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Internet Evidence in Illinois: Point, Click & Admit?

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Internet Evidence in Illinois: Point, Click & Admit?
By J. Ryan Potts

This articles examines the rationale for admitting Internet evidence in Illinois by scrutinizing recent decisional law from throughout the country. It further suggests that Illinois courts should adopt the more liberal approach to the admission of Internet evidence because the Internet has proven to be a trustworthy and reliable means of communication and commercial enterprise.

INTRODUCTION

Over the last several years, a great number of courts have addressed the issue of whether a state can exercise personal jurisdiction over a party-defendant based upon its web-based advertising and Internet-related business.1 Likewise, a litany of publications have printed articles and practice tips addressing those issues. The opinions and articles have relied on the information as it exists on a person’s computer screen or in cyberspace. In fact, courts have admitted evidence of such websites as reliable and authentic when ruling on these issues. Why wouldn’t they? Virtually every day, millions of us turn on our computer screens and trust what we see on the screen. If the judicial opinions dealing with personal jurisdiction are of any significance, the members of the judiciary place that same level of trust on the information on our computer screens.

However, apparently the sentiment of many courts dramatically changes once the information on the computer is actually printed and a party thereafter attempts to admit into evidence that very same information. This distinction between evidence in cyberspace versus evidence on the printed page is a false one. It is this author’s opinion that if a printout from a website lists the web address and date of printing, such information should be admitted and deemed authentic in Illinois courts. Several courts do not agree. No opinion represents this adverse belief better than St. Clair v. Johnny’s Oyster & Shrimp, Inc.2

In St. Clair,3 the court wrote:

Plaintiff’s electronic "evidence" is totally insufficient to withstand Defendant’s Motion to Dismiss. While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so called Web provides no way of verifying the authenticity of the alleged contentions that Plaintiff wishes to rely upon in his Response to Defendant’s Motion. There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet. No website is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any website from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in Fed.R.Civ.P. 807.

Instead of relying on the voodoo information taken from the Internet, Plaintiff must hunt for hard copy back-up documentation in admissible form.

Surprisingly, the issue of whether Internet evidence should be admitted has rarely been addressed. In fact, the Illinois Appellate Courts have never addressed this issue. Other courts who have addressed that issue have issued opinions covering the range of the spectrum from admissible to inadmissible. It is the author’s position that the Illinois Courts should follow the advancements in technology and admit Internet evidence.

THE RELIABILITY OF THE INTERNET

Over the last four years, the foundations of the Internet, which allow it to be a primary mode of information, have strengthened. Internet providers have been spent millions of dollars to provide a safe, hacker-free medium to present information and conduct business. The safety and security of the Internet has made it increasingly attractive to both consumers and corporations.

Today, millions of Americans bank, trade stocks, and purchase goods and materials over the Internet. Internet connections have found their way into corporations, businesses, airplanes, restaurants, and homes.4 Individuals, families, schools, and businesses trust their livelihoods to the Internet. Credit card numbers are exchanged, bank account information is passed. and corporate secrets are housed — all on the Internet.

It is no wonder that in today’s economic climate, companies are turning to the Internet as a cost effective means to conduct business. Today, it provides the cheapest and most pointed advertising method available. With the destabilization of the economy, advertising budgets have been slashed and advertisers are looking to get their message out in the fastest and least expensive manner. Now, they look no further than the Internet. Moreover, the Internet affords customers the ability to conduct their business without leaving the comfort of their homes.

THE INTERNET AS A DISCOVERY TOOL

In litigation, the Internet can no longer be ignored as a discovery tool. Corporations have flooded the Internet with a litany of sites. Corporations use these sites to tout their employees, grab new customers, describe their companies and workplaces, market their products, list their clients, and even indicate their corporate purpose. For the thorough litigator, these sites cannot go unnoticed and this information cannot go undiscovered. Every new website portrays a wealth of information about the company in question. This information can be an invaluable discovery tool. From the corporate standpoint, what appears to be a bastion of advertising, can also be an Achilles heel when it comes to litigation and discovery. Notably, it is not just corporations that are offering up information that is invaluable to the discovery process. Medical information, expert listings, SEC filings, public filings, privileged documents, and news sites can all be discovered on the web.

However, despite offering some "easy discovery," it is unsettled what impact this information may have in an Illinois courtroom. Courts and litigators alike have grappled over the question as to whether such information is admissible and how to admit such information in court. The absence of judicial opinions and the discrepancies throughout each jurisdiction make this issue even more ambiguous. Nevertheless, each new opinion offers an insight on how to ensure that the information printed off the Internet is capable of admission in Illinois courts.

