Internet and Email Evidence 2011

8/19/2019 Internet and Email Evidence 2011

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INTERNET AND EMAIL EVIDENCE 2011Gregory P. Joseph*

The explosive growth of the Internet, electronic mail, text messaging and social networks is

raising a series of novel evidentiary issues. The applicable legal principles are familiar — this

evidence must be authenticated and, to the extent offered for its truth, it must satisfy hearsayconcerns. The novelty of the evidentiary issues arises out of the novelty of the media — thus, it is

essentially factual. These issues can be resolved by relatively straightforward application of existing

principles in a fashion very similar to the way they are applied to other computer-generated evidence

and to more traditional exhibits.

I. Internet Ev!en"e

There are primarily three forms of Internet data that are offered into evidence — (! data posted

on the website by the owner of the site or, in a social networking setting, the creator of a page on the

site ("website data#!$ (%! data posted by others with the owner&s or creator&s consent (a chat room is

a convenient example!$ and ('! data posted by others without the owner&s or creator&s consent

("hacker# material!. The wrinkle for authenticity purposes is that, because Internet data is electronic,

it can be manipulated and offered into evidence in a distorted form. dditionally, various hearsay

concerns are implicated, depending on the purpose for which the proffer is made.

A. A#thent"$ton

%e&ste D$t$. )orporations, government offices, individuals, educational institutions and

innumerable other entities post information on their websites, or on social networking websites, that

may be relevant to matters in litigation. lternatively, the fact that the information appears on the

website may be the relevant point. ccordingly, courts routinely face proffers of data (text or images!

allegedly drawn from websites. The proffered evidence must be authenticated in all cases, and,

depending on the use for which the offer is made, hearsay concerns may be implicated.

The authentication standard is no different for website data or chat room evidence than for any

other. *nder +ule (a!, The re/uirement of authentication ... is satisfied by evidence sufficient to

support a finding that the matter in /uestion is what its proponent claims. United States v. Simpson,

0% 1.'d %2, %2 (th )ir. 3!$ Johnson-Wooldridge v. Wooldridge, % 4hio pp. 567I8

'' at 9 (4hio pp. :uly %;, %!.

In applying this rule to website evidence, there are three /uestions that must be answered,explicitly or implicitly<

. =hat was actually on the website>

%. ?oes the exhibit or testimony accurately reflect it>

'. If so, is it attributable to the owner of the site>

http://www.jha.com/us/articles/viewarticle.php?75#*

http://www.jha.com/us/articles/viewarticle.php?75#*



In the first instance, authenticity can be established by the testimony —or, under 1ederal +ule of

6vidence %(! or (%!, a certification—of any witness that the witness typed in the *+5

associated with the website (usually prefaced with www!$ that he or she logged on to the site and

reviewed what was there$ and that a printout or other exhibit fairly and accurately reflects what the

witness saw. This last testimony is no different than that re/uired to authenticate a photograph,

other replica or demonstrative exhibit.% The witness may be lying or mistaken, but that is true of all

testimony and a principal reason for cross-examination. *nless the opponent of the evidence raises

a genuine issue as to trustworthiness, testimony of this sort is sufficient to satisfy +ule (a!,

presumptively authenticating the website data and shifting the burden of coming forward to the

opponent of the evidence. It is reasonable to indulge a presumption that material on a web site

(other than chat room conversations! was placed there by the owner of the site.

The opponent of the evidence must, in fairness, be free to challenge that presumption by

adducing facts showing that proffered exhibit does not accurately reflect the contents of a website,

or that those contents are not attributable to the owner of the site. 1irst, even if the proffer fairly

reflects what was on the site, the data proffered may have been the product of manipulation by

hackers (uninvited third parties!.' 8econd, the proffer may not fairly reflect what was on the site due

to modification — intentional or unintentional, material or immaterial — in the proffered exhibit or

testimony. Third, there may be legitimate /uestions concerning the ownership of the site or

attribution of statements contained on the site.2

?etecting modifications of electronic evidence can be very difficult, if not impossible. That does

not mean, however, that nothing is admissible because everything is sub@ect to distortion. The same

is true of many kinds of evidence, from testimony to photographs to digital images, but that does not

render everything inadmissible. It merely accentuates the need for the @udge to focus on all relevant

circumstances in assessing admissibility under 1ed.+.6vid. 2(a!0 — and to leave the rest to the

@ury, under +ule 2(b!.;

In considering whether the opponent has raised a genuine issue as to trustworthiness, and

whether the proponent has satisfied it, the court will look at the totality of the circumstances,

including, for example<

• The length of time the data was posted on the site.

• =hether others report having seen it.

• =hether it remains on the website for the court to verify.

• =hether the data is of a type ordinarily posted on that website or websites of similar entities (e.g.,

financial information from corporations!.

• =hether the owner of the site has elsewhere published the same data, in whole or in part.

• =hether others have published the same data, in whole or in part.

http://www.jha.com/us/articles/viewarticle.php?75#1

















• =hether the data has been republished by others who identify the source of the data as the

website in /uestion.

genuine /uestion as to trustworthiness may be established circumstantially. 1or example,

more by way of authentication may be reasonably re/uired of a proponent of Internet evidence who

is known to be a skilled computer user and who is suspected of possibly having modified theproffered website data for purposes of creating false evidence.A

In assessing the authenticity of website data, important evidence is normally available from the

personnel managing the website ("webmaster# personnel!. webmaster can establish that a

particular file, of identifiable content, was placed on the website at a specific time. This may be done

through direct testimony or through documentation, which may be generated automatically by the

software of the web server. It is possible that the content provider — the author of the material

appearing on the site that is in issue — will be someone other than the person who installed the file

on the web. In that event, this second witness (or set of documentation! may be necessary to

reasonably ensure that the content which appeared on the site is the same as that proffered.

'e()A#thent"$ton. Bovernment offices publish an abundance of reports, press releases and

other information on their official web sites. Internet publication of a governmental document on an

official website constitutes an "official publication# within 1ederal +ule of 6vidence %(0!.3*nder

+ule %(0!, official publications of government offices are self-authenticating.

8imilarly, newspaper articles taken from the internet may be self-authenticating under

1ed.+.6vid. %(;! ("Newspapers and periodicals. — Crinted materials purporting to be newspapers

or periodicals#!. The court may rely on distinctive newspaper and website designs, dates of

publication, page numbers and web addresses.

*nder the % amendments to the 1ederal +ules of 6vidence (effective ?ecember , %!,

newspaper and periodical materials that appear only on the web and not in hard copy — e.g., a

+euters, Dloomberg, ?ow :ones or C wire story that may never appear in print anywhere, or an

article in an internet-only publication like 8late — are also self-authenticating. +ule %(;! (/uoted in

the preceding paragraph! provides for self-authentication of "printed material.# 1ederal +ule of

6vidence (b!(;!, effective ?ecember , %, expands "printed# to include the purely electronic,

by providing that< "EF reference to any kind of written material or any other medium includes

electronically stored information.# Therefore, +ule %(;!&s reference to "printed material# extends to

information that never reaches hard copy but exists only in cyber space.

J#!"$( Not"e. *nder 1ederal +ule of 6vidence %(b! and (d!, when re/uested, a court must

take @udicial notice of facts that are "not sub@ect to reasonable dispute in that it is ... capable of

accurate and ready determination by resort to sources whose accuracy cannot reasonably be

/uestioned.# Bovernment website data — particularly data that may be confirmed by the court&s

accessing the site — are sub@ect to mandatory @udicial notice under +ule %. See, e.g., Denius v.

Dunlap, '' 1.'d (Ath )ir. %'! (district court abused its discretion in withdrawing its @udicial











notice of information from Gational Cersonnel +ecords )enter&s official website!$ accord Dingle v.

BioPort Corp., %A 1.8upp.%d ;3 (=.?. Hich. %'!$ 8curmont 55) v. 1irehouse +estaurant Brp.,

% *.8. ?ist. 567I8 A0A0 (?. 8.). :uly 3, %! (")ourts have ... taken @udicial notice, pursuant

to 1ed. +. 6vid. %, of information taken from government and media websites.#!$ Chisolm v.

c!lvogue, % *.8. ?ist. 567I8 2'AA (?.8.). Har. ;, %! ("The )ourt may take @udicial

notice of court records and factual information located in postings on government websites#!$ "n re

#atrina Canal Breaches Consol. $itig., Go. 0-23%, %3 *.8. ?ist. 567I8 3;0'3 at 9% (6.?. 5a.

8ept. 3, %3! (collecting cases reflecting that federal courts may take @udicial notice of

governmental websites, including court records!$ %enaissance &reeting Cards, "nc. v. Dollar 'ree

Stores, "nc., 20 1. 8upp. %d ;3, ;32 n. (6.?. a. %0! (taking @udicial notice of website

information in trademark infringement action!$ 5an $an Wang v. Pata(i , '; 1. 8upp. %d 22;, %0

=5 %A;0;%, 9 n.% (8.?.G.J. %0! (taking @udicial notice of the contents of a website!.

court may take @udicial notice of information publicly announced on a partyKs website, as long

as the websiteKs authenticity is not in dispute and it is capable of accurate and ready determination,

within 1ed.+.6vid. %. Doron Precision S)s., "nc. v. *++C, "nc., 2%' 1.8upp.%d A' (8.?.G.J.

%;!$ 'own o Southold v. 'own o !ast ampton, 2; 1.8upp.%d %%A (6.?.G.J. %0!.

Ch$t Roo+ Ev!en"e. proffer of chat room postings generally implicates the same authenticity

issues discussed above in connection with web site data, but with a twist. =hile it is reasonable to

indulge a presumption that the contents of a website are fairly attributable to the site&s owner, that

does not apply to chat room evidence. Dy definition, chat room postings are made by third parties,

not the owner of the site. 1urther, chat room participants usually use screen names (pseudonyms!

rather than their real names.

8ince chat room evidence is often of interest only to the extent that the third party who left a

salient posting can be identified, the uni/ue evidentiary issue concerns the type and /uantum of

evidence necessary to make that identification — or to permit the finder of fact to do so. 6vidence

sufficient to attribute a chat room posting to a particular individual may include, for example<

• 6vidence that the individual used the screen name in /uestion when participating in chat room

conversations (either generally or at the site in /uestion!.

• 6vidence that, when a meeting with the person using the screen name was arranged, the

individual in /uestion showed up.

• 6vidence that the person using the screen name identified him- or herself as the individual (inchat room conversations or otherwise!, especially if that identification is coupled withparticulariLed information uni/ue to the individual, such as a street address or email address.

• 6vidence that the individual had in his or her possession information given to the person using

the screen name (such as contact information provided by the police in a sting operation!.

• 6vidence from the hard drive of the individual&s computer reflecting that a user of the computer

used the screen name in /uestion.



See generall) United States v. 'an( , % 1.'d ;%A, ;'-' (th )ir. %!$ United States v. Simpson,

0% 1.'d %2, %2-0 (th )ir. 3!$ United States v. Burt , 20 1.'d A'', A'3-' (Ath )ir.

%A!$ Perect /, "nc. v. C)0ernet 1entures, "nc., %' 1. 8upp. %d 2;, 02 ().?. )al.

%%!. Compare Caliornia v. 1on &unten, Go. )'0%;, %% =5 0;% ()al. pp. pril 2, %%!

(assault prosecution$ email excluded because, inter alia, unlike 'an( , "the exchange did not include

facts known only to the witness and the fight participant# and there was no direct evidence linking

the fight participant to the screen name!.

=ith respect to the dialog itself, a participant in the chat room conversation may authenticate a

transcript with testimony based on firsthand knowledge that the transcript fairly and accurately

captures the chat. *ord v. State, %A2 Ba. pp. ;0, ;A-3, ;A 8.6.%d %;%, %;0-;;, cert. denied ,

%0 Ba. 567I8 A3 (Ba. 8up. )t. Gov. A, %0! ("we find this situation analogous to the admission

of a videotape, which is admissible where the operator of the machine which produced it, or one

who personally witnessed the events recorded, testifies that the videotape accurately portrayed what

the witness saw take place at the time the events occurred. Mere, Ethe witnessF personally witnessed

the real-time chat recorded in Transcript D as it was taking place, and he testified that the transcript

accurately represented the on-line conversation. *nder these circumstances, EhisF testimony was

tantamount to that of a witness to an event and was sufficient to authenticate the transcript#!

