'Voodoo Information': Authenticating Web Pages In Federal Court

Plaintiff sues your client, claiming that his injuries have significantly affected his lifestyle. He is unable to work, travel or bowl. Not surprisingly, his spouse alleges loss of consortium. On the eve of trial, you discover pictures and other details on a social networking Web site about plaintiff's recent trip to the International Bowling Museum & Hall of Fame, including a picture of plaintiff proudly holding a fluorescent orange bowling ball and a four-foot tall gilded trophy dated four days earlier. As you approach the witness with printouts of the Web pages, you are stopped in your tracks: “Objection, lack of foundation.”

It is now routine for litigators to conduct Internet research to work up a case. Indeed, for many litigators, one of the first things they do is see what is available about the opposing party, searching Google, social networking sites like Twitter, MySpace and Facebook, and the party's personal Web sites. During the life of any case, there will likely be valuable information obtained from the Internet that will be used at deposition or trial. Commonly, the proponent of online evidence will present a screen shot of the Web page, which was either downloaded as a .pdf or printed directly from the Web site. The process is like taking a photograph of the image as it appears on the monitor. In general, this captures not only the look, but also the download date and the URL. If proper steps are not taken to admit the evidence, the value of this information may be lost.

Authenticity

As with all evidence, the proponent must be prepared to establish that the evidence is relevant, authentic, and not subject to exclusion under the hearsay or best evidence rules. This article focuses on the second evidentiary hurdle: authenticity. Although the burden of authenticating a document is usually quite low, doing so for a screen shot of a Web site presents an additional challenge, as courts generally view such information with suspicion. As one federal district judge noted: “Anyone can put anything on the Internet. ' [The Internet is] one large catalyst for rumor, innuendo, and misinformation.” St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774-75 (S.D. Tex. 1999). It is “voodoo information.” Id.

Authentication Under Federal Rule of Evidence 901

Federal Rule of Evidence (“FRE”) 901(a) requires the proponent to show that the evidence is what it is purported to be. Notably, the proponent need only make a prima facie showing from which the jury could reasonably find that the document is authentic. Most courts require the proponent to come forward with “admissible evidence” to lay the foundation, reasoning that the court's authenticity determination is governed by FRE 104(b). See, Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 539-40 (D. Md. 2007).

FRE 901(b) provides a non-exhaustive list of illustrations of how a proponent may authenticate a document. The two candidates for authenticating screen shots are 901(b)(1) (permitting authentication by “[t]estimony that a matter is what it is claimed to be”) and 901(b)(4) (permitting authentication by
“[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances”).

Reflecting their suspicion of “voodoo information,” the majority of courts appear to require the proponent to authenticate a Web site under 901(b)(1). As one commentator has noted, testimony must answer the following questions: “1) What was actually on the Web site? 2) Does the exhibit or testimony accurately reflect it? and 3) If so, is it attributable to the owner of the site?” Lorraine, 241 F.R.D. at 555-56 (quoting Gregory P. Joseph, Internet and Email Evidence, reprinted in 5 Stephen A. Saltzburg et al., Fed. R. Evid. Man., Part 4 at 20 (9th ed. 2006)). That same commentator provides a list of factors that a court may consider, including the “length of time the data was posted on the site ' whether it remains on the Web site for the court to verify; whether the data is of a type ordinarily posted on that Web site or Web sites of similar entities ' whether the owner of the site has elsewhere 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 Web site in question.” Id.

Courts generally fall into three camps with respect to the scope of testimony that 901(b)(1) requires. The first camp requires testimony showing that the information was posted by the indvidual to whom the information is attributed in the form of a “statement or affidavit from ' [the Web site's] [W]eb master or someone else with personal knowledge.” In re Homestore, Inc. Sec. Litig., 347 F. Supp. 2d 769, 782-83 (C.D. Cal. 2004); see also, Wady v. Provident Life and Accident Ins. Co. of Am., 216 F. Supp. 2d 1060 (C.D. Cal. 2002) (sustaining objection to affidavit because affiant lacked personal knowledge of who maintained the Web site or authored the documents). This is akin to authenticating a letter, which requires showing that it was written by the individual to whom it is attributed.

