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Univ. of South Carolina School of Law

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Monday, December 2, 2013

Semi-Automatic: Indiana Court Finds Printout From Website Not Self-Authenticating Under Rule 902(7)

Federal Rule of Evidence 902(7) allows for the self-authentication of

An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.

Last week, I did a couple of posts (here and here) about the intersection between Rule 902(7) and the rule against hearsay. Today, the recent opinion of the United States District Court for the Northern District of Indiana in Estate of Carman v. Tinkes, 2013 WL 6184456 (N.D.Ind. 2013), gives me a third opportunity to explore this intersection and a first chance to see what the internet might mean for the Rule.

In Tinkes,  

Edmund M. Carman died on April 2, 2011, just after 7:30 a.m., from injuries he sustained earlier that morning when his 2003 Kia Spectra crashed into the rear right corner of a Ford F–350 utility truck. Plaintiff, the Estate of Edmund M. Carman, filed a three-count wrongful-death Complaint against Defendants on August 30, 2012.

After the defendants responded to the complaint, the plaintiff filed its own responsive brief. The defendants then moved to strike certain portions of that brief. Specifically, they moved to 

strike Plaintiff's statements about the Kia's headlights being "likely on" and Exhibit L, which Plaintiff use[d] to support that conclusion on the basis that Plaintiff did not lay a proper foundation. Exhibit L appear[ed] to be a Yahoo! website page stating that the 2003 Kia Spectra came with standard "Automatic Headlights With Automatic Off." Plaintiff contend[ed] that Exhibit L [wa]s self-authenticating under Federal Rule of Evidence 902(7) , which provides that potential evidence with "an inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control" is self-authenticating.  

In response, the

Defendants point[ed] to In re Homestore.com, Inc. Sec. Litig., in which a California District Court held that "[p]rintouts from a web site do not bear the indicia of reliability demanded for other self-authenticating documents under Fed.R.Evid. 902. To be authenticated, some statement or affidavit from someone with knowledge is required." 347 F.Supp.2d 769, 782 (C.D.Cal.2004); accord Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d Cir.2007) (“Anyone may purchase an internet address, and so, without proceeding to discovery or some other means of authentication, it is premature to assume that a webpage is owned by a company merely because its trade name appears [on it]."

The court sided with the defendants, concluding that

Exhibit L has even less going for it than the printout in Homestore since it lacks both a URL and a date stamp....This Court agrees with the holding of Homestore and accordingly strikes Exhibit L and all parts of Plaintiff's brief that assert that the Kia's headlights were on.

I agree with the court's conclusion and also assert that this is a case where, even if the printout were self-authenticating, it would create problems under the rule against hearsay. The plaintiff was trying to admit the printout to prove the truth of the matter asserted: that the Kia in question came with standard "Automatic Headlights," with the implied assertion being that the headlights were likely on. Therefore, in the absence of an applicable hearsay exception, the printout should have been excludable.

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/12/9027-estate-of-carman-v-tinkesslip-copy-2013-wl-6184456ndind2013.html

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