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Authenticating Blog Postings

This post is about a civil. I?m writing about the case because it raises an interesting issue with regard to authenticating evidence.

As I?ve noted in several posts, for a prosecutor or defense attorney (or for a plaintiff?s or civil defendant?s lawyer) to introduce evidence, it has to be ?authenticated,? i.e., the proponent of the evidence has to show that it is what it?s claimed to be. The case this post deals with is a federal case, which means that Rule 901 of the Federal Rules of Evidence governed the process of authenticating evidence.

Rule 901(a) says the ?requirement of authentication . . . 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.? Rule 901(b) gives a number of examples of how evidence can be authenticated. One is ?testimony of a witness with knowledge,? i.e., someone takes the stand and testifies ?that a matter is what it is claimed to be.? Rule 901(b)(1), Federal Rules of Evidence.

And that brings us to the case this post is about: Saadi v. Maroun, 2009 WL 3736121 (U.S. District Court for the Middle District of Florida 2009). The opinion doesn?t explain how the case arose, but according to the Citizen Media Law Project, Edward Saadi

sued his cousin, Pierre Maroun, and ?Hala Fakhre Maroun over statements they allegedly posted to blog biggestloosers.blogspot.com (defunct). According to Saadi's complaint, the Marouns' blog postings accused him of engaging in various forms of criminal and unethical behavior.

Saadi v. Maroun, Citizen Media Law Project. If you?re interested, you can read more about the facts in the case on this site.

The opinion we?re dealing with contains the U.S. District Court judge?s rulings on several motions Maroun filed after ?a three-day trial? ended on October 1, 2009 ?with the jury finding that Maroun had defamed Edward T. Saadi by posting five items on the Internet about him.? Saadi v. Maroun, supra. Maroun asked the judge to (i) dismiss the case for lack of subject-matter jurisdiction (i.e., arguing that the court didn?t have the power to preside over it), (ii) reverse the jury verdict, (iii) ?amend or alter the judgment? the court entered as the result of the jury verdict and/or (iv) grant him a new trial. Saadi v. Maroun, supra.

The judge denied Maroun?s motion to dismiss. As to the motion for a judgment as a matter of law, she noted that in deciding whether to grant it ?`[t]he question . . . is whether the evidence is ?legally sufficient to find for the party on that issue???. Saadi v. Maroun, supra (quoting Chaney v. City of Orlando, 483 F.3d 1221, 1227 (U.S. Court of Appeals for the Eleventh Circuit 2007)). She also noted that in deciding whether to grant the motion for a new trial, she would have to decide if ?`the verdict is against the weight of the evidence . . . or that for other reasons the trial was not fair??. Saadi v. Maroun, supra (quoting Diane Manufacturing Co. v. Sheffield Industries, Inc., 514 F. Supp. 185, 186 (U.S. District Court for the Southern District of Florida 1981)).

Maroun argued (apparently in support of both motions) that the judge made ?two errors of law by admitting evidence of compromise that should have been excluded . . . and by admitting unauthenticated printouts of the defamatory Internet postings that should have been excluded under Rule 901.? Saadi v. Maroun, supra. We?re not interested in the evidence of compromise; our concern is with the printouts. Saadi v. Maroun, supra.

This opinion doesn?t indicate what the postings said, but in an earlier opinion the federal district judge described them this way:

Plaintiff is a lawyer practicing in Ohio. . . . He is of Lebanese descent and draws over half of his clientele from the Lebanese-American community. . . . Approximately two years ago, Defendants Pierre A. Maroun and Hala Fakhre Maroun began posting comments about Plaintiff on the Internet, using the screenname `Losers,? as well as other possible aliases. . . .

Defendants? postings appear on a blog, located at http:// biggestloosers.blogspot.com, which declares `OUR STORIES ARE TRUE? . . . and on two forums entitled `Lebanese Forces Official Forum . . . and `President Bachir Gemayel Official Forum?. . . . - The latter two sites, in part, encourage discussion of the political events in Lebanon. Defendants' postings about Plaintiff include statements that Plaintiff:

(1) is a `stalker,? is `mentally unstable,? and `claims to have a law degree but never worked or tried a case?;

(2) received a car from Former Prime Minster of Lebanon Michael Aoun, paid for with money stolen by Prime Minister Aoun from the Lebanese people, facts which Defendants claim were confirmed `after some thorough investigations? . . . ;

(3) has a girlfriend who recently turned 18, `so it's legal now . . . ; and

(4) is a `criminal,? a `traitor,? a failure at his career, and connected to Hezbollah. . . .

Saadi v. Maroun, 2008 WL 4194824 (U.S. District Court for the Middle District of Florida 2008) (denying defendants? motion to dismiss the defamation claim).

The web postings were, therefore, at the heart of the case. This is how they came to be introduced at trial:

Saadi testified . . . that he printed from the Internet various postings that contained derogatory statements about him. Saadi had personal knowledge of the content of the Internet postings on the day that he printed the postings off the world wide web. Importantly, Saadi did not offer the Internet postings to prove that Maroun wrote the postings, or even that the postings reflected the work of a specific website. Instead, Saadi offered the postings for the limited purpose of proving that the postings had appeared on the world wide web on the days that Saadi personally saw the postings and printed them off the computer.

Saadi v. Maroun, supra.

Maroun claimed the district court judge ?erred in admitting the Internet postings into evidence without requiring Saadi to call a website owner or webmaster to authenticate the postings.? Saadi v. Maroun, supra. He relied on an earlier decision from a different judge in the U.S. District Court for the Middle District of Florida,

St. Luke?s Cataract and Laser Institute, P.A. v. Sanderson, . . . 2006 WL 1320242 . . ., for the proposition that Saadi should have called a webmaster to authenticate the Internet postings. However, St. Luke's Cataract and Laser Institute dealt with a different issue than the one in this case. In St. Luke's, the Plaintiff attempted to offer printouts from the Internet Archive website to prove how two other websites looked at various times in the past. The Internet Archive site captures past images from websites, and then creates an archive of how websites look over time. The court held that the Plaintiff would need to present evidence from an Internet Archive official with personal knowledge of how the archive worked. In this case, Saadi had personal knowledge of how the sites looked on the dates in question because he testified that he saw the Internet postings and then printed them out from his computer. He did not rely on a third party -- such as the Internet Archive website -- to provide the evidence needed for admissibility of the postings. Saadi had personal knowledge of the existence of the Internet postings. . . .

Saadi v. Maroun, supra.

The judge agreed that Rule 901 ?would have required Saadi to authenticate the Internet postings by calling a website owner or webmaster if Saadi had offered the postings to prove that the postings came from a specific person or organization.? Saadi v. Maroun, supra. Bu she found that he ?offered the website printouts for a narrower purpose.? Saadi v. Maroun, supra.

Saadi did not offer the postings to prove that Maroun authored them; he only offered the exhibits to prove that the derogatory statements had been published on the world wide web on the dates he saw them.

Saadi v. Maroun, supra. The judge therefore held that Saadi?s testimony met the requirements of Rule 901(a) of the Federal Rules of Evidence (?testimony of a witness with knowledge?), which meant that the printouts were properly admitted into evidence. Saadi v. Maroun, supra. So Maroun lost.

Full post as published by CYB3RCRIM3 on January 13, 2010 (boomark / email).