The second camp is much more permissive, finding sufficient testimony from the person who created the screen shot that the image “accurately reflects the content of the Web site and the image of the page on the computer at which the [screen shot] was made.” Toytrackerz LLC v. Koehler, 2009 WL 2591329, at 6 (D.Kan. Aug. 21, 2009); see also, Nightlight Sys., Inc. v. Nitelites Franchise Sys., Inc., 2007 WL 4563875, at 5-6 (N.D. Ga. May 11, 2007)). The standard applied by these courts is not much different from that applied to photographs. In kSolo, Inc. v. Catona, for example, the court admitted a screen shot, noting that although the declarant “may not have [had] knowledge as to how the Web site works on a technological level, his declaration establishes sufficient knowledge to attest that the screen shots are an accurate representation of what he encountered upon visiting the Web site.” 2008 WL 4906115, at 1, n.5 (C.D. Cal. Nov. 10, 2008); see also, Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d Cir. 2007) (ignoring the “Web master” portion of Homestore and citing that case only for the proposition: “To be authenticated, some statement or affidavit from someone with knowledge is required”).

Notably, courts in the second camp do not appear to require the proponent to authenticate the information as authored or sponsored by the individual to whom it is attributed. Instead, the party need only show that the screen shot reflects what was on the site. Presumably, the issue of authorship or sponsorship will be the subject of cross-examination and further proof.

The third camp is somewhere in between, requiring different evidence depending on the circumstances. In United States v. Jackson, for example, the Seventh Circuit excluded screen shots because the proponent did not prove that the Web site's owner actually posted the information. 208 F.3d 633, 637 (7th Cir. 2000). The court held that the proponent must demonstrate that the information was actually put on the Web site by the site's sponsor. But the Jackson court went on to note that the type of evidence required to meet the prima facie burden depends on the proponent's incentive and ability to falsify evidence. In that case, the proponent argued that a white supremacist group had claimed responsibility on its Web site for her alleged actions. Siding with the government, the court refused to admit screen shots of the supremacist group's Web site introduced by defendant, noting that the defendant was a sophisticated computer user and had every incentive to try to place the blame on someone else. This incentive required the defendant to link the information directly to the Web site's sponsor.

A litigant could try to authenticate a screen shot without testimony by relying on FRE 901(b)(4), arguing that the look of the screen shot, the download dates and identifying Web addresses are sufficient circumstantial evidence of authenticity. See, e.g., Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1154 (C.D.Cal. 2002) (admitting Web site posting due to circumstantial indicia of authenticity, including presence of download dates and identifying Web addresses). However, that information is not likely to pass muster. Even in Perfect 10, the proponent submitted a declaration stating that the screen shots were true and correct copies that he printed from the Internet.

Authentication of Screen Shots from Archive.org

Many litigators are familiar with the Internet Archive (www.archive.org), also known as the “Wayback Machine.” The Internet Archive uses a process called crawling to visit Web sites and systematically duplicate and store the data on its own servers, which allows users to retrieve copies of Web pages as they existed at various times in the past. With the amount of information posted on the Web, it is an indispensable investigatory tool.

Most courts that have addressed the issue have admitted screen shots from the Wayback Machine, finding sufficient “a statement or affidavit from an Internet Archive representative with personal knowledge of the contents of the Internet Archive Web site.” St. Luke's Cataract and Laser Institute, P.A. v. Sanderson, 2006 WL 1320242, at 2 (M.D.Fla. May 12, 2006); Telewizja Polska USA, Inc. v. EchoStar Satellite Corp., 2004 WL 2367740, at 5-6 (N.D.Ill. Oct. 15, 2004) (party submitted affidavit from the administrative director for the Internet Archive describing in detail the process used to allow visitors to search archived Web pages). Notably, California has recognized it as an official library for purposes of federal funding.

At least one court has suggested, however, that it would not accept screen shots from the Internet Archive even if authenticated by such an affidavit. Novak v. Tucows, Inc., 2007 WL 922306, at 5 (E.D.N.Y. March 26, 2007). The court reasoned that the Internet Archive's employees play no role in ensuring that archived Web sites accurately represent what had been posted on the original Web site. However, a recent district court case in the Second Circuit has called Novak's dicta into question, noting that screen shots from the Internet Archive may be “authenticated by a knowledgeable employee of the Web site.” Audi AG v. Shokan Coachworks, Inc., 592 F. Supp. 2d 246, 277-78 (N.D.N.Y. 2008).

