Government Agency Web-Site Evidence at Trial

Joseph D. Nohavicka

01-19-2006


The primary issue that arises when a copy of a public record is offered into evidence is whether the document is a genuine copy of the original that is on file in the public office. The critical question before the court targets the authenticity of the record.

In the modern trial courtroom, it is commonplace to observe electronically stored data employed to evidence factual assertions. Modes of data storage technologies evolve by the nanosecond and, commendably, the Legislature has kept pace.

No Live Testimony Needed

Public records qualify under CPLR 4518(c) as an exception to the hearsay rule provided they bear a certification or authentication by the head of the department or bureau of a municipal corporation or of the state, or by an employee delegated for that purpose. At trial, the record, with the certification attached or embossed, is marked for identification, then shown to opposing counsel, and finally, offered into evidence. So long as the document does not appear to be altered or defaced it will be received into evidence. No live testimony is needed.¹

Your Honor, can we please have this document marked as plaintiff's Exhibit 1 for identification?

Please let the record reflect that I am handing opposing counsel the exhibit.

Your Honor, I now offer into evidence plaintiff's Exhibit 1 for identification, which, for the record, is a certified copy of a New York State Department of Motor Vehicles registration plate record.

To make matters even easier, the certification page submitted with the proffered document does not have to be an original. See CPLR 4540(a).²

CPLR 4518 was amended in 2002 to specifically reference electronic records and to cross-reference the State Technology Law, which defines an electronic record as "information evidencing any act, transaction, occurrence, event or other activity" so long as it is stored by "electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities."³ The Legislature's stated purpose for enacting the Technology Law is to "promote the use of electronic technology[.]"⁴

Moreover, State Technology law §305(3) mandates that "an electronic record shall have the same force and effect as those records not produced by electronic means." And, §306 states as follows: "In any legal proceeding where the provisions of the civil practice law and rules are applicable, an electronic record or electronic signature may be admitted into evidence pursuant to the provisions of article forty-five of the civil practice law and rules including, but not limited to section four thousand five hundred thirty-nine of such law and rules."

Under CPLR 4518

Under the adaptive, technology-friendly CPLR 4518, if the computer information offered into evidence is accurately reproduced, it is highly likely to be admissible in any common sensibly objective form. The court will consider how the data was stored, maintained and retrieved in determining the authenticity of the exhibit:

Your Honor, can we please have this document marked as defendant's Exhibit A for identification?

Please let the record reflect that I am handing opposing counsel the exhibit.

May I approach the witness? (hands exhibit to Information Manager on the stand)

Do you recognize defendant's Exhibit A for I.D.? ("Yes. It is a printout of our accounts payable.")

How was defendant's Exhibit A for I.D. generated? ("We use IndusRec computer software to record all transactions . . . what is owed; what was paid to vendors. We can print out the information whenever it is needed.")

Is the information entered in the system at or near the time of the transactions? ("Yes.")

Are the entries made by a person with knowledge of the transactions? ("Yes.")

Are the entries made as a part of your entity's regular business practice? ("Yes.")

Are these computer records kept in the ordinary course of business? ("Yes.")

Your Honor, I now offer into evidence what has been marked defendant's Exhibit A for identification.

The latest controversy in the area of electronic evidence is Web-site evidence.⁵ Generally, ("generally," meaning not necessarily in a business context), to put data downloaded from a Web site into evidence at trial, a witness must testify as to the manner in which the Web site was accessed and how the data was downloaded, printed and copied. Information on Web sites is normally an indication of authenticity because the URL correlates to the entity whose server is publishing information. However, because of the risk of unauthorized persons altering information on Web sites, precautions must be taken to ensure authenticity.

Deemed 'Trustworthy'

The proffered evidence must be deemed by the court to be sufficiently trustworthy by way of authentication.⁶ Trustworthiness and authentication can be established by eliciting testimony as to the following:

• How the URL was obtained and how it was used to reach the target Web page,

• Date page was printed and by whom,

• That the entity controls and sponsors site,

• Assurances of integrity of Web-site security

If an adverse party maintains the Web site and made the statements contained on the Web site, the statements will come in as party admissions. In New York's Law of Evidence, it is a deeply rooted maxim that "admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever, or to whomsoever made." Reed v. McCord, 160 NY 330, 341, 54 NE 737, 740 (1899). An admission is an act or declaration of a party, which constitutes evidence against the party at trial.⁷

The State Technology Law authorized (but did not require) government agencies to make information available on Web sites, which has facilitated profoundly the acquisition of public records.⁸ One jurist sublimely acknowledged that development as follows:

For a researcher not to employ information placed on a governmental web site, by a civil servant, for the benefit of the public would, indeed, be negligent and ridiculous. For a judge to ignore these new technological changes, made available by government and encouraged by court systems, would be to blind oneself. NYC Medical and Neurodiagnostic, P.C., v. Republic Western Ins. Co., 3 Misc3d 925; 774 NYS2d 916 (Civ. Ct. Queens Co. 2004).⁹

In Miriam Osborn Mem'l Home Ass'n v. Assessor of Rye, 2005 NY Slip Op 25354; 2005 N.Y. Misc. LEXIS 1824 (Sup. Ct. Westchester Co. 2005) (Thomas A. Dickerson, J.), during the trial the petitioner sought to admit into evidence a compilation of an electronic print-out of data maintained by the New York State Office of Real Property Services (ORPS) and downloaded by a witness for the petitioner, from the ORPS SalesWeb. The ORPS SalesWeb is an Internet online search engine used to query information about real property sales stored in a data warehouse at ORPS. The court rejected the argument that the court should take judicial notice of the Web-site evidence reasoning that the underlying sales data was not of common notoriety or general knowledge, nor could it have been classified as adjudicative facts.¹⁰

