INTERNET AND EMAIL EVIDENCE 2011

Gregory P. Joseph*
The explosive growth of the Internet, electronic mail, text messaging and social networks is
raising a series of novel evidentiary issues. The applicable legal principles are familiar this
evidence must be authenticated and, to the extent offered for its truth, it must satisfy hearsay
concerns. The novelty of the evidentiary issues arises out of the novelty of the media thus, it is
essentially factual. These issues can be resolved by relatively straightforward application of existing
principles in a fashion very similar to the way they are applied to other computer-generated evidence
and to more traditional exhibits.

I. Internet Evidence
There are primarily three forms of Internet data that are offered into evidence (1) data posted
on the website by the owner of the site or, in a social networking setting, the creator of a page on the
site (website data); (2) data posted by others with the owners or creators consent (a chat room is
a convenient example); and (3) data posted by others without the owners or creators consent
(hacker material). The wrinkle for authenticity purposes is that, because Internet data is electronic,
it can be manipulated and offered into evidence in a distorted form. Additionally, various hearsay
concerns are implicated, depending on the purpose for which the proffer is made.
A. Authentication
Website Data. Corporations, government offices, individuals, educational institutions and
innumerable other entities post information on their websites, or on social networking websites, that
may be relevant to matters in litigation. Alternatively, the fact that the information appears on the
website may be the relevant point. Accordingly, courts routinely face proffers of data (text or images)
allegedly drawn from websites. The proffered evidence must be authenticated in all cases, and,
depending on the use for which the offer is made, hearsay concerns may be implicated.
The authentication standard is no different for website data or chat room evidence than for any
other. Under Rule 901(a), "The requirement of authentication ... is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims." United States v. Simpson,
152 F.3d 1241, 1249 (10th Cir. 1998); Johnson-Wooldridge v. Wooldridge, 2001 Ohio App. LEXIS
3319 at *11 (Ohio App. July 26, 2001).
In applying this rule to website evidence, there are three questions that must be answered,
explicitly or implicitly:
1. What was actually on the website?
2. Does the exhibit or testimony accurately reflect it?
3. If so, is it attributable to the owner of the site?

In the first instance, authenticity can be established by the testimony or, under Federal Rule of
Evidence 902(11) or (12), a certificationof any witness that the witness typed in the URL
associated with the website (usually prefaced with www); that he or she logged on to the site and
reviewed what was there; and that a printout or other exhibit fairly and accurately reflects what the
witness saw.1 This last testimony is no different than that required to authenticate a photograph,
other replica or demonstrative exhibit.2 The witness may be lying or mistaken, but that is true of all
testimony and a principal reason for cross-examination. Unless the opponent of the evidence raises
a genuine issue as to trustworthiness, testimony of this sort is sufficient to satisfy Rule 901(a),
presumptively authenticating the website data and shifting the burden of coming forward to the
opponent of the evidence. It is reasonable to indulge a presumption that material on a web site
(other than chat room conversations) was placed there by the owner of the site.
The opponent of the evidence must, in fairness, be free to challenge that presumption by
adducing facts showing that proffered exhibit does not accurately reflect the contents of a website,
or that those contents are not attributable to the owner of the site. First, even if the proffer fairly
reflects what was on the site, the data proffered may have been the product of manipulation by
hackers (uninvited third parties).3 Second, the proffer may not fairly reflect what was on the site due
to modification intentional or unintentional, material or immaterial in the proffered exhibit or
testimony. Third, there may be legitimate questions concerning the ownership of the site or
attribution of statements contained on the site.4
Detecting modifications of electronic evidence can be very difficult, if not impossible. That does
not mean, however, that nothing is admissible because everything is subject to distortion. The same
is true of many kinds of evidence, from testimony to photographs to digital images, but that does not
render everything inadmissible. It merely accentuates the need for the judge to focus on all relevant
circumstances in assessing admissibility under Fed.R.Evid. 104(a)5 and to leave the rest to the
jury, under Rule 104(b).6
In considering whether the opponent has raised a genuine issue as to trustworthiness, and
whether the proponent has satisfied it, the court will look at the totality of the circumstances,
including, for example:

The length of time the data was posted on the site.

Whether others report having seen it.

Whether it remains on the website for the court to verify.

Whether the data is of a type ordinarily posted on that website or websites of similar entities (e.g.,
financial information from corporations).

Whether the owner of the site has elsewhere published the same data, in whole or in part.

Whether others have published the same data, in whole or in part.

Whether the data has been republished by others who identify the source of the data as the
website in question.
A genuine question as to trustworthiness may be established circumstantially. For example,

more by way of authentication may be reasonably required of a proponent of Internet evidence who
is known to be a skilled computer user and who is suspected of possibly having modified the
proffered website data for purposes of creating false evidence. 7
In assessing the authenticity of website data, important evidence is normally available from the
personnel managing the website (webmaster personnel). A webmaster can establish that a
particular file, of identifiable content, was placed on the website at a specific time. This may be done
through direct testimony or through documentation, which may be generated automatically by the
software of the web server. It is possible that the content provider the author of the material
appearing on the site that is in issue will be someone other than the person who installed the file
on the web. In that event, this second witness (or set of documentation) may be necessary to
reasonably ensure that the content which appeared on the site is the same as that proffered.
Self-Authentication. Government offices publish an abundance of reports, press releases and
other information on their official web sites. Internet publication of a governmental document on an
official website constitutes an official publication within Federal Rule of Evidence 902(5). 8Under
Rule 902(5), official publications of government offices are self-authenticating. 9
Similarly, newspaper articles taken from the internet may be self-authenticating under
Fed.R.Evid. 902(6) (Newspapers and periodicals. Printed materials purporting to be newspapers
or periodicals). The court may rely on distinctive newspaper and website designs, dates of
publication, page numbers and web addresses.10
Under the 2011 amendments to the Federal Rules of Evidence (effective December 1, 2011),
newspaper and periodical materials that appear only on the web and not in hard copy e.g., a
Reuters, Bloomberg, Dow Jones or AP wire story that may never appear in print anywhere, or an
article in an internet-only publication like Slate are also self-authenticating. Rule 902(6) (quoted in
the preceding paragraph) provides for self-authentication of printed material. Federal Rule of
Evidence 101(b)(6), effective December 1, 2011, expands printed to include the purely electronic,
by providing that: [A] reference to any kind of written material or any other medium includes
electronically stored information. Therefore, Rule 902(6)s reference to printed material extends to
information that never reaches hard copy but exists only in cyber space.
Judicial Notice. Under Federal Rule of Evidence 201(b) and (d), when requested, a court must
take judicial notice of facts that are not subject to reasonable dispute in that it is ... capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned. Government website data particularly data that may be confirmed by the courts
accessing the site are subject to mandatory judicial notice under Rule 201. See, e.g., Denius v.
Dunlap, 330 F.3d 919 (7th Cir. 2003) (district court abused its discretion in withdrawing its judicial

notice of information from National Personnel Records Centers official website); accord Dingle v.
BioPort Corp., 270 F.Supp.2d 968 (W.D. Mich. 2003); Scurmont LLC v. Firehouse Restaurant Grp.,
2011 U.S. Dist. LEXIS 75715 (D. S.C. July 8, 2011) (Courts have ... taken judicial notice, pursuant
to Fed. R. Evid. 201, of information taken from government and media websites.); Chisolm v.
McElvogue, 2011 U.S. Dist. LEXIS 40377 (D.S.C. Mar. 16, 2011) (The Court may take judicial
notice of court records and factual information located in postings on government websites); In re
Katrina Canal Breaches Consol. Litig., No. 05-4182, 2008 U.S. Dist. LEXIS 86538 at *2 (E.D. La.
Sept. 8, 2008) (collecting cases reflecting that federal courts may take judicial notice of
governmental websites, including court records); Renaissance Greeting Cards, Inc. v. Dollar Tree
Stores, Inc., 405 F. Supp. 2d 680, 684 n.9 (E.D. Va. 2005) (taking judicial notice of website
information in trademark infringement action); Lan Lan Wang v. Pataki, 396 F. Supp. 2d 446, 2005
WL 276562, *10 n.2 (S.D.N.Y. 2005) (taking judicial notice of the contents of a website).
A court may take judicial notice of information publicly announced on a party's website, as long
as the website's authenticity is not in dispute and it is capable of accurate and ready determination,
within Fed.R.Evid. 201. Doron Precision Sys., Inc. v. FAAC, Inc., 423 F.Supp.2d 173 (S.D.N.Y.
2006); Town of Southold v. Town of East Hampton, 406 F.Supp.2d 227 (E.D.N.Y. 2005).
Chat Room Evidence. A proffer of chat room postings generally implicates the same authenticity
issues discussed above in connection with web site data, but with a twist. While it is reasonable to
indulge a presumption that the contents of a website are fairly attributable to the sites owner, that
does not apply to chat room evidence. By definition, chat room postings are made by third parties,
not the owner of the site. Further, chat room participants usually use screen names (pseudonyms)
rather than their real names.
Since chat room evidence is often of interest only to the extent that the third party who left a
salient posting can be identified, the unique evidentiary issue concerns the type and quantum of
evidence necessary to make that identification or to permit the finder of fact to do so. Evidence
sufficient to attribute a chat room posting to a particular individual may include, for example:

Evidence that the individual used the screen name in question when participating in chat room
conversations (either generally or at the site in question).

Evidence that, when a meeting with the person using the screen name was arranged, the
individual in question showed up.

Evidence that the person using the screen name identified him- or herself as the individual (in
chat room conversations or otherwise), especially if that identification is coupled with
particularized information unique to the individual, such as a street address or email address.

Evidence that the individual had in his or her possession information given to the person using
the screen name (such as contact information provided by the police in a sting operation).

Evidence from the hard drive of the individuals computer reflecting that a user of the computer
used the screen name in question.