The Internet Archive's Web site sets out the procedures for obtaining an affidavit and provides a useful sample. See, www.archive.org/legal and www.archive.org/legal/affidavit.php.

Self-Authentication Under FRE 902

A proponent may also try to fit the screen shots into the relatively narrow categories of FRE 902, which permits authentication without extrinsic evidence. The likely candidates are 902(5) (Official Publications), 902(6) (Newspapers and Periodicals), 902(11) (Certified Domestic Records of Regularly Conducted Activity), and 902(12) (Certified Foreign Records of Regularly Conducted Activity). With respect to 902(11) and (12), the proponent will have to obtain a declaration from a qualified person certifying that the information posted on the Web site meet the requirements of a business record.

FRE 902(5) defines “Official Publications” as “[b]ooks, pamphlets, or other publications purporting to be issued by public authority.” Most courts have held, depending on the information, that screen shots of U.S. and State government Web sites are self-authenticating as an official government publication under 902(5). Paralyzed Veterans of Am. v. McPherson, 2008 WL 4183981, at 7 (N.D. Cal. 2008) (citing cases); Lorraine v. Markel Am. Ins. Co., 241 F.R.D. at 551 (“Given the frequency with which official publications from government agencies are relevant to litigation and the increasing tendency for such agencies to have their own Web sites, FRE 902(5) provides a very useful method for authenticating these publications.”).

No case has addressed whether screen shots from a foreign government's Web site are self-authenticating under 902(5). Given the text of the rule, a court is likely to find that such documents are covered. FRE 902(5) provides that “publications purporting to be issued by public authority” are self-authenticating. The term “public authority” is not defined in the rules. However, courts interpreting FRE 803(8) ' the hearsay exception for “[p]ublic records and reports” ' have ruled that it covers “statements” by a foreign government. See, e.g., F.A.A. v. Landy, 705 F.2d 624, 633 (2d Cir. 1983) (admitting a telex sent by the German government through the U.S. State Department to the Federal Aviation Administration). Presumably, courts would read “public” to have the same scope under 902(5). Under certain circumstances, a party may also be able to rely upon 902(3), which provides that foreign public documents are self-authenticating, even without certification. See, e.g., U.S. v. Torres-Reyes, 2002 WL 31019363, at 1 (10th Cir. 2002) (affirming the authentication of a foreign public document without certification ' this case did not involve information from a Web site).

Judicial Notice of Web Sites Or Facts Contained Therein

It may be possible to avoid the burden of authentication by requesting the court to take judicial notice of information found on a Web site. Indeed, “[i]t is not uncommon for courts to take judicial notice of factual information found on the world wide Web.” O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007); see also, Hotel Employees & Restaurant Employees Union, Local 100 of New York, N.Y. & Vicinity, AFL CIO v. City of New York Dept. of Parks & Recreation, 311 F.3d 534, 549 (2d Cir. 2002).

Federal Rule of Evidence 201(b) provides: “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Id. If the information is relevant, it is “appropriate to take [judicial] notice of the fact that the Web site makes such a designation, [if] the authenticity of the site has not been questioned.” Hotel Employees, 311 F.3d at 549; see also, Francarl Realty Corp. v. Town of East Hampton, 628 F.Supp.2d 329, 332 (E.D.N.Y. 2009). Moreover, FRE 201(d) makes the rule mandatory when it applies.

In O'Toole, the district court denied plaintiff's request to take judicial notice of relevant facts listed on Northrop's Web site. Plaintiff had supplied the court with the address for the Web page, and the court located it online. Id. The Tenth Circuit found that the district court had abused its discretion by not judicially noticing the facts found on Northrop's Web site, finding that O'Toole “addressed all the factors relevant to the application of [FRE] 201(b)(2).” Id. The court noted that Northrop had not raised any reasonable dispute that the information was unreliable. Id. at 1225; see also, Wang v. Pataki, 396 F. Supp.2d 446, 458 (S.D.N.Y. 2005) (taking judicial notice of information on a non-party's Web site).

