Can I save a timestamped version of a website to use in court?

December 16, 2009 6:43 AM

Is there a way to capture a website at a certain point in time so that it's admissible in court? I may be about to be involved in litigation soon and there's information on a site which will be very important and I'd like to use it as evidence, but I'm worried it might move or change.
posted by anonymous to Law & Government (15 answers total)

Are you an attorney? I'm not.

If not, my understanding is that there are certain rules of admissibility for certain types of court situations, including ones that would require you to retain the services of an expert witness, depending on the nature of the material. In any case, it's worth purchasing an hour or so of an attorney's time to discuss this.
posted by TheNewWazoo at 6:49 AM on December 16, 2009

Is it in the wayback archive? (see the link from the "How can use the pages in court?" question)
posted by elektrotechnicus at 6:53 AM on December 16, 2009

I asked a similar question here a while back.

A cheaper option than calling a lawyer might be to call a notary. I think a notary can visit the site, print it out, and sign something saying "here's how the site looked on xx date".
posted by ManInSuit at 6:56 AM on December 16, 2009 [3 favorites]

IANYL, and I didn't do any research into this issue-- what I say here is raw strategy. I'd make paper copies of the relevant pages of the site (or use a site capture tool), then use Fed. R. Evid. (Federal Rule of Evidence) 1003, which states, "A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." Ideally, the site as you see it is in the Wayback Archive, so if there is a question, you can call it up in court or a conference in chambers. A notary's certificate would be inappropriate. Admissibility of evidence is not a perfect tool and judges make, well, judgment calls all the time on whether something would be admissible.

If you're in state court, there's almost certainly a corresponding state rule of evidence.
posted by missouri_lawyer at 7:08 AM on December 16, 2009 [1 favorite]

There are programs, like Rational Retention which you can use to document every part of a file as it currently exists and track any changes that are subsequently made, in case there are questions of discovery. This, however, requires administrative access to the web server, and a significant dollar investment.

I once worked at a company that was in litigation, and they made a copy of their website that was online, but required a unique address (archive.domainname.com) and left that unchanged, but would continue to make changes to their main website (domainname.com).

You could also just copy the files that comprise your website as it exists currently to a folder on your local computer in case they need to be used for reference.
posted by orville sash at 7:10 AM on December 16, 2009

I have appeared as a witness in court in cases where notarized printouts of web pages were presented (by others) and were entered as evidence.

I'm not saying it's good, right, or the best way, since I have no idea... but it does happen.
posted by rokusan at 7:16 AM on December 16, 2009

I am context deaf and didn't realize this was a website that you didn't have administrative access to. Those suggestions are really only valuable if you have access to the website's back end.
posted by orville sash at 7:26 AM on December 16, 2009

Literally don't listen to the answers here (well, Missou lawyer's is on his own shingle), but obtain competent counsel in your jurisdiction today. Make copies if you can if you are worried about it happening today.
posted by Ironmouth at 7:27 AM on December 16, 2009

Is this information volatile and subject to change at any time? If so print it out with the time and date stamp preferably in the presence of an impartial witness willing to testify in court as to the accuracy of the web address, date and time etc. Let that person hold the copy that will be admitted into evidence in court. A notary would be nice if you have access to one now. Then contact an attorney for real legal advice. The first steps are just in case anything changes before you can run this by a lawyer.
posted by caddis at 8:06 AM on December 16, 2009

IAAL, but I am not your lawyer. Most browsers will print the date of the website, and the address, in the header or footer of whatever printout you make. Best answer above was to get a notary involved. Absent that, though, if you just keep pdfs of printouts with the address and date, you should be fine. You'd need to testify about how you printed it and maintained it, but it should still be good evidence.
posted by kingjoeshmoe at 8:23 AM on December 16, 2009

