Admissibility of Evidence - Authentication of Blogs and Websites
There appears to be no New York case law dealing with the authentication of printouts of web pages or blogs.
Federal case law, which is based upon the Federal Rules of Evidence, indicates that web pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at which the printout was made. Testimony of a percipient witness, even the trial judge, can testify to such accuracy.[1] The printout may often then be relevant, and thus must be authenticated as having been posted by a particular source. However, Courts are skeptical about attributing documents obtained from a website to the organization or individual who maintains the site.[2] Therefore, documentary web postings require proof of the process by which they were generated.[3] Information retrieved from government websites, however, has been treated as self-authenticating, subject only to proof that the web page does exist at the governmental web location.[4]
[1] United States EEOC v. E.I. DuPont de Nemours & Co., 2004 WL 2347559 (E.D.La.2004) (court visited Web page).
[2] St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 775 (S.D.Tex. 1999) (“Anyone can put anything on the Internet … the Court holds no illusions that hackers can[not] adulterate the content on any web-site from any location at any time.”); Diamond Offshore Servs. Co. v. Gulfmark Offshore Inc., 2007 U.S. Dist. Lexis 5483 (S.D. Texas 2007) (Internet evidence inherently untrustworthy.) United States v. Jackson, 208 F.3d 633 (7th Cir. 2000) (burden on proponent of postings to show that organization's members had actually posted these documents themselves).
[3] In re Homestore.com, Inc. Securities Litigation, 347 F.Supp.2d 769, 782–83 (C.D.Cal.2004) (“To be authenticated, some statement or affidavit from someone with knowledge is required; for example, Homestore's web master or someone else with personal knowledge would be sufficient).)
[4] See 2 McCormick On Evid. § 227 (6th Ed.). United States EEOC v. E.I. DuPont de Nemours & Co., supra. Colt Def. LLC v. Bushmaster Firearms, Inc., 2005 WL 2293909 (D.Me.2005) (printouts from government websites have been held to be self-authenticating); Williams v. Long, 585 F.Supp.2d 679 (D.Md.2008) (a printed webpage from the Maryland Judiciary Case Search is self-authenticating because it was a branch of the state government, and the URL and title of the pages identified the results as emanating from the website.)
There appears to be no New York case law dealing with the authentication of printouts of web pages or blogs.
Federal case law, which is based upon the Federal Rules of Evidence, indicates that web pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at which the printout was made. Testimony of a percipient witness, even the trial judge, can testify to such accuracy.[1] The printout may often then be relevant, and thus must be authenticated as having been posted by a particular source. However, Courts are skeptical about attributing documents obtained from a website to the organization or individual who maintains the site.[2] Therefore, documentary web postings require proof of the process by which they were generated.[3] Information retrieved from government websites, however, has been treated as self-authenticating, subject only to proof that the web page does exist at the governmental web location.[4]
[1] United States EEOC v. E.I. DuPont de Nemours & Co., 2004 WL 2347559 (E.D.La.2004) (court visited Web page).
[2] St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 775 (S.D.Tex. 1999) (“Anyone can put anything on the Internet … the Court holds no illusions that hackers can[not] adulterate the content on any web-site from any location at any time.”); Diamond Offshore Servs. Co. v. Gulfmark Offshore Inc., 2007 U.S. Dist. Lexis 5483 (S.D. Texas 2007) (Internet evidence inherently untrustworthy.) United States v. Jackson, 208 F.3d 633 (7th Cir. 2000) (burden on proponent of postings to show that organization's members had actually posted these documents themselves).
[3] In re Homestore.com, Inc. Securities Litigation, 347 F.Supp.2d 769, 782–83 (C.D.Cal.2004) (“To be authenticated, some statement or affidavit from someone with knowledge is required; for example, Homestore's web master or someone else with personal knowledge would be sufficient).)
[4] See 2 McCormick On Evid. § 227 (6th Ed.). United States EEOC v. E.I. DuPont de Nemours & Co., supra. Colt Def. LLC v. Bushmaster Firearms, Inc., 2005 WL 2293909 (D.Me.2005) (printouts from government websites have been held to be self-authenticating); Williams v. Long, 585 F.Supp.2d 679 (D.Md.2008) (a printed webpage from the Maryland Judiciary Case Search is self-authenticating because it was a branch of the state government, and the URL and title of the pages identified the results as emanating from the website.)
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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