(internal /uotations, citations and original brackets deleted!$ +dams v. W)oming , A C.'d %

(%0! ("lthough Ethe defendantF /uestioned the authenticity of this document under =.+.6.

E=yoming +ule of 6videnceF. , the 8tateKs witnesses testified the entire dialogue was contained

in the folder and no additions or deletions were made$# held, authenticity established$ best evidence

ob@ection to use of computer printout also overruled because, under +ule ('!, NEaFn original is

defined as including any computer printout or other readable output of data stored in a computer or

similar device, which is "shown to reflect the data accurately.... The 8tateKs witness testified that the

chat log exhibits were exact copies of the communication between the parties contained in the

computer and thus, they were either appropriate computer Noriginals& or duplicates which were

properly authenticated. =hether they accurately reflected the contents of the instant messages sent

between the parties was an issue for the @ury to decide#!.

Internet Ar"hves. =ebsites change over time. 5awsuits focus on particular points in time. The

relevant web page may be changed or deleted before litigation begins. arious internet archive

services exist that provide snapshots of web pages at various points in time. To the extent that those

services, in the ordinary course of their business, accurately retrieve and store copies of the website

as it appeared at specified points in time, the stored webpages are admissible. Benerally, evidence

from a knowledgeable employee of the internet archive is sufficient to authenticate printouts as

accurate representations of the website at issue at the relevant time. The testimony or certification

should contain the same elements as set forth in O I(!(=ebsite ?ata!, with necessary modifications

(e.g., the retrieval process may be automated, re/uiring authentication the automated function, such

as that it is used and relied on in the ordinary course of business and produces reliable

results!. See, e.g., 'elewi23a Pols(a US+, "nc. v. !choStar Satellite Corp. , %2 *.8. ?ist. 567I8

%320, at 9A-P3 (G.?. Ill. 4ct. 0, %2! (Internet archive evidence properly authenticated via



certification of archive employee, presumably offered pursuant to 1ed. +. 6vid. %(!!$ St. $u(e4s

Cataract 5 $aser "nst. v. Sanderson, %; *.8. ?ist. 567I8 %33A', at 90-9; (H.?. 1la. Hay %,

%;! (exhibits excluded for lack of authentication$ held, "to show that the printouts from Internet

rchive are accurate representations of the ... websites Eat issueF on various dates since %,

Claintiff must provide the )ourt with a statement or affidavit from an Internet rchive representative

with personal (nowledge of the contents of the Internet rchive website.... EFn affidavit by ... EaF

representative of Internet rchive with personal knowledge of its contents, verifying that the printouts

Claintiff seeks to admit are true and accurate copies of Internet rchiveKs records would satisfy

ClaintiffKs obligation to this )ourt#!$ Specht v. &oogle, "nc., A03 1. 8upp. %d 0A (G.?. Ill. ?ec. A,

%! (authentication of screen shots from internet archive re/uires affidavit from knowledgeably

employee of archive!$ +udi +& v. Sho(an Coachwor(s, "nc., 0% 1.8upp.%d %2;, %A3 (G.?.G.J.

%3! (internet archive search results re/uire authentication of a Nknowledgeable employee& of the

internet archive!$ St. $u(e4s Cataract 5 $aser "nst., P.+. v. Sanderson , Go. ;-)-%%', %; *.8.

?ist. 567I8 %33A', %; =5 '%%2%, at 9% (H.?. 1la. Hay %, %;! ("Claintiff must provide the

)ourt with a statement or affidavit from an Internet rchive representative with personal knowledgeof the contents of the Internet rchive website.#!.

6vidence that an internet archive reflects that a site carried certain content may be corroborative

of other evidence, such as a download from the site by a witness or testimony from a witness. *nder

1ederal +ule of 6vidence 2(a! and similar state provisions, in making its determination as to the

admissibility of evidence, the court "is not bound by the rules of evidence except those with respect

to privileges.# =ith a proper foundation, internet archive evidence may also form part of the basis of

a forensic IT expert&s testimony, in accordance with the strictures of 1ederal +ule of 6vidence A'

and similar state rules.

Te+por$ry Internet ,(es. =hen a computer user accesses the Internet, web browsers like

Hicrosoft 6xplorer temporarily store all accessed images in a Temporary Internet 1iles folder so that,

if the computer user attempts to view the same web page again, the computer is able to retrieve the

page much more /uickly. 6ven deleted images in the Temporary Internet 1iles folder may be

retrieved and viewed by an expert using an appropriate program, and expert testimony about this

process is sufficient to authenticate the images.

'e$r"h Engnes. The results generated by widely recogniLed search engines, like Boogle or

JahooP, may be pertinent in litigation — e.g., a trademark action to show dilution of a mark or a

privacyQright of publicity action to show appropriation of a likeness. See, e.g. cBee v. Delica Co,

2A 1.'d A, % (st )ir. %0!.

Croper authentication would consist of testimony — or, under 1ederal +ule of 6vidence %(!

or (%!, a certification — from a witness that the witness typed in the website address of the search

engine$ that he or she logged on to the site$ the precise search run by the witness$ that the witness

reviewed the results of the search$ and that a printout or other exhibit fairly and accurately reflects

those results. The witness should be someone capable of further averring that he or she, or the





witness&s employer, uses the search engine in the ordinary course of business and that it produces

accurate results. 1urther, the testimony or certification should reflect that the witness logged onto

some of the websites identified by the search engine to demonstrate, as a circumstantial matter, that

the particular search generated accurate results.

'o"$( Net-orng 'tes. 6lectronic conversations on social networking sites are authenticated

in the same way that chat room evidence is generally authenticated. Thus, for example, a

conversation, or chat, on a social networking site is sufficiently authenticated by testimony from a

participant in that conversation that (i! he or she knows the user name on the social networking site

of the person in /uestion, (ii! that printouts of the conversation appear to be accurate records of his

or her electronic conversation with the person, and (iii! a portion of the contents of the

communications are known only to the person or a group of people of whom the person in /uestion

is one.%

8eparate from chats — comments posted more or less publicly on a page — social networks

fre/uently permit members to send electronic messages to one another. 8tanding alone, the fact

that an email communication is sent on a social network and bears a person&s name is insufficient to

authenticate the communication as having been authored or sent by that person. s discussed

below in connection with email evidence generally, there must be confirming circumstances

sufficient to permit the inference that the purported sender was in fact the author.'

Crofile pages on websites raise authentication issues analogous to those raised by websites and

chats. n anonymous personal profile on a social networking may be authenticated through an

admission of the party posting it, a forensic review of the computer or other device of the person

allegedly creating it, evidence from the social networking site, or circumstantial evidence sufficient to

link it to the purported creator of the site.2 In assessing authenticity, it is important to bear in mind

that essentially anyone is free to create a profile page using whatever name they choose, so the

mere existence of a profile page in someone&s name does not necessarily reflect that the purported

creator had anything to do with its creation.0

/. e$rs$y.

uthenticity aside, every extra@udicial statement drawn from a website must satisfy a hearsay

exception or exemption if the statement is offered for its truth. See United States v. Jac(son, %3

1.'d ;'', ;'A (Ath )ir.! ("The web postings were not statements made by declarants testifying at

trial, and they were being offered to prove the truth of the matter asserted. That means they werehearsay.#!, cert. denied , 0' *.8. A' (%!$ Savariego v. elman, %% *.8. ?ist. 567I8 30;' at

90 (G.?. Tex. %%! (excluding on summary @udgment "unauthenticated hearsay from an Internet

search#!$ onot)pe "maging, "nc. v Bitstream "nc., 'A; 1. 8upp. %d 3AA, 332-30 (G.?. Ill %0! ("The

)ourt refused to admit 6xhibits 0 and A for the truth of the matter asserted in them because these

exhibits are inadmissible hearsay. The )ourt admitted 6xhibits 0 and A only for the limited

purpose of proving that the diagrams in those exhibits were displayed on the respective websites on














the dates indicated on the exhibits#!$United States v. ernande2 , %A )) 567I8 3' (*.8. Gavy-

Harine )orps )t. )rim. pp. :une %, %A! (error to admit evidence of telephone call usage drawn

from databases available on the Internet to determine the time Lones called and recipients& names

because the Internet evidence "was categorically hearsay, and the EproponentF failed to establish

any foundation bringing that source within any hearsay exception#!$ 6s0orn v. Butler , % *.8. ?ist.

567I8 2;3' (?. Idaho Hay , %! (authenticated website evidence excluded as hearsay!. ;

To establish that material appeared on a website, it is sufficient for a witness with knowledge to

attest to the fact that the witness logged onto the site and to describe what he or she saw. That

obviates any hearsay issue as to the contents of the site. 1an Westrienen v. +mericontinental

Collection Corp., 2 1.8upp.%d 3A, (?. 4r. %! ("The only remaining /uestion is whether

the content of the website is hearsay under 1+6 3.... Mere, EplaintiffF, by his own account,

personally viewed the website and submitted an affidavit detailing specifically what he viewed.

Therefore, the contents of the website are not hearsay for purposes of this summary @udgment

motion#!$ State v. %apose, %2 =5 03030; at 90 (=ash. pp. Har. %0, %2! (unpublished opinion!

(affirming admission of Internet and email documents because "each exhibit was identified and

authenticated by the person testifying from personal knowledge of the contents#!.

D$t$ Entry. 8ome website data is entered into Internet-readable format in the same way that a

bookkeeper may enter numbers into a computer. This act of data entry is an extra@udicial statement

— i.e., assertive nonverbal conduct within +ule 3(a! — which means that the product is hearsay,

within +ule 3(c!. 8ince each level of hearsay must satisfy the hearsay rule, under +ule 30

(Mearsay within Mearsay!, the act of data entry must be addressed separately from the content of

the posted declaration.

?ata entry is usually a regularly-conducted activity within +ule 3'(;! (or, in the context of a

government office, falls within +ule 3'(3! (public records exception!!. It also often falls within +ule

3'(! (present sense impression exception!.

The real /uestion about the data entry function is its accuracy. This is, in substance, an issue of

authenticity and should be addressed as part of the re/uisite authentication foundation whenever a

genuine doubt as to trustworthiness has been raised. If the foundational evidence establishes that

the data have been entered accurately, the hearsay ob@ection to the data entry function should

ordinarily be overruled. See also +ule 3A (residual exception!.

Huch Internet evidence does not involve data entry, in the sense described above. If thewebmaster is simply transferring an image or digitally converting an electronic file into web format,

that is a technical process that does not involve assertive non-verbal conduct within +ule 3(a! and

is best @udged as purely an authentication issue. The difference, analytically, is between the grocery

store clerk who punches the price into the check-out computer (this is assertive non-verbal conduct!,

and the clerk who simply scans the price into the computer (non-assertive behavior!. 4nly assertive





non-verbal conduct raises hearsay issues and re/uires an applicable hearsay exception or

exemption.

/#sness $n! P#&(" Re"or!s. Dusinesses and government offices publish countless

documents on their websites in ordinary course. Crovided that all of the traditional criteria are met,

these documents will satisfy the hearsay exception for "records# of the business or public office

involved, under +ules 3'(;! or (3!. +eliability and trustworthiness are said to be presumptively

established by the fact of actual reliance in the regular course of an enterpriseKs activities. Johnson-

Wooldridge v. Wooldridge, % 4hio pp. 567I8 '' at 9%-9' (4hio pp. :uly %;, %!

(Internet public record!. (+ecall that public records which satisfy +ule 3'(3! are presumptively

authentic under +ule (b!(A! (if they derive from a public office where items of this nature are

kept! and even self-authenticating under +ule %(0! (discussed above in note ; and the

accompanying text!.!

s long as the website data constitute business or public records, this /uality is not lost simply

because the printout or other image that is proffered into evidence was generated for litigation

purposes. 6ach digital data entry contained on the website is itself a +ule 3'(;! or (3! record

because it is a data compilation, in any form.A )onse/uently, if each entry has been made in

conformance with +ule 3'(;! or +ule 3'(3!, the proffered output satisfies the hearsay exception

even if it< (a! was not printed out at or near the time of the events recorded (as long as the entries

were timely made!, (b! was not prepared in ordinary course (but, e.g., for trial!, and (c! is not in the

usual form (but, e.g., has been converted into graphic form!.3 If the data are simply downloaded into

a printout, they do not lose their business-record character. To the extent that significant selection,

correction and interpretation are involved, their reliability and authenticity may be /uestioned.