Similarly, in Paralyzed Veterans of America, plaintiffs supplied to the court the applicable Web pages that appeared on the California Secretary of State's Web site. The first Web page included a letter approving a California county's use of the vote-counting device at issue in the litigation. The second page listed a set of conditions on the use of the device. The court took judicial notice of the information on both Web pages on the grounds that defendants did not reasonably question the Web site's accuracy and the information was capable of accurate and ready determination online.

At least one circuit court has required more before taking judicial notice of information on a Web site. In Victaulic Co. v. Tieman, the district court had established certain facts about plaintiffs by accessing defendants' Web site, which was not disputed as inauthentic by defendants. 499 F.3d 227, 236 (3d Cir. 2007). The Third Circuit, however, held that the opposing party is not required to dispute the authenticity of the Web site, noting that “we allow judicial notice only from sources not reasonably subject to dispute.” Id. (citing FRE 201(b)) (emphasis added). The court found that judicial notice was improper here because “[a]nyone may purchase an [I]nternet address, and so, without proceeding to discovery or some other means of authentication, it is premature to assume that a [W]eb page is owned by a company merely because its trade name appears in the [URL].” Id. Given the suspicion many courts hold toward information posted on the Internet, a party in the Third Circuit faces an uphill battle.

Conclusion

Although many courts view Internet evidence as “voodoo information,” with the proper support, authentication should be overcome; overcoming a hearsay objection may be the real challenge. To authenticate a screen shot, the proponent of a screen shot should try to obtain testimony through affidavit, requests for admission, deposition or live testimony from the Web sites' sponsor or Web master. At a minimum, the proponent must obtain from the individual who took the screen shot testimony stating that the image accurately reflects the content of the Web site and the image of the page on the computer at which the screen shot was made. The best practice would be to draft a declaration immediately after the individual obtains the screen shot. If the evidence is from the opposing party's Web site, the litigant should try to authenticate at the party's deposition or through a request for admission. And the parties are always free to stipulate to authentication of any documents, including screen shots. Finally, requesting judicial notice should be considered, depending, of course, on the jurisdiction.

Plaintiff sues your client, claiming that his injuries have significantly affected his lifestyle. He is unable to work, travel or bowl. Not surprisingly, his spouse alleges loss of consortium. On the eve of trial, you discover pictures and other details on a social networking Web site about plaintiff's recent trip to the International Bowling Museum & Hall of Fame, including a picture of plaintiff proudly holding a fluorescent orange bowling ball and a four-foot tall gilded trophy dated four days earlier. As you approach the witness with printouts of the Web pages, you are stopped in your tracks: “Objection, lack of foundation.”

It is now routine for litigators to conduct Internet research to work up a case. Indeed, for many litigators, one of the first things they do is see what is available about the opposing party, searching Google, social networking sites like Twitter, MySpace and Facebook, and the party's personal Web sites. During the life of any case, there will likely be valuable information obtained from the Internet that will be used at deposition or trial. Commonly, the proponent of online evidence will present a screen shot of the Web page, which was either downloaded as a .pdf or printed directly from the Web site. The process is like taking a photograph of the image as it appears on the monitor. In general, this captures not only the look, but also the download date and the URL. If proper steps are not taken to admit the evidence, the value of this information may be lost.

Authenticity

As with all evidence, the proponent must be prepared to establish that the evidence is relevant, authentic, and not subject to exclusion under the hearsay or best evidence rules. This article focuses on the second evidentiary hurdle: authenticity. Although the burden of authenticating a document is usually quite low, doing so for a screen shot of a Web site presents an additional challenge, as courts generally view such information with suspicion. As one federal district judge noted: “Anyone can put anything on the Internet. ' [The Internet is] one large catalyst for rumor, innuendo, and misinformation.” St. Clair v. Johnny's Oyster & Shrimp, Inc. , 76 F. Supp. 2d 773, 774-75 (S.D. Tex. 1999). It is “voodoo information.” Id.

Authentication Under Federal Rule of Evidence 901

Federal Rule of Evidence (“FRE”) 901(a) requires the proponent to show that the evidence is what it is purported to be. Notably, the proponent need only make a prima facie showing from which the jury could reasonably find that the document is authentic. Most courts require the proponent to come forward with “admissible evidence” to lay the foundation, reasoning that the court's authenticity determination is governed by FRE 104(b). See , Lorraine v. Markel Am. Ins. Co. , 241 F.R.D. 534, 539-40 (D. Md. 2007).

