Thursday, January 21, 2010

"FRE & the Intertron" or "How to Borrow Mr. Peabody's WABAC Machine Without Getting Taken for a Ride"

Ever wondered how to get a web page admitted into evidence at trial? Ever tried and failed, only to be left sobbing uncontrollably? Then this article from is for you: Authenticating Web Pages as Evidence, by M. Anderson Berry and David Kiernan. A taste, to whet your evidentiary appetite:
Although many courts view internet evidence as "voodoo information," with the proper support, authentication should be overcome; overcoming a hearsay objection may be the real challenge. To authenticate a screen shot, the proponent of a screen shot should try to obtain testimony through affidavit, requests for admission, deposition or live testimony from the websites' sponsor or web master. At a minimum, the proponent must obtain from the individual who took the screen shot testimony stating that the image accurately reflects the content of the website and the image of the page on the computer at which the screen shot was made. The best practice would be to draft a declaration immediately after the individual obtains the screen shot. If the evidence is from the opposing party's website, the litigant should try to authenticate at the party's deposition or through a request for admission. And the parties are always free to stipulate to authentication of any documents, including screen shots. Finally, requesting judicial notice should be considered, depending, of course, on the jurisdiction.

Read the whole thing, where you'll learn that there really is a Wayback Machine.

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