Voodoo Information: Authenticating Web Pages in Federal Court

M. Anderson Berry, Jones Day
David Kiernan, Jones Day

Abstract

For many litigators, one of the first things they do is see what is available about the opposing party, searching Google, social networking sites and the party’s websites. And during the life of the case, there will likely be other valuable information obtained from the Internet that will be used at deposition or trial. Commonly, the proponent of online evidence will present a “screen shot” of the webpage, which was either downloaded as a .pdf or printed directly from the website. If proper steps are not taken to admit the evidence, the value of this information may be lost.

As with all evidence, the proponent must be prepared to establish that the evidence is relevant, authentic, and not subject to exclusion under the hearsay or best evidence rules. This article focuses on the second evidentiary hurdle: authenticity. Although the burden of authenticating a document is usually quite low, authenticating a screen shot of a website presents an additional challenge, as courts generally view such information with suspicion. As one federal district judge noted, “Anyone can put anything on the Internet. . . . [The Internet is] one large catalyst for rumor, innuendo, and misinformation." It is “voodoo information.”