Looking For Evidence in Virtual Places Admissibility of Internet Evidence
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Lawyers looking for evidence need to start thinking about looking "virtually." With increasing amounts of "paperless" information being added to the Internet every minute of every day, there is an increasing chance lawyers could find potentially relevant evidence there. Evidence to prove or refute a point in contention, get the upper hand in a settlement conference, or decide whether to even take a client’s case, might be found in both the near and far reaches of the Internet. Taking a virtual look at the "near reaches" of the Internet means searching the Website of the person or company being researched. More often than not, useful information will be posted there that can be used as evidence. For example, after being attacked by skin-heads, a client learned that his name, address, and picture, along with a call to action to attack him, had been posted on a skin-head organization’s website. When the lawyer accessed the website, the information about his client had been removed. Not willing to give up, he turned to his teenaged nephew who advised him that the old web pages might be stored at the Internet Archive Way Back Machine (archive.org), a non-profit organization that stores old Web pages to preserve virtual history.

Archive.org

While this lawyer did find the incriminating pages at Archive.org, if he had not, this would not have necessarily proven they had never appeared on the skin-head site because: (1) the Internet Archive does not archive every page of every Web site; (2) there is a six to 18-month (or more) delay before pages are archived on the Internet Archive site; and (3) Web site owners can request their site not be archived. If a Web site owner has requested that their site not be archived, this fact appears in the search results at Archive.org. In that case, the lawyer at least would surmise that the site owner had something to hide and could attempt to subpoena the pages from the site owner.

Getting Archive.org Pages Admitted into Evidence

Once a lawyer finds evidence on an Internet Web site, the next step is to get the pages admitted into evidence. Getting Internet evidence admitted should be no different than getting other traditional evidence admitted: it must be (1) relevant; (2) authentic; and (3) admissible. But, getting pages into evidence from the Archive.org, in particular, may prove more difficult than getting pages from other Web sites (which are currently on the Web), into evidence.

In the skin head beating case, it would seem obvious that the evidence is relevant. Showing that the evidence was authentic could be accomplished by pointing to an unreported case, Telewizja Polska USA, Inc. v. Echostar Satellite, Case No. 02C3293 (N.D. Ill. Oct. 15, 2004), available at http://www.scribd.com/doc/45878902/Telewizja-Polska-Internet-Archive-Case (see pages 13-15 of the document), where federal court Magistrate Keys, in a motion in limine, rejected defendant’s claim thatWweb pages from the Internet Archive's Wayback Machine were unreliable. Instead, the Magistrate found that Federal Rules of Evidence Rule 901 "requires only a prima facie showing of genuineness and leaves it to the jury to determine the true authenticity…"of the archived Web pages. The Magistrate also explained that the Internet Archive Web pages were: 

  • not hearsay
  • not “statements” but merely images and text showing what the Web site once looked like
  • admissions by a party-opponent.

Everything we have read about the Telewijza Polska case cites to the Magistrate's reasoning, except for one article that asserts that District Court Judge Ronald Guzman overruled Magistrate Keys' findings at the actual trial, Telewizja Polska USA, Inc. v. Echostar Satellite, Case No. 03293 (N.D. Ill. 2004). Strangely enough, the article is from Wikipedia (http://en.wikipedia.org/wiki/Wayback_Machine#Telewizja_Polska), not necessarily considered a trusted source. The Wikipedia article offers no citation to back up its assertion that Judge Guzman overruled Magistrate Keys. In fact, the only citation is to an article in the Journal of Internet Law that only cites to the Magistrate's decision.

After sifting through many documents at Pacer, we were unable to find the judge's overruling opinion, but we were informed by an attorney at one of our seminars that he had confirmed the Wikipedia assertions by phoning one of the attorneys involved in the case.

This is what the Wikipedia article stated Judge Guzman held:

  • The Internet Archive employee’s affidavit and underlying Web pages (Telewizja Polska Web site) were not admissible as evidence.
  • The employee's affidavit contained hearsay and inconclusive supporting statements.
  • The purported Web page printouts were not self-authenticating.

Be Sure to Authenticate Evidence From the Internet

As an attorney attempting to authenticate evidence from the Internet, it is important to prove when the research was done. This can be accomplished by having the researcher sign a declaration explaining how, and on what date, the researcher found the Web page evidence on the Internet. To further authenticate the evidence from a Web site, the web page should be printed out--with the URL listed. It would also be advisable to print any page on the Web site that indicates who owns the site. This is usually found on the "About Us" page. (Searching a domain registry, such as Betterwhois.com, to verify ownership is not necessarily going to yield the true owner of the Web site because domain registries do not verify that real names are used.)

Admissability of Archive.org Pages

Because Telewizja Polska is an unreported case (and not binding on other courts) and because the Judge and the Magistrate came to opposite conclusions as noted above, we do not have a definitive answer as to whether pages from the Archive.org could overcome hearsay objections. As to the admissibility of pages other than Archive.org being admitted into evidence, it will vary from judge to judge.

