Wednesday, April 18, 2007

Authentication? We Don't Need No Stinking Authentication!

Many lawyers in internet-related practices have become acquainted with some of the research tools out there for investigations. One of the more popular options is the Wayback Machine maintained by the Internet Archive organization. For the 3 persons left on the planet who haven't seen this tool in action yet, these folks have been crawling the Web for years and maintaining html copies of the pages they find -- More or less every site that hasn't made a request to be excluded from the crawl. (Whether the archive has a right to do that, and how all of this intersects with copyright, contract law and the like, is the subject of other threads of discussion.)

On a more mundane footing, when we as attorneys find these wonderful nuggets stored by the Wayback machine, and eagerly seek to get them admitted into a courtroom proceeding for the benefits of our clients, might we take a second to pause and consider the good old rules of evidence? That was the issue in [XXX[, where the plaintiff sought to admit pages printed from the Wayback Machine as part of his prima facie argument. The existence of the older Web pages was not the issue, but rather the admissibility of the information posted therein.

"Where postings from internet websites are not statements made by declarants testifying at trial and are offered to prove the truth of the matter asserted, such postings generally constitute hearsay under Fed. R. Evid. 801."

We all of course remember that there may be exceptions to the hearsay rule, but absent a showing of one of those exceptions hearsay gets kicked. In today's case, the court noted that the plaintiff

lacks the personal knowledge required to set forth with any certainty that the documents obtained via third-party websites are, in fact, what he proclaims them to be. This problem is even more acute in the case of documents procured through the Wayback Machine. Plaintiff states that the web pages archived within the Wayback Machine are based upon "data from third parties who compile the data by using software programs known as crawlers," who then "donate" such data to the Internet Archive, which "preserves and provides access to it." (Novak Decl. ¶4.) Based upon Novak's assertions, it is clear that the 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 the material posted in the Wayback Machine accurately represents what was posted on their official websites at the relevant time. As Novak proffers 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, such exhibits cannot be authenticated as required under the Rules of Evidence.

(emphasis added)

Without the necessary authentication, the evidence that Mr. Novak was seeking to admit was kicked.

Novak d/b/a Petswarehouse.com v. Tucows, Inc., 2007 WL 922306 (USDC EDNY No. 06-CV-1909 (JFB) (ARL), Mar. 26, 2007).

The lesson for us? Simply this -- Don't skip steps just because you got it from the Internet! All of the same rules continue to apply. And, in some cases, those rules may mean that your golden nugget will remain outside the courtroom unless and until you can find a way to authenticate it.

There was a second part of the same opinion which I found equally interesting on a totally different topic, but to maintain thread integrity (!) I shall hold that for another posting...

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