=hile website data may constitute business records of the owner of the site, they are not

business records of the website hosting company. This is a service that may be provided by an

Internet service provider (e.g., merica 4nline, H8G, TT!, and the cases fre/uently blend the two

concepts in discussing the function of website hosting companies. "Internet service providers...are

merely conduits.... The fact that the Internet service provider may be able to retrieve information that

its customers posted...does not turn that material into a business record of the Internet service

provider.# United States v. Jac(son, %3 1.'d ;'', ;'A (Ath )ir. %! ("The Internet service

providers did not themselves post what was on Ethe relevantF web sites. E?efendantF presented no

evidence that the Internet service providers even monitored the contents of those web sites.#!.

+ules 3'(;! and (3! effectively incorporate an authentication re/uirement. +ule 3'(;!

contemplates the admission of hearsay, if its criteria are satisfied, unless the source of information

or the method or circumstances of preparation indicate lack of trustworthiness. +ule 3'(3!

contains substantially identical language. This trustworthiness criterion parallels the +ule (a!

re/uirement of evidence sufficient to support a finding that the matter in /uestion is what its

proponent claims. s a result, untrustworthy proffers of business or public records may be excluded

on hearsay as well as authenticity grounds.%












M$ret Reports T$&(es. +ule 3'(A! excepts from the hearsay rule "Harket /uotations,

tabulations, lists, directories, or other published compilations, generally used and relied upon by the

public or by persons in particular occupations.# number of cases have applied this rule to

commercial websites furnishing such data as interest rates% and blue-book prices of used

cars.%% This rationale plainly extends to the other sorts of traditional information admitted under +ule

3'(A!, such as tables reflecting the prices of such items as stock, bonds and currency$ real estate

listings$ and telephone books.

A!+ssons. =ebsite data published by a litigant comprise admissions of that litigant when

offered by an opponent.%' ccordingly, even if the owner of a website may not offer data from the

site into evidence, because the proffer is hearsay when the owner attempts to do so, an opposing

party is authoriLed to offer it as an admission of the owner.%2 Mowever, the fact that a litigant posts

on its website material from another website may not constitute an admission as to the contents of

the second website, depending on whether or not the posting is deemed to constitute an adoptive

admission.%0

The postings of a party in a chat room conversation constitute admissions, and the non-party&s

half of the conversation is commonly offered not for the truth of the matter asserted (although it

could be! but, rather, to provide context for the party&s statements, which comprise admissions.%;

None$rs$y Pro))ers. Got uncommonly, website data is not offered for the truth of the matters

asserted but rather solely to show the fact that they were published on the web, either by one of the

litigants or by unaffiliated third parties. 1or example, in a punitive damages proceeding, the fact of

Internet publication may be relevant to show that the defendant published untruths for the public to

rely on.%A 4r, in a trademark action, Internet listings or advertisements may be relevant on the issue

of consumer confusion or purchaser understanding.%3 In neither of these circumstances is the

website data offered for its truth. ccordingly, no hearsay issues arise. 8imilarly, when a chat room

discussion is offered against a party who participated in it, the non-party&s half of the conversation is

commonly offered not for the truth of the matter asserted (although it could be! but, rather, to provide

context for the party&s statements, which comprise admissions.%

Decause chats are conducted using screen names, an exhibit may be prepared that substitutes

real names (otherwise established! for screen names. The 8eventh )ircuit has ruled that altering

otherwise-authenticated chat room postings by substituting real names for screen names does not

implicate hearsay concerns but, rather, converts the exhibit into a demonstrative exhibit, admissible

in the discretion of the court, sub@ect to 1ederal +ule of 6vidence 2'.'

J#!"$( 'ept"s+. s they were with computeriLed evidence prior to the mid-s, some

@udges remain skeptical of the reliability of anything derived from the Internet.' =hile there is no

gainsaying a healthy @udicial skepticism of any evidence that is sub@ect to ready, and potentially

undetectable, manipulation, there is much on the web which is not sub@ect to serious dispute and

which may be highly probative. To keep matters in perspective, there is very little in the way of




























traditional documentary or visual evidence that is not sub@ect to manipulation and distortion. s with

so many of the trial @udge&s duties, this is a matter that can only be resolved on a case- by-case

basis.

II. E+$( Ev!en"e

5ike Internet evidence, email evidence raises both authentication and hearsay issues. The

general principles of admissibility are essentially the same since email is simply a distinctive type of

Internet evidence — namely, the use of the Internet to send personaliLed communications.

A. A#thent"$ton

The authenticity of email evidence is governed by 1ederal +ule of 6vidence (a!, which

re/uires only "evidence sufficient to support a finding that the matter in /uestion is what its

proponent claims.# *nder 1ed.+.6vid. (b!(2!, email may be authenticated by reference to its

"appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in

con@unction with circumstances.# See generall) United States v. Siddi7ui , %'0 1.'d '3, '%% (th

)ir. %!$ Bloom v. Comw. o 1+., '2 a. pp. ';2, 'A, 02% 8.6.%d 3, %-%, a4d , %;% a. 32,

002 8.6.%d 32 (%!.

If email is produced by a party opponent from the party&s files and on its face purports to have

been sent by that party, these circumstances alone may suffice to establish authenticity when the

email is offered against that party.'% 1urther, a party&s failure to challenge as inauthentic emails sent

by it or its counsel may be deemed sufficient evidence of the emails& authenticity.'' uthenticity may

also be established by testimony of a witness who sent or received the emails — in essence, that

the emails are the personal correspondence of the witness.'2 Testimony from a witness with

knowledge that the emails were exchanged with another person comprises prima facie evidence of

authenticity.'0 If, however, an unsolicited email is received ostensibly from a sender whom the

recipient has never been in contact with, mere testimony from the recipient may be insufficient to link

it to the person whose name appears as sender .'; Testimony from a witness (at least, a hostile

witness! that email appeared to be written in her "style# and that the content of the email — which

was familiar to the witness — would by its nature be known to few others may suffice to constitute

circumstantial evidence of authentication.'A

It is important, for authentication purposes, that email generated by a business or other entity on

its face generally reflects the identity of the organiLation. The name of the organiLation, usually in

some abbreviated form, ordinarily appears in the email address of the sender (after the R symbol!.

This mark of origin has been held to self-authenticate the email as having been sent by the

organiLation, under 1ed.+.6vid. %(A!, which provides for self-authentication of< "'rade inscriptions

and the li(e.--Inscriptions, signs, tags, or labels purporting to have been affixed in the course of

business and indicating ownership, control, or origin.# See Superhighwa) Consulting, "nc. v.

'echwave, "nc., *.8.?ist.567I8 A at 9; (G.?.Ill. Gov. 0, !. =here the email reflects



















the entire email name of a party (and not @ust the mark of origin!, it has been held to comprise a

party admission of origin.'3

Independently, circumstantial indicia that may suffice to establish that proffered email were sent,

or were sent by a specific person, include evidence that<

• witness or entity received the email.

• The email bore the customary format of an email, including the addresses of the sender and

recipient.'

• The address of the recipient is consistent with the email address on other emails sent by the

same sender. 2

• The email contained the typewritten name or nickname of the recipient (and, perhaps, the sender!

in the body of the email.2

• The email contained the electronic signature of the sender .2%

• The email recited matters that would normally be known only to the individual who is alleged to

have sent it (or to a discrete number of persons including this individual!.

• The email was sent in reply to one sent to person ostensibly replying.2'

• 1ollowing receipt of the email, the recipient witness had a discussion with the individual who

purportedly sent it, and the conversation reflected this individual&s knowledge of the contents ofthe email.

See generall) United States v. Siddi7ui , %'0 1.'d '3, '%%-%' (th )ir. %!. See alsoUnited States v. Saavian, 2'0 1. 8upp. %d ';, 2 (?.?.). %;! (emails admissible pursuant to (!

1ed.+.6vid. (b!(2! because they bear "many distinctive characteristics, including the actual e-

mail addresses containing the NR& symbol, ... the name of the person connected to the address...E,F

the name of the sender or recipient in the bodies of the e-mail, in the signature blocks at the end of

the e-mail, in the NTo<& and N1rom<& headings, and by signature of the sender Eand tFhe contents of the

e-mails also authenticate them as being from the purported sender and to the purported recipient,

containing as they do discussions of various identifiable Nmatters,# and (%! 1ed.+.6vid. (b!('!,

under which otherwise unauthenticated emails may be authenticated by the @ury, which may

compare them to the emails authenticated pursuant to +ule (b!(2!!$State v. 'a)lor , ;'% 8.6.%d

%3, %' (G.). pp. %;! (/uoting and following Saavian!$Dominion Nutrition, "nc. v. Cesca, %;

*.8. ?ist. 567I8 000, at 9; (G.?. Ill. Harch %, %;! ("6-mail communications may be

authenticated as being from the purported author based on an affidavit of the recipient$ the e-mail

address from which it originated$ comparison of the content to other evidence$ andQor statements or

other communications from the purported author acknowledging the e-mail communication that is

being authenticated.#! (/uoting *en3e v. *eld , ' 1. 8upp. %d A3, 3 (G.?. Ill. %'!, a8d , '3

1.'d ;% (Ath )ir. %0!!$ Bloom v. Comw. o 1irginia, '2 a. pp. ';2, 'A, 02% 8.6.%d 3, %-%

















(%!$ assimo v. State, 22 8.=.'d %, %0-; (Tex. pp. %2! (unpublished opinion!$ Simon v.

State, %A Ba. pp. 322, 32A-23, ;'% 8.6.%d A%', A%;-%A (%;!$ Swanton v. Brigeois-+shton, %;

=ash. pp. 567I8 %;A, at 9;-9A (=ash pp. 8ept. 3, %;!$ c. Doe v. Nevada, %; *.8. ?ist.

567I8 ;'A, at 9'3 (?. Gev. %;! (email deemed unauthenticated "absent proper authentication,

or other evidence indicating that the email was sent or that Ethe alleged recipientF actually received

the document#!$ ardin v. Belmont 'e9tile ach. Co., % *.8. ?ist. 567I8 ;% (=.?.G.). :une

A, %! ("5ike inSaavian, the distinctive characteristics of MardinKs emails allow for their

authentication. The e-mails in this case are provided on a printout that is in the familiar Hicrosoft

4utlook format..., and they provide Nmany distinctive characteristics, including . . . the name of the

person connected to the address.& ... The e-mails also discuss Nvarious identifiable matters& related to

MardinKs employment ... which sufficiently authenticate the e-mails as being Nwhat its proponent

claims.&#!$ !!6C v. 6lsten Staing Servs. Corp., % *.8. ?ist. 567I8 33' (=.?. =is. 8ept. %3,

%! ("even without a custodian, e-mails may be authenticated through the e-mail addresses in the

headers and other circumstantial evidence, such as the location where the e-mail was found#!$ State

v. Pullens, %3 Geb. 3%3 (Geb. 8up. )t. %! (inclusion of sender&s social security and telephonenumbers!$ &ar) v. Com0ined &rp. "ns. Servs., "nc. , % =5 %3;3230, at 9; (G.?. Tex. 8ept. 2,

%! ("Decause Ethe exhibitsF have distinctive e-mail characteristics and because Claintiff has

stated in her affidavit that she wrote and sent these emails, the )ourt finds that they meet the

threshold for authentication for summary @udgment purposes.#!$ Cantu v. 1S. 1itol, "nc., % *.8.

?ist. 567I8 0% (8.?. Tex. 1eb. A, %! (")ourts have found that emails are properly

authenticated by testimony as to their authenticity and distinctive characteristics of emails.... The

emails have the distinctive characteristics of emails.... itol&s human resources director, testified in a

sworn affidavit that he collected the emails from itol&s email system.... They are properly

authenticated#!$ Commonwealth v. +maral , A3 Hass. pp. )t. ;A, 2 G.6.%d 2' (%!.