FRE 901(b) provides a non-exhaustive list of illustrations of how a proponent may authenticate a document. The two candidates for authenticating screen shots are 901(b)(1) (permitting authentication by “[t]estimony that a matter is what it is claimed to be”) and 901(b)(4) (permitting authentication by
“[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances”).

Reflecting their suspicion of “voodoo information,” the majority of courts appear to require the proponent to authenticate a Web site under 901(b)(1). As one commentator has noted, testimony must answer the following questions: “1) What was actually on the Web site? 2) Does the exhibit or testimony accurately reflect it? and 3) If so, is it attributable to the owner of the site?” Lorraine, 241 F.R.D. at 555-56 (quoting Gregory P. Joseph, Internet and Email Evidence, reprinted in 5 Stephen A. Saltzburg et al., Fed. R. Evid. Man., Part 4 at 20 (9th ed. 2006)). That same commentator provides a list of factors that a court may consider, including the “length of time the data was posted on the site ' whether it remains on the Web site for the court to verify; whether the data is of a type ordinarily posted on that Web site or Web sites of similar entities ' whether the owner of the site has elsewhere 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 Web site in question.” Id.

Courts generally fall into three camps with respect to the scope of testimony that 901(b)(1) requires. The first camp requires testimony showing that the information was posted by the indvidual to whom the information is attributed in the form of a “statement or affidavit from ' [the Web site's] [W]eb master or someone else with personal knowledge.” In re Homestore, Inc. Sec. Litig., 347 F. Supp. 2d 769, 782-83 (C.D. Cal. 2004); see also , Wady v. Provident Life and Accident Ins. Co. of Am. , 216 F. Supp. 2d 1060 (C.D. Cal. 2002) (sustaining objection to affidavit because affiant lacked personal knowledge of who maintained the Web site or authored the documents). This is akin to authenticating a letter, which requires showing that it was written by the individual to whom it is attributed.

The second camp is much more permissive, finding sufficient testimony from the person who created the screen shot that the image “accurately reflects the content of the Web site and the image of the page on the computer at which the [screen shot] was made.” Toytrackerz LLC v. Koehler, 2009 WL 2591329, at 6 (D.Kan. Aug. 21, 2009); see also, Nightlight Sys., Inc. v. Nitelites Franchise Sys., Inc., 2007 WL 4563875, at 5-6 (N.D. Ga. May 11, 2007)). The standard applied by these courts is not much different from that applied to photographs. In kSolo, Inc. v. Catona, for example, the court admitted a screen shot, noting that although the declarant “may not have [had] knowledge as to how the Web site works on a technological level, his declaration establishes sufficient knowledge to attest that the screen shots are an accurate representation of what he encountered upon visiting the Web site.” 2008 WL 4906115, at 1, n.5 (C.D. Cal. Nov. 10, 2008); see also , Victaulic Co. v. Tieman , 499 F.3d 227, 236 (3d Cir. 2007) (ignoring the “Web master” portion of Homestore and citing that case only for the proposition: “To be authenticated, some statement or affidavit from someone with knowledge is required”).

Notably, courts in the second camp do not appear to require the proponent to authenticate the information as authored or sponsored by the individual to whom it is attributed. Instead, the party need only show that the screen shot reflects what was on the site. Presumably, the issue of authorship or sponsorship will be the subject of cross-examination and further proof.

The third camp is somewhere in between, requiring different evidence depending on the circumstances. In United States v. Jackson, for example, the Seventh Circuit excluded screen shots because the proponent did not prove that the Web site's owner actually posted the information. 208 F.3d 633, 637 (7th Cir. 2000). The court held that the proponent must demonstrate that the information was actually put on the Web site by the site's sponsor. But the Jackson court went on to note that the type of evidence required to meet the prima facie burden depends on the proponent's incentive and ability to falsify evidence. In that case, the proponent argued that a white supremacist group had claimed responsibility on its Web site for her alleged actions. Siding with the government, the court refused to admit screen shots of the supremacist group's Web site introduced by defendant, noting that the defendant was a sophisticated computer user and had every incentive to try to place the blame on someone else. This incentive required the defendant to link the information directly to the Web site's sponsor.