Great question! I agree with kingjoeshmoe, that you could testify to the printouts, or on papers submit your declaration with the printouts attached as exhibits. If it were a big jury trial, and you needed to show more than just print outs, "your" side would probably hire a computer-litigation-support-type company to save the parts of the website you needed to show, and then present them on a big screen, with a representative techie from the company testifying as to how the data/pages were saved. If that's your situation, you might post on a lawyer listserv to see which firm other lawyers have used.
posted by ClaudiaCenter at 9:36 AM on December 16, 2009

I'm currently suing a largish company here in the UK for libel, and did just what ManInASuit suggested; emailed a notary the URL in question, he printed the pages out then notarised each page with his seal and signature. This indicated on such and such a date these were the defamatory pages published on the web. I had to initial each page alongside his signature.

Since libel suits are such high stakes here in the UK I expect if they could reject this as evidence the defendants would; while they've objected to other points they've never once attempted to refute that this libelous and defamatory material was once upon a time published on the web.

I say once upon a time as they've since removed the offensive material
posted by Mutant at 9:46 AM on December 16, 2009

Assuming you are in the US, have you registered with the US copyright office?
posted by TheRaven at 11:30 AM on December 16, 2009

IAAL but the original poster is NOT my client and I do NOT intend this post to be legal advice of any sort. Rather, I'm trying to explain generally about the preservation and admissibility of electronically stored information and am NOT talking about any particular situations.

If you think you are "about to be involved in litigation soon" you hopefully have your own lawyer, who should be your first call on this stuff. (Warning: Many lawyers Do Not "Get" technology and electronic discovery.) If you are in federal court, you may want to ask your lawyer about whether Lorraine v. Markel Am. Ins. Co., 241 FRD 534 (D. Md. 2007) has anything that matters for your purposes. (Hint: Lorraine is pretty much a treatise on the admissibility of electronic evidence.)

From a technical standpoint, your lawyer should probably be looking at how much is at stake and what the nature of the website being preserved is. You handle a $500 dispute differently than a $500 million dispute. Likewise, you have different issues if the webpage is static (as opposed to being a front-end into some database, ERP system or some other voodoo).

Also, remember that webpages can render differently. Does the fact that a webpage renders differently in Firefox vs. Opera vs. IE have any evidentiary value? (Usually, no. But it's not like we're talking about specific facts.) If you're using a downloading agent and different "flavors" of webpages get served up depending on what agent is being identified, does THAT have any evidentiary value? Probably not -- but if you are a webpage designer looking to tag someone for infringement of your ultra-optimized-for-Opera code, this might be important (and is one of the many, many, many reasons that it's impossible for random guys on the Internet to provide a specific answer).

At the risk of entering tl;dr territory...

Q: Mr. Smith, are you a registered user of Metafilter?
A: Yes.
Q: On December 15, 2009, did you post a message about ____ on Metafilter?
A: Yes.
Q: Mr. Smith, I'm handing you what's been marked as Exhibit 1. Do you recognize this document?
A: Yes.
Q: What is it?
A: It's a printout of my Metafilter post from December 15, 2009.
Q: I see "12/16/2009" in the lower right-hand corner. I thought you said it was from December 15?
A: Well, on December 16, I printed out the Metafilter post from my web browser.
Q: Oh. So Exhibit 1 is a true and accurate copy of your Metafilter post from December 15?
A: Yes.
ATTORNEY: Your honor, I'd like to offer Exhibit 1 into evidence.
THE COURT: So received.
ATTORNEY: May I publish Exhibit 1 to the jury?
THE COURT: You may.

Questions about whether Exhibit 1 is hearsay and how it could be received into evidence / authenticated in the absence of personal testimony are left as exercises for the readers who haven't skipped to the next response. :)
posted by QuantumMeruit at 1:12 PM on December 16, 2009

Printing and notarizing is all well and good but won't help much if the issues at stake are not visible, such as stolen Javascript code. I would advise you to capture what you can any way you can, ASAP. Your lawyer will have better advice but I can't imagine they would advise you to not capture and document whatever you can.
posted by chairface at 3:48 PM on December 18, 2009