In evaluating circumstantial evidence of authenticity, there is a distinction to be drawn between

an email address that is, on its fact, linked to a business (e.g., Rpepsi.com! and an email address

from a publicly available service (e.g., Rgmail.com!. The inference of authenticity is stronger in the

former circumstance because, from the address, it appears that an employer has assigned an email

address to an employee. 1ree public email services allow anyone to appropriate any username they

choose, sub@ect to availability.22

s with all other forms of authentication, the testimony of a witness with knowledge is

prere/uisite to authenticate email. Petroleum Sales, "nc. v. 1alero %eining Co. , %; *.8. ?ist.

567I8 2, at 9'% (G.?. )al. ?ec. 2, %;! (emails excluded on summary @udgment absent any

evidence of the "accuracy or genuineness of the documents based on personal knowledge or

otherwise#!$ %)an v. Shawnee ission Uniied School Dist., 2'A 1.8upp.%d %'', %'0-'; (?. San.

%;! (same$ arguably dicta!. It is insufficient to proffer email through a witness with no knowledge

of the transmissions at issue, unless the witness has sufficient technical knowledge of the process to

be in a position to authenticate the email through expert testimony. See, e.g., %ichard oward, "nc.

v. ogg , ; 4hio pp. 567I8 00'' at 93 (4hio pp. Gov. , ;! (affirming exclusion of email

where the authenticating witness "was neither the recipient nor the sender of the 6-mail






transmissions and he offered no other details establishing his personal knowledge that these

messages were actually sent or received by the parties involved. 1urthermore, the transmissions

were not authenticated by any other means#!.

Transcriptions of email or text message exchanges, the originals of which have been lost

through no fault of the proponent, may be authenticated by testimony of a witness with knowledge

that he or she transcribed them and that they accurately reflect the contents of the email or text

message exchange. See, e.g., United States v. Cul0erson, %A *.8. ?ist. 567I8 '22 (6.?. Hich.

pril %A, %A! (cell phone text messages transcribed before I8C deleted them!$ $aughner v.

"ndiana, A; G.6.%d 2A (Ind. pp. %%! (45 instant messages!.

There are a variety of technical means by which email transmissions may be traced. 8ee, e.g.,

Clement v. Caliornia Dep4t o Corrections, %% *.8. ?ist. 567I8 A2%; at 9'% (G.?. )al. 8ept. ,

%%! ("ma@or e-mail providers include a coded Internet Crotocol address (IC address! in the header

of every e-mail.... The IC address allows the recipient of an e-mail to identify the sender by

contacting the service provider#!. Therefore, if serious authentication issues arise, a technical

witness may be of assistance.20 This may become important, for example, in circumstances where a

person or entity denies sending an email, or denies receipt of an email and has not engaged in

conduct that furnishes circumstantial evidence of receipt (such as a subse/uent communication

reflecting knowledge of the contents of the email!. See, e.g., ood-64ara v. Wills, 3A' .%d A0A,

A; n.; (Ca. 8uper. %0! (authenticity not established where person to whom email name

belonged denied sending email and testified that problems in the past had re/uired her to modify

her email account on at least one prior occasion!$ !llison v. %o0ertson, 3 1.8upp.%d 0, 0A

n.A ().?. )al. %%! ("Claintiff has provided no evidence that 45 actually did receive the email. To

the contrary, ClaintiffKs former counsel states that while she received an acknowledgment of receipt

for her pril A, %, email from Ea local Internet providerF, no such acknowledgment came from

45#!$ Caraano v. etrosplash.com, "nc., %A 1.8upp.%d 00, A% ().?. )al. %%! ("Claintiff

provides no evidence that Edefendant Internet serviceF ever received the reply email in response to

its welcome confirmation email#!.

bsent a showing of reason to disbelieve a sender&s or recipient&s representations concerning

the authenticity of email, the court may decline to permit discovery into the computer system of the

senderQrecipient in light of the intrusion that forensic discovery would involve.Williams v. ass. ut.

$ie "ns. Co., %%; 1.+.?. 22, 2; (G.?. Ill %0!.

=hile it is true that an email may be sent by anyone who, with a password, gains access to

another&s email account, similar uncertainties exist with traditional documents. Therefore, there is no

need for separate rules of admissibility. See, e.g., "nterest o *.P., 3A3 .%d (Ca. 8uper. %0!

(@ust as an email can be faked, a "signature can be forged$ a letter can be typed on anotherKs

typewriter$ distinct letterhead stationary can be copied or stolen. =e believe that e-mail messages

and similar forms of electronic communication can be properly authenticated within the existing

framework of Ca. +.6. and Cennsylvania case law.#!.






/. e$rs$y

The hearsay issues associated with email are largely the same as those associated with

conventional correspondence. n email offered for the truth of its contents is hearsay and must

satisfy an applicable hearsay exception. See, e.g., ood-64ara v. Wills, 3A' .%d A0A, A; (Ca.

8uper. %0!.2;

The prevalence and ease of use of email, particularly in the business setting, makes it attractive

simply to assume that all email generated at or by a business falls under the business-records

exception to the hearsay rule. That assumption would be incorrect, although the cases are not

entirely in accord as to where precisely to draw the line between business-record emails and non-

business emails.

%h$t Is $ /#sness Re"or! 3r $ Present 'ense I+presson In United States v. *er0er , ;;

1.8upp. (?. Hass. A!, the government offered into evidence a multi-paragraph email from a

subordinate to his superior describing a telephone conversation with the defendant (not a fellowemployee!. In that conversation, the defendant inculpated himself, and the email so reflected. )hief

:udge Joung re@ected the proffer under 1ed.+.6vid. 3'(;! because, "while it may have been Ethe

employee&sF routine business practice to make such records, there was not sufficient evidence that

Ehis employerF re/uired such records to be maintained.... EIFn order for a document to be admitted as

a business record, there must be some evidence of a business duty to make and regularly maintain

records of this type.# "d., ; 1.8upp. at 3. The *er0er )ourt nonetheless admitted the email, but

under 3'(!, the hearsay exception for present sense impressions.2A See also State o New :or( v.

icrosot Corp., %% *.8. ?ist. 567I8 A;3' at 9 (?.?.). pril %, %%! ("=hile Hr. BlaserKs email

Erecounting a meetingF may have been Nkept in the course& of +ealGetworks regularly conducted

business activity, Claintiffs have not, on the present record, established that it was the Nregular

practice& of +ealGetworks employees to write and maintain such emails.#! (separately holding the

present sense impression exception inapplicable!$ %am0us, "nc. v. "nineon 'echs. +&, '23 1. 8upp.

%d ;3, AA (6.?. a. %2! ("6mail is far less of a systematic business activity than a monthly

inventory printout#!, /uotingonot)pe Corp. v. "ntl. ')peace Corp., 2' 1.'d 22', 20 (th )ir.

2!$ 'rade *inance Partners, $$C v. ++% Corp, %3 *.8. ?ist. 567I8 '%0% (G.?. Ill. Har. ',

%3! (email from defendant&s principal recounting conversation with non-party held not a present

sense impression but an inadmissible "calculated narration#!.

)ases finding email, in various circumstances, to constitute business records include< United

States v. Stein, %A *.8. ?ist. 567I8 A;% (8.?.G.J. 4ct. 0, %A! (re@ecting the contention that

the proponent must "showEF that the e-mails at issue were created pursuant to established company

procedures for the systematic or routine making of company records.# Meld, "regularity of making

such records and of the business activity is all that is re/uired. lthough the phrase Nbusiness duty&

appears fre/uently in +ule 3'(;! cases, the defendants read the phrase too narrowly. The phrase

Nbusiness duty& is used interchangeably with phrases such as NEbeingF part of a business routine& or

NEactingF in the regular course& to describe the re/uirement that the declarant be someone inside the







business, not a third party#!$ $eBlanc v. Nortel Networ(s Corp., %; *.8. ?ist. 567I8 AA30, at 9;

(H.?. Ba. Harch ', %;! (finding emails likely to be admissible under the business records

exception of 1ed.+.6vid. 3'(;!!$ State v. Sherrills, %3 4hio 0, %3 4hio pp. 567I8 ;;%

(4hio pp. pril %2, %3! (properly authenticated emails sent by criminal defendant established to

be business records of IT 8ecurity Hanager, who had custody and control of the server that

captured all emails sent from the business! (note< this appears to be an authentication analysis

framed in hearsay terms, which is understandable in light of the trustworthiness re/uirement of +ule

3'(;!!$ State v. %e)nolds, %A Iowa pp. 567I8 %'% (Iowa pp. 1eb. %3, %A! (email received by

Dank from 1ederal +eserve in ordinary course of business admissible in light of evidence that "EtFhe

bank customarily kept these reports and relied upon them as part of its business#!.

e$rs$y -thn e$rs$y. Decause business records are written without regard for the rules of

evidence, they commonly contain multiple layers of hearsay. *nder 1ederal +ule of 6vidence

30,23 each layer of hearsay must independently satisfy an exception to the hearsay rule. bsent

that, any hearsay portion of an email that is offered for the truth2 will be excluded. See, e.g., State

o New :or( v. icrosot Corp., %% *.8. ?ist. 567I8 A;3' at 92 (?.?.). pril %, %%! ("NIf both

the source and the recorder of the information, as well as every other participant in the chain

producing the record, are acting in the regular course of business, the multiple hearsay is excused

by +ule 3'(;!. If the source of the information is an outsider, +ule 3'(;! does not, by itself, permit

the admission of the business record. The outsiderKs statement must fall within another hearsay

exception to be admissible because it does not have the presumption of accuracy that statements

made during the regular course of business have&#! (citation omitted!$ Trade 1inance Cartners,

55) v. + )orp, %3 *.8. ?ist. 567I8 '%0% (G.?. Ill. Har. ', %3! (email from defendant&s

principal recounting conversation with non-party excluded$ catchall exception of 1ed.+.6vid. 3A not

satisfied!.

A!+sson o) P$rty 3pponent. *nder 1ed.+.6vid. 3(d!(%!,0E0F emails sent by party

opponents constitute admissions and are not hearsay. See, e.g., United States. v. Brown, 20 1.'d

0, 0%3 n. A (0th )ir. %;!$ *nited 8tates v. 8afavian, 2'0 1. 8upp. %d ';, 2'-22 (?.?.).

%;!$ & Studios, "nc. v. &ro(ster, $td., 202 1. 8upp. %d ;';;', A'-A2 ().?. )al.

%;!$%iisna v. +BC, "nc., %% *.8. ?ist. 567I8 ;; at 9-9 (8.?.G.J. 8ept. , %%!$ State v.

i00erd , %; =ash. pp. 567I8 0, at 9%2-9%0 (=ash. pp. :une 2, %;!. The email address

itself, which reflects that it originates from a party, may be admissible as a party

admission. iddle0roo( v. +nderson, %0 *.8. ?ist. 567I8 A;, at 92 (G.?. Tex. 1eb. , %0!

(@urisdictional motion!. 8ee also ?iscover +e Hanagers, Inc. v. Creferred 6mployers Broup, Inc.,

%; *.8. ?ist. 567I8 A33, at 9%% (?. )onn. 8ept. %, %;! ("e-mail correspondence with their e-

mail addresses designating where they may be located Ei.e., reflecting the authors& respective

corporate employers& names after the R symbolF combined with the sub@ect matter of the e-mail

itself# coupled with testimony of a witness with knowledge constitutes sufficient circumstantial

evidence of the authors& agency relationships with their corporate employers for purposes of

1ed.+.6vid. 3(d!!.












1urther, an email from a party opponent that forwards another email may comprise an adoptive

admission of the original message, depending on the text of the forwarding email. Sea-$and Serv.,

"nc. v. $o2en "nt4l, $$C , %30 1.'d 33, 3% (th )ir. %%! (one of plaintiff&s employees "incorporated

and adopted the contents# of an email message from a second of plaintiff&s employees when she

forwarded it to the defendant with a cover note that "manifested an adoption or belief in EtheF truth# of

the information contained in the original email, within 1ed.+.6vid. 3(d!(%!(D!!. If there is not an

adoptive admission, however, the forwarded email chain may comprise hearsay-within-

hearsay. %am0us, "nc. v. "nineon 'echs. +&, '23 1. 8upp. %d ;3, AA (6.?. a. %2!.