Even Judges are now Using the Internet to Make Judicial Decisions

As recently as 1999, a district court cautioned against relying on data from the Internet as "voodoo information." St. Clair v. Johnny’s Oyster & Shrimp, 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999). Fortunately, today, not only are judges admitting information from the Internet into evidence (as illustrated by the Telewizja case), but judges are even conducting their own Internet research to help make judicial decisions. For example, in a recent Indiana decision, the court was incredulous that the plaintiff failed to "Google" the missing defendant as part of his due diligence process. The court noted that the investigative technique of merely calling directory assistance to find a missing defendant has gone "the way of the horse and buggy and the eight track stereo" as a consequence of the Internet. The court upheld the defendant’s claim of insufficient service of process and affirmed the dismissal of the case. The court stated, "We do note that there is no evidence in this case of a public records or Internet search for Groce…to find him. In fact, we [the judge] discovered, upon entering 'Joe Groce Indiana' into the Google™ search engine, an address for Groce that differed from either address used in this case, as well as an apparent obituary for Groce’s mother that listed numerous surviving relatives who might have known his whereabouts." Munster v. Groce, 829 N.E.2d 52 (Ind. App. 2005) available at http://caselaw.lp.findlaw.com/data2/indianastatecases/app/06080501mpb.pdf. On appeal, the plaintiff could argue that there was no proof that the data found by the judge had been available on the Internet at the time plaintiff searched for the defendant.

In Dubois v. Butler, Case nos. 4d04-3559 and 4d04-3561 (FL App, 2005) available at http://caselaw.findlaw.com/fl-district-court-of-appeal/1028016.html, the court noted as a consequence of the internet that the investigative technique of merely calling directory assistance to find a missing defendant has gone "the way of the horse and buggy and the eight track stereo." The court quashed the service of process and dismissed the case.

In another recent case, the Louisiana Appeals court upheld a decision in which the trial court nullified a government tax sale because the original tax-delinquent owner would have been "reasonably identifiable" and locatable if the government had run a simple "Internet search" to "locate the named mortgagee." It was the trial court judge who conducted an Internet search and determined that the owner was "reasonably identifiable." Part of the basis of the appeal was whether or not it was appropriate for the judge to conduct such a search at all to determine this. The Appeals court dismissed this argument, saying "Nevertheless, we find any error the trial court may have committed by conducting the internet search is harmless, because the trial court's ultimate conclusion that the tax sale violated Dr. Weatherly's due process rights is legally correct." Weatherly v. Optimum Asset Management, 928 So.2d 118 (La. App. 2005), available at http://www.la-fcca.org/Opinions/PUB2005/2005-12/2004CA2734Dec2005.Pub.10.pdf.

Look Beyond the Near Reaches of the Internet: Social Networking Sites, Blogs, Podcasts & Videos

To find potentially relevant evidence, lawyers also need to look beyond the near reaches of the Internet, which would be a person or company’s Web site, and into the far reaches of the Internet. Some of the "far reaches" could include new types of Web content such as social network sites (myspace.com or facebook.com) or blogs (http://blogsearch.google.com), podcasts (Podcast Alley), and videos (youtube.com).

People often drop their guard when they are posting to these types of sites. Not only can their written words be readily displayed to a jury, but so can their behavior, attitude, or tone of voice, all heard or viewed from an audio or video tape, or a still picture placed on the Internet. For instance, Hugh Foskett might have had a better chance at winning the Seattle’s 43rd district state house seat in 2006, if pictures from his facebook.com page, showing behavior unbecoming to a candidate, had not been publicized. (Social networking sites are no longer “just for kids.” All ages are beginning to add their profiles and pictures.)

Look Beyond the Near Reaches of the Internet: Dating & Reunion Web Sites and Google Groups

Lawyers should also look to other far reaches of the Internet not traditionally thought of as useful to serious researchers, such as dating sites (match.com), reunion sites (classmates.com) and discussion groups such as those searchable at Google Groups—all places where people post personal information. A divorce lawyer shared an incident where, at a settlement conference, they were proffered embarrassing information that their client had posted to a dating Web site. Admissibility was not at issue, since the parties were not at trial, and in fact, admissibility was not really the husband’s goal. Simply gaining the upper hand or unsettling the wife was the goal, which apparently was met.

Learning that your client was on methadone might be an important piece of evidence in a case where your client allegedly caused an accident. If your client failed to inform you of this, searching the client’s name at Google Groups might reveal this interesting fact if the client participated in online discussions and divulged such information (in our case, the person was on a migraine headache discussion group and mentioned his methadone maintenance in passing).

Do People Post Using Their Real Names?

It's important to remember that many people do not use their real names when posting to discussion groups. In those cases, searching by the poster's e-mail address might yield more useful results, assuming you know their e-mail address (or addresses). In contrast, people posting profiles at classmates.com do tend to use their real names—since they are trying to hook up with former friends. Thus, classmates.com is a perfect place to search for evidence. At Classmates.com, people often post information about where they work (or worked), attended school, or served in the military. These are the bits and pieces of information that might be the very evidence a lawyer is looking for.

Finding Information From Different File Formats Posted to the Web

Lawyers can sometimes unearth evidence from a PowerPoint presentation, an Excel spreadsheet, or a Word document posted to the Internet. By using Google.com’s advanced search page, a search can be limited to one of these file formats. While evidence from a PowerPoint presentation might show up in the PowerPoint slide, be sure to view the presentation in the “editing” mode to read the presenter’s outline and notes—where more evidence might be lurking.

Have Potential Evidence Automatically Collected and Delivered to Your E-mail In-box

Attorneys can even have potential evidence automatically collected and delivered to their email in-box by using Google's Alert service (http://www.google.com/alerts). While Google Alerts originally monitored only news based on the researcher’s key words (e.g., a topic, a company name, or a person’s name), monitoring has been expanded to Web sites, Google Groups, and most recently to Blogs. Thus, if the topic, the person, or the company one is gathering evidence about is mentioned in the news, on a Web site, in a Google Group discussion e-mail, or on a blog, attorneys will be automatically alerted and can add the information to their pot of evidence.

Conclusion

As useful as the Internet is in helping to find evidence, it cannot be expected to show how the evidence is relevant or how to authenticate it and get it admitted into evidence. That’s still your job!

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