See generally United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000); United States v. Simpson,
152 F.3d 1241, 1249-50 (10th Cir. 1998); United States v. Burt, 495 F.3d 733, 738-39 (7th Cir.
2007); Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1154 (C.D. Cal.
2002). Compare California v. Von Gunten, No. C035261, 2002 WL 501612 (Cal. App. April 4, 2002)
(assault prosecution; email excluded because, inter alia, unlike Tank, the exchange did not include
facts known only to the witness and the fight participant and there was no direct evidence linking
the fight participant to the screen name).
With respect to the dialog itself, a participant in the chat room conversation may authenticate a
transcript with testimony based on firsthand knowledge that the transcript fairly and accurately
captures the chat. Ford v. State, 274 Ga. App. 695, 697-98, 617 S.E.2d 262, 265-66, cert. denied,
2005 Ga. LEXIS 789 (Ga. Sup. Ct. Nov. 7, 2005) (we find this situation analogous to the admission
of a videotape, which is admissible where the operator of the machine which produced it, or one
who personally witnessed the events recorded, testifies that the videotape accurately portrayed what
the witness saw take place at the time the events occurred. Here, [the witness] personally witnessed
the real-time chat recorded in Transcript B as it was taking place, and he testified that the transcript
accurately represented the on-line conversation. Under these circumstances, [his] testimony was
tantamount to that of a witness to an event and was sufficient to authenticate the transcript)
(internal quotations, citations and original brackets deleted); Adams v. Wyoming, 117 P.3d 1210
(2005) (Although [the defendant] questioned the authenticity of this document under W.R.E.
[Wyoming Rule of Evidence]. 901, the State's witnesses testified the entire dialogue was contained
in the folder and no additions or deletions were made; held, authenticity established; best evidence
objection to use of computer printout also overruled because, under Rule 1001(3), [a]n original is
defined as including any computer printout or other readable output of data stored in a computer or
similar device, which is shown to reflect the data accurately.... The State's witness testified that the
chat log exhibits were exact copies of the communication between the parties contained in the
computer and thus, they were either appropriate computer originals or duplicates which were
properly authenticated. Whether they accurately reflected the contents of the instant messages sent
between the parties was an issue for the jury to decide).
Internet Archives. Websites change over time. Lawsuits focus on particular points in time. The
relevant web page may be changed or deleted before litigation begins. Various internet archive
services exist that provide snapshots of web pages at various points in time. To the extent that those
services, in the ordinary course of their business, accurately retrieve and store copies of the website
as it appeared at specified points in time, the stored webpages are admissible. Generally, evidence
from a knowledgeable employee of the internet archive is sufficient to authenticate printouts as
accurate representations of the website at issue at the relevant time. The testimony or certification
should contain the same elements as set forth in I(A)(Website Data), with necessary modifications
(e.g., the retrieval process may be automated, requiring authentication the automated function, such
as that it is used and relied on in the ordinary course of business and produces reliable
results). See, e.g., Telewizja Polska USA, Inc. v. EchoStar Satellite Corp., 2004 U.S. Dist. LEXIS
20845, at *17-!8 (N.D. Ill. Oct. 15, 2004) (Internet archive evidence properly authenticated via

certification of archive employee, presumably offered pursuant to Fed. R. Evid. 902(11)); St. Lukes
Cataract & Laser Inst. v. Sanderson, 2006 U.S. Dist. LEXIS 28873, at *5-*6 (M.D. Fla. May 12,
2006) (exhibits excluded for lack of authentication; held, to show that the printouts from Internet
Archive are accurate representations of the ... websites [at issue] on various dates since 2000,
Plaintiff must provide the Court with a statement or affidavit from an Internet Archive representative
with personal knowledge of the contents of the Internet Archive website.... [A]n affidavit by ... [a]
representative of Internet Archive with personal knowledge of its contents, verifying that the printouts
Plaintiff seeks to admit are true and accurate copies of Internet Archive's records would satisfy
Plaintiff's obligation to this Court); Specht v. Google, Inc., 758 F. Supp. 2d 570 (N.D. Ill. Dec. 17,
2010) (authentication of screen shots from internet archive requires affidavit from knowledgeably
employee of archive); Audi AG v. Shokan Coachworks, Inc., 592 F.Supp.2d 246, 278 (N.D.N.Y.
2008) (internet archive search results require authentication of a knowledgeable employee of the
internet archive); St. Lukes Cataract & Laser Inst., P.A. v. Sanderson, No. 06-CV-223, 2006 U.S.
Dist. LEXIS 28873, 2006 WL 1320242, at *2 (M.D. Fla. May 12, 2006) (Plaintiff must provide the
Court with a statement or affidavit from an Internet Archive representative with personal knowledge
of the contents of the Internet Archive website.).
Evidence that an internet archive reflects that a site carried certain content may be corroborative
of other evidence, such as a download from the site by a witness or testimony from a witness. Under
Federal Rule of Evidence 104(a) and similar state provisions, in making its determination as to the
admissibility of evidence, the court is not bound by the rules of evidence except those with respect
to privileges. With a proper foundation, internet archive evidence may also form part of the basis of
a forensic IT experts testimony, in accordance with the strictures of Federal Rule of Evidence 703
and similar state rules.
Temporary Internet Files. When a computer user accesses the Internet, web browsers like
Microsoft Explorer temporarily store all accessed images in a Temporary Internet Files folder so that,
if the computer user attempts to view the same web page again, the computer is able to retrieve the
page much more quickly. Even deleted images in the Temporary Internet Files folder may be
retrieved and viewed by an expert using an appropriate program, and expert testimony about this
process is sufficient to authenticate the images.11
Search Engines. The results generated by widely recognized search engines, like Google or
Yahoo!, may be pertinent in litigation e.g., a trademark action to show dilution of a mark or a
privacy/right of publicity action to show appropriation of a likeness. See, e.g. McBee v. Delica Co,
417 F.3d 107, 112 (1st Cir. 2005).
Proper authentication would consist of testimony or, under Federal Rule of Evidence 902(11)
or (12), a certification from a witness that the witness typed in the website address of the search
engine; that he or she logged on to the site; the precise search run by the witness; that the witness
reviewed the results of the search; and that a printout or other exhibit fairly and accurately reflects
those results. The witness should be someone capable of further averring that he or she, or the

witnesss employer, uses the search engine in the ordinary course of business and that it produces
accurate results. Further, the testimony or certification should reflect that the witness logged onto
some of the websites identified by the search engine to demonstrate, as a circumstantial matter, that
the particular search generated accurate results.
Social Networking Sites. Electronic conversations on social networking sites are authenticated
in the same way that chat room evidence is generally authenticated. Thus, for example, a
conversation, or chat, on a social networking site is sufficiently authenticated by testimony from a
participant in that conversation that (i) he or she knows the user name on the social networking site
of the person in question, (ii) that printouts of the conversation appear to be accurate records of his
or her electronic conversation with the person, and (iii) a portion of the contents of the
communications are known only to the person or a group of people of whom the person in question
is one.12
Separate from chats comments posted more or less publicly on a page social networks
frequently permit members to send electronic messages to one another. Standing alone, the fact
that an email communication is sent on a social network and bears a persons name is insufficient to
authenticate the communication as having been authored or sent by that person. As discussed
below in connection with email evidence generally, there must be confirming circumstances
sufficient to permit the inference that the purported sender was in fact the author.13
Profile pages on websites raise authentication issues analogous to those raised by websites and
chats. An anonymous personal profile on a social networking may be authenticated through an
admission of the party posting it, a forensic review of the computer or other device of the person
allegedly creating it, evidence from the social networking site, or circumstantial evidence sufficient to
link it to the purported creator of the site.14 In assessing authenticity, it is important to bear in mind
that essentially anyone is free to create a profile page using whatever name they choose, so the
mere existence of a profile page in someones name does not necessarily reflect that the purported
creator had anything to do with its creation.15
B. Hearsay.
Authenticity aside, every extrajudicial statement drawn from a website must satisfy a hearsay
exception or exemption if the statement is offered for its truth. See United States v. Jackson, 208
F.3d 633, 637 (7th Cir.) (The web postings were not statements made by declarants testifying at
trial, and they were being offered to prove the truth of the matter asserted. That means they were
hearsay.), cert. denied, 531 U.S. 973 (2000); Savariego v. Melman, 2002 U.S. Dist. LEXIS 8563 at
*5 (N.D. Tex. 2002) (excluding on summary judgment unauthenticated hearsay from an Internet
search); Monotype Imaging, Inc. v Bitstream Inc., 376 F. Supp. 2d 877, 884-85 (N.D. Ill 2005) (The
Court refused to admit Exhibits 15 and 17 for the truth of the matter asserted in them because these
exhibits are inadmissible hearsay. The Court admitted Exhibits 15 and 17 only for the limited
purpose of proving that the diagrams in those exhibits were displayed on the respective websites on

the dates indicated on the exhibits);United States v. Hernandez, 2007 CCA LEXIS 183 (U.S. NavyMarine Corps Ct. Crim. App. June 12, 2007) (error to admit evidence of telephone call usage drawn
from databases available on the Internet to determine the time zones called and recipients names
because the Internet evidence was categorically hearsay, and the [proponent] failed to establish
any foundation bringing that source within any hearsay exception); Osborn v. Butler, 2010 U.S. Dist.
LEXIS 46083 (D. Idaho May 11, 2010) (authenticated website evidence excluded as hearsay). 16
To establish that material appeared on a website, it is sufficient for a witness with knowledge to
attest to the fact that the witness logged onto the site and to describe what he or she saw. That
obviates any hearsay issue as to the contents of the site. Van Westrienen v. Americontinental
Collection Corp., 94 F.Supp.2d 1087, 1109 (D. Or. 2000) (The only remaining question is whether
the content of the website is hearsay under FRE 801.... Here, [plaintiff], by his own account,
personally viewed the website and submitted an affidavit detailing specifically what he viewed.
Therefore, the contents of the website are not hearsay for purposes of this summary judgment
motion); State v. Rapose, 2004 WL 585856 at *5 (Wash. App. Mar. 25, 2004) (unpublished opinion)
(affirming admission of Internet and email documents because each exhibit was identified and
authenticated by the person testifying from personal knowledge of the contents).
Data Entry. Some website data is entered into Internet-readable format in the same way that a
bookkeeper may enter numbers into a computer. This act of data entry is an extrajudicial statement
i.e., assertive nonverbal conduct within Rule 801(a) which means that the product is hearsay,
within Rule 801(c). Since each level of hearsay must satisfy the hearsay rule, under Rule 805
(Hearsay within Hearsay), the act of data entry must be addressed separately from the content of
the posted declaration.
Data entry is usually a regularly-conducted activity within Rule 803(6) (or, in the context of a
government office, falls within Rule 803(8) (public records exception)). It also often falls within Rule
803(1) (present sense impression exception).
The real question about the data entry function is its accuracy. This is, in substance, an issue of
authenticity and should be addressed as part of the requisite authentication foundation whenever a
genuine doubt as to trustworthiness has been raised. If the foundational evidence establishes that
the data have been entered accurately, the hearsay objection to the data entry function should
ordinarily be overruled. See also Rule 807 (residual exception).
Much Internet evidence does not involve data entry, in the sense described above. If the
webmaster is simply transferring an image or digitally converting an electronic file into web format,
that is a technical process that does not involve assertive non-verbal conduct within Rule 801(a) and
is best judged as purely an authentication issue. The difference, analytically, is between the grocery
store clerk who punches the price into the check-out computer (this is assertive non-verbal conduct),
and the clerk who simply scans the price into the computer (non-assertive behavior). Only assertive

non-verbal conduct raises hearsay issues and requires an applicable hearsay exception or
exemption.
Business and Public Records. Businesses and government offices publish countless
documents on their websites in ordinary course. Provided that all of the traditional criteria are met,
these documents will satisfy the hearsay exception for records of the business or public office
involved, under Rules 803(6) or (8). Reliability and trustworthiness are said to be presumptively
established by the fact of actual reliance in the regular course of an enterprise's activities. JohnsonWooldridge v. Wooldridge, 2001 Ohio App. LEXIS 3319 at *12-*13 (Ohio App. July 26, 2001)
(Internet public record). (Recall that public records which satisfy Rule 803(8) are presumptively
authentic under Rule 901(b)(7) (if they derive from a "public office where items of this nature are
kept") and even self-authenticating under Rule 902(5) (discussed above in note 6 and the
accompanying text).)
As long as the website data constitute business or public records, this quality is not lost simply
because the printout or other image that is proffered into evidence was generated for litigation
purposes. Each digital data entry contained on the website is itself a Rule 803(6) or (8) "record"
because it is a "data compilation, in any form." 17 Consequently, if each entry has been made in
conformance with Rule 803(6) or Rule 803(8), the proffered output satisfies the hearsay exception
even if it: (a) was not printed out at or near the time of the events recorded (as long as the entries
were timely made), (b) was not prepared in ordinary course (but, e.g., for trial), and (c) is not in the
usual form (but, e.g., has been converted into graphic form).18 If the data are simply downloaded into
a printout, they do not lose their business-record character. To the extent that significant selection,
correction and interpretation are involved, their reliability and authenticity may be questioned. 19
While website data may constitute business records of the owner of the site, they are not
business records of the website hosting company. This is a service that may be provided by an
Internet service provider (e.g., America Online, MSN, ATT), and the cases frequently blend the two
concepts in discussing the function of website hosting companies. Internet service providers...are
merely conduits.... The fact that the Internet service provider may be able to retrieve information that
its customers posted...does not turn that material into a business record of the Internet service
provider. United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000) (The Internet service
providers did not themselves post what was on [the relevant] web sites. [Defendant] presented no
evidence that the Internet service providers even monitored the contents of those web sites.).
Rules 803(6) and (8) effectively incorporate an authentication requirement. Rule 803(6)
contemplates the admission of hearsay, if its criteria are satisfied, "unless the source of information
or the method or circumstances of preparation indicate lack of trustworthiness." Rule 803(8)
contains substantially identical language. This trustworthiness criterion parallels the Rule 901(a)
requirement of "evidence sufficient to support a finding that the matter in question is what its
proponent claims." As a result, untrustworthy proffers of business or public records may be excluded
on hearsay as well as authenticity grounds.20

