Limits To Relying On Internet Materials and Information In Court (Part VIII)

Statements on defendant bank financial guarantees to the plaintiff made during plaintiff's telephone conversations with persons at the phone number provided by the defendant's alleged website were excluded since they could not be authenticated; the website was not a "book, pamphlet, or other publication purporting to be issued by a public authority,” under FRE 902(5) and the phone number called lacked sufficient indicia of reliability to render it self-authenticating, in Hansen v. PT Bank Negara Indonesia (Persero), __ F.3d __ (10th Cir. Feb. 5, 2012) (No. 12-4053)

In a case decided last week, the Fifth Circuit noted that before statements based on identifying information taken from a web site could be admitted as party admissions under FRE 801(d)(2), the statements required authentication and this could involve authenticating that the web site is that of a party's. The proponent of the evidence has to show sufficient proof that the site from which the contact number was taken was actually related to the individual or organization to which they are being attributed. This case presents an interesting contrast with other cases concerning authentication of web sites. See, e.g., Limits To Relying On Internet Materials And Information In Court (Part III).

In the case, plaintiff Hansen sued the defendant Bank contending that it failed to honor certain financial instruments (bank guaranties and letters of credit)," which he had received from NARCO, purchasers of Hansen's gas station enterprise. Before receiving these instruments, designed to "secure[ ] NARCO's obligations to Mr. Hansen," he had made attempts to confirm their validity with the issuing bank. This included using a web site purportedly run by the Bank, as well as discussions with individuals on the phone that he believed were Bank employees. Although the plaintiff claimed that this only "confirmed the Bank's relationship with NARCO and the guaranties," the plaintiff "[i]n none of these attempts" could "explicitly validate any of the financial instruments as authentic BNI [Bank] paper." After the plaintiff tried to use the purported guaranties and letters of credit, the Bank "refused to make payment and denied issuing ... any of the instruments" that Hansen presented.

After commencement of the suit, because of its relationship with the Indonesian government, the defendant Bank invoked the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1604 (“FSIA”). The Act "allows federal courts to exercise jurisdiction over foreign states when such states engage in certain 'commercial activities,' with direct effects in the United States." Defendant "argued that it had not engaged in any commercial activity with Plaintiffs because all of the financial instruments at issue were fraudulent," and ultimately moved for summary judgment. This was granted as the plaintiff's were not able to meet their burden of production of showing the requisite commercial activity by the defendant bank. Part of the reason for this failure, the trial judge concluded, was that the plaintiff's proof of "bank guaranties representing BNI's commercial activity were not sufficiently authenticated."

In the plaintiff's appeal, he contended that the trial judge had failed to consider sufficient evidence of authentication, such as the plaintiff's evidence of phone calls he had made to a "telephone number for BNI ... that ... were answered purportedly by BNI representatives, and that the conversations related to business one would expect to be conducted over the phone. Plaintiffs contend that Rule 901(b)(6) or 902(5) establishes that the statements were made by someone at or on behalf of BNI," and therefore should not have been excluded.

The circuit disagreed, noting that before the statements could be admitted (purportedly under the FRE 801(d)(2) allowance for admissions by, or adopted, or authorized by, a party-opponent) the plaintiff needed to show that the evidence embodying the statements were admissible. They needed to be authenticated, showing that the purported statements did come from the defendant or the defendant's representative. The circuit explained why "[n]either [FRE] Rule 901(b)(6) nor [FRE] Rule 902(5) gets us there":

Rule 901(b)(6)(B) provides that a telephone call to a business is authenticated if there is evidence that a person placed a call to a telephone number assigned by the telephone company to that particular business and the subject of the telephone call related to business that is reasonably transacted over the telephone. On a purported BNI website that no longer exists, Mr. Hansen found a phone number and he—or someone with whom he worked—called it. ... Plaintiffs admit that “there is no evidence in the record that the telephone number called ... was the number assigned by the telephone company to BNI.” Without additional evidence, Rule 901(b)(6) cannot be used to establish that these statements were made by anyone at, or on behalf of, BNI. Therefore the district court did not abuse its discretion in concluding that Dr. Firmansyah and Mr. Budiwiyono could not be considered party-opponents on this ground [because there was no evidence tying them and their statements to the defendant bank].

Plaintiffs nevertheless argue that the website should be considered self-authenticating pursuant to Rule 902(5) and that the statements made during calls to a number on that website are therefore admissible. We disagree. The rule provides that “[a] book, pamphlet, or other publication purporting to be issued by a public authority” is self-authenticating. A website of a foreign bank does not fall squarely within the language of this rule. Moreover, a telephone number retrieved from a website in these circumstances does not have the sufficient indicia of reliability that justifies the self-authentication exceptions in the first place. Generally, Rule 902 eases Rule 901's requirements of authentication where the possibility of fraud, forgery, and mis-attribution of certain documents is slight. This is hardly the case here. We therefore conclude that the district court did not abuse its discretion in excluding the telephone conversations as inadmissible hearsay.
Hansen, __ F.3d at __ (citing FRE 901(b)(6)(B) & cmt.; FRE 902(5) & cmt. (“Dispensing with preliminary proof of the genuineness of purportedly official publications [is] most commonly encountered in connection with statutes, court reports, rules, and regulations....”)).

In Hansen, the failure of authentication was derivative. Because the proponent could not show that the phone numbers to which he called were related to the defendant; with disappearance of the site this left the plaintiff with little evidence that the number he called "telephone number assigned by the telephone company to that particular business and the subject of the telephone call related to business that is reasonably transacted over the telephone," under FRE 901(b)(6).


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