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Just a few years ago, most people turned to traditional research sources such as books, periodicals and newspapers for information on a variety of topics. However, today an increasing number of people are trading traditional research methods for their computers and the Internet, where the World Wide Web can readily provide them with access to Web sites through which they can study almost any topic imaginable. With such daily reliance on Web sites, the substance of which may not be verifiable, it is not surprising that issues of evidentiary authentication and admissibility of Internet sources under the Federal Rules of Evidence are coming under judicial review. The reliability of information contained on a large number of sites and the ability of sites, whether completely accurate or not, to shape certain perceptions have given rise to questions about dependability in a legal context. This article will review the authentication and admissibility of Internet sources for use at trial, while focusing on some recent federal court decisions, including those from the U.S. District Courts for the Southern and Eastern districts of New York. These decisions have addressed novel issues concerning different aspects of the accuracy of Web site content and the reliability of databases devoted to Web site archiving. Fed. R. Evid. 901 For evidence to be admissible, including electronically stored information, the item must satisfy the requirements of Fed. R. Evid. 901, which requires that the material be “authentic.” The authentication requirement questions the reliability and trustworthiness of the material, ensuring that it is, in fact, what the proponent claims it to be. Mack v. Markel American Insurance Co., 2007 U.S. Dist. LEXIS 33020, at *31 (D. Md. May 4, 2007). Authentication is not a rigid process and may be accomplished in numerous ways, some of which are prescribed in Rule 901(b) of the Federal Rules. The list of examples provided in 901(b) puts forward a variety of methods for authentication, but is nonexhaustive and intended to leave room for “growth and development in this area of law.”(See Fed. R. Evid. 901 Advisory Committee Notes to subdivision (b), available at http://www.law.cornell.edu/rules/fre/ACRule901.htm; last visited June 8, 2007.) As the Internet has gained greater acceptance and become more relied upon in society at large, it is no surprise that Fed. R. Evid. 901 is finding its way into federal courtrooms in the role relating to Internet sources, as it provides attorneys with new territory in which to invoke the rule on authentication. The ‘Wiki’ Debate From an individual’s blog to a well-respected newspaper, to the “Frequently Asked Questions” page on a university’s official admissions Web site, there is a broad spectrum of what readers perceive to be accurate and reliable information contained on a Web site. Generally, any Web site has evidentiary potential, though exactly what is considered accurate and reliable in the legal sense often can be far different than how these words are viewed in daily life. With countless Web sites containing information about a wide array of topics, the Web site Wikipedia is one place that has gained prominence as an easily accessible and vast information source. Simply put, Wikipedia is an online encyclopedia where users are given the capability to update, edit and create topical entries. The premise and originality of Wikipedia lies in its open-forum approach to generating and providing content. With the motto “the encyclopedia anyone can edit,” a user with access to the Internet may gain entry to Wikipedia’s content and may edit entries through clicking on a link. 1 Wikipedia maintains a variety of policies and guidelines aimed at furthering the creation of the online encyclopedia and preserving the integrity of the content found within. 2 Still, while content also may be subject to editors and contributors intending to keep the entries clean and accurate, Wikipedia can be susceptible to misinformation or unverifiable items within its entries given the ability of public users to modify and add content. In the era of finding information and acquiring knowledge through the use of the Internet, Wikipedia often becomes among the first stops after one poses a search query and begins to utilize the Internet for investigation. For example, a search on Google for the word “trademark” will provide the Wikipedia entry for “trademark” with the very first link appearing on the search engine’s results page. Upon clicking the link, the user is presented with the definition and associated explanations for the term. Similarly, a Google search for “Bill Gates” will offer Wikipedia’s extensive composition, including a personal and professional profile, on the Microsoft chairman. Reliance on Wikipedia and other Internet-based information sources, particularly those with open-forum material creation has raised questions about reliability and admissibility in an evidentiary capacity. In fact, earlier this year, the Southern District, in Alpha Corp. v. Oao Alfa Bank, 2007 U.S. Dist. LEXIS 12771 (SDNY Feb 21, 2007), addressed the authentication and admissibility of Internet sources under the Federal Rules of Evidence. At issue was the ability of the report of an expert witness to rely on Wikipedia in a trademark litigation concerning the transliteration of Russian names into English. The court ruled that the expert may, in part, rely on the Wikipedia online encyclopedia, despite reasonable concerns about the ability of anonymous users to alter Wikipedia entries. Id. at *10-17. In denying the defendant’s motion to preclude the proposed testimony of plaintiff’s experts, the court concluded that the Wikipedia entry partially relied on by the plaintiff’s expert is not so inherently unreliable as to render inadmissible any opinion that references it. Id. The court commented upon the number of judicial opinions that cite Internet sources like Wikipedia and its apparent dependability as compared to traditional sources. 