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Wikipedia, Websites, and WebMD: Are These WWW’s Reliable as Evidence? (Part II)
John A. Wirthlin• & Brittan L. Mitchell•

Online sources supply litigants with a variety of easily accessible information. This article examines the potential hurdles of admitting these internet sources into evidence and offers strategies for litigants to use these sources effectively. Recent cases surrounding reliability challenges to Wikipedia and Social Networking websites were reported in the previous issue of It’s Evident. In this issue, WebMD, YouTube videos and corporate websites are reviewed.

WEB MD
Many cases involve medical issues and WebMD helps fill a void for undefined medical terms. In a general, “All Cases” search, there were over 230 cases which referenced WebMD (www.webmd.com); the majority had multiple references to WebMD.1

Though the arguments against using WebMD information are analogous to the discussion found in our previous article about Wikipedia,2 there are fewer challenges to WebMD evidence. In fact, litigants and the judiciary seemingly accept WebMD references without much scrutiny. WebMD is used to define medical terms including: the purposes and side effects of medication3, medical conditions4, anatomical references5, and medical procedures6. WebMD assures that it provides “accurate, clear, and error-free information.”7 WebMD also publicly catalogs any recent corrections on their website,8 has multiple M.D.’s as editors9, and has an Independent Medical Review Board comprising of four medical doctors.10

However, even with these safeguards, some litigants may find the “as is” disclaimer a justification for judicial caution:

    The contents of the WebMD Site, such as text, graphics, images, and other material contained on the WebMD Site ("Content") are for informational purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the WebMD Site! . . . The Site and the Content are provided on an "as is" basis.11
This disclaimer specifically states that the advice is general, informational, and not intended for diagnosis or treatment. In cases where diagnoses or treatments are disputed, experts can provide the specific testimony that links the general diagnosis and treatment to an individual’s specific symptoms. As an additional safeguard, testifying experts should have the opportunity to confirm or refute medical evidence culled from the internet.

It is considered “arbitrary and capricious”12 if testifying medical experts are denied the opportunity to challenge medical material gathered online sources. In Campbell, the parents of a minor child sought monetary compensation under the National Childhood Vaccine Injury Act.13 The special master reviewed the evidence presented and denied the casual link between the minor child’s acellular DPT vaccine and the child’s seizure disorder.14 The Special Master seemingly disregarded the expert testimony and instead formulated an opinion from information found on the internet.15 One of these internet sources was WebMD.16 Even in this relaxed evidentiary situation,17 the Court of Federal Claims insisted that fairness and reliability are paramount.18

The Federal Claims Court in Campbell analyzed the disclaimers found on WebMD and the other sources cited and found that “[t]he articles that the Special Master culled from the Internet do not--at least on their face--remotely meet this reliability requirement.”19 The Court demanded that fairness necessitated a hearing where experts could refute or confirm the articles’ information.20 Since the Special Master’s completely disregarded fairness, the Court of Federal Claims vacated and remanded the Special Master’s decision.21

Another federal court made conclusions regarding factual issues without reference to the WebMD articles because the opposing parties objected.22 In In re Jackson, the debtor sought relief from student loans. The debtor claimed hardship as a basis for the requested relief.24 The debtor argued that his financial situation made it necessary for him to represent himself pro se and made it impossible for him to hire an expert to testify about his medical conditions.25 The debtor supplemented his own testimony with medical definitions found on WebMD.26 The creditors opposed the WebMD evidence and filed post-trial briefs.27 The court took note of the objections, and held that the debtor met his burden without the reference to the WebMD evidence.28

Many reported cases cite WebMD without reference to any reliability challenges. The current acceptance of WebMD does not assure that the evidence will go untested in every trial situation. If reliability challenges are expected, then the following strategies should bolster the reliability of a litigant’s WebMD evidence: (1) Explore the introductory pages of WebMD and extract the positive language supporting WebMD’s efforts to provide credible information, (2) Highlight any of the WebMD staff doctors that have expertise in areas pertinent to the pending litigation,29 (3) Reference cases in the local jurisdictions that cite to WebMD without challenging the reliability, and (4) Find expert witnesses that could corroborate the information if necessary.

YOUTUBE VIDEOS
Video sharing websites, like YouTube, are some of the most widely used on the Internet.30 These sophisticated websites allow users to upload, view, comment on, and rate different types of videos from anywhere in the world.31 Naturally, litigants increasingly desire to introduce these videos as persuasive evidence.32 However, the evidentiary hurdles still exist, including reliability, authentication, and/or the prejudicial nature of certain types of videos.