Market Reports & Tables. Rule 803(17) excepts from the hearsay rule Market quotations,
tabulations, lists, directories, or other published compilations, generally used and relied upon by the
public or by persons in particular occupations. A number of cases have applied this rule to
commercial websites furnishing such data as interest rates21 and blue-book prices of used
cars.22 This rationale plainly extends to the other sorts of traditional information admitted under Rule
803(17), such as tables reflecting the prices of such items as stock, bonds and currency; real estate
listings; and telephone books.
Admissions. Website data published by a litigant comprise admissions of that litigant when
offered by an opponent.23 Accordingly, even if the owner of a website may not offer data from the
site into evidence, because the proffer is hearsay when the owner attempts to do so, an opposing
party is authorized to offer it as an admission of the owner.24 However, the fact that a litigant posts
on its website material from another website may not constitute an admission as to the contents of
the second website, depending on whether or not the posting is deemed to constitute an adoptive
admission.25
The postings of a party in a chat room conversation constitute admissions, and the non-partys
half of the conversation is commonly offered not for the truth of the matter asserted (although it
could be) but, rather, to provide context for the partys statements, which comprise admissions. 26
Non-Hearsay Proffers. Not uncommonly, website data is not offered for the truth of the matters
asserted but rather solely to show the fact that they were published on the web, either by one of the
litigants or by unaffiliated third parties. For example, in a punitive damages proceeding, the fact of
Internet publication may be relevant to show that the defendant published untruths for the public to
rely on.27 Or, in a trademark action, Internet listings or advertisements may be relevant on the issue
of consumer confusion or purchaser understanding.28 In neither of these circumstances is the
website data offered for its truth. Accordingly, no hearsay issues arise. Similarly, when a chat room
discussion is offered against a party who participated in it, the non-partys half of the conversation is
commonly offered not for the truth of the matter asserted (although it could be) but, rather, to provide
context for the partys statements, which comprise admissions. 29
Because chats are conducted using screen names, an exhibit may be prepared that substitutes
real names (otherwise established) for screen names. The Seventh Circuit has ruled that altering
otherwise-authenticated chat room postings by substituting real names for screen names does not
implicate hearsay concerns but, rather, converts the exhibit into a demonstrative exhibit, admissible
in the discretion of the court, subject to Federal Rule of Evidence 403. 30
Judicial Skepticism. As they were with computerized evidence prior to the mid-1990s, some
judges remain skeptical of the reliability of anything derived from the Internet. 31 While there is no
gainsaying a healthy judicial skepticism of any evidence that is subject to ready, and potentially
undetectable, manipulation, there is much on the web which is not subject to serious dispute and
which may be highly probative. To keep matters in perspective, there is very little in the way of

traditional documentary or visual evidence that is not subject to manipulation and distortion. As with
so many of the trial judges duties, this is a matter that can only be resolved on a case- by-case
basis.

II. Email Evidence

Like Internet evidence, email evidence raises both authentication and hearsay issues. The
general principles of admissibility are essentially the same since email is simply a distinctive type of
Internet evidence namely, the use of the Internet to send personalized communications.
A. Authentication
The authenticity of email evidence is governed by Federal Rule of Evidence 901(a), which
requires only evidence sufficient to support a finding that the matter in question is what its
proponent claims. Under Fed.R.Evid. 901(b)(4), email may be authenticated by reference to its
appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances. See generally United States v. Siddiqui, 235 F.3d 1318, 1322 (11th
Cir. 2000); Bloom v. Comw. of VA., 34 Va. App. 364, 370, 542 S.E.2d 18, 20-21, affd, 262 Va. 814,
554 S.E.2d 84 (2001).
If email is produced by a party opponent from the partys files and on its face purports to have
been sent by that party, these circumstances alone may suffice to establish authenticity when the
email is offered against that party.32 Further, a partys failure to challenge as inauthentic emails sent
by it or its counsel may be deemed sufficient evidence of the emails authenticity.33 Authenticity may
also be established by testimony of a witness who sent or received the emails in essence, that
the emails are the personal correspondence of the witness. 34 Testimony from a witness with
knowledge that the emails were exchanged with another person comprises prima facie evidence of
authenticity.35 If, however, an unsolicited email is received ostensibly from a sender whom the
recipient has never been in contact with, mere testimony from the recipient may be insufficient to link
it to the person whose name appears as sender.36 Testimony from a witness (at least, a hostile
witness) that email appeared to be written in her style and that the content of the email which
was familiar to the witness would by its nature be known to few others may suffice to constitute
circumstantial evidence of authentication.37
It is important, for authentication purposes, that email generated by a business or other entity on
its face generally reflects the identity of the organization. The name of the organization, usually in
some abbreviated form, ordinarily appears in the email address of the sender (after the @ symbol).
This mark of origin has been held to self-authenticate the email as having been sent by the
organization, under Fed.R.Evid. 902(7), which provides for self-authentication of: Trade inscriptions
and the like.--Inscriptions, signs, tags, or labels purporting to have been affixed in the course of
business and indicating ownership, control, or origin. See Superhighway Consulting, Inc. v.
Techwave, Inc., 1999 U.S.Dist.LEXIS 17910 at *6 (N.D.Ill. Nov. 15, 1999). Where the email reflects

the entire email name of a party (and not just the mark of origin), it has been held to comprise a
party admission of origin.38
Independently, circumstantial indicia that may suffice to establish that proffered email were sent,
or were sent by a specific person, include evidence that:

A witness or entity received the email.

The email bore the customary format of an email, including the addresses of the sender and
recipient.39

The address of the recipient is consistent with the email address on other emails sent by the
same sender. 40

The email contained the typewritten name or nickname of the recipient (and, perhaps, the sender)
in the body of the email.41

The email contained the electronic signature of the sender.42

The email recited matters that would normally be known only to the individual who is alleged to
have sent it (or to a discrete number of persons including this individual).

The email was sent in reply to one sent to person ostensibly replying. 43

Following receipt of the email, the recipient witness had a discussion with the individual who
purportedly sent it, and the conversation reflected this individuals knowledge of the contents of
the email.
See generally United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000). See also

United States v. Safavian, 435 F. Supp. 2d 36, 40 (D.D.C. 2006) (emails admissible pursuant to (1)
Fed.R.Evid. 901(b)(4) because they bear many distinctive characteristics, including the actual email addresses containing the @ symbol, ... the name of the person connected to the address...[,]
the name of the sender or recipient in the bodies of the e-mail, in the signature blocks at the end of
the e-mail, in the To: and From: headings, and by signature of the sender [and t]he contents of the
e-mails also authenticate them as being from the purported sender and to the purported recipient,
containing as they do discussions of various identifiable matters, and (2) Fed.R.Evid. 901(b)(3),
under which otherwise unauthenticated emails may be authenticated by the jury, which may
compare them to the emails authenticated pursuant to Rule 901(b)(4));State v. Taylor, 632 S.E.2d
218, 231 (N.C. App. 2006) (quoting and following Safavian);Dominion Nutrition, Inc. v. Cesca, 2006
U.S. Dist. LEXIS 15515, at *16 (N.D. Ill. March 2, 2006) (E-mail communications may be
authenticated as being from the purported author based on an affidavit of the recipient; the e-mail
address from which it originated; comparison of the content to other evidence; and/or statements or
other communications from the purported author acknowledging the e-mail communication that is
being authenticated.) (quoting Fenje v. Feld, 301 F. Supp. 2d 781, 809 (N.D. Ill. 2003), aff'd, 398
F.3d 620 (7th Cir. 2005)); Bloom v. Comw. of Virginia, 34 Va. App. 364, 370, 542 S.E.2d 18, 20-21

(2001); Massimo v. State, 144 S.W.3d 210, 215-16 (Tex. App. 2004) (unpublished opinion); Simon v.
State, 279 Ga. App. 844, 847-48, 632 S.E.2d 723, 726-27 (2006); Swanton v. Brigeois-Ashton, 2006
Wash. App. LEXIS 2067, at *6-*7 (Wash App. Sept. 18, 2006); cf. Doe v. Nevada, 2006 U.S. Dist.
LEXIS 63971, at *38 (D. Nev. 2006) (email deemed unauthenticated absent proper authentication,
or other evidence indicating that the email was sent or that [the alleged recipient] actually received
the document); Hardin v. Belmont Textile Mach. Co., 2010 U.S. Dist. LEXIS 61121 (W.D.N.C. June
7, 2010) (Like inSafavian, the distinctive characteristics of Hardin's emails allow for their
authentication. The e-mails in this case are provided on a printout that is in the familiar Microsoft
Outlook format..., and they provide many distinctive characteristics, including . . . the name of the
person connected to the address. ... The e-mails also discuss various identifiable matters related to
Hardin's employment ... which sufficiently authenticate the e-mails as being what its proponent
claims.); EEOC v. Olsten Staffing Servs. Corp., 2009 U.S. Dist. LEXIS 88903 (W.D. Wis. Sept. 28,
2009) (even without a custodian, e-mails may be authenticated through the e-mail addresses in the
headers and other circumstantial evidence, such as the location where the e-mail was found); State
v. Pullens, 281 Neb. 828 (Neb. Sup. Ct. 2011) (inclusion of senders social security and telephone
numbers); Gary v. Combined Grp. Ins. Servs., Inc., 2009 WL 2868485, at *6 (N.D. Tex. Sept. 4,
2009) (Because [the exhibits] have distinctive e-mail characteristics and because Plaintiff has
stated in her affidavit that she wrote and sent these emails, the Court finds that they meet the
threshold for authentication for summary judgment purposes.); Cantu v. VS. Vitol, Inc., 2011 U.S.
Dist. LEXIS 11512 (S.D. Tex. Feb. 7, 2011) (Courts have found that emails are properly
authenticated by testimony as to their authenticity and distinctive characteristics of emails.... The
emails have the distinctive characteristics of emails.... Vitols human resources director, testified in a
sworn affidavit that he collected the emails from Vitols email system.... They are properly
authenticated); Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 941 N.E.2d 1143 (2011).
In evaluating circumstantial evidence of authenticity, there is a distinction to be drawn between
an email address that is, on its fact, linked to a business (e.g., @pepsi.com) and an email address
from a publicly available service (e.g., @gmail.com). The inference of authenticity is stronger in the
former circumstance because, from the address, it appears that an employer has assigned an email
address to an employee. Free public email services allow anyone to appropriate any username they
choose, subject to availability.44
As with all other forms of authentication, the testimony of a witness with knowledge is
prerequisite to authenticate email. Petroleum Sales, Inc. v. Valero Refining Co., 2006 U.S. Dist.
LEXIS 90419, at *32 (N.D. Cal. Dec. 14, 2006) (emails excluded on summary judgment absent any
evidence of the accuracy or genuineness of the documents based on personal knowledge or
otherwise); Ryan v. Shawnee Mission Unified School Dist., 437 F.Supp.2d 1233, 1235-36 (D. Kan.
2006) (same; arguably dicta). It is insufficient to proffer email through a witness with no knowledge
of the transmissions at issue, unless the witness has sufficient technical knowledge of the process to
be in a position to authenticate the email through expert testimony. See, e.g., Richard Howard, Inc.
v. Hogg, 1996 Ohio App. LEXIS 5533 at *8 (Ohio App. Nov. 19, 1996) (affirming exclusion of email
where the authenticating witness was neither the recipient nor the sender of the E-mail

