We’ve blogged about legal translation services in the context of authenticating foreign government documents, and about language translation and the probative value of foreign website evidence. Typically, authenticating documents for evidence is rather straightforward. However, when the document is a screenshot of a given website or – as often is the case now – a social media site like Facebook, attorneys are running into significant challenges. This is even more the case when the screenshot is of a foreign-based website or in a foreign language.
It is now standard practice to conduct an Internet search as part of preparing for a case – which itself may require a foreign language translation of search terms and keywords- and then present their findings with screenshots. However, specific steps must be taken to admit the evidence at trial – with the main hurdle being authenticity.
To frame the challenge, take the statement from St. Clair v. Johnny’s Oyster & Shrimp, Inc. 76 F.Supp 2d 733-75 (SD Tex 1999), “Anyone can put anything on the Internet… (It’s) one large catalyst for rumor, innuendo and misinformation… It is voodoo information.”
To satisfy FRE 901(b)(1):
- Be prepared to answer 1) what was actually on the website, 2) does the exhibit or testimony accurately reflect it, and 3) if so, is it attributable to the owner of the site?
- Factors often considered include: length of time data was posted on the site, whether it remains on the site for the court to verify, whether the data is of a type ordinarily posted on that site or similar sites, whether the owner of the site has elsewhere published the same data, and whether the data has been republished by others who identify the source of the data as the site in question.
- If the site is foreign based, the attorney should be prepared to present the evidence as to authenticity in both its original form and with a foreign language translation.