At the outset, some courts find YouTube videos so persuasive that the videos themselves determine the outcome of an entire case.33 In Rios, the court considered whether it had jurisdiction to enter a restraining order against an out of state resident who disseminated and created numerous YouTube videos that threatened a resident of the state with physical harm.34 According to the court, in order to establish personal jurisdiction on a party for posting an internet video, there must be proof that the party intended to target the content to a particular location, reader, or forum.35 Here, the court found the YouTube videos to be “more than the mere posting of a message on an open Internet forum . . . [but] evidence [that] shows here that he specifically targeted his message at Rios [plaintiff] by threatening her life and safety.”36 As such, the court decided it could exercise personal jurisdiction over the defendant and enforce the restraining order.37 Ultimately, the YouTube video was the only nexus between the defendant and the state of Connecticut to satisfy the statutory and constitutional jurisdictional requirements.38

Criminal defendants have also creatively and effectively used YouTube videos to protect their constitutional right to a fair trial.39 In Mohamed, the court did not release pretrial access to videos of a traffic stop recorded by a police car while detaining the defendant who was carrying explosives through interstate commerce.40 The defendant argued that releasing “the videotape contains a recording of his statements, and particularly in this ‘YouTube’ generation where statements could be edited and rebroadcast[ed], the release of these statements could violate his right to a fair trial.”41 The court decided not to release the video tapes in order to protect the defendant’s right to a fair jury trial.42

Likewise, prosecutors have found a variety of uses for YouTube videos. One such use is for sentence enhancements.43 In Villanueva, the prosecution used the defendant’s statements in a YouTube video to justify a sentencing enhancement in a felony in possession charge.44 Despite the defendant’s attempt to argue that his statements in the video were made while intoxicated, the court found he intended his statements be taken seriously.45

However, the Point Ruston court demonstrated judicial caution by denying a motion to dismiss when factual disputes surrounding the YouTube evidence existed.46 In support of its motion to dismiss, the Point Ruston defendant argued that its statements concerning the plaintiff’s release of toxic dust into the community were clearly substantiated by several YouTube videos.47 In its analysis, the court explained that “[c]learly, there are questions of authenticity regarding this proposed evidence, and there appears to be a reasonable dispute concerning the substance of the evidence.”49 Therefore, despite the “evidence” portrayed in the videos, the court found that the plaintiffs sufficiently stated a defamation claim.50

In addition, while YouTube-type videos can be an effective and persuasive evidentiary tool for litigants, it can also make the outcome of a case less certain at the appellate level. Most notably, appellate decisions may vary as judges begin to analyze the visual images from YouTube videos as opposed to simply reading the record.51 For instance, in Scott v. Harris,52 after viewing a YouTube video depicting a police chase, eight of the Supreme Court Justices promptly found that the video so clearly contradicted53 the lower court’s findings that it justified a reversal.54 So, the outcome of an appellate decision can be determined based simply on a judge’s reaction to a YouTube video.55

Therefore, whether a party can effectively introduce a YouTube video as evidence depends largely on the type of video submitted and the context of the case. Introducing a video uploaded by the party or the party’s opposition depicting their statements or actions seems to be more credible. Conversely, a party will have more difficulty offering videos to prove technical facts that would normally be relegated to experts. Still, successfully submitting a YouTube video into evidence can be an important and sometimes even the determining factor in a case.56

CORPORATE WEBSITES
Corporately owned websites comprise of www sources which sometimes provide useful insight in litigation. A resourceful litigant may find information about employees, company policies, sales goals, recent corporate expansions, and target sales demographics. This information could enhance the scope of discovery or provide missing facts necessary for the presentation of a case. This section focuses on the degree of judicial deference placed on corporately owned websites as reliable sources.

Concerns surrounding authentication caused a district court to refuse to take judicial notice of facts found on a company’s website.57 In Parker v. Yahoo!, Inc., Yahoo petitioned the district court to take judicial notice of certain information from Yahoo’s website regarding corporate policies.58 Yahoo supported its request with case law supporting the judicial notice of websites.59 The district court was not persuaded by Yahoo’s arguments and instead found support in a Third Circuit case that held “that corporate websites, particularly when describing their own business, generally are not the sorts of ‘sources whose accuracy cannot reasonably be questioned.’”60

The Third Circuit case that was influential to the Parker court held that it was inappropriate for a district court to take judicial notice of business facts found on the company website.61 In Victaulic Co. v. Tieman, a former employee sought a declaratory judgment against his former employer to invalidate a non-compete clause.62 The Third Circuit had two concerns with the district court’s reliance on information found at www.victaulic.com.63 The Court’s first concern was a general concern about websites. Specifically, the Court noted that domain names may be purchased by anybody, and the Court was uncomfortable assuming ownership of the website.64 The Court felt that authentication was necessary for www sources.65 The Third Circuit was secondly concerned about the marketing aspect of corporate websites:66
    Often, marketing material is full of imprecise puffery that no one should take at face value. . . . Thus courts should be wary of finding judicially noticeable facts amongst all the fluff; private corporate websites, particularly when describing their own business, generally are not the sorts of “sources whose accuracy cannot reasonably be questioned,” that our judicial notice rule contemplates.67
In short, the Court concluded that “unauthenticated marketing material,” especially when sourced from a corporate website, was not acceptable for judicial notice.68
However, not all jurisdictions necessitate the authentication of corporate websites. A recent district court in Illinois provides a useful comparison.69 The American Safety court started its analysis by citing two Seventh Circuit cases permitting the judicial notice of material found on websites.70