ST. CLAIR V. JOHNNY’S OYSTER & SHRIMP, INC.’S IMPACT IN ILLINOIS

If the St. Clair opinion is strictly followed by the Illinois Courts, any information printed off the Internet will have no evidentiary value.5 Materials printed off the Internet will not be able to be admitted at trial, at hearings, or in support of motions. In fact, if one were to follow the logic of St. Clair, the courts and the public would be making a mistake by trusting the "voodoo" of the Internet.6 However, technology has so dramatically changed since the St. Clair court’s 1999 decision, that the concerns expressed therein no longer have persuasive force. In short, the dynamic nature of the Internet has made St. Clair stale. Therefore, the courts should follow the public’s lead and reject St. Clair. However, it cannot be ignored that several other courts have turned a cold shoulder to Internet evidence and rebuked the security and reliability of the Internet.

OTHER JURISDICTIONS DO NOT EMBRACE INTERNET EVIDENCE

In fact, the Seventh Circuit Court of Appeals in United States v. Jackson,7 condemned Internet evidence as hearsay, prejudicial, irrelevant and incapable of authentication. In Jackson, the court held:

The web postings were not statements made by declarants testifying at trial, and they were being offered to prove the truth of the matter asserted.8 That means they were hearsay. Fed.R.Evid. 801. [defendant] attempts to fit the web postings in as a hearsay exception under Federal Rule of Evidence 803(6) as business records of the supremacy groups’ Internet service providers. Internet service providers, however, are merely conduits. The Internet service providers did not themselves post what was on the . . . web sites. [defendant] presented no evidence that the Internet service providers even monitored the contents of those web sites. The fact that the Internet service providers may be able to retrieve information that its customers posted or email that its customers sent does not turn that material into a business record of the Internet service provider. ‘Any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretations of the hearsay exception rules.’

Even if we are wrong about the web postings being unfairly prejudicial, irrelevant, and hearsay, [the judge] still was justified in excluding the evidence because it lacked authentication. See Fed.R.Evid. 901. [defendant] needed to show that the web postings in which the . . . groups took responsibility for the . . . mailings actually were posted by the groups, as opposed to being slipped onto the groups’ web sites by [defendant] herself, who was a skilled computer user. ‘[c]omputer data compilations are admissible as business records under Fed.R.Evid. 803(6) if a proper foundation as to the reliability of the records is established.’ Even if these web postings did qualify for the business records hearsay exception, ‘the business records are inadmissible if the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. [defendant] was unable to show that these postings were authentic.9 [citations omitted].

In San Luis v. Badgley,10 the regional water authorities brought an action challenging a rule promulgated by the Fish and Wildlife Service which listed a species of fish as "threatened" under the Endangered Species Act. The authorities, in their motion for summary judgment, attached a declaration of their expert as an exhibit. The expert included data as an exhibit to that declaration from the Interagency Ecological Program ("IEP"). That website posted real-time monitoring data on the species involved in the lawsuit. The trial court struck those exhibits from the motion. The authorities thereafter sought judicial admission of the exhibits printed off the IEP web site. Holding that these exhibits were inadequate, the district court in Badgley held that the website print-outs failed to "establish the reliability and admissibility of [the] data."

The court’s decision in Fenner v. Suthers11 is strikingly similar to the court’s holding in San Luis. In Fenner, a state inmate brought an action against his state’s Department of Corrections alleging that it exhibited deliberate indifference to his medical condition. To rebut plaintiff’s claim, the Department sought to have the court take judicial notice of information found on Internet websites which demonstrated that defendant administered appropriate treatment procedures. In determining that it would not take judicial notice of those Internet print-outs, the Fenner court found:

[t]he court has substantial doubt, on this record, that the information constitutes admissible evidence. Although the court has certainly heard of the National Institute of Health, I am unsure what it is, what it does, and what connection, if any, it has to the federal government. Further defendants and the magistrate judge have wholly omitted to explain whether NIH sponsors, endorses, collects, or simply provides the information on the websites. Finally, most of the information cited is expert opinion and/or hearsay, and it is simply not clear whether there is any foundation for its admission.12

More recently, in Tolliver v. Federal Republic of Nigeria,13 the court again held that Internet evidence was inadmissible. In Tolliver, an engineering company brought fraud and breach of contract claims against the Federal Republic of Nigeria. Thereafter, both parties brought cross-motions for summary judgment. In support of its motion, the engineering company attached news postings printed off the Internet and attempted to offer them as exhibits to its motion. Citing St. Clair, the court held:

Plaintiffs have also offered a number of ‘Internet’ documents as exhibits. The documents are simply news postings in the Internet. Those documents are rife with hearsay and were not properly authenticated by persons with personal knowledge. Therefore, those documents will be stricken since they do not constitute proper evidence under Rule 56(e).14

The aforementioned courts’ failure to permit evidence printed off the Internet runs afoul of the societal status quo. The public has embraced the Internet as reliable and trustworthy and it is time for the courts to do the same. Although Illinois courts have been silent on this issue, this author suggests that the Illinois courts would be prudent to reject this line of cases and place their weight squarely behind the public and the several jurisdictions that permit such evidence.