E4"te! 5tter$n"e. In dicta, the 4regon )ourt of ppeals has indicated that, in appropriate

circumstances, an email message might fall within the excited utterance exception to the hearsay

rule. State v. Cunningham, 2 C.'d ;0, A; n.3 (%%!. (The federal excited utterance exception,

contained in 1ed.+.6vid. 3'(%!,0 is identical to the 4regon exception, 4regon +ule 3'(%!.!

't$te o) Mn!. 6mail may be admissible to demonstrate a party&s then-existing state of mind,

within 1ed.+.6vid. 3'('!. United States v. Saavian, 2'0 1. 8upp. %d ';, 22 (?.?.). %;!$Dodart v.

:oung +gain Prods., %; *.8. ?ist. 567I8 A%%%, 9A3-9A (?. *tah 8ept. %, %;!$$eelanau Wine

Cellars, $td. v. Blac( 5 %ed, "nc., 20% 1. 8upp. %d AA%, A3; (=.?. Hich. %;!. 6mail may also be

admissible to prove state of mind as non-hearsay under 1ed.+.6vid. 3(c!.United States. v. Brown,

20 1.'d 0, 0%3 n. A (0th )ir. %;!.

3ther None$rs$y 5ses. Got all extra@udicial statements are hearsay or, more precisely, need

not be offered for hearsay purposes. The contents of an authenticated email may, for example,

constitute a verbal act — e.g., constitute defamation or the offer or acceptance of a

contract. iddle0roo( v. +nderson, %0 *.8. ?ist. 567I8 A;, at 92 (G.?. Tex. 1eb. , %0!

(@urisdictional motion!$ 'i00etts v. %adioShac( Corp., %2 *.8. ?ist. 567I8 3'0, at 920 (G.?. Ill.

8ept. ', %2!.

n email may itself reflect the conduct at issue. See United States v. Saavian, 2'0 1. 8upp. %d

';, 22 (?.?.). %;! (certain emails themselves comprised "lobbying work# of defendant :ack

bramoff!.

6mail may be received reflect (as opposed to assert! consumer confusion in a trademark

infringement or unfair competition action. Dodart v. :oung +gain Prods., %; *.8. ?ist. 567I8

A%%%, 9AA-9A3 (?. *tah 8ept. %, %;!.

6mail may be admitted to reflect the fact of third party statements. Damon8s %estaurants, "nc. v.

!ileen # "nc., Go. )% 2 %3, %; =5 '%3 (8.?. 4hio Gov. ', %;! (consumer complaints

in a franchise dispute!$ United States v. Dupre, 2;% 1.'d ' (%d )ir. %;! (non-testifying investors

emails admitted in fraud prosecution to provide context for emails sent by defendant, which were

admissions pursuant to +ule 3(d!(%!!.





n email may also be admissible to show a non-party&s state of mind. See 'rade *inance

Partners, $$C v. ++% Corp, %3 *.8. ?ist. 567I8 '%0% (G.?. Ill. Har. ', %3! (email from non-

party to defendant admissible to show non-party "strongly disfavored new long term contracts with

EdefendantF#!.

E+$( A!!ress. party&s chosen email address may itself be admissible as evidence of the

party&s state of mind. See, e.g. "llinois v. ert2 , %3 Ill.%d , 32% G.6.%d ;3 (%0!, rehKg denied

(:an. %', %;! (murder prosecution$ proper for trial court to admit evidence that defendantKs email

address was ")ereal Silr %# because it provided insight into his frame of mind!.

C. Prv(ege

Crivilege issues — particularly, waiver issues — arise in a number of ways in connection with

email.

1irst, a /uestion of waiver may be presented depending on the security of (and reasonableexpectation of privacy for! any email that is sent over a particular email system. Crivilege may be

lost by using an email system that is known by the user to be open to inspection by a person outside

the privileged relationship. Thus, for example, an employee&s use of a corporate computer to

transmit or receive privileged communications waives the privilege when the employee is on notice

that the employer reserves the right to review the communications. United States v. !t(in, %3 *.8.

?ist. 567I8 %3'2 (8.?.G.J. 1eb. , %3! (employees do not have a reasonable expectation of

privacy in the contents of their work computers when their employers communicate to them via a

flash-screen warning when they log on a policy under which the employer may monitor or inspect

the computers at any time!$ "n %e +sia &lo0al Crossing, $td., '%% D.+. %2A (Dankr. 8.?.G.J. %0!

(four-part waiver test< "(! does the corporation maintain a policy banning personal or otherob@ectionable use, (%! does the company monitor the use of the employeeKs computer or e-mail, ('!

do third parties have a right of access to the computer or e-mails, and (2! did the corporation notify

the employee, or was the employee aware, of the use and monitoring policies>#!$ Curto v. edical

World Communs., "nc., , %; *.8. ?ist. 567I8 %'3A (6.?.G.J. Hay 0, %;! (no waiver where

employee deleted all her personal files, including emails, from two company-issued laptops before

returning them to her employer, where the laptops were not connected to the corporate server, and

there was no monitoring of her email traffic during her employment$ irrelevant that, two years later,

her employer&s forensic computer consultant was able to retrieve deleted data from the laptops!.

8econd, waiver issues arise in connection with the logging of privileged emails in accordancewith provisions such as 1ederal +ule of )ivil Crocedure %;(b!(0!(!, which re/uires a privilege log

identifying all relevant information that is sub@ect to a claim of attorney-client privilege or work

product protection.

1ailure to log a privileged email that its not produced may be held to waive the privilege

otherwise attaching to the email. Compare Nne0e v. Daus, %A *.8. ?ist. 567I8 '%3 (8.?.G.J.



Hay ', %A! (">=ithholding privileged materials without including the material on a privilege log

pursuant to +ule %;(b!(0! Nmay be viewed as a waiver of the privilege or protection.& 1ed. +. )iv. C.

%; advisory committeeKs note#! with C.'. v. $i0eral School District , %A *.8. ?ist. 567I8 '3AA (?.

San. Hay %2, %A! ("=hile the court could find that plaintiff ... has waived his claims of privilege due

to the insufficiency of his privilege log, Nin the absence of bad faith on the part of the non-moving

party in preparing the ... privilege log, ... the )ourt will decline to find waiver& and instead re/uire the

non-moving party to supplement his privilege log#!.

6ven logging a privileged email may be insufficient to afford protection to attachments to the

email, unless the attachments are themselves logged. C.'. v. $i0eral School Dist., %3 *.8. ?ist.

567I8 03;' (?. San. :an. %0, %3! (where plaintiff listed a series of emails on his privilege log, but

did not separately list the attachments, held< "any claim of privilege plaintiff might wish to raise as to

those documents has been waived, and the attached documents, to the extent they are responsive

to defendantsK document re/uests, shall be produced. Claintiff has had ample opportunity to list

these attachments on ... the privilege logs....#!.

Third, privilege may attach to otherwise unprivileged emails that are sent to an attorney in the

course, and for the purpose, of obtaining legal advice. Barton v. ;immer "nc., %3 *.8. ?ist. 567I8

%; (G.?. Ind. :an. A, %3! ("the very fact that non-privileged information was communicated to an

attorney may itself be privileged, even if that underlying information remains unprotected.# "s

applied to e-mails, this means that even though one e-mail is not privileged, a second e-mail

forwarding the prior e-mail to counsel might be privileged in its entirety....#!. Gevertheless, the

transmitted, inherently unprivileged email will have to be produced in some form. If it were not, that

would raise serious spoliation issues.

D. Te4t Mess$ges

A#thent"ty. Text messages are effectively emails sent by cell phone but they present uni/ue

problems because they are transitory. recurring factual scenario involves one party transcribing or

copying text messages only to realiLe thereafter that the texts have been purged by the carrier.

Benerally, testimony of accurate transcription, together with whatever other corroboration may be

available, is sufficient prima facie evidence of authenticity. 1or example, in *nited States v.

Cul0erson, %A *.8. ?ist. 567I8 '22 (6.?. Hich. pril %A, %A!, a drug conspiracy prosecution,

the ?6 executed a search warrant to obtain, inter alia, the defendant&s cell phone. The ?6 agent

found text messages found on the phone. Me testified that he accurately transcribed all texts

verbatim, including the time, date and all senders and recipients. Me did not immediately print out

the texts and, two weeks later, when the agent reviewed the phone again, he realiLed that the

contents were no longer stored on it. subpoena served on the carrier was fruitless because the

carrier had purged the texts from its system as well. The government sought to introduce the written

transcript as evidence at trial, and the defense ob@ected because it did not have an opportunity to

review the original emails. The Cul0erson)ourt held that, under the liberal standards of 1ed.+.6vid.



(a!, the transcription was held sufficiently authenticated by the testimony of (i! the agent, (ii! one

of the co-conspirators, and (iii! perhaps other co-conspirators as to the accuracy of the transcription.

/est Ev!en"e. Transcriptions of text messages have been held not to violate the best evidence

rule if the proponent satisfies 1ed.+.6vid. 2(!, which provides that an original is not re/uired

when "EaFll originals are lost or have been destroyed, unless the proponent lost or destroyed them in

bad faith....# See United States v. Cul0erson, %A *.8. ?ist. 567I8 '0%A; (6.?. Hich. Hay 0,

%A! (holding that the defendant failed to carry his burden of establishing bad faith and that the

?6 agent&s testimony that the emails were unavailable, and that they could not be obtained from

cell phone carriers, was sufficient to establish unavailability!$ State v. !spiritu, A Maw. %A, A;

C.'d 330 (Maw. 8up. )t. %3! ("lthough M+6 EMawaii +ule of 6videnceF +ule % would

ordinarily preclude the admission of testimony about the text messages because such testimony is

not an original, the testimony here is admissible because M+6 +ule 2 applies to the text

messages such that other evidence may be admitted to prove the content of the text messages.

M+6 +ule 2 provides an exception to the original writings re/uirement of M+6 +ule %.... The

plain language of M+6 +ule 2 states that an original or duplicate is not re/uired to prove the

contents of a writing or recording so long as the originals are lost or destroyed and such loss or

destruction was not due to the bad faith of the proponent of the evidence#!.

e$rs$y. The Mawaii 8upreme )ourt relied on the exception for refreshed recollection under the

state e/uivalent of 1ederal +ule of 6vidence ;% to affirm the introduction of text messages read

into the record from a police report, in State v. !spiritu, A Maw. %A, A; C.'d 330 (Maw. 8up. )t.

%3! ("CetitionerKs argument that the )omplainant was not using the report to refresh her memory

but was instead using the report to recite verbatim the text messages is unpersuasive.... Cetitioner

accurately recalled the gist or the general nature of each text message prior to viewing the police

report#!.

D)S9 Bregory C. :oseph 5aw 4ffices 55), Gew Jork. Cresident, merican )ollege of Trial 5awyers

(%-!$ )hair, merican Dar ssociation 8ection of 5itigation (A-3!$ member, *.8. :udicial

)onference dvisory )ommittee on the 1ederal +ules of 6vidence ('-!. 6ditorial Doard,

Hoore&s 1ederal Cractice ('d ed.!. uthor, Hodern isual 6vidence (8upp. %!$ 8anctions< The

1ederal 5aw of 5itigation buse (2th ed. %3!$ )ivil +I)4< ?efinitive Buide ('d ed. %!. The

author wishes to express his gratitude to Crofessor Catrick 5. :arvis of the *niversity of 8t. Thomas

for reviewing technical aspects of this discussion and for his invaluable insights. U %- BregoryC. :oseph

D)S See Johnson-Wooldridge v. Wooldridge, % 4hio pp. 567I8 '' at 9 (4hio pp. :uly

%;, %!. See also Perect /, "nc. v. C)0ernet 1entures, "nc., %' 1. 8upp. %d 2;, 02 ().?.