A material dispute existed in American Safety regarding whether there was timely notice of pending litigation to the insurance company. The City of Waukegan provided notice of the pending litigation to various corporate entities while attempting to determine which insurance company covered the underlying claim.72 The City of Waukegan argued that it provided timely notice to “AJG”, and that “AJG” was an agent of one of the plaintiffs.73 In determining whether “AJG” was an agent of the plaintiff, the court took judicial notice of corporate facts listed on the “AJG” website.74 The court then agreed with the website’s conclusion that AJG was a broker of insurance and not an agent of the plaintiff.75 Therefore, the court found that the City of Waukegan did not prove its constructive notice argument.76

Similar to other www sources discussed in this article, the majority of the cases do not mention challenges to corporately owned websites.77 However, the handful of cases that analyze the challenges to authenticity and reliability are instructive for the cautious litigant.78 Tracing true ownership, parsing through fact verses puffery, and even providing additional non-web based sources for support are all strategies to bolster the reliability of factual evidence found on corporately owned websites.

CONCLUSION
Litigants and the judiciary should not turn to web-based information simply because information culled from the Internet can fill evidentiary gaps. Although this two-part article did not cover every potential source of online information, it did cover a wide variety of sources. The first category of websites included websites with disclaimers of reliability. Part I reviewed the disclaimer found on Wikipedia. Part II reviewed the disclaimer on WebMD. The second category of websites included Social Networking (Part I) and Video-Sharing Websites (Part II). The final category of websites, found entirely in Part II, involved websites owned by corporations that were involved in the underlying litigation. For those that who support the use of these online materials in litigation, employing the simple tactics discussed will enhance the reliability of the web-based information. Litigants should find relative ease in overcoming the evidentiary hurdles that stem from internet sources such as Wikipedia, Websites, and WebMD.

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End Notes

• John A. Wirthlin is a third year law student at University of Florida. He worked as a Summer Associate at Greenberg Trauig, LLP in Tampa, Florida.
• Brittan L. Mitchell is a former NCSTL staff member. Ms. Mitchell is a member of the Florida Bar and a graduate of Stetson University College of Law. She is currently working on her LL.M. in Taxation from New York University. She practices law in Inverness, Florida at Mitchell & Mitchell, PLLC.

