But Judge, I Got it from the 'net'!-the Admissibility of Internet Evidence

• Publication year: 2002
• Pages: 91
• Citation: Vol. 31 No. 10 Pg. 91

31 Colo.Law. 91 Colorado Lawyer 2002.

2002, October, Pg. 91. But Judge, I Got it From the 'Net'!-The Admissibility of Internet Evidence

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91

Vol. 31, No. 10, Pg. 91

The Colorado Lawyer
October 2002
Vol. 31, No. 10 [Page 91]

Departments
Technology and Law Practice
"But Judge, I Got it From the 'Net'!" - The Admissibility of Internet Evidence
by Steve C. Posner

This article was written by Steve Posner, Denver, The Posner Law Firm - (303) 753-9444, scp@posnerlaw.com

This Department welcomes submissions of articles and article topics of a practical nature that do not advocate a position or promote a product. For more information about the Department guidelines or to submit an article or topic suggestion, please contact one of the following Department editors: Larry Smith, (303) 832-4643 or larry.smith@

lawofficeconsulting.com; Carrol Reeves, (303) 377-3580 or carroltmreeves@aol.com; Sue Borgos, (303) 422-2229 or sborgos@nsbs.com

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Articles that appear in this Department do not necessarily reflect the official position of The Colorado Lawyer or the Colorado Bar Association, and the publication of these articles does not constitute any recommendation or endorsement of the goods or services mentioned herein

This article concerns the admissibility into evidence of material downloaded or derived from the Internet. In general, admissibility depends not only on the rules of evidence but on the attitudes of individual courts. These attitudes may range from outright rejection of information from the Internet as "inherently untrustworthy"1 to a more general willingness to assess the admissibility of Internet evidence on a case-by-case basis in accord with evidentiary rules. However, even courts that have flatly denied the admissibility of Internet evidence may rethink their positions following the U.S. Supreme Court's citation of a Department of Justice website in Kyllo v. United States, a June 2001 case.2

Rulings on the admissibility of Internet materials have been made in trial and appellate courts. For brevity's sake, this article emphasizes the rationale underlying each ruling; the essence of each dispute is described only where necessary to explain a ruling or provide needed context. The rulings fall into five areas addressed by federal and state rules of evidence: relevance, probative value, expert opinion, hearsay, and authentication. E-mail and chat room evidence are separate topics not discussed in this article.

Relevance - F.R.E./C.R.E. 401 and 402

Rule 401 basically defines relevant evidence as that which has any tendency to make any fact of consequence to the determination of the action more or less probable. Rule 402 excludes irrelevant evidence. The practitioner should be aware that the content of websites can change at any time, often without any documentation or audit trail, and should consider citing the date a site was visited, as the U.S. Supreme Court did in Kyllo.

Cases Admitting Internet
Evidence as Relevant

In Van Westrienen v. Americontinental Collection Corp.,3 the U.S. District Court for the District of Oregon ruled admissible the defendant's website - which contained a wealth of misrepresentations - as relevant to whether the defendant's conduct warranted punitive damages. In Westlands Water District v. United States,4 the U.S. District Court for the Eastern District of California held Internet citations suitable for background information. In making its finding, the Westlands Water District court relied on Kyllo.5 In Kyllo, the U.S. Supreme Court found the date of its visit to the website important enough to note in its opinion.

Case Excluding Internet
Evidence as Irrelevant

In Multivideo Labs, Inc. v. Intel Corp.,6 the U.S...