)al. %%! (admitting on a preliminary in@unction motion copies of pages from defendant&s and third

party websites (as to the latter of which the furnished "webpages containEedF ... the internet domain

http://www.jha.com/us/articles/viewarticle.php?75#ref*


http://www.jha.com/us/articles/viewarticle.php?75#ref1





address from which the image was printed and the date on which it was printed#! because "the

declarations, particularly in combination with circumstantial indicia of authenticity (such as the dates

and web addresses!, would support a reasonable @uror in the belief that the documents are what

EplaintiffF says they are$# noting the "reduced evidentiary standard in preliminary in@unction

motions#!$ ood v. Dr)vit S)s., "nc., %0 *.8. ?ist. 567I8 %A00, at 9;-9A (G.?. Ill Gov. 3, %0!

(affidavit of counsel on summary @udgment motion "stating that he Nretrieved Ethe documentsF off the

?ryvit, Inc. corporate website on ugust %, %0.& )ounsel also swears that Nthe web addresses

stamped at the bottom of each exhibit were the addresses I retrieved the exhibits from,

respectively.&#! (brackets in original$ citation omitted!$ +mpe9 Corp. v. Cargle, %3 )al.pp.2th 0;,

%A )al.+ptr.'d 3;' (st ?ist. 2th ?iv. %0! (printouts from corporate party&s website held self-

authenticating and sub@ect to @udicial notice under )alifornia law!$ iriam 6s0orn em. ome +ss4n

v. %)e, Hisc.'d , 3 G.J.8.%d (8up. )t. =estchester )ounty %0! (plaintiff "testified at

trial as to the manner in which she downloaded, printed and copied the electronic record of the

Egovernment websiteF. In so doing, it was taken from its electronic form and turned into a tangible

exhibit.... ETFhis )ourt concludes that Nthe exhibit is a true and accurate representation of suchelectronic record&#!. But see +lston v. etropolitan $ie "ns. Co., Go. <0)%, %; =5

'%A (H.?.G.). 4ct. %A, %;! (attorney affidavit held insufficient on summary @udgment

because attorney was ethically precluded from appearing as a witness in the case on behalf of his

client and, therefore, was not an ade/uate affiant!.

D)S% See, e.g., +ctonet, $td. v. +llou ealth 5 Beaut) Care, % 1.'d 3';, 323 (3th )ir. %!

("MTH5 codes may present visual depictions of evidence. =e conclude, therefore, that MTH5 codes

are similar enough to photographs to apply the criteria for admission of photographs to the

admission of MTH5 codes#!.

D)S' See, e.g., Wad) v. Provident $ie 5 +ccident "ns. Co. o +m. , %; 1. 8upp. %d ;, ;2-;0

().?. )al. %%! ("?efendants have ob@ected on the grounds that EcounselF has no personal

knowledge of who maintains the website, who authored the documents, or the accuracy of their

contents# — ob@ections sustained!.

D)S2 See, e.g., Boim v. ol) $and *ound., 0 1.'d AA (Ath )ir. %A! (plaintiff&s expert relied in

part on Internet website postings in which the terrorist organiLation Mamas took credit for the murder

of plaintiffs& decedent$ held, the expert failed sufficiently to elucidate the basis for his conclusion that

the website statements were attributable to Mamas and, therefore, the statements were insufficiently

authenticated< "=here, as here, the expert appears to be relying to a great extent on web postings

to establish a particular fact, and where as a result the factfinder would be unable to evaluate the

soundness of his conclusion without hearing the evidence he relied on, we believe the expert must

lay out, in greater detail than Eplaintiff&s expertF did, the basis for his conclusion that these websites

are in fact controlled by Mamas and that the postings he cites can reasonably and reliably be

attributed to Mamas#!.

D)S0 1ed.+.6vid. 2(a! provides that<











<uestions o admissi0ilit) generall) .—Creliminary /uestions concerning the /ualification of a person

to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by

the court, sub@ect to the provisions of subdivision (b!. In making its determination it is not bound by

the rules of evidence except those with respect to privileges.

D)S; 1ed.+.6vid. 2(b! provides that<

%elevanc) conditioned on act .—=hen the relevancy of evidence depends upon the fulfillment of a

condition of fact, the court shall admit it upon, or sub@ect to, the introduction of evidence sufficient to

support a finding of the fulfillment of the condition.

D)SA See, e.g., United States v. Jac(son, %3 1.'d ;'', ;'A (Ath )ir. %! (":ackson needed to

show that the web postings in which the white supremacist groups took responsibility for the racist

mailing actually were posted by the groups, as opposed to being slipped onto the groups& web sites

by :ackson herself, who was a skilled computer user.#!.

E3F 1ed.+.6vid. %(0! provides that the following are self-authenticating<

6icial pu0lications.--Dooks, pamphlets, or other publications purporting to be issued by public

authority.

D)S See, e.g., United States e9 rel. Pari(h v. Premera Blue Cross, %; *.8. ?ist. 567I8 A'',

at 9 (=.?. =ash. 8ept. %, %;! (B4 reports and Mealth and Muman 8ervices& reports found on

government websites are self-authenticating under 1ed.+.6vid. %(0!!$ispanic Broad. Corp. v.

!duc. edia *ound., %' *.8. ?ist. 567I8 %232, 9% n. 0 ().?. )al. Gov. ', %'! ("exhibits

which consist of records from government websites, such as the 1)) website, are self-

authenticating.#!$ !.!.6.C. v. !.". Du Pont de Nemours 5 Co. , Go. )iv. . '-;0, %2 =5

%'2A00 (6.?.5a. 4ct. 3, %2! (webpage printout sufficiently authenticated where (! printout

contained the address from which it was printed, (%! printout contained the date on which it was

printed, ('! court accessed the website and verified that the page existed, and (2! webpage was

maintained by a government agency and thus was self-authenticating under 1ed.+.6vid.

%(0!!$ Sannes v. Je W)ler Chevrolet, "nc., *.8.?ist.567I8 %A23 at 9 n. ' (8.?. 4hio

Harch ', ! ("The 1T) press releases, printed from the 1T)&s government world wide web

page, are self-authenticating official publications under +ule %(0! of the 1ederal +ules of

6vidence#!$ 'ippie v. Patni( , %3 4hio ;0', %3 4hio pp. 567I8 2% (4hio pp. pril 2, %3!

("The website of the 8ecretary of 8tate can be considered self-authenticating as an Nofficialpublication,& cf. E4hioF 6vid. +. %(0!, like copies of printed material (i.e., newspaper articles! are

under E4hioF 6vid. +. %(;!#! (dissenting opinion!$ arvard ort. Corp. v. Phillips, %3 4hio '%,

%3 4hio pp. 567I8 20 (4hio. pp. Harch 2, %3! (concurring opinion!.See also !lliott

+ssocs., $.P. v. Banco de la Nacion, 2 1.+.?. ;, % (8.?.G.J. %! (discussed below$ holding

that prime rates published on the 1ederal +eserve Doard website satisfy the hearsay exception of

1ederal +ule of 6vidence 3'(A!!$ Williams v. $ong , 030 1. 8upp. %d ;A, ;3;-33 n. 2 (?. Hd.









%3! (collecting cases indicating that postings on government websites are inherently authentic or

self-authenticating!$ Weingartner $um0er 5 Suppl) Co. v. #adant Composites, $$C , % *.8. ?ist.

567I8 %23 (6.?. Sy. Har. , %! (printout of official records from website of 8ecurities and

6xchange )ommission are self-authenticating!$ c&aha v. Bail) , % *.8. ?ist. 567I8 A''3

(?.8.). :uly A, %! ("this federal court may take @udicial notice of factual information located in

postings on governmental websites in the *nited 8tates#!$ Scurmont $$C v. *irehouse %estaurant

&rp., % *.8. ?ist. 567I8 A0A0 (?. 8.). :uly 3, %! ("+ecords from government websites are

generally considered admissible and self-authenticating.#!.

But see State v. Davis, 2 =ash.%d A3, 302, C.'d AA, (%! (no abuse of discretion in

excluding, in death penalty case, defendantKs proffer of state population statistics obtained from

official state website$ affirming exclusion on hearsay grounds but stating that "EaFn unauthenticated

printout obtained from the Internet does not ... /ualify as a self authenticating document under 6+

%(e! Ethe =ashington 8tate e/uivalent of 1ederal +ule of 6vidence %(0!F#!. There is reason to

believe, however, that ?avis may be limited to its facts. See State v. %apose, %2 =5 03030; at 90

(=ash. pp. Har. %0, %2! (unpublished opinion!.

D)S Ciampi v. Cit) o Palo +lto, % *.8. ?ist. 567I8 0%20 (G.?. )al. Hay , %! ("most of

the articles submitted by Claintiff contain sufficient indicia of authenticity, including distinctive

newspaper and website designs, dates of publication, page numbers, and web addresses.... 4nly

the internet print-outs of the ?aily Gews articles contained in 6xhibits '%-2 and '%-A, which do not

contain a web address and lack other identifying characteristics, appear to be insufficiently

authenticated. The )ourt will not consider these two articles, but overrules the ob@ection as to the

remainder of the articles#!.

D)S See, e.g., United States v. Johnson, %; *.8. ?ist. 567I8 ;%2;, at 9A-93 (G.?. Iowa ug. ',

%;!. The automatic creation of Temporary Internet 1iles has led to a holding that, in a prosecution

for the possession of child pornography, "one cannot be guilty of possession for simply having

viewed an image on a web site, thereby causing the image to be automatically stored in the

browser&s cache, without having purposely saved or downloaded the image# (United States v.

Stuloc( , '3 1.'d %%, %0 (3th )ir. %%!!, but that the same images may be admissible under

1ed.+.6vid. 22(b! to establish the accused&s knowledge and intent. United States v. Johnson, %;

*.8. ?ist. 567I8 ;%2;, at 9.

D)S% 6hio v. Bell , % 4hio pp. 567I8 %% (4hio )t. pp. Hay 3, %! (affirming

authentication through alleged victim&s testimony that (! he had knowledge of the defendantKs

Hy8pace user name, (%! the printouts appeared to be accurate records of his electronic

conversations with defendant, and ('! the communications contained code words known only to

defendant and his alleged victims!$ People v. &oins, Go. %3', % =5 ;%, at 9-% (Hich.

pp. :an. %, %! ("?efendant argues that the trial courtKs decision to exclude the contents of the

Hy8pace entry deprived him of the right to present a defense.... Mere, provided in what certainly

appears to be DradleyKs Hy8pace page are descriptive details of the assault that fit within what a









reasonable person would consider to be Ndistinctive content& not generally known to anyone other

than Dradley, defendant, or someone in whom one or the other confided. Biven the content of the

entry itself ... and the unlikelihood that Dradley would have given her account password to a third

party so that that person could write the entry, the @ury reasonably could have found that Dradley

authored the content in the Hy8pace account.... The trial court should have found that the evidence

was properly authenticated....#!..

