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Internet Evidence - Part III: Hearsay Exceptions

In Part II, we addressed the application of the Hearsay Rule to Internet content.  Here, we discuss the application of some common hearsay objections.

Common Hearsay Exceptions

All of the hearsay exceptions applicable to traditional printed documents are applicable to Internet content, but there are two such exceptions which have been applied to such evidence fairly frequently.

Public Records and Reports

Pursuant to Fed. R. Evid. 803(8), certain "[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies" are not excluded by the Hearsay Rule, even though the declarant is available as a witness.  As the Rule states, the Public Records Exception is not limited to traditional print documents, but includes Internet content and any other form of record or report.  See U.S. E.E.O.C. v. E.I.  DuPont de Nemours & Co., No. 03-1605, 2004 WL 2347559, at *1 (E.D.La. Oct. 18, 2004)(holding that a table printed from the United States Census Bureau website was not excluded by the Hearsay Rule because the document constituted a public record or report under Fed.R.Evid. 803(8)); U.S. v. New-Form Mfg. Co., Ltd., 27 C.I.T. 905, 917 (Ct.Int’l Trade 2003)(holding that information found in a report which was consistent with data found on the official website of the Office of the Superintendent of Bankruptcy Canada was deemed admissible under Fed.R.Evid. 803(8)). 

While content’s trustworthiness is not diminished by its existence in an electronic medium, website content taken from public agencies is subject to the same authentication requirements as other evidence.  (See Internet Evidence (Part I:  Authentication)).  Internet content which originates from a public authority is deemed to be self authenticating under Fed.R.Evid. 902(5) and documents which are taken from government websites are found to be authentic under Fed.R.Evid. 901(b)(7).   E.I.  DuPont de Nemours, 2004 WL 2347559, at *1 (E.D. La. 2004); U.S. ex rel. Trice v. Westinghouse Elec. Corp., No. 96-CS-171-WFN, 2000 WL 34024248, at *18 (E.D.Wash. Mar. 1, 2000).  If the evidence in question does not originate from a public entity, then a party must present a sufficient showing to satisfy the requirements of Fed.R.Evid. 901(a)

Market and Commercial Reports

Another  exception to the Hearsay Rule exists for “market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.”   Fed. R. Evid. 803(17).  When such information appears on a website, it is admissible in the same manner as similar material published in books or periodicals.  See Hess v. Riedel-Hess, 794 N.E.2d 96, 103-04 (Ohio Ct. App. 2003)(finding that a valuation of a vehicle calculated by the National Automobile Dealer Association website was admissible even when a reliable print source valuation was also submitted);Elliott Assoc., L.P. v. Banco de la Nacion, 194 F.R.D. 116, 121 (S.D.N.Y. 2000)(holding that rates acquired from the Federal Reserve Board website or from Bloomberg are admissible under Fed.R.Evid. 803(17); State v. Erickstad, 620 N.W.2d 136,146 (N.D. 2000)(holding that the appraisal of a car determined from the Kelley Blue Book website was admissible under Fed.R.Evid. 803(17)).

Conclusion

As the Internet has grown as a source of information, it has naturally grown as a source of evidence.  Early on, courts were highly skeptical in their view of the Internet as a source of evidence.  Now, many courts are comfortable with relying on the application of traditional evidentiary principles to ensure that Internet evidence which is admitted will be every bit as reliable as other documentary evidence.

Internet Evidence - Part I: Authentication

Internet Evidence - Part II: Hearsay

© 2021 Odin, Feldman & Pittleman, P.C.National Law Review, Volume III, Number 212
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About this Author

Jonathan D. Frieden, Odin Feldman Law Firm, E-commerce Attorney
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A degree in systems engineering and a background in computer coding have helped inform Jon Frieden’s approach to successfully handling a broad range of matters for his technology clients. As a self-described “early adopter,” Jon was one of the first attorneys in Northern Virginia to focus on Internet law and e-commerce.

With a practice centered on complex Internet- and technology-related commercial disputes and transactions, Jon brings a two-pronged approach to helping clients achieve success. Jon’s litigation experience helps structure deals for his clients that avoid potential...

703-218-2125
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