transmissions and he offered no other details establishing his personal knowledge that these
messages were actually sent or received by the parties involved. Furthermore, the transmissions
were not authenticated by any other means).
Transcriptions of email or text message exchanges, the originals of which have been lost
through no fault of the proponent, may be authenticated by testimony of a witness with knowledge
that he or she transcribed them and that they accurately reflect the contents of the email or text
message exchange. See, e.g., United States v. Culberson, 2007 U.S. Dist. LEXIS 31044 (E.D. Mich.
April 27, 2007) (cell phone text messages transcribed before ISP deleted them); Laughner v.
Indiana, 769 N.E.2d 1147 (Ind. App. 2002) (AOL instant messages).
There are a variety of technical means by which email transmissions may be traced. See, e.g.,
Clement v. California Dept of Corrections, 2002 U.S. Dist. LEXIS 17426 at *32 (N.D. Cal. Sept. 9,
2002) (major e-mail providers include a coded Internet Protocol address (IP address) in the header
of every e-mail.... The IP address allows the recipient of an e-mail to identify the sender by
contacting the service provider). Therefore, if serious authentication issues arise, a technical
witness may be of assistance.45 This may become important, for example, in circumstances where a
person or entity denies sending an email, or denies receipt of an email and has not engaged in
conduct that furnishes circumstantial evidence of receipt (such as a subsequent communication
reflecting knowledge of the contents of the email). See, e.g., Hood-OHara v. Wills, 873 A.2d 757,
760 & n.6 (Pa. Super. 2005) (authenticity not established where person to whom email name
belonged denied sending email and testified that problems in the past had required her to modify
her email account on at least one prior occasion); Ellison v. Robertson, 189 F.Supp.2d 1051, 1057
n.7 (C.D. Cal. 2002) (Plaintiff has provided no evidence that AOL actually did receive the email. To
the contrary, Plaintiff's former counsel states that while she received an acknowledgment of receipt
for her April 17, 2000, email from [a local Internet provider], no such acknowledgment came from
AOL); Carafano v. Metrosplash.com, Inc., 207 F.Supp.2d 1055, 1072 (C.D. Cal. 2002) (Plaintiff
provides no evidence that [defendant Internet service] ever received the reply email in response to
its welcome confirmation email).
Absent a showing of reason to disbelieve a senders or recipients representations concerning
the authenticity of email, the court may decline to permit discovery into the computer system of the
sender/recipient in light of the intrusion that forensic discovery would involve.Williams v. Mass. Mut.
Life Ins. Co., 226 F.R.D. 144, 146 (N.D. Ill 2005).
While it is true that an email may be sent by anyone who, with a password, gains access to
anothers email account, similar uncertainties exist with traditional documents. Therefore, there is no
need for separate rules of admissibility. See, e.g., Interest of F.P., 878 A.2d 91 (Pa. Super. 2005)
(just as an email can be faked, a signature can be forged; a letter can be typed on another's
typewriter; distinct letterhead stationary can be copied or stolen. We believe that e-mail messages
and similar forms of electronic communication can be properly authenticated within the existing
framework of Pa. R.E. 901 and Pennsylvania case law.).

B. Hearsay
The hearsay issues associated with email are largely the same as those associated with
conventional correspondence. An email offered for the truth of its contents is hearsay and must
satisfy an applicable hearsay exception. See, e.g., Hood-OHara v. Wills, 873 A.2d 757, 760 (Pa.
Super. 2005).46
The prevalence and ease of use of email, particularly in the business setting, makes it attractive
simply to assume that all email generated at or by a business falls under the business-records
exception to the hearsay rule. That assumption would be incorrect, although the cases are not
entirely in accord as to where precisely to draw the line between business-record emails and nonbusiness emails.
What Is a Business Record? Or a Present Sense Impression? In United States v. Ferber, 966
F.Supp. 90 (D. Mass. 1997), the government offered into evidence a multi-paragraph email from a
subordinate to his superior describing a telephone conversation with the defendant (not a fellow
employee). In that conversation, the defendant inculpated himself, and the email so reflected. Chief
Judge Young rejected the proffer under Fed.R.Evid. 803(6) because, while it may have been [the
employees] routine business practice to make such records, there was not sufficient evidence that
[his employer] required such records to be maintained.... [I]n order for a document to be admitted as
a business record, there must be some evidence of a business duty to make and regularly maintain
records of this type. Id., 996 F.Supp. at 98. The Ferber Court nonetheless admitted the email, but
under 803(1), the hearsay exception for present sense impressions. 47 See also State of New York v.
Microsoft Corp., 2002 U.S. Dist. LEXIS 7683 at *9 (D.D.C. April 12, 2002) (While Mr. Glaser's email
[recounting a meeting] may have been kept in the course of RealNetworks regularly conducted
business activity, Plaintiffs have not, on the present record, established that it was the regular
practice of RealNetworks employees to write and maintain such emails.) (separately holding the
present sense impression exception inapplicable); Rambus, Inc. v. Infineon Techs. AG, 348 F. Supp.
2d 698, 707 (E.D. Va. 2004) (Email is far less of a systematic business activity than a monthly
inventory printout), quotingMonotype Corp. v. Intl. Typeface Corp., 43 F.3d 443, 450 (9th Cir.
1994); Trade Finance Partners, LLC v. AAR Corp, 2008 U.S. Dist. LEXIS 32512 (N.D. Ill. Mar. 31,
2008) (email from defendants principal recounting conversation with non-party held not a present
sense impression but an inadmissible calculated narration).
Cases finding email, in various circumstances, to constitute business records include: United
States v. Stein, 2007 U.S. Dist. LEXIS 76201 (S.D.N.Y. Oct. 15, 2007) (rejecting the contention that
the proponent must show[] that the e-mails at issue were created pursuant to established company
procedures for the systematic or routine making of company records. Held, regularity of making
such records and of the business activity is all that is required. Although the phrase business duty
appears frequently in Rule 803(6) cases, the defendants read the phrase too narrowly. The phrase
business duty is used interchangeably with phrases such as [being] part of a business routine or
[acting] in the regular course to describe the requirement that the declarant be someone inside the

business, not a third party); LeBlanc v. Nortel Networks Corp., 2006 U.S. Dist. LEXIS 17785, at *16
(M.D. Ga. March 30, 2006) (finding emails likely to be admissible under the business records
exception of Fed.R.Evid. 803(6)); State v. Sherrills, 2008 Ohio 1950, 2008 Ohio App. LEXIS 1662
(Ohio App. April 24, 2008) (properly authenticated emails sent by criminal defendant established to
be business records of IT Security Manager, who had custody and control of the server that
captured all emails sent from the business) (note: this appears to be an authentication analysis
framed in hearsay terms, which is understandable in light of the trustworthiness requirement of Rule
803(6)); State v. Reynolds, 2007 Iowa App. LEXIS 232 (Iowa App. Feb. 28, 2007) (email received by
Bank from Federal Reserve in ordinary course of business admissible in light of evidence that [t]he
bank customarily kept these reports and relied upon them as part of its business).
Hearsay within Hearsay. Because business records are written without regard for the rules of
evidence, they commonly contain multiple layers of hearsay. Under Federal Rule of Evidence
805,48 each layer of hearsay must independently satisfy an exception to the hearsay rule. Absent
that, any hearsay portion of an email that is offered for the truth 49 will be excluded. See, e.g., State
of New York v. Microsoft Corp., 2002 U.S. Dist. LEXIS 7683 at *14 (D.D.C. April 12, 2002) (If both
the source and the recorder of the information, as well as every other participant in the chain
producing the record, are acting in the regular course of business, the multiple hearsay is excused
by Rule 803(6). If the source of the information is an outsider, Rule 803(6) does not, by itself, permit
the admission of the business record. The outsider's statement must fall within another hearsay
exception to be admissible because it does not have the presumption of accuracy that statements
made during the regular course of business have) (citation omitted);

Trade Finance Partners,

LLC v. AAR Corp, 2008 U.S. Dist. LEXIS 32512 (N.D. Ill. Mar. 31, 2008) (email from defendants
principal recounting conversation with non-party excluded; catchall exception of Fed.R.Evid. 807 not
satisfied).
Admission of Party Opponent. Under Fed.R.Evid. 801(d)(2),50[50] emails sent by party
opponents constitute admissions and are not hearsay. See, e.g., United States. v. Brown, 459 F.3d
509, 528 n. 17 (5th Cir. 2006); United States v. Safavian, 435 F. Supp. 2d 36, 43-44 (D.D.C.
2006); MGM Studios, Inc. v. Grokster, Ltd., 454 F. Supp. 2d 9636063, 973-74 (C.D. Cal.
2006);Riisna v. ABC, Inc., 2002 U.S. Dist. LEXIS 16969 at *9-*10 (S.D.N.Y. Sept. 11, 2002); State v.
Hibberd, 2006 Wash. App. LEXIS 11151, at *24-*25 (Wash. App. June 14, 2006). The email address
itself, which reflects that it originates from a party, may be admissible as a party
admission. Middlebrook v. Anderson, 2005 U.S. Dist. LEXIS 1976, at *14 (N.D. Tex. Feb. 11, 2005)
(jurisdictional motion). See also Discover Re Managers, Inc. v. Preferred Employers Group, Inc.,
2006 U.S. Dist. LEXIS 71818, at *22 (D. Conn. Sept. 29, 2006) (e-mail correspondence with their email addresses designating where they may be located [i.e., reflecting the authors respective
corporate employers names after the @ symbol] combined with the subject matter of the e-mail
itself coupled with testimony of a witness with knowledge constitutes sufficient circumstantial
evidence of the authors agency relationships with their corporate employers for purposes of
Fed.R.Evid. 801(d)).

