Authenticating Evidence From A Web Site

Are there any special considerations that go into authentication of material found on a web site so it can be introduced into evidence? The Seventh Circuit recently assessed an effort to authenticate postings on a web site that its proponent claimed would have shown that it had not abandoned its trademark, in Specht v. Google, Inc., __ F.3d __ (7th Cir. April 4, 2014) (No. 11-3317)

In the case, plaintiff Specht claimed that defendant Google had infringed the plaintiff's ANDROID DATA trademark, which he had registered in 1999 in connection with his company, Android Data Corp., a web hosting and e-commerce software venture. Although he had received a registration for the trademark in 2002, the plaintiff's business dissolved soon thereafter and all assets ended up with another corporation that the plaintiff had launched, Android's Dungeon, Inc. Specht, __ F.3d at __.

Alleged Trademark Infringement

Defendant Google came to be embroiled in the dispute over the ANDROID DATA mark after it purchased a start-up called Android and by 2007 provided a beta version of its Android operating system, which came to be used with the smartphone. Google had made an application to register the ANDROID mark, but the registration was denied because of a likelihood of confusion with the plaintiff's registered ANDROID DATA mark. Specht, __ F.3d at __.

By 2009 the plaintiff Specht and his associated ventures brought a trademark infringement suit against Google. However, in a summary judgment proceeding, the district court, among other things ordered that Specht's ANDROID DATA registration be cancelled because Google had shown that the plaintiff had abandoned the registered mark. This provided a basis for the plaintiff's appeal to the Seventh Circuit, where he argued that the record showed that the plaintiff had used the mark in some form or another after 2002 and that the plaintiff always intended to use the mark on products and services of his companies. Specht, __ F.3d at __.

Inadequate Authentication

One of the errors that the plaintiff cited in his appeal was the trial court's exclusion of evidence that he did not abandon the mark. Specifically this involved exclusion of

screenshots from webpages of Specht's former clients from 2005, bearing the Android Data mark. The contested screenshots were from an internet archive service. The district court excluded these screenshots because, without an affidavit describing the reliability of the archive service, they were not properly authenticated. See Fed. R. Evid. 901.

Specht, __ F.3d at __ (citing FRE 901).

The Seventh Circuit found no error in the exclusion of the screenshots:

... of certain client websites as they supposedly appeared in 2005, bearing the Android Data mark. He argues that the screenshots are admissible because the creators of the sites asserted from memory that the screenshots reflected how those sites appeared in 2005. But the district court reasonably required more than memory, which is fallible; it required authentication by someone with personal knowledge of reliability of the archive service from which the screenshots were retrieved.

Specht, __ F.3d at __ (citing United States v. Bansal, 663 F.3d 634, 667–68 (3d Cir. 2011) (screenshots from internet archive authenticated via testimony of witness with personal knowledge of how internet archive works))

Conclusion

As the Specht case suggests, authentication of materials placed on the web does not always pose special difficulties. Typically a witness who had seen the web site at the time in question can testify that a depiction of a website accurately presents what he saw on the site at the time he viewed it. Curiously, in Specht the plaintiff also objected to the court's admission of "Google's screenshots of Specht's own website from August 2010 and to two of Google's press releases from November 2007 about the Android operating system." However, the admissibility of this evidence was not based on authentication, but rather was based on admission -- that the plaintiff "had submitted an identical screenshot and had alleged in his complaint the information from the press releases." Specht, __ F.3d at __.

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Federal Rules of Evidence
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