For digital content—such as websites, social media profiles, and YouTube videos—to be admitted as evidence at the summary judgment or trial stage, the process of collecting the evidence must be well documented. This involves recording and reporting all pertinent information, known as metadata, including the exact date and time of capture and the browser used.Cristo v. Cayabyab, No. 18-CV-00561-BLF, 2020 WL 1531349 (N.D. Cal. 2020) exemplifies the criticality of proper digital evidence authentication in legal proceedings, especially intellectual property litigation. In particular, the court’s ruling of inadmissibility illustrates the importance of obtaining metadata underlying digital web captures as well as detailed affidavits describing how and when each capture was taken.
In Cristo, Plaintiff, a religious corporation, sued its former ministers and officers for using Plaintiff’s trademarked name, seal, and copyrighted hymns on their websites, social media accounts, and pamphlets. In their motion for summary judgment, Defendants objected to Plaintiff’s submission of screenshots of Defendants’ social media pages, YouTube videos, and other websites displaying Plaintiff’s trademarks, arguing that they were not properly authenticated or admissible and therefore could not be considered on summary judgment. The court agreed with Defendants and ruled that such evidence was inadmissible, stating:
[Plaintiff] relies heavily on screenshots that appear to be taken from [Defendants’] social media pages, from YouTube videos, and from other websites, to prove that [Defendants] have displayed [Plaintiff’s] trademarks and published the lyrics of [Plaintiff’s] hymns.
. . .
In the declaration [attaching the screenshots], [Plaintiff’s attorney] does not provide any information as to who took the screenshots, or when. [Plaintiff’s attorney] states only that the screenshots were produced in discovery by her client, [Plaintiff].
. . .
[Defendants] object to the screenshots, arguing that they are not properly authenticated and thus may not be considered on summary judgment. The Court agrees.
. . .
[Plaintiff] offers no testimony from the person who took the screenshots in question, or any other evidence to authenticate the screenshots. Under similar circumstances, district courts within the Ninth Circuit have found screenshots of internet content to be inadmissible at summary judgment.
Id. at *3-4. See also Lipoplus, Inc. v. Kohan, M.D., No. CV 18-10220 PSG, 2019 WL
8231041, at *4 (C.D. Cal. Dec. 19, 2019) (screenshots inadmissible “[w]ithout a sworn affidavit introducing these documents or use of some other authentication method”); La Force v. GoSmith, Inc., No. 17-CV-05101-YGR, 2017 WL 9938681, at *3 (N.D. Cal. Dec. 12, 2017) (screenshots not authenticated due to counsel’s inadequate declaration); Shelby v. TufAmerica, Inc., No. CV 15-5073 AG (JEMX), 2016 WL 7647679, at *2 (C.D. Cal. Sept. 14, 2016) (screenshots inadmissible due to lack of evidence identifying the exhibits or explaining where they came from).
This case highlights the need for attorneys to ensure that evidence is properly authenticated before presenting it in court. When digital evidence is captured via simple screenshots, the process by which the captures were created is often not documented sufficiently to enable an attorney to produce an adequate certification in compliance with the relevant rules of evidence. This can result in the exclusion of evidence, impacting case outcomes.
The outcomes of such cases, including Cristo, may have differed if Page Vault’s screen captures and video captures were used. Every capture created with Page Vault automatically includes all relevant metadata, such as date and time of capture, hash values, and the browser used. This metadata is then summarized on a capture cover sheet and is repeated in the footer of each page of the document, discouraging opposing counsel from objecting to the evidence’s authenticity.
Under Federal Rule of Evidence 901(b)(9), “[e]vidence describing a process or system and showing that it produces an accurate result” satisfies the authenticity requirement. Federal Rule of Evidence 902(13) “allows the authenticity foundation that satisfies Rule 901(b)(9) to be established by a certification rather than the testimony of a live witness.” See Fed. R. Evid. 902(13), Committee Notes on Rules—2017 Amendment. Accordingly, web captures of online content can be authenticated by “a certification of a qualified person” rather than the testimony of a foundation witness, so long as the certification “describes the process by which the web page was retrieved.” Id.
Page Vault’s patented software architecture enables it to provide the required written affidavits describing in detail the electronic process by which the captures were retrieved, with its Chief Technology Officer serving as the “qualified person,” in accordance with Federal Rules of Evidence 901(b)(9) and 902(13). This removes the burden from legal teams and avoids the risk of attorneys submitting insufficient declarations like in Cristo.
In summary, Cristo is a reminder of the importance of properly authenticating evidence in legal proceedings. Attorneys should ensure that any digital content they introduce as evidence is accompanied by critical metadata and the certification of a qualified person that adequately details the capture process. By using Page Vault for website, social media, and video captures, legal teams can obtain strong, reliable evidence, along with supporting affidavits that comply with the relevant rules of evidence, that can materially impact case outcomes and help their clients achieve favorable resolutions.