context." Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 536 (E.D.N.Y. 2011) (citing Nat'l Union Fire Ins. Co., 937 F. Supp. at 287). Further, a district court's ruling on a motion in limine is preliminary and "subject to change when the case unfolds." Luce, 469 U.S. at 41. The moving party bears the burden of establishing that evidence is inadmissible for any purpose and so properly excluded on a motion in limine. See United States v. Pugh, 162 F. Supp. 3d 97, 101 (E.D.N.Y. 2016).

B. Relevance and Prejudice

The admissibility of evidence at trial is determined by the Federal Rules [*3]  of Evidence, and only relevant evidence may be admitted. Fed. R. Evid. 402. Evidence is relevant if it "has any tendency to make a fact more or less probable" and "the fact is of consequence in determining the action." Fed. R. Evid. 401. This standard imposes a "very low" bar. United States v. White, 692 F.3d 235, 246. (2d Cir. 2012) (quoting United States v. Al-Moayad, 545 F.3d 139, 176 (2d Cir. 2008)). Even where it is determined to be relevant, evidence may be excluded if the court determines that "its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403.



2. Defendant's Emails

Defendant moves to exclude the entire contents of email accounts attributed to Defendant. (1st MIL at 4-6.) He argues that those documents have not been properly authenticated and, separately, that they constitute inadmissible hearsay.3 The court addresses these points [*11]  separately.

3   Defendant also claims that the Government "intends to introduce entire email accounts allegedly belonging to Defendant" at trial and argues that "the majority of these . . . emails are grossly irrelevant" and should therefore be excluded. (1st MIL, at 4-5.) In response, the Government clarifies that it "does not intend to offer entire email accounts into evidence." (MIL. Opp'n at 11.)

a. Authentication

Defendant first argues that the emails should be held inadmissible, as they have not been and cannot be properly authenticated. (Id. at 5.) Defendant contends that email communications can only be authenticated by testimony of the author or another party who observed the drafting and sending of the message. (Id.) The Government counters that authentication of emails can and will be provided through circumstantial evidence.4 (MIL Opp'n at 11.)

4    The Government does not state what circumstantial evidence it intends to provide to authenticate those documents. The Government's brief does state, however, that it intends to "demonstrate, through subscriber records and the contents of the accounts, that the accounts belong to the defendant" for hearsay purposes. (MIL Opp'n at 11.)

"Under Federal Rule of Evidence 901(a), the burden rests on the proponent of documentary evidence to provide 'sufficient evidence to support a finding that the matter in question is what the proponent claims." Bell v. Rochester Gas & Elec. Co, 329 F. App'x 304, 306 (2d Cir. 2009) (summary order) (quoting Fed. R. Evid. 901(a)). "The proponent carries his burden by introducing 'sufficient proof . . . [allowing] a reasonable juror [to] find in favor of authenticity.'" Id. (quoting United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir. 1991) (internal quotation marks omitted; alterations in original) "[P]roof of authentication may be direct or circumstantial." Al-Moayad, 545 F.3d at 172. "The proponent need not rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be." United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007) (internal quotation marks and citation omitted).

The court is unaware of any authority that authentication [*12]  of emails can only come through a witness with direct knowledge of the drafting, and Defendant provides none. Rather, courts considering the admissibility of electronic documents and communications have held that "'evidence may be authenticated in many ways' and 'the type and quantum of evidence necessary to authenticate [electronic sources] will always depend on context.'" United States v. Ulbricht, 79 F. Supp. 3d 466, 487-88 (S.D.N.Y. 2015) (quoting United States v. Vayner, 769 F.3d 125, 133 (2d Cir. 2014)). The court concludes that the Government may authenticate the emails through circumstantial evidence and DENIES the motion to exclude those emails.

b. Hearsay

Defendant next objects that emails from the accounts attributed to him must be excluded as inadmissible hearsay. (1st MIL at 5-6.) Defendant's argument is misplaced, however. Leaving aside the authentication question noted above, emails sent by Defendant are admissible for their truth as statements of a party-opponent. See Fed. R. Evid. 801(d)(2)(A). While the same reasoning does not apply to emails received by Defendant, those messages may be introduced for a purpose other than the truth of the matters asserted, such as providing context for Defendant's emails. See, e.g., United States v. Dupre, 462 F.3d 131, 136-37 (2d Cir. 2006). Without knowing the particular emails proffered or the purpose for which the Government seeks their introduction, [*13]  the court cannot conclude that they must be excluded.5 Accordingly, the court RESERVES DECISION on Defendant's motion to exclude emails as inadmissible hearsay.

