Daniel J. Dwyer, BridgeTower Media Newswires
Some litigators are blasé on the subject of evidentiary foundations, thinking that foundations will take care of themselves before trial.
They won’t. As an assistant district attorney, I once saw a case (not mine) directed out for lack of foundation for evidence of an essential element. “How humiliating,” I thought. “That will never happen to me.”
Twenty years later, it hasn’t, and to keep it that way I pay attention to foundations.
Your next trial will probably involve electronically stored evidence, or ESI: emails, websites, text messages and social media. Here, I discuss authentication of ESI, the lesser part of an evidentiary foundation.
Litigators argue relevance well and generally know hearsay. But (maybe because trials are scarce) they are not well practiced in authentication and lack the gut feeling for its acute importance.
ESI raises no legally unique authentication problems; counsel must develop a practical ability to authenticate using ESI-specific facts. Always, the question is what evidence is “sufficient to support a finding that the matter is what its proponent claims.”
Emails
Many courts treat as authentic email produced by a party in discovery, on the ground that production constitutes a judicial admission. At least two judges in the U.S. District Court in Massachusetts, Dennis F. Saylor IV and Marianne B. Bowler, agree. See Tsai v. McDonald, LEXIS 130280 (D. Mass. Aug. 16, 2017); Setterlund v. Potter, LEXIS 97291 (D. Mass. Aug. 9, 2009).
Secure authentication early by asking your adversary to produce its email on key topics.
Otherwise, authenticate email through its author-witness with standard questions: “Do you recognize this document?” and “What do you recognize it to be?” (Prepare your direct-exam witness to answer precisely and fully, and on cross-exam, of course, always lead.)
Authentication of email differs when the witness is its recipient. Some lawyers get by using the recipient as one with personal knowledge, but I never count on it.
Instead, authenticate with circumstantial evidence of the email’s “appearance, contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with the circumstances.” See Fed. R. Evid. 901(b)(4). These include the sender’s name or a distinctive email address.
The content of the email, connected up to other evidence, may establish a particular person as author. And if the recipient witness replied to the subject email, you’ve pretty well authenticated it. Much of this is common sense — but never wing it at trial. At the critical moment, you might not be at your best.
You can also authenticate under Fed. R. Evid. 901(b)(3) by establishing a likeness between the subject email and others already authenticated.
Websites
Seek ye first judicial notice.
The Internet Archive, at https://archive.org/web/, contains billions of archived websites. U.S. District Court Judge Douglas P. Woodlock endorsed judicial notice of a website on the Internet Archive as reflecting “facts readily determinable by resort to a source whose accuracy cannot reasonably be questioned.” See Martins v. 3PD, Inc., 2013 U.S. Dist. LEXIS 45753. (D. Mass. March 28, 2013).
Judge Janet L. Sanders of the Business Litigation Session indicates (to my reading) that she would do the same. Sullivan v. Cora Operations, Inc., 33 Mass. L. Rep. 606 (Super. Ct. Sept. 7, 2016).
Two caveats: first, the law is proceeding in baby steps; decisions cover only the evidence and objections at issue. See Kace v Liang, 472 Mass 630 n.25 (Mass. 2015) (leaving “for another day” how to establish that “a particular Web page is what it purports to be.”). Before relying on any authority for judicial notice, be careful how apposite it really is.
Second, courts usually notice the fact of a statement’s appearance on an archived website, but not its truth. If you need a website for its truth, prepare for a hearsay challenge. Government websites are judicially noticed as reliable, and most courts notice reliable non-governmental websites, including sites of newspapers, dictionaries or textbooks, and Mapquest. Judicial notice of Wikipedia will not happen.
Absent judicial notice, a website’s owner has personal knowledge to authenticate its contents. Your witness will usually be the person in charge of maintaining the website, but many courts also authenticate through a witness unrelated to the owner who personally visited the website (that is, who can credibly testify that he or she typed in the web address at a given date and time) and made a printout or screenshot of information found there.
Early in your discovery period, examine other parties’ websites for probative content, then have someone you can call to the witness stand visit the site, preserve the content on a screenshot or printout bearing the date of the visit and the URL address, and keep a good chain of custody.
Many websites don’t change much over time, and a trial witness may be able to testify, from memory, that a website was the same before and after suit was filed. That’s not an ideal foundation, but authentication — although indispensable — doesn’t require much.
A court need not find that a writing actually is what its proponent claims, but merely that a reasonable jury could so find. If the party opposing admission cannot, on cross-exam, undermine a good enough proffer, authentication is likely.
Social media
One who posts on social media has personal knowledge to authenticate his own message. Circumstantial evidence, too, can authenticate: that the account holder has exclusive access to the account; that the posting was made from an IP address associated with the account holder; and that the appearance of information known only to the account holder (or a close circle of others) suggests the holder as author.
A judge decides how much circumstantial evidence is enough. Pause when you think the court is satisfied, but come prepared with all you can.
Text messages
Texts are like emails with respect to authentication. The author of a text or someone who saw the author write it is competent to authenticate. Circumstantial evidence to authenticate texts overlaps with, but differs from, that for email.
A recipient who spoke to the purported sender of a text after calling the sender’s mobile number provides circumstantial evidence that a text came from the purported author’s phone. Distinctive information within the text, or conduct conforming to it, may support a finding that the phone’s owner actually wrote it. A text from the purported author’s phone saying, “Let’s meet at the gym in 30 minutes,” followed by his appearance there, should do.
Some ESI qualifies as business record, in which case it self-authenticates. Space does not permit a full discussion of that hearsay exception, nor do I broach the subject of forensic IT experts, but they too can be your authentication witnesses.
You’ll have a thousand things to remember at trial, so lay your foundations at deposition. As motivation, imagine yourself tramping through scores of authentication questions in front of a jury — or Judge Woodlock or Judge Sanders. Ask for stipulations well in advance of trial. If opposing counsel dithers, press for an answer. They might be thinking that you’ll trip over authentication in court.
U.S. District Court Judges Paul W. Grimm in Maryland and Jeffrey Cole in Illinois are excellent sources for more on this subject. If I’ve only reminded you to fear the humiliation of a directed verdict, I’ve done my job for today.
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Daniel J. Dwyer is a litigation shareholder at Murphy & King in Boston. He can be contacted at ddwyer@murphyking.com.