3 The court further commented that, despite the citations to Wikipedia, the expert relied more heavily on written sources, and in any event, defense counsel would be given the opportunity to cross-examine the plaintiff’s expert at trial concerning his reliance on disputed sources. Id. at *15-16. ‘Wayback-ing’ While Web sites such as Wikipedia have created a new genre in user-produced information sources, another “tool,” often referred to as “wayback-ing,” has found its way into the hands of Internet users as well as the courtroom. Through the Internet Archive Co., a nonprofit organization that is building a library of digitally formatted collections, including Internet Web sites, an individual can use its “wayback” machine. 4 Essentially, the wayback machine enables retrieval of a Web site as it appeared on a specific date, which can typically be printed. The process involves entering the URL into an address bar and selecting the desired date. This capability, if deemed to be reliable in its archiving and retrieval process, creates a gateway into the past and offers users the ability to “freeze-frame” an earlier point in time. In Noyak v. Tucows, 2007 U.S. Dist. LEXIS 21269 (EDNY March 26, 2007), the Eastern District addressed authentication of Web site history and the standard required for admissibility of Wayback Machine printouts. According to the court in Noyak, Wayback Machine printouts are inadmissible under Fed. R. Evid. 901 to show how a Web site appeared on a specific date in the past, where the plaintiff proffering the printouts lacked any personal knowledge on which he could hold forth with certainty that the printouts were in fact, true representations of the Web sites. Id. at *16-18. The court granted the defendant’s motion to strike the printouts from the record because the plaintiff offered no testimony or sworn statements attesting to the authenticity of the contested Web page exhibits by any employee of the companies hosting the relevant sites. Id. at *17-18. The court commented that the information posted on the Wayback Machine is only as valid as the third-party donating the page decides to make it and that the authorized owners and managers of the archived Web sites play no role in ensuring that the material posted in the Wayback Machine accurately represents what was posted on their official Web sites at the relevant time. Id. The admissibility issue arising in New York’s Eastern District was not the first instance in which the use of the Wayback Machine’s technology was involved in an evidentiary dispute at the federal level. In Telewizja Polska USA v. Echostar Satellite, 2004 U.S. Dist. LEXIS 20845 (N.D. Ill. Oct. 15, 2004), a U.S. District Court for the Northern District of Illinois admitted copies of a Web site retrieved through the Wayback Machine at a specific date relevant to the litigation. The proponent of the archived Web site evidence addressed the authentication issue by also proffering an affidavit from a representative of the Internet Archive Company. Id. at *17-18. The court’s ruling on the Internet Archive’s Web site printouts included an assessment of Fed. R. Evid. 901 and the burden placed upon proponents of the evidence. Id. In admitting the archives, the court referenced Fed. R. Evid. 901, which “requires only a prima facie showing of genuineness” in proving authenticity and “leaves it to the jury to decide the true authenticity and probative value of the evidence.” Id. Though one cannot easily draw a simple link between the Internet Archive and the nonexhaustive examples laid out as part of Rule 901, the court accepted a supporting affidavit stating that the Wayback Machine had produced an accurate record and, thus, the standard for admissibility under Fed. R. Evid. 901 was, therefore, satisfied. Id. Conclusion The landscape of evidentiary admissibility continues to take shape, particularly with the proliferation of open-forum Web sites and innovation in Web technology. The application of the Federal Rules of Evidence will continue to be challenged as electronically stored information becomes more prevalent and litigants seek to use it at trial. Richard Raysman and Peter Brown are partners at Thelen Reid Brown Raysman & Steiner. They are co-authors of “Computer Law: Drafting and Negotiating Forms and Agreements” (Law Journal Press). Jared Fox, a summer associate at the firm, assisted in the preparation of this article. Endnotes: 1. Noam Cohen, “After False Claim, Wikipedia to Check Degrees,” New York Times (March 12, 2007), available at http://www.nytimes.com/2007/03/12/technology/12wiki.html?ex=1331352000&en=668e67bce73bf6c6&ei=5089. 2. Wikipedia: About, available at http://en.wikipedia.org/wiki/Wikipedia:About (last visited May 31, 2007). Despite its policies, Wikipedia has acknowledged certain stumbling blocks along the way to creating a user-authored encyclopedia. For example, earlier this year a Wikipedia administrator misrepresented his credentials, further drawing attention to some of the inherent instabilities that may show themselves from time to time. Noam Cohen, “After False Claim, Wikipedia to Check Degrees,” New York Times (March 12, 2007), available at http://www.nytimes.com/2007/03/12/technology/12wiki.html?ex=1331352000&en=668e67bce73bf6c6&ei=5089. Other professions, including a segment of academia, have approached Wikipedia with some caution. For example, some professors have banned the use of Wikipedia citations in students’ academic papers in certain situations. Noam Cohen, “A History Department Bans Citing Wikipedia as a Research Source,” New York Times (Feb. 21, 2007), available at http://www.nytimes.com/2007/02/21/education/21wikipedia.html?ex=1180756800&en=ff6f9d399593b575&ei=5070.

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