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Friday, March 18, 2011

No Magic In Internet Evidence

By Gary Beaver

The N.C. appellate courts have been slow to issue opinions on the subjects of e-discovery and the internet.  Practitioners in the N.C. trial courts have had to rely upon the existing rules and make arguments for those rules to be applied similarly to leading federal court decisions (such as the five Zubulake opinions) and or as suggested by authoritative sources like the guidelines issued by the Sedona Conference and the Conference of Chief Justices (for the state appellate courts).  The development of those areas of law in the N.C. courts will likely be incremental as the N.C. appellate courts typically do not engage in the comprehensive opinions providing treatise-type treatment of internet and e-discovery issues that some federal district court judges have entered.  The closest to such opinions in the N.C. state courts came from Judge Tennille, in the
N.C. Business Court,
when he provided two non-precedential but influential decisions on e-discovery issues back on November 1, 2006.  We have seen little guidance since then.  In Rankin v. Food Lion, decided March 1, 2011, the N.C. Court of Appeals had the opportunity to address the use of evidence found on the internet but limited its opinion to addressing the narrow issue before it without providing a lot of discussion about the methods for admitting such evidence.  The Rankin court affirmed the trial court's grant of summary judgment for the defendant.  In doing so, the court also affirmed the trial court's rejection of the plaintiff's evidence printed out from the internet due to the failure of the plaintiff to properly authenticate it.  The plaintiff had submitted printouts from internet websites -- a page from the N.C. Secretary of State and an internet posting about the ownership of Food Lion.  The plaintiff failed to provide any sworn testimony by affidavit or live witness or to use a means of self-authentication to identify and authenticate those internet printouts.  While this decision did not tell us anything new, it did remind trial lawyers that the internet does not magically make authentic or reliable information found on the internet; one must always comply with the rules for authenticating documents and establishing hearsay exceptions.  If you want extensive advice on admitting internet evidence, look at Lorraine v. Markel American Insurance Company, 242 F.R.D. 534 (2007) -- a 100-page opinion by Magistrate Judge Paul Grimm.

Gary Beaver is a member of Nexsen Pruet's Technology Law team. Visit to learn more about how ever-changing technology is impacting your business and how our attorney can help you solve problems that might arise.

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