A litigant could try to authenticate a screen shot without testimony by relying on FRE 901(b)(4), arguing that the look of the screen shot, the download dates and identifying Web addresses are sufficient circumstantial evidence of authenticity. See , e.g. , Perfect 10, Inc. v. Cybernet Ventures, Inc. , 213 F.Supp.2d 1146, 1154 (C.D.Cal. 2002) (admitting Web site posting due to circumstantial indicia of authenticity, including presence of download dates and identifying Web addresses). However, that information is not likely to pass muster. Even in Perfect 10, the proponent submitted a declaration stating that the screen shots were true and correct copies that he printed from the Internet.

Authentication of Screen Shots from Archive.org

Many litigators are familiar with the Internet Archive (www.archive.org), also known as the “Wayback Machine.” The Internet Archive uses a process called crawling to visit Web sites and systematically duplicate and store the data on its own servers, which allows users to retrieve copies of Web pages as they existed at various times in the past. With the amount of information posted on the Web, it is an indispensable investigatory tool.

Most courts that have addressed the issue have admitted screen shots from the Wayback Machine, finding sufficient “a statement or affidavit from an Internet Archive representative with personal knowledge of the contents of the Internet Archive Web site.” St. Luke's Cataract and Laser Institute, P.A. v. Sanderson, 2006 WL 1320242, at 2 (M.D.Fla. May 12, 2006); Telewizja Polska USA, Inc. v. EchoStar Satellite Corp., 2004 WL 2367740, at 5-6 (N.D.Ill. Oct. 15, 2004) (party submitted affidavit from the administrative director for the Internet Archive describing in detail the process used to allow visitors to search archived Web pages). Notably, California has recognized it as an official library for purposes of federal funding.

At least one court has suggested, however, that it would not accept screen shots from the Internet Archive even if authenticated by such an affidavit. Novak v. Tucows, Inc., 2007 WL 922306, at 5 (E.D.N.Y. March 26, 2007). The court reasoned that the Internet Archive's employees play no role in ensuring that archived Web sites accurately represent what had been posted on the original Web site. However, a recent district court case in the Second Circuit has called Novak 's dicta into question, noting that screen shots from the Internet Archive may be “authenticated by a knowledgeable employee of the Web site.” Audi AG v. Shokan Coachworks, Inc. , 592 F. Supp. 2d 246, 277-78 (N.D.N.Y. 2008).

The Internet Archive's Web site sets out the procedures for obtaining an affidavit and provides a useful sample. See, www.archive.org/legal and www.archive.org/legal/affidavit.php.

Self-Authentication Under FRE 902

A proponent may also try to fit the screen shots into the relatively narrow categories of FRE 902, which permits authentication without extrinsic evidence. The likely candidates are 902(5) (Official Publications), 902(6) (Newspapers and Periodicals), 902(11) (Certified Domestic Records of Regularly Conducted Activity), and 902(12) (Certified Foreign Records of Regularly Conducted Activity). With respect to 902(11) and (12), the proponent will have to obtain a declaration from a qualified person certifying that the information posted on the Web site meet the requirements of a business record.

FRE 902(5) defines “Official Publications” as “[b]ooks, pamphlets, or other publications purporting to be issued by public authority.” Most courts have held, depending on the information, that screen shots of U.S. and State government Web sites are self-authenticating as an official government publication under 902(5). Paralyzed Veterans of Am. v. McPherson, 2008 WL 4183981, at 7 (N.D. Cal. 2008) (citing cases); Lorraine v. Markel Am. Ins. Co. , 241 F.R.D. at 551 (“Given the frequency with which official publications from government agencies are relevant to litigation and the increasing tendency for such agencies to have their own Web sites, FRE 902(5) provides a very useful method for authenticating these publications.”).

No case has addressed whether screen shots from a foreign government's Web site are self-authenticating under 902(5). Given the text of the rule, a court is likely to find that such documents are covered. FRE 902(5) provides that “publications purporting to be issued by public authority” are self-authenticating. The term “public authority” is not defined in the rules. However, courts interpreting FRE 803(8) ' the hearsay exception for “[p]ublic records and reports” ' have ruled that it covers “statements” by a foreign government. See , e.g. , F.A.A. v. Landy , 705 F.2d 624, 633 (2d Cir. 1983) (admitting a telex sent by the German government through the U.S. State Department to the Federal Aviation Administration). Presumably, courts would read “public” to have the same scope under 902(5). Under certain circumstances, a party may also be able to rely upon 902(3), which provides that foreign public documents are self-authenticating, even without certification. See, e.g., U.S. v. Torres-Reyes, 2002 WL 31019363, at 1 (10th Cir. 2002) (affirming the authentication of a foreign public document without certification ' this case did not involve information from a Web site).

