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The Gavel

September,  2014

Volume 6


 Ian S. Clement

Webpage Held Not Self-Authenticating


By Ian S. Clement, Litigation News Contributing Editor

The failure to authenticate a webpage containing facts necessary to support a claim can risk dismissal of the claim. McGown v. Silverman & Borenstein, PCCL. Though the U.S. District Court for the District of Delaware found that the plaintiff pleaded other facts sufficiently to defeat the defendant’s motion to dismiss, the court held that it could not take judicial notice of the law firm’s website because private websites are not self-authenticating. The ruling highlights the risks and challenges confronting litigators attempting to introduce electronic evidence to support a claim or defense.

Debt Collection Action
The plaintiff filed suit against a collections law firm alleging violations of the Fair Debt Collection Practices Act (FDCPA). The plaintiff alleged that the law firm mistakenly provided her social security number resulting in her employer’s garnishing her wages. The law firm filed a motion to dismiss. Among other things, the law firm alleged that it was not a debt collector for purposes of the FDCPA.

In response, the plaintiff noted the law firm’s attempt to collect a debt from her and others to show that the law firm was a debt collector. Sua sponte, the court noted that it could not take judicial notice of the law firm’s webpage with the declaration, “This firm is acting as a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose,” because the website was not self-authenticating.

Implications of the Court’s Ruling
This case is “a reminder that you take a risk if you are not attentive enough to authenticate your evidence,” says Michele D. Hangley, Philadelphia, PA, member of the ABA Section of Litigation’s Federal Practice Task Force. Here, however “the court’s conclusion on the [unauthenticated] webpage is based solely on the fact that this was a motion to dismiss,” says John P. Hutchins, Atlanta, GA, cochair of the Section of Litigation’s Technology for the Litigator Committee. “At any later stage in the proceeding, the proponent would have presented evidence to authenticate the webpage,” Hutchins continues.

“Authenticating a webpage is not hard; a proponent need only present a witness who will testify that that they typed in a particular URL and the subject webpage is what resulted,” says Hutchins. “Problems arise when the opponent denies that the webpage is theirs. At that point, the proponent will have to jump through some hoops to have the webpage authenticated,” adds Hutchins.

Hurdles to Admissibility
In Lorraine v. Markel Insurance Company, the U.S. District Court for the District of Maryland recently issued a “primer on authentication.” The Lorraine court noted that a judge determines whether webpages are admissible into evidence by using a collection of evidence rules that act as a series of hurdles that the proponent must clear. Once the proponent establishes that the webpage is relevant pursuant to Rule 401 of the Federal Rules of Evidence, he must then establish that it is authentic under Rules 901 and 902. Unlike many government websites, private webpages are not self-authenticating under Rule 902.

Moreover, if the proponent offers the webpage for its substantive truth, it is hearsay as defined by Rule 801. The proponent must find an applicable exception. The proponent will also have to ensure that the webpage is admissible as a duplicate under Rule 1003 and that its probative weight outweighs its prejudicial value under Rule 403. Of course, before the proponent even has the opportunity to scale these hurdles, the judge must preliminarily decide the webpage’s admissibility pursuant to Rule 104.


Methods to Authenticate Your Opponent’s Webpage      
As noted by the Lorraine court, “[d]ocuments produced in discovery are presumed authentic.” A proponent has several opportunities to authenticate his opponent’s webpages in pretrial discovery. For example, a proponent could produce an opponent’s webpage during Rule 26 disclosures. The opponent’s failure to do so waives all objections other than under Rules 402 and 403, unless the court excuses the waiver. Hangley wonders whether using the disclosures goes far enough, however. An affirmative act from the opponent may be necessary, says Hangley.

A proponent also could ask his adversary to stipulate to the authenticity of the opposing party’s webpage at the Rule 16 conference. Another option is through a Rule 34 request for production. The proponent therefore could request that production of a webpage in its native format includes its metadata. “A proponent could also request that her opponent admit the genuineness of webpage pursuant to Rule 36,” says Hangley.

In Telewizja Polska USA, Inc. v. Echostar Satellite Corporation, the U.S. District Court for the Northern District of Illinois permitted the proponent to offer an affidavit from a representative of the Internet Archive Company, which retrieves copies of websites as they appear on certain dates in time through the use of its “wayback machine.” That method of authentication sounds like a good idea to try, says Hangley. It is important, in any event, to remember “the 10 methods of authentication identified by Rule 901(b) [or the list herein] are non-exclusive,” as noted by Advisory Committee.


Presentation of Webpages at Trial
“There are a lot of ways to present a webpage at trial other than presenting a printed document,” offers Hutchins. “As juries become more sophisticated and the use of electronic devices proliferates in our culture, a jury wants to experience evidence in the ways it would experience it in the real world. The best way to present a webpage at trial is to present it electronically—provided the content of the webpage you are offering has not changed from the time the witness first encountered it to the time of trial. Assuming that is the case, the proponent would go through the same authenticating process,” says Hutchins.


Keywords: authentication, webpage, ESI, electronic discovery, e-discovery, excluded, motion to dismiss

Related Resources

Originally published in Litigation News  online, July 11, 2014. © 2014 American Bar Association. Reproduced with permission. All rights reserved.
Copyright © 2014 Wong Fleming, All rights reserved.
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