When it comes to proffering into evidence material taken from websites, the authentication requirement is often the least understood and most overlooked hurdle to admissibility. Ultimately, electronic evidence is subject to the same rules of evidence as paper documents, but although a party seeking to admit an exhibit “need only make a prima facie showing that [the exhibit] is what he or she claims it to be,” practitioners often fail to meet “even this minimal showing” when attempting to introduce electronically stored information (ESI), as in Lorraine v. Markel American Insurance, 241 F.R.D. 534, 542 (D. Md. 2007). According to e-discovery expert U.S. District Judge Paul W. Grimm of the District of Maryland, “The inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation.” With an understanding of the authentication requirement, knowledge of the available methods of authentication, and a little planning, practitioners have the tools to successfully authenticate website content at trial.
The Authentication Requirement
Website content must be authentic to be admissible. Under Federal Rule of Evidence 901(a), authentication “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” For example, a proponent offering evidence obtained from the opposing party’s website must also offer evidence that the website is controlled by the opposing party. Once the proponent produces sufficient evidence to convince a reasonable juror that the proffered evidence is authentic, the burden of production shifts to the objecting party to prove that the evidence is fraudulent. (See “Authentication of Social Media Evidence,” by Grimm, Lisa Yurwit Bergstrom and Melissa M. O’Toole-Loureiro.) If a reasonable juror could find for either party, the trial judge may then admit the evidence conditionally and allow the jury to determine whether to accept or reject the evidence.
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