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Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, January 1, 2014

Solid Foundation: Northern District of Illinois Notes Differences Between Self-Authentication & Hearsay

Federal Rule of Evidence 902(6) allows for the self-authentication of

Printed material purporting to be a newspaper or periodical.

In other words, newspapers and periodicals "require no extrinsic evidence of authenticity in order to be admitted...." Back in December, I did a series of posts about the relationship between self-authentication and the rule against hearsay. For another example in that vein, consider American Eagle Outfitters, Inc. v. American Eagle Furniture, Inc., 2013 WL 6839815 (N.D.Ill. 2013).

In American Eagle, American Eagle Outfitters and Retail Royalty Company (collectively AE Outfitters) brought a lawsuit against Defendants American Eagle Furniture, two related furniture companies, and five of the companies' owners and employees, claiming, inter alia, federal trademark infringement. Thereafter, the defendants challenged the admissibility of several press reports ranking the strength or fame of various companies' brands. Specifically, the defendants claimed that AE Outfitters failed to lay a proper foundation for these reports and failed to provide evidence on their reliability.

According to the Northern District of Illinois,

It is possible that AE Outfitters did lay a proper foundation. AE Outfitters attached these reports, which it does not offer as expert testimony, to an affidavit attesting that they were "unsolicited, popular press reports."...Consequently, these reports are self-authenticating under Federal Rule of Evidence 902(6). And any issues related to the reliability of these reports would typically go to the weight of the evidence, not to whether the Court or fact-finder should consider the reports in the first place.

The court then noted that this issue of foundation or authentication was different from the issue of reliability/hearsay. According to the court,

The question is not so much foundation as whether there is a hearsay exception that would permit AE Outfitters to rely on the brand rankings for the truth of the matters asserted. It is possible that AE Outfitters could reduce, at trial, the brand rankings to admissible evidence by introducing the underlying surveys that generated the rankings, but it does not appear that the underlying evidence was disclosed during discovery. Even discounting these reports' rankings as accurate, the sheer volume of unsolicited and widespread popular media coverage that AE Outfitters receives could be considered evidence of the mark's strength....In any event, as discussed in the text, none of this evidence is needed to show that the mark is strong.

-CM

http://lawprofessors.typepad.com/evidenceprof/2014/01/federal-rule-of-evidence-9026allows-for-the-self-authentication-of-printed-material-purporting-to-be-a-newspaper-or-peri.html

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