5   To the extent that either party seeks to introduce out-of-court statements for a purpose other than the truth of the matter asserted, the opposing party may object at that time and request that the court issue an appropriate limiting instruction to the jury.

3. Email Accounts of Alleged Co-Conspirators

Defendant moves to exclude emails from accounts associated with Defendant's alleged, uncharged co-conspirators. (1st MIL at 6.) He argues that those statements do not satisfy the requirements of the co-conspirator exception to the hearsay rule, as the Government can only prove the existence of the conspiracy based on the hearsay itself. (Id. at 6-7.) The Government responds that, as an initial matter, it will establish the existence of the conspiracy through Defendant's own admissions.6 (MIL Opp'n at 12.)

 The Government also states that it will offer co-conspirator statements as responses to Defendant's own statements as "context" for his emails. (MIL Opp'n at 12.) This purpose does not implicate hearsay concerns because the relevance of the emails is not based on the truth of the matters asserted therein. See Dupre, 462 F.3d at 136-37 (holding that emails offered for context are not subject to exclusion as hearsay).

Under the Federal Rules of Evidence, out of court statements made by a party's co-conspirator "during and in furtherance of the conspiracy" may be introduced for their truth against that party. Fed. R. Evid. 801(d)(2)(E). The proponent of the statements must demonstrate by a preponderance of the evidence both the existence of a conspiracy between the declarant and the party and that the statement was in furtherance of that conspiracy. Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987). "[W]hile the hearsay statement itself may be considered in establishing the existence of the conspiracy, [*14]  there must be some independent corroborating evidence of the defendant's participation in the conspiracy." United States v. Gigante, 166 F.3d 75, 82 (2d Cir. 1999) (internal quotation marks and citation omitted). The degree of corroboration needed may vary depending on the degree to which the hearsay evidence implicates the defendant in the conspiracy. See United States v. Padilla, 203 F.3d 156, 162 (2d Cir. 2000).

At this stage, the court lacks sufficient information to predetermine the admissibility of co-conspirator statements. In as much as Defendant's position is that the Government cannot prove a conspiracy based solely on his co-conspirators' hearsay statements, that position is effectively rebutted by the Government's assertion that it will offer Defendant's own statements to lay the foundation for the existence of a conspiracy. The Government's representation alone is not, however, sufficient to demonstrate that it will be able to prove the existence of a conspiracy involving Defendant by a preponderance of the evidence. Accordingly, the court RESERVES DECISION on objections to the admission of co-conspirator statements until such time as those statements are offered.

4. Evidence Obtained From Hard Drives Seized Abroad

Defendant seeks exclusion of hard drives seized from his apartment in [*15]  Italy. (1st MIL at 9.) Defendant first attacks the admissibility of those items based on their relevance and potential prejudice, arguing that the Government has failed to show that the hard drives were in fact Defendant's and contending that they in fact belonged to his brother, an uncharged co-conspirator. (Id.) Even if the court were to accept Defendant's factual contention, however, Defendant points to no authority requiring automatic exclusion of evidence obtained from the possession of another individual, much less an alleged co-conspirator.

Defendant separately argues that evidence obtained from the hard drives should be excluded because "the government failed to produce any evidence of a proper chain of custody." (1st MIL at 9.) This challenge, too, fails. So long as the Government meets its burden of authenticating the hard drives, challenges to chain of custody go only to the weight of the evidence. U.S. v. Shellef, 732 F. Supp. 2d 42, 81 (E.D.N.Y. 2010) (collecting cases). Here, the Government represents that it will authenticate the hard drives through the testimony of an Italian law enforcement officer involved in their seizure (MIL Opp'n at 14), and so the court finds no reason to exclude the hard drives based on chain of custody.

Accordingly, Defendant's [*16]  motion to exclude the hard drives is DENIED.