Further, an email from a party opponent that forwards another email may comprise an adoptive
admission of the original message, depending on the text of the forwarding email. Sea-Land Serv.,
Inc. v. Lozen Intl, LLC, 285 F.3d 808, 821 (9th Cir. 2002) (one of plaintiffs employees incorporated
and adopted the contents of an email message from a second of plaintiffs employees when she
forwarded it to the defendant with a cover note that manifested an adoption or belief in [the] truth of
the information contained in the original email, within Fed.R.Evid. 801(d)(2)(B)). If there is not an
adoptive admission, however, the forwarded email chain may comprise hearsay-withinhearsay. Rambus, Inc. v. Infineon Techs. AG, 348 F. Supp. 2d 698, 707 (E.D. Va. 2004).
Excited Utterance. In dicta, the Oregon Court of Appeals has indicated that, in appropriate
circumstances, an email message might fall within the excited utterance exception to the hearsay
rule. State v. Cunningham, 40 P.3d 1065, 1076 n.8 (2002). (The federal excited utterance exception,
contained in Fed.R.Evid. 803(2),51 is identical to the Oregon exception, Oregon Rule 803(2).)
State of Mind. Email may be admissible to demonstrate a partys then-existing state of mind,
within Fed.R.Evid. 803(3). United States v. Safavian, 435 F. Supp. 2d 36, 44 (D.D.C. 2006);Dodart v.
Young Again Prods., 2006 U.S. Dist. LEXIS 72122, *78-*79 (D. Utah Sept. 29, 2006);Leelanau Wine
Cellars, Ltd. v. Black & Red, Inc., 452 F. Supp. 2d 772, 786 (W.D. Mich. 2006). Email may also be
admissible to prove state of mind as non-hearsay under Fed.R.Evid. 801(c).United States. v. Brown,
459 F.3d 509, 528 n. 17 (5th Cir. 2006).
Other Non-Hearsay Uses. Not all extrajudicial statements are hearsay or, more precisely, need
not be offered for hearsay purposes. The contents of an authenticated email may, for example,
constitute a verbal act e.g., constitute defamation or the offer or acceptance of a
contract. Middlebrook v. Anderson, 2005 U.S. Dist. LEXIS 1976, at *14 (N.D. Tex. Feb. 11, 2005)
(jurisdictional motion); Tibbetts v. RadioShack Corp., 2004 U.S. Dist. LEXIS 19835, at *45 (N.D. Ill.
Sept. 30, 2004).
An email may itself reflect the conduct at issue. See United States v. Safavian, 435 F. Supp. 2d
36, 44 (D.D.C. 2006) (certain emails themselves comprised lobbying work of defendant Jack
Abramoff).
Email may be received reflect (as opposed to assert) consumer confusion in a trademark
infringement or unfair competition action. Dodart v. Young Again Prods., 2006 U.S. Dist. LEXIS
72122, *77-*78 (D. Utah Sept. 29, 2006).
Email may be admitted to reflect the fact of third party statements. Damon's Restaurants, Inc. v.
Eileen K Inc., No. C2 04 1028, 2006 WL 3290891 (S.D. Ohio Nov. 13, 2006) (consumer complaints
in a franchise dispute); United States v. Dupre, 462 F.3d 131 (2d Cir. 2006) (non-testifying investors
emails admitted in fraud prosecution to provide context for emails sent by defendant, which were
admissions pursuant to Rule 801(d)(2)).

An email may also be admissible to show a non-partys state of mind. See Trade Finance
Partners, LLC v. AAR Corp, 2008 U.S. Dist. LEXIS 32512 (N.D. Ill. Mar. 31, 2008) (email from nonparty to defendant admissible to show non-party strongly disfavored new long term contracts with
[defendant]).
Email Address. A partys chosen email address may itself be admissible as evidence of the
partys state of mind. See, e.g. Illinois v. Mertz, 218 Ill.2d 1, 842 N.E.2d 618 (2005), reh'g denied
(Jan. 23, 2006) (murder prosecution; proper for trial court to admit evidence that defendant's email
address was Cereal Kilr 2000 because it provided insight into his frame of mind).
C. Privilege
Privilege issues particularly, waiver issues arise in a number of ways in connection with
email.
First, a question of waiver may be presented depending on the security of (and reasonable
expectation of privacy for) any email that is sent over a particular email system. Privilege may be
lost by using an email system that is known by the user to be open to inspection by a person outside
the privileged relationship. Thus, for example, an employees use of a corporate computer to
transmit or receive privileged communications waives the privilege when the employee is on notice
that the employer reserves the right to review the communications. United States v. Etkin, 2008 U.S.
Dist. LEXIS 12834 (S.D.N.Y. Feb. 19, 2008) (employees do not have a reasonable expectation of
privacy in the contents of their work computers when their employers communicate to them via a
flash-screen warning when they log on a policy under which the employer may monitor or inspect
the computers at any time); In Re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005)
(four-part waiver test: (1) does the corporation maintain a policy banning personal or other
objectionable use, (2) does the company monitor the use of the employee's computer or e-mail, (3)
do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify
the employee, or was the employee aware, of the use and monitoring policies?); Curto v. Medical
World Communs., Inc., , 2006 U.S. Dist. LEXIS 29387 (E.D.N.Y. May 15, 2006) (no waiver where
employee deleted all her personal files, including emails, from two company-issued laptops before
returning them to her employer, where the laptops were not connected to the corporate server, and
there was no monitoring of her email traffic during her employment; irrelevant that, two years later,
her employers forensic computer consultant was able to retrieve deleted data from the laptops).
Second, waiver issues arise in connection with the logging of privileged emails in accordance
with provisions such as Federal Rule of Civil Procedure 26(b)(5)(A), which requires a privilege log
identifying all relevant information that is subject to a claim of attorney-client privilege or work
product protection.
Failure to log a privileged email that its not produced may be held to waive the privilege
otherwise attaching to the email. Compare Nnebe v. Daus, 2007 U.S. Dist. LEXIS 32981 (S.D.N.Y.

May 3, 2007) (?Withholding privileged materials without including the material on a privilege log
pursuant to Rule 26(b)(5) may be viewed as a waiver of the privilege or protection. Fed. R. Civ. P.
26 advisory committee's note) with C.T. v. Liberal School District, 2007 U.S. Dist. LEXIS 38177 (D.
Kan. May 24, 2007) (While the court could find that plaintiff ... has waived his claims of privilege due
to the insufficiency of his privilege log, in the absence of bad faith on the part of the non-moving
party in preparing the ... privilege log, ... the Court will decline to find waiver and instead require the
non-moving party to supplement his privilege log).
Even logging a privileged email may be insufficient to afford protection to attachments to the
email, unless the attachments are themselves logged. C.T. v. Liberal School Dist., 2008 U.S. Dist.
LEXIS 5863 (D. Kan. Jan. 25, 2008) (where plaintiff listed a series of emails on his privilege log, but
did not separately list the attachments, held: any claim of privilege plaintiff might wish to raise as to
those documents has been waived, and the attached documents, to the extent they are responsive
to defendants' document requests, shall be produced. Plaintiff has had ample opportunity to list
these attachments on ... the privilege logs....).
Third, privilege may attach to otherwise unprivileged emails that are sent to an attorney in the
course, and for the purpose, of obtaining legal advice. Barton v. Zimmer Inc., 2008 U.S. Dist. LEXIS
1296 (N.D. Ind. Jan. 7, 2008) (the very fact that non-privileged information was communicated to an
attorney may itself be privileged, even if that underlying information remains unprotected. As
applied to e-mails, this means that even though one e-mail is not privileged, a second e-mail
forwarding the prior e-mail to counsel might be privileged in its entirety....). Nevertheless, the
transmitted, inherently unprivileged email will have to be produced in some form. If it were not, that
would raise serious spoliation issues.
D. Text Messages
Authenticity. Text messages are effectively emails sent by cell phone but they present unique
problems because they are transitory. A recurring factual scenario involves one party transcribing or
copying text messages only to realize thereafter that the texts have been purged by the carrier.
Generally, testimony of accurate transcription, together with whatever other corroboration may be
available, is sufficient prima facie evidence of authenticity. For example, in United States v.
Culberson, 2007 U.S. Dist. LEXIS 31044 (E.D. Mich. April 27, 2007), a drug conspiracy prosecution,
the DEA executed a search warrant to obtain, inter alia, the defendants cell phone. The DEA agent
found text messages found on the phone. He testified that he accurately transcribed all texts
verbatim, including the time, date and all senders and recipients. He did not immediately print out
the texts and, two weeks later, when the agent reviewed the phone again, he realized that the
contents were no longer stored on it. A subpoena served on the carrier was fruitless because the
carrier had purged the texts from its system as well. The government sought to introduce the written
transcript as evidence at trial, and the defense objected because it did not have an opportunity to
review the original emails. The CulbersonCourt held that, under the liberal standards of Fed.R.Evid.

901(a), the transcription was held sufficiently authenticated by the testimony of (i) the agent, (ii) one
of the co-conspirators, and (iii) perhaps other co-conspirators as to the accuracy of the transcription.
Best Evidence. Transcriptions of text messages have been held not to violate the best evidence
rule if the proponent satisfies Fed.R.Evid. 1004(1), which provides that an original is not required
when [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in
bad faith.... See United States v. Culberson, 2007 U.S. Dist. LEXIS 35276 (E.D. Mich. May 15,
2007) (holding that the defendant failed to carry his burden of establishing bad faith and that the
DEA agents testimony that the emails were unavailable, and that they could not be obtained from
cell phone carriers, was sufficient to establish unavailability); State v. Espiritu, 117 Haw. 127, 176
P.3d 885 (Haw. Sup. Ct. 2008) (Although HRE [Hawaii Rule of Evidence] Rule 1002 would
ordinarily preclude the admission of testimony about the text messages because such testimony is
not an original, the testimony here is admissible because HRE Rule 1004 applies to the text
messages such that other evidence may be admitted to prove the content of the text messages.
HRE Rule 1004 provides an exception to the original writings requirement of HRE Rule 1002.... The
plain language of HRE Rule 1004 states that an original or duplicate is not required to prove the
contents of a writing or recording so long as the originals are lost or destroyed and such loss or
destruction was not due to the bad faith of the proponent of the evidence).
Hearsay. The Hawaii Supreme Court relied on the exception for refreshed recollection under the
state equivalent of Federal Rule of Evidence 612 to affirm the introduction of text messages read
into the record from a police report, in State v. Espiritu, 117 Haw. 127, 176 P.3d 885 (Haw. Sup. Ct.
2008) (Petitioner's argument that the Complainant was not using the report to refresh her memory
but was instead using the report to recite verbatim the text messages is unpersuasive.... Petitioner
accurately recalled the gist or the general nature of each text message prior to viewing the police
report).