D)S' See, e.g., Commonwealth v. Purd) , 20 Hass. 22%, 20 G.6.%d 'A% (%! ("6vidence that

the defendant&s name is written as the author of an e-mail or that the electronic communication

originates from an e-mail or a social networking =eb site such as 1acebook or Hy8pace that bears

the defendantKs name is not sufficient alone to authenticate the electronic communication as having

been authored or sent by the defendant.... There must be some Nconfirming circumstances& sufficient

for a reasonable @ury to find by a preponderance of the evidence that the defendant authored the e-

mails.# Meld, sufficient circumstantial evidence was presented< "in addition to the e-mails having

originated from an account bearing the defendantKs name and acknowledged to be used by the

defendant, the e-mails were found on the hard drive of the computer that the defendant

acknowledged he owned, and to which he supplied all necessary passwords. =hile this was

sufficient to authenticate the e-mails in the absence of persuasive evidence of fraud, tampering, or

Nhacking,& there was additional evidence of the defendantKs authorship of most of the e-mails. t least

one e-mail contained an attached photograph of the defendant, and in another, the author described

the unusual set of services provided by the salon when he characteriLed himself, among other

things, as a Nhairstylist, art and anti/ues dealer, EandF massage therapist.&#!. Compare

Commonwealth v. Williams, 20; Hass. 30A, 3;3-3; (%! (messages sent from a Hy8pace =eb

page were not properly authenticated where "there was no testimony regarding how secure a

Hy8pace =eb page is, who can access it, or whether codes are needed for such access ... EandF

while the foundational testimony established that the messages were sent by someone with access

to Ethe person&sF Hy8pace =eb page,# the author of the messages did not identify himself by

name!. See also People v. *ielding , % =5 %2A''22, at 9'-0 ()al. pp. :une 3, %!, review

den. ()al. 8ept. , %! ("Hy8pace messages can be sent between friends, similar to e-mail, and

cannot be viewed by others. )omments can be posted so that anybody can see them. The victim

identified pages of copied messages dated between 8eptember and ?ecember %A, exchanged

between himself and defendant, via their Hy8pace accounts. Dased on the messages from

defendantKs account, the victim believed they were written by defendant, because they addressed

matters he had discussed with her.... 1urther, he testified N lot of the times I was talking to

EdefendantF on Hy8pace, I would also be texting her or talking on the phone to her at the sametimeE.F& ... EThus,F the victim testified he sent the messages and received the replies reflected by the

copies, and based on their content, he believed he was communicating with defendant. That

testimony was ade/uate to support their admission into evidence.#!$ People v. Clevenstine, ;3

.?.'d 223, 20-0 ('rd ?ep&t %!, leave to appeal den., 2 G.J.'d A, %0 G.6.%d 'A, 3

G.J.8.%d '' (%! ("both victims testified that they had engaged in instant messaging about

sexual activities with defendant through the social networking site Hy8pace, an investigator from the





computer crime unit of the 8tate Colice related that he had retrieved such conversations from the

hard drive of the computer used by the victims, a legal compliance officer for Hy8pace explained

that the messages on the computer disk had been exchanged by users of accounts created by

defendant and the victims, and defendantKs wife recalled the sexually explicit conversations she

viewed in defendantKs Hy8pace account while on their computer. 8uch testimony provided ample

authentication for admission of this evidence#!$ Doc(er) v. Doc(er) , % Tenn. pp. 567I8 AA

(Tenn. pp. 4ct. %, %! (authentication of Hy8pace communications re/uires only email

authentication$ no need for testimony from a representative of Hy8pace!.

D)S2 &riin v. State, 2 Hd. '2', ';'-;2, .'d 20, 2%A-%3 (%! ("The first, and perhaps

most obvious method Eof authenticationF would be to ask the purported creator if she indeed created

the profile and also if she added the posting in /uestion.... The second option may be to search the

computer of the person who allegedly created the profile and posting and examine the computerKs

internet history and hard drive to determine whether that computer was used to originate the social

networking profile and posting in /uestion.... third method may be to obtain information directly

from the social networking website that links the establishment of the profile to the person who

allegedly created it and also links the posting sought to be introduced to the person who initiated

it#!$ People v. +l-Shimar) , % =5 0'A'3%; (Hich. pp. ?ec. %3, %!,appeal denied , 23 Hich.

'2-';, AA G.=.%d 00, ;%;-%A, ;% (%! ("?uring the cross-examination of 8afaa, defense

counsel attempted to impeach 8afaaKs Nsincerity& and give a reason for the charges by introducing a

message on 8afaaKs EHy8paceF page which was allegedly posted by 8afaa.... fter the prosecutor

ob@ected on the basis of foundation and authenticity, the trial court asked 8afaa if he wrote the

message. 8afaa responded, "Go, I didnKt.# The defense made no further offer of proof. The trial court

excluded the document because there was no evidence to establish its authenticity.... ETFhe the trial

court did not ... abuse its discretion in determining that the Hy8pace page had not been properly

authenticated#!$ People v. Padilla, % =5 2%, at 9-% ()al. pp. Gov. , %!, review

den. ()al. 1eb. ;, %! ("vila herself authenticated the photograph on the Hy8pace page.... 8he

also conceded that she was the age stated on the web page. Deyond that, however, she denied any

connection to, or control over, the Hy8pace page in general and, specifically, the gang-related

writing that made the Hy8pace page probative of issues in the case. Go witness was called to

testify, from his or her personal knowledge, that vila was responsible for the web page or its

contents, and there was no expert or other testimony from which it could be inferred that it would be

unlikely that anyone but vila could create a Hy8pace page bearing vilaKs name and photograph....

*nder the circumstances, a finding that the writing was authentic was necessarily based on

speculation.#!.

D)S0 &riin v. State, 2 Hd. '2', ';'-;2, .'d 20, 2%A-%3 (%! ("nyone can create a

Hy8pace profile at no cost, as long as that person has an email address and claims to be over the

age of fourteen.... EFnyone can create a fictitious account and mas/uerade under another personKs

name or can gain access to anotherKs account by obtaining the userKs username and password....

The potential for abuse and manipulation of a social networking site by someone other than its

purported creator andQor user leads to our conclusion that a printout of an image from such a site







re/uires a greater degree of authentication than merely identifying the date of birth of the creator

and her visage in a photograph on the site in order to reflect that Ethe depicted personF was its

creator and the author of the ErelevantF language Eon the profile pageF.#!.

D)S; Gote, however, that there is rarely a hearsay problem with images derived from the internet

— @ust as there is rarely a hearsay problem with photographic evidence — because hearsay

consists of extra@udicial statements offered for their truth. United States v. Cameron, A;% 1.8upp.%d

0% (?. He. %! ("the images Efound on the I8C serverF are not hearsay to begin with.... The rule

against the admission of hearsay applies to only to statements offered to prove the truth of the

matter asserted. 1ed. +. 6vid. 3(c!$ 1ed. +. 6vid. 3%. Nstatement& is N(! an oral or written

assertion or (%! nonverbal conduct of a person, if it is intended by the person as an assertion.& 1ed.

+. 6vid 3(a!. Mowever, NEiFn the context of the hearsay rule, photographs do not /ualify as

assertions.&#!. Dear in mind, however, that a particular image may contain hearsay.See, e.g. People

v. orgutia, % )al. pp. *npub. 567I8 030 ()al. pp. :uly A, %! ("it was improper to show

the @ury an exhibit containing the photographs of defendant and his accomplices embellished with

uncorroborated labels identifying them as gang participants#!.

D)SA See, e.g., United States v. Sanders, A2 1.%d 0, 3 (0th )ir. 32! (dealing with

computeriLed records!$ United States v. Cata0ran, 3'; 1.%d 20', 20; (th )ir. 33! (same!.

D)S3 See, e.g., United States v. %usso, 23 1.%d %%3, %2 (;th )ir.!, cert. denied , 22 *.8. 0A

(A'! (dealing with computeriLed records!.

D)S See, e.g., Potam(in Cadillac Corp. v. B.%.". Coverage Corp., '3 1.'d ;%A, ;', ;'' (%d )ir.

2! (dealing with computeriLed business records!.

D)S% United States v. Jac(son, %3 1.'d ;'', ;'A (Ath )ir. %! ("6ven if these web postings did

/ualify for the business records hearsay exception, Nthe business records are inadmissible if the

source of information or the method or circumstances of preparation indicate a lack of

trustworthiness&#! (citation omitted!.

D)S% !lliott +ssocs., $.P. v. Banco de la Nacion , 2 1.+.?. ;, % (8.?.G.J. %! (prime rates

published on the Dloomberg website satisfy the hearsay exception of 1ederal +ule of 6vidence

3'(A!!.

D)S%% See, e.g., State v. !ric(stad , ;% G.=.%d ';, 20 (G.?. %! (citing "r0)-&reene v. .6.%.,

"nc., A 1.8upp.%d ;', ;'; n.%% (6.?.a. %!!.

D)S%' See, e.g., 1an Westrienen v. +mericontinental Collection Corp. , 2 1.8upp.%d 3A, (?.

4r. %! ("the representations made by defendants on the website are admissible as admissions of

the party-opponent under 1+6 3(d!(%!(!#!$ 'elewi23a Pols(a US+, "nc. v. !choStar Satellite

Corp., %2 *.8. ?ist. 567I8 %320, at 9;-A (G.?. Ill. 4ct. 2, %2!$ United States v. Porter , 32

1ed. ppx. %, %; *.8. pp. 567I8 2;;, at 92-90 (%d )ir. :une 0, %;! (authenticated chat



















room transcripts of defendant properly introduced by government as admissions of party

opponent!$ United States v. Burt , 20 1.'d A'', A'3 (Ath )ir. %A! ("Those portions of the chat

which represent EdefendantF DurtKs writings were properly admissible as admissions by a party

opponent under 1ed. +. 6vid. 3(d!(%!#!$ $ang0ord v. U.S. Dep4t o 'reasur) , % *.8. ?ist. 567I8

AAA (6.?. Ca. :uly 0, %! ("Go matter what the E*.8.F Hint meant when it advertised the ''

?ouble 6agle as circulating Eon its official websiteF, it did not limit its description to a specific coin

monetiLed in %%, and the statement potentially /ualifies as an admission such that the hearsay

rule does not bar its admission pursuant to +ule 3(d!(%!(!#!$ &reater New 6rleans *air ous.

+ction Ctr. v. St. Bernard Parish, ;23 1. 8upp. %d 30, 3; n.% (6.?. 5a. %! (finding printout from

defendantsK website the "admissible as a party-opponent&s own statement#!$ '"P S)s., $$C v. SBC

6perations, "nc., 0'; 1. 8upp. %d A20, A0; n.0 (8.?. Tex. %3! (same!.

D)S%2 Potam(in Cadillac Corp. v. B.%.". Coverage Corp., '3 1.'d ;%A, ;', ;''-'2 (%d )ir. 2!

(dealing with computeriLed business records!$ omah v. Bharti , %3 =ash. pp. 567I8 2

(=ash. pp. pril %3, %3! (posting self-laudatory article and other hearsay on website held an

adoptive admission< "Dy providing the content as a means of publiciLing himself, Dharti effectively

manifests his belief in the truth of the information. 6ven if the biographical information, newspaper

articles, and client comments contain hearsay, Dharti has manifested his belief in the truth of those

statements. They are not hearsay under 6+ 3(d!(%!#!$ annatech "nc. v. &l)co0iotics "nt4l, "nc.,

%A *.8. ?ist. 567I8 2; (G.?. Tex. ?ec. 2, %A! (customer testimonials contained on party&s

website admitted$ without deciding the issue, the )ourt indicated that the testimonials could be

admissible under +ule 3(d!(%! — presumably 3(d!(%!(!, (D! or ()! — citing PharmaStem

'herapeutics, "nc. v. 1iaCell, "nc., 2 1.'d '2%, '0 (1ed. )ir. %A!, for the proposition that<

"ETFhere is no prohibition against using the admissions of a party, whether in the form of marketing

materials or otherwise, as evidence in an infringement action....#!.

D)S%0 Janus Capital &roup, "nc. v. *irst Deriv. 'raders, 3 5. 6d. %d ;;, % *.8. 567I8 2'3

(*.8. :une ', %! (b-0 suit against mutual fund advisor for misstatements by its client mutual

fund$ adviser posted allegedly fraudulent documents on its website< "Herely hosting a document on

a =eb site does not indicate that the hosting entity adopts the document as its own statement or

exercises control over its content#!$ +i(ens v. Count) o 1entura, % )al. pp. *npub. 567I8 23;

()al. pp. :une ', %! (county&s posting of a hydrology, hydraulics, and sedimentation study

performed by federal government did not constitute adoptive admission of the truth of the contents

of the posted study!.

D)S%; United States v. Burt , 20 1.'d A'', A'3-' (Ath )ir. %A!.

D)S%A See, e.g., 1an Westrienen v. +mericontinental Collection Corp. , 2 1.8upp.%d 3A, (?.

4r. %!.