5. Italian Advertising Company Documents

Defendant argues that records from an Italian advertising company, LeonardoADV, produced in discovery should be excluded because "no reasonable juror would consider [those records to be] reliable." (1st MIL at 8.) Defendant bases this contention on the absence of letterhead, addresses, date, preparer's name, and other details in those records. (Id.) Defendant's argument appears to be that these records cannot be authenticated. In response, however, the Government represents that it has obtained a foreign business records certification from LeonardoADV and that it will call an employee of that company as a witness "to further authenticate and explain the records." (MIL Opp'n at 14.) These measures are more than sufficient to authenticate the document under Rule 901. See Fed. R. Evid. 901(b)(1) (stating that authentication may be provided by testimony of a knowledgeable witness). Accordingly, Defendant's motion to exclude those records is DENIED

C. Objections to Website Printouts

1. Objections to Internet Archive Printouts

Defendant contends that the court should exclude copies of websites generated through the Internet Archive. (1st MIL at 9-11.) Through a service called the [*17]  "Wayback Machine," the Internet Archive "allows parties to visit digitally archived Web pages," viewing a particular website as it appeared on a given day. Deborah R. Eltgroth, Best Evidence and the Wayback Machine: Toward a Workable Authentication Standard for Archived Internet Evidence, 78 Fordham L. Rev. 181, 185-86 (Oct. 2009). Defendant argues that printouts of archived websites are inadmissible, as they cannot be properly authenticated. (1st MIL at 9-11.) In response, the Government states that it will authenticate the printouts through in-person testimony by an employee of the Internet Archive "who will explain the nature and creation" of records in that database. (MIL Opp'n at 15.)

Defendant primarily relies on Novak v. Tucows, Inc., No. 06-CV-1909 (JFB) (ARL), 2007 U.S. Dist. LEXIS 21269, 2007 WL 922306 (E.D.N.Y. Mar. 26, 2007), for support. Examining proffered Internet Archive printouts, the court in that case concluded that the documents were insufficiently authenticated under Rule 901 of the Federal Rules of Evidence.7 2007 U.S. Dist. LEXIS 21269, [WL] at *5. Noting that the archived website data in the Internet Archive was provided by third parties, the court concluded that "information posted on the Wayback Machine is only as valid as the third-party donating the page decides to make it--the authorized owners and managers of the archived websites play no role in ensuring that [*18]  the material posted in the Wayback Machine accurately represents what was posted on their official websites at the relevant time." Id. Because the proponent of the printouts "proffer[ed] neither testimony nor sworn statements attesting to the authenticity of the contested web page exhibits by any employee of the companies hosting the sites from which plaintiff printed the pages," the court reasoned that the information could not be sufficiently authenticated. Id.

7   The court also held that several of the printouts constituted inadmissible hearsay, as they contained articles or other statements sought to be admitted for their truth. Novak, 2007 U.S. Dist. LEXIS 21269, 2007 WL 922306, at *5. This portion of the Novak holding does not appear to be at issue here, as the Government states that it "does not intend to offer [the printouts] for their truth, but merely as a representation of what appears on a particular website at a particular time." (MIL Opp'n at 16.)

Subsequent to the Novak decision, several courts have concluded that the authentication issues raised in that opinion may be addressed through affidavits from Internet Archive employees. See, e.g.. Foster v. Lee, 93 F. Supp. 3d 223, 231-32 (S.D.N.Y. 2015); Marten Transp., Ltd. v. PlattForm Adver., Inc., No. 14-CV-2464, 2016 U.S. Dist. LEXIS 57471, 2016 WL 1718862, at *1-2 (D. Kan. Apr. 29, 2016). One court allowing authentication by this route implicitly acknowledged that the language in Novak would likely require authentication by the website owner, but concluded that "Novak failed to take into account [] the nature of the third party donating the page.... [which] simply takes a snapshot of a website at a particular point in time." Abu-Lughod v. Calis, No. 13-CV-2792, 2015 WL 12746198, at *2 (CD. Cal. May 20, 2015). That court concluded that authentication concerns could be addressed by an "affidavit of a person with personal knowledge who can attest that the third-party crawler [*19]  operates to create an unaltered copy of a website as it appears on a given day is sufficient to authenticate evidence from the Wayback Machine." Id.

The court finds that testimony from an Internet Archive employee may be sufficient to address the authentication issues noted by Novak. Without knowing the substance of that testimony, however, the court cannot properly assess the authentication of the proffered copies of websites. Accordingly, the court RESERVES DECISION on Defendant's motion to exclude web archive printouts pending testimony purporting to authenticate those documents at trial.

2. Objections to Website Printouts

On the same basis as his objection to the Internet Archive printouts, Defendant moves to exclude printouts of websites not generated through that website. (1 st MIL at 11.) In response, the Government states that it will offer the testimony of an individual who "personally captured the website (by printing it or taking a screenshot) at the time that he viewed the website." (MIL Opp'n at 16.) The proposed testimony directly addresses the authenticity of the proffered evidence. Defendant's motion is therefore DENIED.



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