Decisions Reflect Importance, Limitations of Evidence Obtained from InternetBy Robert C. Rodriguez, Litigation News Associate Editor – February 3, 2010
As the use of social networking websites (e.g., MySpace, Facebook, LinkedIn, and Twitter) continues to increase, litigators are turning to the Internet to find information about parties and witnesses.
However, attorneys seeking to use this information at trial need to understand its importance and its limitations.
Admissibility of Internet Evidence
Courts are becoming more comfortable with Internet evidence and perhaps more liberal in allowing such information into evidence. Two recent decisions support this notion. In Saadi v. Maroun, a defamation action, the U.S. District Court for the Middle District of Florida allowed the plaintiff to enter into evidence various postings he downloaded from a website that allegedly contained derogatory statements about him. The court was primarily focused on what the plaintiff’s purpose was for using the Internet evidence.
Importantly, the plaintiff was not offering the evidence to prove that the defendant wrote the postings. Instead, he was offering the postings for the limited purpose of proving that the postings had appeared on the internet on the days that he saw them and printed them off his computer.
The defendant tried to argue that even for this limited purpose, the court should have required plaintiff to call a website owner or webmaster to authenticate the postings.
The court disagreed, finding that Federal Rule 901 would have required plaintiff to authenticate the postings by calling a website owner or webmaster if the plaintiff had offered the postings to prove that they came from a specific person or organization, but because the plaintiff offered the website printouts for a narrower purpose, his testimony satisfied the admissibility requirements of Rule 901.
In Dockery v. Dockery, a family law case involving domestic violence, the victim’s husband purportedly exchanged messages with the victim’s cousin via MySpace, in an attempt to threaten and intimidate his wife.
The Court of Appeals of Tennessee allowed the victim to present evidence of printed pages from the cousin’s MySpace page detailing the conversations because the cousin was also called as a witness and testified that the printouts showed exactly what the husband said, as well as what she said.
The cousin also testified that she printed the communications with the husband directly from her MySpace page.
The court admitted the print outs as evidence at trial despite the husband’s objection that they had not been properly authenticated. The trial court concluded that because the cousin was able to authenticate the documents as having been printed from her computer, they were admissible.
On appeal, the husband’s attorney unsuccessfully argued that Tenn. R. Evid. 901(a) requires evidence sufficient to satisfy the court that the matter in question is what its proponent claims. The appellate court agreed with the trial court and concluded that the MySpace printouts met this standard as the evidence was properly authenticated by the cousin.
Challenges with Admissibility
Despite these rulings, practitioners need to view information obtained from the Internet as only the beginning to obtaining admissible evidence.
“As a practical matter,” the information is only easy to get in at trial when the person making the statements testifies at trial that he/she made them, which rarely happens, says Steven A. Weiss, Chicago, cochair of the ABA Section of Litigation’s Technology Committee.
“Practitioners should start with the fundamental realization that the information gathered from mediums such as Facebook and MySpace are hearsay, and that ultimately getting the information in at trial is going to likely involve getting the same information from a different source,” Weiss says.
In that respect, Weiss thinks social networking websites are merely an investigative tool that give the lawyer information but do not in themselves constitute evidence to rely on at trial.
Likewise, Sheldon M. Finkelstein, Newark, Section Council member, advises practitioners to begin thinking about Internet evidence and the likelihood of its admissibility early, “as early as the Fed Rule 26 (f) conference” so they develop an effective discovery strategy that will serve to authenticate Internet and electronic evidence.
Well-crafted requests for admissions can be used to authenticate such evidence, Finkelstein advises.
Lawyers should also keep in mind that courts are essentially the “gatekeepers” of what evidence comes in at trial, he reminds. Whether it is electronic information or old-fashioned paper, courts will only allow the information into evidence if it is relevant and if it can be properly authenticated, Finkelstein says.
In that respect, information obtained from the Internet differs little from the types of evidence that have been around for centuries, he notes.
The Section presented a program entitled “The New Frontier: Admissibility of Electronic Evidence” nearly two years ago at the ABA Annual Meeting. Those program materials [note: membership required], containing practical tips about the admissibility of electronic evidence, are available online.
Keywords: Litigation, evidence, social networking, Internet
- » Saadi v. Maroun, 2009 U.S. Dist. LEXIS 102879 (M.D. Fla. Nov. 4, 2009).
- » Dockery v. Dockery, 2009 Tenn. App. LEXIS 717 (Tenn. App. Oct. 29, 2009).
- February 5, 2010 – Very informative and relevant article. Much thanks for it.