Witness Testimony

However, the court held that since a witness testified at trial as to the manner in which she downloaded, printed and copied the electronic record of the ORPS SalesWeb, and it was taken from its electronic form and turned into a tangible exhibit and then gave testimony regarding the method by which she retrieved this electronic record maintained by ORPS, the printout was admissible pursuant to CPLR 4518(a), and the New York State Technology Law §306:

Do you recognize Petitioner's Exhibit 2 for I.D.? (hands exhibit to individual who printed out document from government Web site. "Yes. It is a printout from the New York State Department of State, Division of Corporations.")

How was Petitioner's Exhibit 2 for I.D. generated? (Using my personal computer, I went on-line to the New York State Department of State Division of Corporations Web site by typing the following domain address: [http://appsext5. dos.state.ny.us/corp_public/ CORPSEARCH.SELECT_ENTITY] Using that site's search engine, I typed the name of Respondent's corporate name. I then printed out the result of that search, which is Petitioner's Exhibit 2 for I.D.

When did you last visit that Web site and conduct this computer search? ("Yesterday.")

Your Honor, pursuant to CPLR 4518(a) and the New York State Technology Law §306, I now offer into evidence what has been marked Petitioner's Exhibit 2 for identification.

What is the current status of the Respondent corporation? ("It is ACTIVE.")

'EEOC v. Du Pont'

In United States EEOC v. E.I. du Pont de Nemours & Co., 2004 USDistLEXIS 20753 (EDLa 2005), the court noted that the proffered exhibit contained the Internet domain address from which the table was printed, and the date on which it was printed. The district court then accessed the Web site using the domain address and verified that the Web page printed existed at that location.

It is axiomatic that security and trust are critical to the government-public relationship and, therefore, government information made available on Web sites must be secure and authentic. For that reason a strong inference of reliability may be drawn that information obtained on a government Web site has not been corrupted or altered. Moreover, because the record is easily verifiable from the bench, if necessary, authentication should not present a problem at trial.

To further assure that proffered Web site data will be admissible at trial, it is recommended that the practitioner provide ample notice to their adversary of their intention to use Web site evidence at trial by providing well in advance of the trial a Notice of Intention to Introduce Web site Evidence with a copy of the data and the domain address so that the data can be verified. That will negative any claim of Confrontation Clause violations or prejudice.

Joseph D. Nohavicka is a partner at Jaffe & Nohavicka.

Endnotes:

1. See, e.g., Matter of State Farm Mutual Automobile Insurance Company v. Kanter, 217 AD2d 633 (2d Dept 1995) (certified copy of offending vehicle's registration record produced at hearing on uninsured motorist claim).

2. CPLR 4540(a): Copies permitted. An official publication, or a copy attested as correct by an officer or a deputy of an officer having legal custody of an official record of the United States or of any state, territory or jurisdiction of the United States, or of any of its courts, legislature, offices, public bodies or boards is prima facie evidence of such record.

3. N.Y. State Technology Law §302(2) "Electronic record" shall mean information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities

4. See Laws 2002, ch 314, §1, eff. Aug 6, 2002.

5. See, e.g., NYC Medical and Neurodiagnostic, P.C., v. Republic Western Ins. Co., 8 Misc3d 33; 798 N.Y.S.2d 309 (App. Term 2d Dept., 2004)(addressing the propriety of sua sponte reference to Web site); and in the federal arena, compare Chapman v. San Francisco Newspaper Agency, 2002 U.S. Dist. LEXIS 18012, No. C-01-02305 CRB, 2002 WL 31119944, at *2 (N.D. Cal. Sept. 20, 2002) (holding that a computer printout of a page from the United States Postal Service web site came from a sufficiently reliable source to be an admissible public record under FRE 803(8)); and St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774-75 (S.D. Tex. 1999) (holding that "voodoo information taken from the Internet" was insufficient to withstand motion to dismiss because "no web-site is monitored for accuracy" and "this so-called Web provides no way of verifying the authenticity" of information plaintiff wished to rely on).

6. See, e.g., People v. Smith, 258 A.D.2d 245, 697 N.Y.S.2d 783, 786 (4th Dept. 1999)(inquiry into the admissibility of the DMV abstract does not end with the determination that it is admissible over a hearsay objection — the question remains whether the document has been properly authenticated).

7. Prince, Richardson on Evidence, §8-201, at 510 (Farrell 11th ed].

8. N.Y. State Technology Law §305. Use of electronic records

1. In accordance with rules and regulations promulgated by the electronic facilitator, government entities are authorized and empowered, but not required, to produce, receive, accept, acquire, record, file, transmit, forward, and store information by use of electronic means.

9. Decision in effect overruled in a 2-1 vote by NYC Medical and Neurodiagnostic, P.C., v. Republic Western Ins. Co., 8 Misc3d 33; 798 N.Y.S.2d 309 (App. Term 2d Dept. 2004).

10. For the court to take judicial notice of the facts, there would have to have been a showing that the Web site consulted was of undisputed reliability, and the parties had an opportunity to be heard as to the propriety of taking judicial notice in the particular instance. See Prince, Richardson on Evidence §2-202 [Farrell 11th ed]).