BACK

Gregory P. Joseph Law Offices LLC, New York. President, American College of Trial Lawyers

(2010-11); Chair, American Bar Association Section of Litigation (1997-98); member, U.S. Judicial
Conference Advisory Committee on the Federal Rules of Evidence (1993-99). Editorial Board,
Moores Federal Practice (3d ed.). Author, Modern Visual Evidence (Supp. 2011); Sanctions: The
Federal Law of Litigation Abuse (4th ed. 2008); Civil RICO: A Definitive Guide (3d ed. 2010). The
author wishes to express his gratitude to Professor Patrick L. Jarvis of the University of St. Thomas
for reviewing technical aspects of this discussion and for his invaluable insights. 2001-11 Gregory
P. Joseph
BACK

See Johnson-Wooldridge v. Wooldridge, 2001 Ohio App. LEXIS 3319 at *11 (Ohio App. July

26, 2001). See also Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1154 (C.D.
Cal. 2002) (admitting on a preliminary injunction motion copies of pages from defendants and third
party websites (as to the latter of which the furnished webpages contain[ed] ... the internet domain

address from which the image was printed and the date on which it was printed) because the
declarations, particularly in combination with circumstantial indicia of authenticity (such as the dates
and web addresses), would support a reasonable juror in the belief that the documents are what
[plaintiff] says they are; noting the reduced evidentiary standard in preliminary injunction
motions); Hood v. Dryvit Sys., Inc., 2005 U.S. Dist. LEXIS 27055, at *6-*7 (N.D. Ill Nov. 8, 2005)
(affidavit of counsel on summary judgment motion stating that he retrieved [the documents] off the
Dryvit, Inc. corporate website on August 29, 2005. Counsel also swears that the web addresses
stamped at the bottom of each exhibit were the addresses I retrieved the exhibits from,
respectively.) (brackets in original; citation omitted); Ampex Corp. v. Cargle, 128 Cal.App.4th 1569,
27 Cal.Rptr.3d 863 (1st Dist. 4th Div. 2005) (printouts from corporate partys website held selfauthenticating and subject to judicial notice under California law); Miriam Osborn Mem. Home Assn
v. Rye, 9 Misc.3d 1019, 800 N.Y.S.2d 909 (Sup. Ct. Westchester County 2005) (plaintiff testified at
trial as to the manner in which she downloaded, printed and copied the electronic record of the
[government website]. In so doing, it was taken from its electronic form and turned into a tangible
exhibit.... [T]his Court concludes that the exhibit is a true and accurate representation of such
electronic record). But see Alston v. Metropolitan Life Ins. Co., No. 1:05CV00121, 2006 WL
3102970 (M.D.N.C. Oct. 27, 2006) (attorney affidavit held insufficient on summary judgment
because attorney was ethically precluded from appearing as a witness in the case on behalf of his
client and, therefore, was not an adequate affiant).
BACK

See, e.g., Actonet, Ltd. v. Allou Health & Beauty Care, 219 F.3d 836, 848 (8th Cir. 2000)

(HTML codes may present visual depictions of evidence. We conclude, therefore, that HTML codes
are similar enough to photographs to apply the criteria for admission of photographs to the
admission of HTML codes).
BACK

See, e.g., Wady v. Provident Life & Accident Ins. Co. of Am., 216 F. Supp. 2d 1060, 1064-1065

(C.D. Cal. 2002) (Defendants have objected on the grounds that [counsel] has no personal
knowledge of who maintains the website, who authored the documents, or the accuracy of their
contents objections sustained).
BACK

See, e.g., Boim v. Holy Land Found., 511 F.3d 707 (7th Cir. 2007) (plaintiffs expert relied in

part on Internet website postings in which the terrorist organization Hamas took credit for the murder
of plaintiffs decedent; held, the expert failed sufficiently to elucidate the basis for his conclusion that
the website statements were attributable to Hamas and, therefore, the statements were insufficiently
authenticated: Where, as here, the expert appears to be relying to a great extent on web postings
to establish a particular fact, and where as a result the factfinder would be unable to evaluate the
soundness of his conclusion without hearing the evidence he relied on, we believe the expert must
lay out, in greater detail than [plaintiffs expert] did, the basis for his conclusion that these websites
are in fact controlled by Hamas and that the postings he cites can reasonably and reliably be
attributed to Hamas).
BACK

Fed.R.Evid. 104(a) provides that:

Questions of admissibility generally.Preliminary questions concerning the qualification of a person

to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by
the court, subject to the provisions of subdivision (b). In making its determination it is not bound by
the rules of evidence except those with respect to privileges.
BACK

Fed.R.Evid. 104(b) provides that:

Relevancy conditioned on fact.When the relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition.
BACK

See, e.g., United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000) (Jackson needed to

show that the web postings in which the white supremacist groups took responsibility for the racist
mailing actually were posted by the groups, as opposed to being slipped onto the groups web sites
by Jackson herself, who was a skilled computer user.).
[8] Fed.R.Evid. 902(5) provides that the following are self-authenticating:
Official publications.--Books, pamphlets, or other publications purporting to be issued by public
authority.
BACK

See, e.g., United States ex rel. Parikh v. Premera Blue Cross, 2006 U.S. Dist. LEXIS 70933,

at *10 (W.D. Wash. Sept. 29, 2006) (GAO reports and Health and Human Services reports found on
government websites are self-authenticating under Fed.R.Evid. 902(5));Hispanic Broad. Corp. v.
Educ. Media Found., 2003 U.S. Dist. LEXIS 24804, *20 n. 5 (C.D. Cal. Nov. 3, 2003) (exhibits
which consist of records from government websites, such as the FCC website, are selfauthenticating.); E.E.O.C. v. E.I. Du Pont de Nemours & Co., No. Civ. A. 03-1605, 2004 WL
2347559 (E.D.La. Oct. 18, 2004) (webpage printout sufficiently authenticated where (1) printout
contained the address from which it was printed, (2) printout contained the date on which it was
printed, (3) court accessed the website and verified that the page existed, and (4) webpage was
maintained by a government agency and thus was self-authenticating under Fed.R.Evid.
902(5)); Sannes v. Jeff Wyler Chevrolet, Inc., 1999 U.S.Dist.LEXIS 21748 at *10 n. 3 (S.D. Ohio
March 31, 1999) (The FTC press releases, printed from the FTCs government world wide web
page, are self-authenticating official publications under Rule 902(5) of the Federal Rules of
Evidence); Tippie v. Patnik, 2008 Ohio 1653, 2008 Ohio App. LEXIS 1429 (Ohio App. April 4, 2008)
(The website of the Secretary of State can be considered self-authenticating as an official
publication, cf. [Ohio] Evid. R. 902(5), like copies of printed material (i.e., newspaper articles) are
under [Ohio] Evid. R. 902(6)) (dissenting opinion); Harvard Mort. Corp. v. Phillips, 2008 Ohio 1132,
2008 Ohio App. LEXIS 1045 (Ohio. App. March 14, 2008) (concurring opinion).See also Elliott
Assocs., L.P. v. Banco de la Nacion, 194 F.R.D. 116, 121 (S.D.N.Y. 2000) (discussed below; holding
that prime rates published on the Federal Reserve Board website satisfy the hearsay exception of
Federal Rule of Evidence 803(17)); Williams v. Long, 585 F. Supp. 2d 679, 686-88 & n. 4 (D. Md.

2008) (collecting cases indicating that postings on government websites are inherently authentic or
self-authenticating); Weingartner Lumber & Supply Co. v. Kadant Composites, LLC, 2010 U.S. Dist.
LEXIS 24918 (E.D. Ky. Mar. 10, 2010) (printout of official records from website of Securities and
Exchange Commission are self-authenticating); McGaha v. Baily, 2011 U.S. Dist. LEXIS 73389
(D.S.C. July 7, 2011) (this federal court may take judicial notice of factual information located in
postings on governmental websites in the United States); Scurmont LLC v. Firehouse Restaurant
Grp., 2011 U.S. Dist. LEXIS 75715 (D. S.C. July 8, 2011) (Records from government websites are
generally considered admissible and self-authenticating.).
But see State v. Davis, 141 Wash.2d 798, 854, 10 P.3d 977, 1010 (2000) (no abuse of discretion in
excluding, in death penalty case, defendant's proffer of state population statistics obtained from
official state website; affirming exclusion on hearsay grounds but stating that [a]n unauthenticated
printout obtained from the Internet does not ... qualify as a self authenticating document under ER
902(e) [the Washington State equivalent of Federal Rule of Evidence 902(5)]). There is reason to
believe, however, that Davis may be limited to its facts. See State v. Rapose, 2004 WL 585856 at *5
(Wash. App. Mar. 25, 2004) (unpublished opinion).
BACK

10

Ciampi v. City of Palo Alto, 2011 U.S. Dist. LEXIS 50245 (N.D. Cal. May 11, 2011) (most of

the articles submitted by Plaintiff contain sufficient indicia of authenticity, including distinctive
newspaper and website designs, dates of publication, page numbers, and web addresses.... Only
the internet print-outs of the Daily News articles contained in Exhibits 321-4 and 321-7, which do not
contain a web address and lack other identifying characteristics, appear to be insufficiently
authenticated. The Court will not consider these two articles, but overrules the objection as to the
remainder of the articles).
BACK

11

See, e.g., United States v. Johnson, 2006 U.S. Dist. LEXIS 6246, at *7-*8 (N.D. Iowa Aug. 31,

2006). The automatic creation of Temporary Internet Files has led to a holding that, in a prosecution
for the possession of child pornography, one cannot be guilty of possession for simply having
viewed an image on a web site, thereby causing the image to be automatically stored in the
browsers cache, without having purposely saved or downloaded the image (United States v.
Stulock, 308 F.3d 922, 925 (8th Cir. 2002)), but that the same images may be admissible under
Fed.R.Evid. 404(b) to establish the accuseds knowledge and intent. United States v. Johnson, 2006
U.S. Dist. LEXIS 6246, at *10.
BACK

12

Ohio v. Bell, 2009 Ohio App. LEXIS 2112 (Ohio Ct. App. May 18, 2009) (affirming

authentication through alleged victims testimony that (1) he had knowledge of the defendant's
MySpace user name, (2) the printouts appeared to be accurate records of his electronic
conversations with defendant, and (3) the communications contained code words known only to
defendant and his alleged victims); People v. Goins, No. 289039, 2010 WL 199602, at *1-2 (Mich.
App. Jan. 21, 2010) (Defendant argues that the trial court's decision to exclude the contents of the
MySpace entry deprived him of the right to present a defense.... Here, provided in what certainly
appears to be Bradley's MySpace page are descriptive details of the assault that fit within what a

reasonable person would consider to be distinctive content not generally known to anyone other
than Bradley, defendant, or someone in whom one or the other confided. Given the content of the
entry itself ... and the unlikelihood that Bradley would have given her account password to a third
party so that that person could write the entry, the jury reasonably could have found that Bradley
authored the content in the MySpace account.... The trial court should have found that the evidence
was properly authenticated....)..
BACK