SEVERAL JURISDICTIONS PERMIT INTERNET EVIDENCE

Like the millions of consumers and businesses throughout the country, many courts have determined that the Internet is sufficiently trustworthy and reliable. For example, in Florida Conference Association of Seventh Day Adventists v. Kyriakides,15 the court specifically distinguished the opinions of the courts in St. Clair16 and Jackson,17 and admitted Internet evidence printed off the Security Exchange Commission’s ("SEC") homepage. In Kyriakides, the plaintiff admitted into evidence an Internet SEC Report which was produced by the defendant. The defendant objected to its use by arguing that it was hearsay. The court, in permitting its use found:

To the extent that [defendant] contends that the statements contained within the SEC Reports are hearsay, it is incorrect. The text of the SEC Reports indicates that they were submitted by [defendant], and [defendant] does not offer evidence to the contrary. As a party to this action, [defendant]’s admissions are not hearsay.

To the extent that [defendant] contends that the act of placing the SEC Reports on the Internet or the act of printing them off of the Lexis-Nexis website are hearsay, it is again incorrect. Only non-verbal conduct which is intended as an assertion is hearsay.

The cases cited by [defendant] are inapposite. In both United States v. Jackson and St. Clair v. Johnny’s Oyster & Shrimp, Inc. the courts concluded that statements posted on websites by non-parties were inadmissible hearsay. As the court concluded above, the statements made in the SEC Reports are non-hearsay because they are party-admissions.18

In Van Westrienen v. Americontinental Collection Corp.,19 the court had to decide whether to permit statements printed off a website to be used as exhibits to a summary judgment motion. In Van Westrienen, the plaintiff sought to add statements discovered on the defendant’s website as an exhibit to his motion for summary judgment. The court, in permitting plaintiff’s suggested use, held that contents of the website were statements of a party opponent and were admissible for purposes of summary judgment.20

In State v. Erickstad,21 the North Dakota Supreme Court upheld the admissibility of testimony relying upon Kelley Blue Book value taken off the Internet. In Erickstad, the defendants were charged and convicted of a class B felony for their theft of a 1998 Chevrolet pick-up truck. The trial court, over defendant’s objection, allowed a police officer to testify as to the value of a truck. The defendant objected and argued that, because the officer obtained the value of the vehicle from the Kelley Blue Book Internet site, not the print edition, it was inadmissible. The North Dakota Supreme Court, in upholding the trial court’s ruling, held:

The trial court has broad discretion over evidentiary matters, and we will not overturn a trial court’s decision to admit or exclude evidence unless the court abuses that discretion.

* * *

The defendants have offered no cogent reason why evidence derived from the website, rather than the print edition, should be excluded under N.D.R.Ev. 803(17). Information obtained from Internet websites may be admissible under N.D.R.Ev. 803(17).22 The Kelley Blue Book Internet website has been specifically relied upon in at least one federal court decision.23

In United States v. Tank,24 the Ninth Circuit Court of Appeals addressed the admissibility of certain "chat room" logs. In Tank, the government charged the defendant with child pornography after a search of another suspect’s computer files revealed "recorded" online chat room discussions. The Tank court observed that the foundational requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.25 The court found that the burden of admissibility is met where "sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity."26 The court noted that "this burden was met where the producer of the logs explained how he created the logs with his computer and stated that the printouts appeared to be accurate representations."27

More recently, in Office of Consumer Advocates v. Iowa Utilities Board,28 the Supreme Court of Iowa permitted the use of Internet evidence. In that case, the Office of Consumer Advocates filed a petition for judicial review of the Utilities Board price-plan adjustment. In the adjustment, the Board used its price plan figures from the Internet and not the published print form. The Iowa Supreme Court, in allowing the introduction of that Internet evidence, argued that the data provided from the Internet was sufficiently published. As such, it held that information from the Internet, which was publicly available, was no less admissible than print information governing the same topic.29

PERFECT 10, INC. V. CYBERNET VENTURES, INC.

No opinion provides more guidance to the courts and is more in line with common sense and technological advancement than the court’s opinion in Perfect 10, Inc. v. Cybernet Ventures, Inc.30 In that case, the plaintiff submitted 117 documents that had been printed off the Internet as exhibits to their motion for a preliminary injunction. Some of those exhibits had been printed by the plaintiff and others had been printed by the defendant. Nevertheless, the defendant objected to the admissibility of all of those documents on the grounds that they were not properly authenticated. The court, in permitting the use of all the exhibits, noted:

The [exhibits produced by defendant] is covered by Maljack Prods., Inc. v. GoodTimes Home Video Corp.31 See also Orr v. Bank of America.32 The [exhibits printed off the internet by plaintiff] have met the prima facie burden because the declarations, particularly in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a reasonable juror in the belief that the documents are what [plaintiff] says they are.33

Consistent with the court’s holding in Perfect 10, the evidence sought to be admitted must list the date and web address on the face of the exhibit. When both of these criteria are met, the exhibit is deemed authentic and reliable. This minimal standard should be the benchmark for admission throughout Illinois. In fact, this reasoning and trust in the spoils of the Internet is more in line with the public’s perception and reliance on the Internet. However, to date, Illinois courts have not addressed this issue.