Judicial Notice of Web Sites Or Facts Contained Therein

It may be possible to avoid the burden of authentication by requesting the court to take judicial notice of information found on a Web site. Indeed, “[i]t is not uncommon for courts to take judicial notice of factual information found on the world wide Web.” O'Toole v. Northrop Grumman Corp. , 499 F.3d 1218, 1225 (10th Cir. 2007); see also , Hotel Employees & Restaurant Employees Union, Local 100 of New York, N.Y. & Vicinity, AFL CIO v. City of New York Dept. of Parks & Recreation , 311 F.3d 534, 549 (2d Cir. 2002).

Federal Rule of Evidence 201(b) provides: “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Id. If the information is relevant, it is “appropriate to take [judicial] notice of the fact that the Web site makes such a designation, [if] the authenticity of the site has not been questioned.” Hotel Employees , 311 F.3d at 549; see also , Francarl Realty Corp. v. Town of East Hampton , 628 F.Supp.2d 329, 332 (E.D.N.Y. 2009). Moreover, FRE 201(d) makes the rule mandatory when it applies.

In O'Toole, the district court denied plaintiff's request to take judicial notice of relevant facts listed on Northrop's Web site. Plaintiff had supplied the court with the address for the Web page, and the court located it online. Id. The Tenth Circuit found that the district court had abused its discretion by not judicially noticing the facts found on Northrop's Web site, finding that O'Toole “addressed all the factors relevant to the application of [FRE] 201(b)(2).” Id. The court noted that Northrop had not raised any reasonable dispute that the information was unreliable. Id . at 1225; see also , Wang v. Pataki , 396 F. Supp.2d 446, 458 (S.D.N.Y. 2005) (taking judicial notice of information on a non-party's Web site).

Similarly, in Paralyzed Veterans of America, plaintiffs supplied to the court the applicable Web pages that appeared on the California Secretary of State's Web site. The first Web page included a letter approving a California county's use of the vote-counting device at issue in the litigation. The second page listed a set of conditions on the use of the device. The court took judicial notice of the information on both Web pages on the grounds that defendants did not reasonably question the Web site's accuracy and the information was capable of accurate and ready determination online.

At least one circuit court has required more before taking judicial notice of information on a Web site. In Victaulic Co. v. Tieman, the district court had established certain facts about plaintiffs by accessing defendants' Web site, which was not disputed as inauthentic by defendants. 499 F.3d 227, 236 (3d Cir. 2007). The Third Circuit, however, held that the opposing party is not required to dispute the authenticity of the Web site, noting that “we allow judicial notice only from sources not reasonably subject to dispute.” Id. (citing FRE 201(b)) (emphasis added). The court found that judicial notice was improper here because “[a]nyone may purchase an [I]nternet address, and so, without proceeding to discovery or some other means of authentication, it is premature to assume that a [W]eb page is owned by a company merely because its trade name appears in the [URL].” Id. Given the suspicion many courts hold toward information posted on the Internet, a party in the Third Circuit faces an uphill battle.

Conclusion

Although many courts view Internet evidence as “voodoo information,” with the proper support, authentication should be overcome; overcoming a hearsay objection may be the real challenge. To authenticate a screen shot, the proponent of a screen shot should try to obtain testimony through affidavit, requests for admission, deposition or live testimony from the Web sites' sponsor or Web master. At a minimum, the proponent must obtain from the individual who took the screen shot testimony stating that the image accurately reflects the content of the Web site and the image of the page on the computer at which the screen shot was made. The best practice would be to draft a declaration immediately after the individual obtains the screen shot. If the evidence is from the opposing party's Web site, the litigant should try to authenticate at the party's deposition or through a request for admission. And the parties are always free to stipulate to authentication of any documents, including screen shots. Finally, requesting judicial notice should be considered, depending, of course, on the jurisdiction.