13

See, e.g., Commonwealth v. Purdy, 459 Mass. 442, 945 N.E.2d 372 (2011) (Evidence that

the defendants name is written as the author of an e-mail or that the electronic communication
originates from an e-mail or a social networking Web site such as Facebook or MySpace that bears
the defendant's name is not sufficient alone to authenticate the electronic communication as having
been authored or sent by the defendant.... There must be some confirming circumstances sufficient
for a reasonable jury to find by a preponderance of the evidence that the defendant authored the emails. Held, sufficient circumstantial evidence was presented: in addition to the e-mails having
originated from an account bearing the defendant's name and acknowledged to be used by the
defendant, the e-mails were found on the hard drive of the computer that the defendant
acknowledged he owned, and to which he supplied all necessary passwords. While this was
sufficient to authenticate the e-mails in the absence of persuasive evidence of fraud, tampering, or
hacking, there was additional evidence of the defendant's authorship of most of the e-mails. At least
one e-mail contained an attached photograph of the defendant, and in another, the author described
the unusual set of services provided by the salon when he characterized himself, among other
things, as a hairstylist, art and antiques dealer, [and] massage therapist.). Compare
Commonwealth v. Williams, 456 Mass. 857, 868-869 (2010) (messages sent from a MySpace Web
page were not properly authenticated where there was no testimony regarding how secure a
MySpace Web page is, who can access it, or whether codes are needed for such access ... [and]
while the foundational testimony established that the messages were sent by someone with access
to [the persons] MySpace Web page, the author of the messages did not identify himself by
name). See also People v. Fielding, 2010 WL 2473344, at *3-5 (Cal. App. June 18, 2010), review
den. (Cal. Sept. 1, 2010) (MySpace messages can be sent between friends, similar to e-mail, and
cannot be viewed by others. Comments can be posted so that anybody can see them. The victim
identified pages of copied messages dated between September and December 2007, exchanged
between himself and defendant, via their MySpace accounts. Based on the messages from
defendant's account, the victim believed they were written by defendant, because they addressed
matters he had discussed with her.... Further, he testified A lot of the times I was talking to
[defendant] on MySpace, I would also be texting her or talking on the phone to her at the same
time[.] ... [Thus,] the victim testified he sent the messages and received the replies reflected by the
copies, and based on their content, he believed he was communicating with defendant. That
testimony was adequate to support their admission into evidence.); People v. Clevenstine, 68
A.D.3d 1448, 1450-51 (3rd Dept 2009), leave to appeal den., 14 N.Y.3d 799, 925 N.E.2d 937, 899
N.Y.S.2d 133 (2010) (both victims testified that they had engaged in instant messaging about
sexual activities with defendant through the social networking site MySpace, an investigator from the

computer crime unit of the State Police related that he had retrieved such conversations from the
hard drive of the computer used by the victims, a legal compliance officer for MySpace explained
that the messages on the computer disk had been exchanged by users of accounts created by
defendant and the victims, and defendant's wife recalled the sexually explicit conversations she
viewed in defendant's MySpace account while on their computer. Such testimony provided ample
authentication for admission of this evidence); Dockery v. Dockery, 2009 Tenn. App. LEXIS 717
(Tenn. App. Oct. 29, 2009) (authentication of MySpace communications requires only email
authentication; no need for testimony from a representative of MySpace).
BACK

14

Griffin v. State, 419 Md. 343, 363-64, 19 A.3d 415, 427-28 (2011) (The first, and perhaps

most obvious method [of authentication] would be to ask the purported creator if she indeed created
the profile and also if she added the posting in question.... The second option may be to search the
computer of the person who allegedly created the profile and posting and examine the computer's
internet history and hard drive to determine whether that computer was used to originate the social
networking profile and posting in question....A third method may be to obtain information directly
from the social networking website that links the establishment of the profile to the person who
allegedly created it and also links the posting sought to be introduced to the person who initiated
it); People v. Al-Shimary, 2010 WL 5373826 (Mich. App. Dec. 28, 2010),appeal denied, 489 Mich.
934-36, 797 N.W.2d 155, 626-27, 629 (2011) (During the cross-examination of Safaa, defense
counsel attempted to impeach Safaa's sincerity and give a reason for the charges by introducing a
message on Safaa's [MySpace] page which was allegedly posted by Safaa.... After the prosecutor
objected on the basis of foundation and authenticity, the trial court asked Safaa if he wrote the
message. Safaa responded, No, I didn't. The defense made no further offer of proof. The trial court
excluded the document because there was no evidence to establish its authenticity.... [T]he the trial
court did not ... abuse its discretion in determining that the MySpace page had not been properly
authenticated); People v. Padilla, 2010 WL 4299091, at *19-20 (Cal. App. Nov. 1, 2010), review
den. (Cal. Feb. 16, 2011) (Avila herself authenticated the photograph on the MySpace page.... She
also conceded that she was the age stated on the web page. Beyond that, however, she denied any
connection to, or control over, the MySpace page in general and, specifically, the gang-related
writing that made the MySpace page probative of issues in the case. No witness was called to
testify, from his or her personal knowledge, that Avila was responsible for the web page or its
contents, and there was no expert or other testimony from which it could be inferred that it would be
unlikely that anyone but Avila could create a MySpace page bearing Avila's name and photograph....
Under the circumstances, a finding that the writing was authentic was necessarily based on
speculation.).
BACK

15

Griffin v. State, 419 Md. 343, 363-64, 19 A.3d 415, 427-28 (2011) (Anyone can create a

MySpace profile at no cost, as long as that person has an email address and claims to be over the
age of fourteen.... [A]nyone can create a fictitious account and masquerade under another person's
name or can gain access to another's account by obtaining the user's username and password....
The potential for abuse and manipulation of a social networking site by someone other than its
purported creator and/or user leads to our conclusion that a printout of an image from such a site

requires a greater degree of authentication than merely identifying the date of birth of the creator
and her visage in a photograph on the site in order to reflect that [the depicted person] was its
creator and the author of the [relevant] language [on the profile page].).
BACK

16

Note, however, that there is rarely a hearsay problem with images derived from the internet

just as there is rarely a hearsay problem with photographic evidence because hearsay
consists of extrajudicial statements offered for their truth. United States v. Cameron, 762 F.Supp.2d
152 (D. Me. 2011) (the images [found on the ISP server] are not hearsay to begin with.... The rule
against the admission of hearsay applies to only to statements offered to prove the truth of the
matter asserted. Fed. R. Evid. 801(c); Fed. R. Evid. 802. A statement is (1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. Fed.
R. Evid 801(a). However, [i]n the context of the hearsay rule, photographs do not qualify as
assertions.). Bear in mind, however, that a particular image may contain hearsay.See, e.g. People
v. Morgutia, 2009 Cal. App. Unpub. LEXIS 5805 (Cal. App. July 17, 2009) (it was improper to show
the jury an exhibit containing the photographs of defendant and his accomplices embellished with
uncorroborated labels identifying them as gang participants).
BACK

17

See, e.g., United States v. Sanders, 749 F.2d 195, 198 (5th Cir. 1984) (dealing with

computerized records); United States v. Catabran, 836 F.2d 453, 456 (9th Cir. 1988) (same).
BACK

18

See, e.g., United States v. Russo, 480 F.2d 1228, 1240 (6th Cir.), cert. denied, 414 U.S. 1157

(1973) (dealing with computerized records).

BACK

19

See, e.g., Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 631, 633 (2d Cir.

1994) (dealing with computerized business records).

BACK

20

United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000) (Even if these web postings did

qualify for the business records hearsay exception, the business records are inadmissible if the
source of information or the method or circumstances of preparation indicate a lack of
trustworthiness) (citation omitted).
BACK

21

Elliott Assocs., L.P. v. Banco de la Nacion, 194 F.R.D. 116, 121 (S.D.N.Y. 2000) (prime rates

published on the Bloomberg website satisfy the hearsay exception of Federal Rule of Evidence
803(17)).
BACK

22

See, e.g., State v. Erickstad, 620 N.W.2d 136, 145 (N.D. 2000) (citing Irby-Greene v. M.O.R.,

Inc., 79 F.Supp.2d 630, 636 n.22 (E.D.Va. 2000)).

BACK

23

See, e.g., Van Westrienen v. Americontinental Collection Corp., 94 F.Supp.2d 1087, 1109 (D.

Or. 2000) (the representations made by defendants on the website are admissible as admissions of
the party-opponent under FRE 801(d)(2)(A)); Telewizja Polska USA, Inc. v. EchoStar Satellite
Corp., 2004 U.S. Dist. LEXIS 20845, at *16-17 (N.D. Ill. Oct. 14, 2004); United States v. Porter, 184
Fed. Appx. 112, 2006 U.S. App. LEXIS 14166, at *4-*5 (2d Cir. June 5, 2006) (authenticated chat

room transcripts of defendant properly introduced by government as admissions of party

opponent); United States v. Burt, 495 F.3d 733, 738 (7th Cir. 2007) (Those portions of the chat
which represent [defendant] Burt's writings were properly admissible as admissions by a party
opponent under Fed. R. Evid. 801(d)(2)); Langbord v. U.S. Dept of Treasury, 2011 U.S. Dist. LEXIS
71779 (E.D. Pa. July 5, 2011) (No matter what the [U.S.] Mint meant when it advertised the 1933
Double Eagle as circulating [on its official website], it did not limit its description to a specific coin
monetized in 2002, and the statement potentially qualifies as an admission such that the hearsay
rule does not bar its admission pursuant to Rule 801(d)(2)(A)); Greater New Orleans Fair Hous.
Action Ctr. v. St. Bernard Parish, 648 F. Supp. 2d 805, 806 n.2 (E.D. La. 2009) (finding printout from
defendants' website the admissible as a party-opponents own statement); TIP Sys., LLC v. SBC
Operations, Inc., 536 F. Supp. 2d 745, 756 n.5 (S.D. Tex. 2008) (same).
BACK

24

Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 631, 633-34 (2d Cir. 1994)

(dealing with computerized business records); Momah v. Bharti, 2008 Wash. App. LEXIS 940
(Wash. App. April 28, 2008) (posting self-laudatory article and other hearsay on website held an
adoptive admission: By providing the content as a means of publicizing himself, Bharti effectively
manifests his belief in the truth of the information. Even if the biographical information, newspaper
articles, and client comments contain hearsay, Bharti has manifested his belief in the truth of those
statements. They are not hearsay under ER 801(d)(2)); Mannatech Inc. v. Glycobiotics Intl, Inc.,
2007 U.S. Dist. LEXIS 91946 (N.D. Tex. Dec. 14, 2007) (customer testimonials contained on partys
website admitted; without deciding the issue, the Court indicated that the testimonials could be
admissible under Rule 801(d)(2) presumably 801(d)(2)(A), (B) or (C) citing PharmaStem
Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d 1342, 1351 (Fed. Cir. 2007), for the proposition that:
[T]here is no prohibition against using the admissions of a party, whether in the form of marketing
materials or otherwise, as evidence in an infringement action....).
BACK

25

Janus Capital Group, Inc. v. First Deriv. Traders, 180 L. Ed. 2d 166, 2011 U.S. LEXIS 4380

(U.S. June 13, 2011) (10b-5 suit against mutual fund advisor for misstatements by its client mutual
fund; adviser posted allegedly fraudulent documents on its website: Merely hosting a document on
a Web site does not indicate that the hosting entity adopts the document as its own statement or
exercises control over its content); Aikens v. County of Ventura, 2011 Cal. App. Unpub. LEXIS 4986
(Cal. App. June 30, 2011) (countys posting of a hydrology, hydraulics, and sedimentation study
performed by federal government did not constitute adoptive admission of the truth of the contents
of the posted study).
BACK

26

United States v. Burt, 495 F.3d 733, 738-39 (7th Cir. 2007).

BACK

27

See, e.g., Van Westrienen v. Americontinental Collection Corp., 94 F.Supp.2d 1087, 1109 (D.