CONCLUSION

For now, as more and more Illinois litigators seek to admit evidence printed off the Internet, ambiguity grows as to whether Internet evidence is admissible. Until an opinion by an Illinois Appellate court is rendered, it would be prudent to: (1) request copies of a website by subpoena or a Supreme Court Rule 214 or 237 request to produce; (2) subpoena and/or depose the entity or individual who maintains the website; (3) issue a request asking the opposing party to admit to the reliability and foundation of the exhibit; (4) ask the court to take judicial notice of the reliability and foundation of the exhibit; and/or (5) request a stipulation to the foundation and reliability of the exhibit from the adverse party.

However, this author suggests that Illinois should take the lead and admit evidence printed off the Internet. If Illinois courts keep up with the changing nature of technology and the public’s reliance upon the Internet, in the future, litigators in Illinois will be able to point, click and admit Internet evidence.

1. Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390 (3rd Cir. 2003); Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2002); Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002); Ty, Inc v. Baby Me, Inc., 2001 WL 34043540 (N.D. Ill., April 6, 2001); Euromarket Designs, Inc v. Crate & Barrel, Ltd., 96 F.Supp.2d 824 (N.D.Ill. 2000); Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D. Pa. 1997).

2. 76 F.Supp.2d 773, 775-776 (S.D.Tex. 1999) (emphasis in original).

3. Id.

4. John Van and Kevin Pang, Tech Sector’s Hot Spot: Wi-Fi, Chi.Trib., August 6, 2003, at Section 3, page 1.

5. St. Clair, supra, 76 F.Supp.2d at 774.

6. Id.

7. 208 F.3d 633 (7th Cir. 2000).

8. The author notes that this argument loses its persuasive force when the materials printed off the Internet are from the defendant’s website and used against the defendant. If these exhibits are properly authenticated, they should qualify as admissions.

9. Jackson, 208 F.3d 633.

10. 136 F.Supp.2d (E.D.Cal. 2000).

11. 194 F.Supp.2d 1146 (D.Colo. 2002).

12. Fenner, supra, 194 F.Supp.2d 1146.

13. 265 F.Supp.2d 873 (W.D.Mich. 2003).

14. Tolliver, supra, 265 F.Supp.2d 873.

15. 151 F.Supp.2d 1223 (C.D.Cal. 2001).

16. 76 F.Supp.2d 773.

17. 208 F.3d 633.

18. Kyriakides, 151 F.Supp.2d at 1225-1226.

19. 94 F.Supp.2d 1087, 110 (D.Or. 2000).

20. Id.

21. 620 N.W.2d 136 (N.D. 2000).

22. Elliott Associates, L.P. v. Banco do la Nacion, 194 F.R.D. 116 (S.D.N.Y. 2000)(the court specifically noted that interest rates obtained from the Federal Reserve Board website or from Bloomberg are admissible under Fed.R.Evid. 803(17)).

23. Erickstad, 620 N.W.2d at 145; Irby-Greene v. M.O.R., Inc., 79 F.Supp.2d 630, 636 n. 22 (E.D.Va. 2000)(the court relied on the Kelly Blue Book website for car prices);

2424. 200 F.3d 627, 630 (9th Cir. 2000).

25. Tank, 200 F.3d at 630 (citing, Fed.R.Evid. 901(a)) (The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.).

26. Id.

27. Id.

28. 663 N.W.2d 873 (Iowa 2003).

29. Office of Consumer Advocate, 663 N.E.2d at 874-875.

30. 213 F.Supp.2d 1146 (C.D.Cal. 2002).

31. Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996)(discovery documents deemed authentic when offered by party-opponent)

32. 285 F.3d 764, 770-771, 777 n.20 (9th Cir. 2002)(Exhibits which are not authenticated are inadmissible in support of motions for summary judgment).

33. See Tank, 200 F.3d at 630; Perfect 10, Inc., 213 F.Supp.2d at 1154.

J. Ryan Potts is an associate at Clifford Law Offices, P.C. specializing in plaintiff’s personal injury litigation. Mr. Potts received his B.S. in Finance from the University of Illinois - Champaign/Urbana in 1999 and his J.D. from DePaul University College of Law in 2002.