D)S%3 See, e.g. , '. ar2etti Co. v. %os(am Ba(ing Co. , Go. %< ) 032, % =5 03%, at 9%

(8.?. 4hio Harch , %! (email from consumer to trademark plaintiff&s customer service













department admissible on issue of confusion under state of mind exception to hearsay

rule!$icroware S)s. Corp. v. +pple Computer, "nc., % *.8.?ist.567I8 ';0' at 9A n.% (8.?. Iowa

Harch 0, %! ("Hicroware&s internet and e-mail submissions are not ideal proffers of evidence

since their authors cannot be cross-examined. Mowever, in a case involving an industry where e-

mail and internet communication are a fact of life, these technical deficiencies must go to the weight

of such evidence, rather than to their admissibility. In any case, to the extent any of these stray

comments bear on the issue of confusion, they come in for that purpose...#! (citations omitted!$ id

Cit) Bowling $anes 5 Sports Palace, "nc. v. Don Carter4s +ll Star $anes-Sunrise $td. , 3

*.8.?ist.567I8 '%A at 90-9; (6.?.5a. Harch %, 3!.

D)S% United States v. Burt , 20 1.'d A'', A'3-' (Ath )ir. %A!.

D)S' United States v. Burt , 20 1.'d A'', A' (Ath )ir. %A!.

D)S' See, e.g., St. Clair v. Johnn)4s 6)ster 5 Shrimp, "nc. , A; 1.8upp.%d AA', AA2-A0 (8.?. Tex.

! ("=hile some look to the Internet as an innovative vehicle for communication, the )ourtcontinues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and

misinformation.... nyone can put anything on the Internet. Go web-site is monitored for accuracy

and nothing contained therein is under oath or even sub@ect to independent verification absent

underlying documentation. Horeover, the )ourt holds no illusions that hackers can adulterate the

content on any web-site from any location at any time. 1or these reasons, any evidence procured off

the Internet is ade/uate for almost nothing, even under the most liberal interpretations of the

hearsay exception rules found in 1ed.+.6vid. 3A#!$ 'er0ush v. United States, %0 *.8. ?ist. 567I8

'A;30, at 9; n.2 (6.?. )al. ?ec. A, %0! ("Information on internet sites presents special problems

of authentication.... It has been recogniLed that anyone with sufficient hacking ability can put

anything on the internet$ no web-site is monitored for accuracy, and nothing contained therein is

sub@ect to independent verification absent underlying documentation#!.

D)S'% See, e.g., Wells v. =ped9 , %A *.8. ?ist. 567I8 ;A (H.?. 1la. 8ept. , %A!

("?ocuments produced during discovery are deemed authentic when offered by a party

opponent#!$ S(lar v. Clough, %A *.8. ?ist. 567I8 2%23 (G.?. Ba. :uly ;, %A! ("The e-mails in

/uestion were produced by ?efendants during the discovery process. 8uch documents are deemed

authentic when offered by a party opponent#!$ accord Bruno v. +'5' o0ilit), $$C , % *.8. ?ist.

567I8 0A0 (=.?. Ca. :une ', %!$ Superhighwa) Consulting, "nc. v. 'echwave, "nc.,

*.8.?ist.567I8 A, at 9; (G.?.Ill. Gov. 0, !$ Dominion Nutrition, "nc. v. Cesca, %; *.8.

?ist. 567I8 000, at 9; (G.?. Ill. Harch %, %;!.

This rule applies only to emails produced by a party opponent. The party offering an email into

evidence cannot point to his or her own act of production as authenticating it. Jimena v. UBS +&

Ban(, "nc., % *.8. ?ist. 567I8 ;30; (6.?. )al. :une %2, %! ("Go party-opponent offered

these documents in discovery so as to permit attribution of the identity and authenticity of the e-

mails to Ethe defendantsF#!.











D)S'' $emme v. Count) o :uma, %; *.8. ?ist. 567I8 A;'A, at 9%' (?. riL. 4ct. , %;!

("Decause Claintiff and her counsel have the ability to authenticate those documents, but do not

specifically challenge the authenticity thereof, the ob@ections are overruled#!.

D)S'2 %ead v. 'eton Springs &ol 5 Casting Clu0, $$C , % *.8. ?ist. 567I8 '2;% (?. Idaho

?ec. 2, %! (testimony from recipient of email sufficient to authenticated it!$ "n re Second Chance

Bod) +rmor, "nc., 2'2 D.+. 0%, 02 (Dankr. =.?. Hich. %! (discussing 1ed.+.6vid. < "EwFhen

the document involved is an e-mail communication, a Nparticipant in, or recipient of, that

communicationK will generally be able to authenticate the communication, so long as the person Nwas

able to perceive who communicated what.&#!$ !!6C v. 6lsten Staing Servs. Corp., % *.8. ?ist.

567I8 33' (=.?. =is. 8ept. %3, %! ("Testimony from someone who personally retrieved the e-

mail from the computer to which the e-mail was allegedly sent is sufficient for this purpose#!$ *en3e

v. *eld , ' 1. 8upp. %d A3, 3 (G.?. Ill. %'! ("6-mail communications may be authenticated as

being from the purported author based on an affidavit of the recipient#!$ aier v. Pac. eritage

omes, "nc., A% 1. 8upp. %d 32, (?. 4r. ! ("8ince +ockwell was a . . . recipient of the

memorandum, his affidavit suffices to authenticate the exhibitsE, including the

memorandumF.&!$ 'i00etts v. %adioShac( Corp., %2 *.8. ?ist. 567I8 3'0, at 922 (G.?. Ill. 8ept.

', %2!.

D)S'0 Usser) v. State, %3 Tex. pp. 567I8 A2 (Tex. pp. :an. ', %3! (approving admission

where the victim "testified, identifying the e-mail communications as fair and accurate copies of

actual e-mails she exchanged with appellant. 8he thus provided testimony authenticating the e-

mails.#!$ United States v. &agliardi , 0; 1.'d 2 (%d )ir. %A! ("ETFhe standard for authentication is

one of Nreasonable likelihood&... and is Nminimal&.... both the informant and gent Derglas testified that

the exhibits were in fact accurate records of Edefendant&sF conversations with 5orie and :ulie. Dased

on their testimony, a reasonable @uror could have found that the exhibits did represent those

conversations, notwithstanding that the e-mails and online chats were editable#!.

D)S'; Jimena v. UBS +& Ban(, "nc., % *.8. ?ist. 567I8 ;30; (6.?. )al. :une %2, %!

(Gigeria-based scam$ testimony from recipient that the received an email purportedly from an

individual at *D8, standing alone, held insufficient to link it to that person or to *D8 where the

recipient was never in contact with either other than through email traffic< "=hen a letter, signed with

the purported signature of 7, is received Kout of the blue,K with no previous correspondence, the

traditional Kshow meK skepticism of the common law prevails, and the purported signature is not

sufficient as authentication, unless authenticity is confirmed by additional facts.... 5ikewise, when the

recipient of an e-mail attempts to prove that the message was authored by a particular individual

whose name appears in the header, such self-identification by designated sender is insufficient to

establish authorship. 8elf-identification in an unsolicited e-mail supports authenticity, but is not, by

itself, considered sufficient.... Mere there is no signature of )live 8tandish which any person with

familiarity with the signature purports to identify#! (internal /uotes and citations omitted!.











D)S'A People v. Whic(er , %A )al. pp. *npub. 567I8 0A ()al. pp. :une %;, %A! (among

other things, the witness said she could not remember whether she had sent the email, although "I

won&t say I didn&t because I don&t remember for sure if I did or not$# she acknowledged that there

were a few emails that she and the ostensible recipient sent back and forth$ and she testified that

the document "does look like my style of writing.# Gote< the recipient also testified that she

remembered receiving the email!.

D)S'3 iddle0roo( v. +nderson, %0 *.8. ?ist. 567I8 A;, at 92 (G.?. Tex. 1eb. , %0!

(@urisdictional motion!.

D)S' !colog) Servs. v. &ran'ur( !7uip., "nc., 22' 1.8upp.%d A0;, A;% n. (?.Hd. %;! (excluding

purported email which was not accompanied by an authenticating affidavit and which did not "bear

the customary formatting of a printed e-mail message, indicating the sender, recipient, date, and

sub@ect#!.

D)S2 Shea v. State, ;A 8.=.'d 3, 0 (Tex. pp. %0!.

D)S2 "nterest o *.P., 3A3 .%d (Ca. 8uper. %0! ("Me referred to himself by his first

name#!$ Commonwealth v. Capece, % Ca. ?ist. )nty. ?ec. 567I8 0; ()t. )ommon Cl. 4ct.

3, %!.

D)S2% See, e.g., Sea-$and Serv., "nc. v. $o2en "nt4l, $$C , %30 1.'d 33, 3% (th )ir. %%! (email of

one employee forwarded to party opponent by a fellow employee — containing the electronic

signature of the latter — constitutes an admission of a party opponent!.

D)S2' State v. Pullens, %3 Geb. 3%3 (Geb. 8up. )t. %! ("6vidence that an e-mail is a timely

response to an earlier message addressed to the purported sender is proper foundation analogous

to the reply letter doctrine#!$ accord 1ar(on)i v. State, %A; 8.=.'d %A, %3 Tex. pp. 567I8 ''0'

(Tex. pp!, review den., %3 Tex. )rim. pp. 567I8 ;'2 (Tex. )rim. pp. 4ct. %, %3!.

D)S22 See, e.g., Jimena v. UBS +& Ban(, "nc. , % *.8. ?ist. 567I8 ;30; (6.?. )al. :une %2,

%! ("The e-mail addresses used by the author of the 8tandish 6-mails, clive

standishRyahoo.com and [email protected], are also self-serving. In

contrast to the e-mails discussed in Saavian, 2'0 1.8upp.%d at 2-2, the e-mail addresses here

are not work e-mail addresses which are issued by an employer and include the employee&s name

in the e-mail address. +ather, they are from publicly available e-mail providers, available to and

sendable by anyone#!.

D)S20 8ince authentication issues are decided by the court under 1ederal +ule of 6vidence 2(a!,

live testimony from such a witness is not essential$ an affidavit or declaration may be e/ually

effective. 1ed.+.6vid. 2(a! is set forth in n.2, supra.





















D)S2; Herely notariLing an email does not render it non-hearsay. Shah v. *lagstar Ban( , %A Hich.

pp. 567I8 %;A3 (Hich. pp. Gov. %, %A! ("lthough the signature of the vice-president on a

copy of the email was notariLed, it was not the e/uivalent of an affidavit because the author did not

swear to the accuracy of his answers or indicate that his answers were based on personal

knowledge.#!. certification satisfying 1ed.+.6vid. %(! or (%!, however, may operate to satisfy

hearsay concerns, as those +ules provide an alternative means of satisfying the business records

exception to the hearsay rule without the necessity of calling a live witness. s discussed below, the

application of the business records exception to email is uneven.

D)S2A 1ed.+.6vid. 3'(! sets forth the hearsay exception for present sense impressions, which are

defined to include any "statement describing or explaining an event or condition made while the

declarant was perceiving the event or condition, or immediately thereafter.#

D)S23 1ed.+.6vid. 30 provides< "Mearsay included within hearsay is not excluded under the

hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule

provided in these rules.#

D)S2 6mail communications not offered for the truth are not sub@ect to exclusion as hearsay.See,

e.g., %om0om v. We0erman, %% G.J. Hisc. 567I8 A; at 9% (8up. )t. Sings )ty. :une ', %%!

("since plaintiff introduced the e-mails to establish their effect upon plaintiff, as opposed to the truth

of their content, the e-mails did not constitute inadmissible hearsay#!.

D)S0 1ed.+.6vid. 3(d!(%! provides that a statement is not hearsay if<

The statement is offered against a party and is (! the partyKs own statement, in either an individual

or a representative capacity or (D! a statement of which the party has manifested an adoption orbelief in its truth, or ()! a statement by a person authoriLed by the party to make a statement

concerning the sub@ect, or (?! a statement by the partyKs agent or servant concerning a matter within

the scope of the agency or employment, made during the existence of the relationship, or (6! a

statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The

contents of the statement shall be considered but are not alone sufficient to establish the declarantKs

authority under subdivision ()!, the agency or employment relationship and scope thereof under

subdivision (?!, or the existence of the conspiracy and the participation therein of the declarant and

the party against whom the statement is offered under subdivision (6!.

D)S

0

1ed.+.6vid. 3'(%! excepts from the hearsay rule "EaF statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or

condition.#













Internet and Email Evidence 2011

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