Or. 2000).
BACK

28

See, e.g. , T. Marzetti Co. v. Roskam Baking Co., No. 2:90 CV 584, 2010 WL 909582, at *2

(S.D. Ohio March 11, 2010) (email from consumer to trademark plaintiffs customer service

department admissible on issue of confusion under state of mind exception to hearsay

rule);Microware Sys. Corp. v. Apple Computer, Inc., 2000 U.S.Dist.LEXIS 3653 at *7 n.2 (S.D. Iowa
March 15, 2000) (Microwares internet and e-mail submissions are not ideal proffers of evidence
since their authors cannot be cross-examined. However, in a case involving an industry where email and internet communication are a fact of life, these technical deficiencies must go to the weight
of such evidence, rather than to their admissibility. In any case, to the extent any of these stray
comments bear on the issue of confusion, they come in for that purpose...) (citations omitted); Mid
City Bowling Lanes & Sports Palace, Inc. v. Don Carters All Star Lanes-Sunrise Ltd., 1998
U.S.Dist.LEXIS 3297 at *5-*6 (E.D.La. March 12, 1998).
BACK

29

United States v. Burt, 495 F.3d 733, 738-39 (7th Cir. 2007).

BACK

30

United States v. Burt, 495 F.3d 733, 739 (7th Cir. 2007).

BACK

31

See, e.g., St. Clair v. Johnnys Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 774-75 (S.D. Tex.

1999) (While some look to the Internet as an innovative vehicle for communication, the Court
continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and
misinformation.... Anyone can put anything on the Internet. No web-site is monitored for accuracy
and nothing contained therein is under oath or even subject to independent verification absent
underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the
content on any web-site from any location at any time. For these reasons, any evidence procured off
the Internet is adequate for almost nothing, even under the most liberal interpretations of the
hearsay exception rules found in Fed.R.Evid. 807); Terbush v. United States, 2005 U.S. Dist. LEXIS
37685, at *16 n.4 (E.D. Cal. Dec. 7, 2005) (Information on internet sites presents special problems
of authentication.... It has been recognized that anyone with sufficient hacking ability can put
anything on the internet; no web-site is monitored for accuracy, and nothing contained therein is
subject to independent verification absent underlying documentation).
BACK

32

See, e.g., Wells v. Xpedx, 2007 U.S. Dist. LEXIS 67000 (M.D. Fla. Sept. 11, 2007)

(Documents produced during discovery are deemed authentic when offered by a party
opponent); Sklar v. Clough, 2007 U.S. Dist. LEXIS 49248 (N.D. Ga. July 6, 2007) (The e-mails in
question were produced by Defendants during the discovery process. Such documents are deemed
authentic when offered by a party opponent); accord Bruno v. AT&T Mobility, LLC, 2011 U.S. Dist.
LEXIS 59795 (W.D. Pa. June 3, 2011); Superhighway Consulting, Inc. v. Techwave, Inc., 1999
U.S.Dist.LEXIS 17910, at *6 (N.D.Ill. Nov. 15, 1999); Dominion Nutrition, Inc. v. Cesca, 2006 U.S.
Dist. LEXIS 15515, at *16 (N.D. Ill. March 2, 2006).
This rule applies only to emails produced by a party opponent. The party offering an email into
evidence cannot point to his or her own act of production as authenticating it. Jimena v. UBS AG
Bank, Inc., 2011 U.S. Dist. LEXIS 68560 (E.D. Cal. June 24, 2011) (No party-opponent offered
these documents in discovery so as to permit attribution of the identity and authenticity of the emails to [the defendants]).

BACK

33

Lemme v. County of Yuma, 2006 U.S. Dist. LEXIS 76317, at *23 (D. Ariz. Oct. 19, 2006)

(Because Plaintiff and her counsel have the ability to authenticate those documents, but do not
specifically challenge the authenticity thereof, the objections are overruled).
BACK

34

Read v. Teton Springs Golf & Casting Club, LLC, 2010 U.S. Dist. LEXIS 134621 (D. Idaho

Dec. 14, 2010) (testimony from recipient of email sufficient to authenticated it); In re Second Chance
Body Armor, Inc., 434 B.R. 502, 504 (Bankr. W.D. Mich. 2010) (discussing Fed.R.Evid. 901: [w]hen
the document involved is an e-mail communication, a participant in, or recipient of, that
communication' will generally be able to authenticate the communication, so long as the person was
able to perceive who communicated what.); EEOC v. Olsten Staffing Servs. Corp., 2009 U.S. Dist.
LEXIS 88903 (W.D. Wis. Sept. 28, 2009) (Testimony from someone who personally retrieved the email from the computer to which the e-mail was allegedly sent is sufficient for this purpose); Fenje
v. Feld, 301 F. Supp. 2d 781, 809 (N.D. Ill. 2003) (E-mail communications may be authenticated as
being from the purported author based on an affidavit of the recipient); Maier v. Pac. Heritage
Homes, Inc., 72 F. Supp. 2d 1184, 1190 (D. Or. 1999) (Since Rockwell was a . . . recipient of the
memorandum, his affidavit suffices to authenticate the exhibits[, including the
memorandum].); Tibbetts v. RadioShack Corp., 2004 U.S. Dist. LEXIS 19835, at *44 (N.D. Ill. Sept.
30, 2004).
BACK

35

Ussery v. State, 2008 Tex. App. LEXIS 741 (Tex. App. Jan. 30, 2008) (approving admission

where the victim testified, identifying the e-mail communications as fair and accurate copies of
actual e-mails she exchanged with appellant. She thus provided testimony authenticating the emails.); United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007) ([T]he standard for authentication is
one of reasonable likelihood... and is minimal.... both the informant and Agent Berglas testified that
the exhibits were in fact accurate records of [defendants] conversations with Lorie and Julie. Based
on their testimony, a reasonable juror could have found that the exhibits did represent those
conversations, notwithstanding that the e-mails and online chats were editable).
BACK

36

Jimena v. UBS AG Bank, Inc., 2011 U.S. Dist. LEXIS 68560 (E.D. Cal. June 24, 2011)

(Nigeria-based scam; testimony from recipient that the received an email purportedly from an
individual at UBS, standing alone, held insufficient to link it to that person or to UBS where the
recipient was never in contact with either other than through email traffic: When a letter, signed with
the purported signature of X, is received 'out of the blue,' with no previous correspondence, the
traditional 'show me' skepticism of the common law prevails, and the purported signature is not
sufficient as authentication, unless authenticity is confirmed by additional facts.... Likewise, when the
recipient of an e-mail attempts to prove that the message was authored by a particular individual
whose name appears in the header, such self-identification by designated sender is insufficient to
establish authorship. Self-identification in an unsolicited e-mail supports authenticity, but is not, by
itself, considered sufficient.... Here there is no signature of Clive Standish which any person with
familiarity with the signature purports to identify) (internal quotes and citations omitted).

BACK

37

People v. Whicker, 2007 Cal. App. Unpub. LEXIS 5197 (Cal. App. June 26, 2007) (among

other things, the witness said she could not remember whether she had sent the email, although I
wont say I didnt because I dont remember for sure if I did or not; she acknowledged that there
were a few emails that she and the ostensible recipient sent back and forth; and she testified that
the document does look like my style of writing. Note: the recipient also testified that she
remembered receiving the email).
BACK

38

Middlebrook v. Anderson, 2005 U.S. Dist. LEXIS 1976, at *14 (N.D. Tex. Feb. 11, 2005)

(jurisdictional motion).
BACK

39

Ecology Servs. v. GranTurk Equip., Inc., 443 F.Supp.2d 756, 762 n.1 (D.Md. 2006) (excluding

purported email which was not accompanied by an authenticating affidavit and which did not bear
the customary formatting of a printed e-mail message, indicating the sender, recipient, date, and
subject).
BACK

40

Shea v. State, 167 S.W.3d 98, 105 (Tex. App. 2005).

BACK

41

Interest of F.P., 878 A.2d 91 (Pa. Super. 2005) (He referred to himself by his first

name); Commonwealth v. Capece, 2010 Pa. Dist. & Cnty. Dec. LEXIS 506 (Ct. Common Pl. Oct.
18, 2010).
BACK

42

See, e.g., Sea-Land Serv., Inc. v. Lozen Intl, LLC, 285 F.3d 808, 821 (9th Cir. 2002) (email of

one employee forwarded to party opponent by a fellow employee containing the electronic
signature of the latter constitutes an admission of a party opponent).
BACK

43

State v. Pullens, 281 Neb. 828 (Neb. Sup. Ct. 2011) (Evidence that an e-mail is a timely

response to an earlier message addressed to the purported sender is proper foundation analogous
to the reply letter doctrine); accord Varkonyi v. State, 276 S.W.3d 27, 2008 Tex. App. LEXIS 3353
(Tex. App), review den., 2008 Tex. Crim. App. LEXIS 1634 (Tex. Crim. App. Oct. 29, 2008).
BACK

44

See, e.g., Jimena v. UBS AG Bank, Inc., 2011 U.S. Dist. LEXIS 68560 (E.D. Cal. June 24,

2011) (The e-mail addresses used by the author of the Standish E-mails, clive
standish@yahoo.com and customerservices@privateclientsubs.cjb.net, are also self-serving. In
contrast to the e-mails discussed in Safavian, 435 F.Supp.2d at 40-41, the e-mail addresses here
are not work e-mail addresses which are issued by an employer and include the employees name
in the e-mail address. Rather, they are from publicly available e-mail providers, available to and
sendable by anyone).
BACK

45

Since authentication issues are decided by the court under Federal Rule of Evidence 104(a),

live testimony from such a witness is not essential; an affidavit or declaration may be equally
effective. Fed.R.Evid. 104(a) is set forth in n.4, supra.

BACK

46

Merely notarizing an email does not render it non-hearsay. Shah v. Flagstar Bank, 2007 Mich.

App. LEXIS 2678 (Mich. App. Nov. 29, 2007) (Although the signature of the vice-president on a
copy of the email was notarized, it was not the equivalent of an affidavit because the author did not
swear to the accuracy of his answers or indicate that his answers were based on personal
knowledge.). A certification satisfying Fed.R.Evid. 902(11) or (12), however, may operate to satisfy
hearsay concerns, as those Rules provide an alternative means of satisfying the business records
exception to the hearsay rule without the necessity of calling a live witness. As discussed below, the
application of the business records exception to email is uneven.
BACK

47

Fed.R.Evid. 803(1) sets forth the hearsay exception for present sense impressions, which are

defined to include any statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter.
BACK

48

Fed.R.Evid. 805 provides: Hearsay included within hearsay is not excluded under the

hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule
provided in these rules.
BACK

49

Email communications not offered for the truth are not subject to exclusion as hearsay.See,

e.g., Rombom v. Weberman, 2002 N.Y. Misc. LEXIS 769 at *20 (Sup. Ct. Kings Cty. June 13, 2002)
(since plaintiff introduced the e-mails to establish their effect upon plaintiff, as opposed to the truth
of their content, the e-mails did not constitute inadmissible hearsay).
BACK

50

Fed.R.Evid. 801(d)(2) provides that a statement is not hearsay if:

The statement is offered against a party and is (A) the party's own statement, in either an individual
or a representative capacity or (B) a statement of which the party has manifested an adoption or
belief in its truth, or (C) a statement by a person authorized by the party to make a statement
concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within
the scope of the agency or employment, made during the existence of the relationship, or (E) a
statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The
contents of the statement shall be considered but are not alone sufficient to establish the declarant's
authority under subdivision (C), the agency or employment relationship and scope thereof under
subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and
the party against whom the statement is offered under subdivision (E).
BACK

51

Fed.R.Evid. 803(2) excepts from the hearsay rule [a] statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by the event or
condition.