1 See i.e. Williams v. Asture, No. 4:08 CV 764 DDN, 2009 WL 2905939 (E.D. Mo. Sept. 8, 2009) (citing WebMD 14 times as an authoritative medical reference).
2 Wirthlin & Mitchell, supra n. 1.
3 See Williams v. Asture, 2009 WL 2905939 at n. 2-9, n. 11, n. 20, n. 24, n. 25, n. 26 (using WebMD to define which medical conditions the following medicines are prescribed to treat: Hydrochlorothiazide, Benadryl, Vioxx, Celebrex, Penicillin, Amitriptyline, Humibid, Biaxin, Clarithromycin, Ferrous Gluconate, Hydroxyzine, Darvocet, Clobetasol, and Celexa).
4 See id. at n. 17-18 (using WebMD to define symptoms and other aspects of Dysthymia and Impingement syndrome); See also Walterich v. Astrue, 578 F. Supp. 2d 482, 486 n. 3 (W.D.N.Y. 2008) (using WebMD to define the causation of the disease Diverticulitis); See also Knipe v. SmithKline Beecham, 583 F.Supp. 2d 553, 556 at n. 2 (E.D. Pa. 2008) (using WebMD to describe the fundamental components of the mental illness “Body Dysmorphic Disorder” (BDD)).
5 See Gagliardo v. Astrue, No. 4:08 CV 411 DDN. 2009 WL 2170095 at n. 4 (E.D. Mo. July 20, 2009) (using WebMD to describe a herniated disc); See also Cruz v. Astrue, No. 07-CV-4658, 2008 WL 597194 at n. 3 (E.D.N.Y. Mar. 2, 2008) (using WebMD to define meniscus as the “disc surrounding the knee”); See also Tucker v. Wal-Mart Stores, Inc., No. 1:06-CV-19 CAS, 2007 WL 1306461 at n. 1 (E.D. Mo. May 2, 2007) (using WebMD to explain where the Labrum is located on the human body and what purpose it serves).
6 Mushtare v. Astrue, No. 7:06-CV-1055 (LEK/VEB), 2009 WL 2496453 at *7 n. 23 (N.D.N.Y. Aug. 12, 2009) (using WebMD to define the purpose the Serum Protein Electrophoresis Test) See also Gagliardo v. Astrue, 2009 WL 2170095 at n. 3 & n. 15 (using WebMD to define two surgical procedures: the Spinal Fusion of C5-6 and a total thyroidectomy).
7 WebMD’s Correction Policy available at http://www.webmd.com/about-webmd-policies/webmd-corrections-policies (last visited Sept. 30, 2009).
8 WebMD’s Correction Policy available at http://www.webmd.com/about-webmd-policies/webmd-corrections-policies (last visited Sept. 30, 2009) (showing corrections for the previous 60 days).
9 WebMD, Who We Are, http://www.webmd.com/about-webmd-policies/about-who-we-are (last visited Sept. 30, 2009).
10 WebMD, Our Independent Medical Review Board, http://www.webmd.com/about-webmd-policies/independent-review-board (last visited Sept. 30, 2009).
11 WebMD “Additional Information” http://www.webmd.com/about-webmd-policies/additional-info?ss=ftr (Accessed July 2, 2009).
12 Campbell v. Sec. Health & Hum. Serv., 69 Fed.Cl. 775, 784 (Fed. Cl. 2006).
13 Id. at 776-77.
14 Id. at 777.
15 Id. at 780-81.
16 Id. at 781.
17 Id.
18 Id.
19 Id.
20 Id.
21 Id. at 784.
22 In re Jackson, No. 05-15085 (PCB), 2007 WL 2295585 at n. 5 (Bkrtcy SDNY Aug. 9, 2007).
23 Id. at *1.
24 Id.
25 Id. at *6.
26 Id. at n. 5.
27 Id.
28 Id.
29 See WebMD, Who We Are available at http://www.webmd.com/about-webmd-policies/about-who-we-are (last visited Oct. 1, 2009) (referencing the M.D.’s personal areas of expertise will help bolster your evidence against a reliability challenge. Currently there are many specialties including heartburn, nutrition, weight control, epilepsy, endocrinology (including reproductive endocrinology), and internal medicine).
30 See Edward Lee, Developing Copyright Practices for User-Generated Content, 13(1) J. Internet Law 1, 15 (July 2009) (providing the following facts about the rapid growth and popularity of Youtube):
    Within a short span, YouTube has fundamentally transformed the Internet. By designing an easy way for people to share videos online, YouTube has made videos a dominant component of the way that information is communicated on the Web. The growth of YouTube has been phenomenal. By December 15, 2005, when YouTube officially launched, people were viewing three million videos a day on YouTube, while people were adding another 8,000 videos each day to the site. Within the first six months of 2006, the growth rate was staggering: The number of visitors grew by 300 percent, from 4.9 million to 19.6 million per month. By July 2006, YouTube served 100 million videos a day, which marked an increase of more than 3,200 percent from the three million per day in the past December. By September 2006, the number of video uploads jumped to 65,000 per day, increasing more than eight-fold from December. According to Hitwise, by May 2006 YouTube had captured the leading position in the online video market with a 42.94 percent market share (based on the number of visits to the site). By October 2006, the number of unique visitors to YouTube had grown to 34 million per month, elevating it to one of the top 15 most visited Web sites worldwide. Within just nine months, the number of visitors to YouTube grew by a staggering 600 percent. With its simple motto “Broadcast Yourself,” YouTube has appealed to the masses.
31 YouTube – Broadcast Yourself, http://www.youtube.com/, (last visited Oct. 5, 2009).
32 See i.e. Omar Ha-Redeye, YouTube Video Entered as Evidence in B.C. Trial, Law Is Cool), http://lawiscool.com/2009/01/13/youtube-video-entered-as-evidence-in-bc-trial/ (Jan. 13, 2009). (referencing the first time the B.C. Supreme Court entered a YouTube video into evidence to support an unlawful use of a prohibited weapon charge).
33 See Rios v. Fergusan, No. FA-08-4039853S, 2008 WL 6665285 at *1, *4 (Conn. Super. Dec. 3, 2008).
34 Id. at *1.
35 Id. at *4.
36 Id.
37 Id. at *3.
38 See Id. at *4.
39 U.S. v. Mohamed, 546 F. Supp. 1299, 1303 (M.D. Fla. 2008); See also U.S. v. Boyd, No. 3:07-CR-003, 2007 WL 4244974 (E.D. Tenn. Nov. 30, 2007) (finding that the defendant’s introduction of 24 YouTube videos was not sufficient to necessitate a change of venue due to an impartial jury).
40 U.S. v. Mohamed, 546 F. Supp. 1299, 1301 (M.D. Fla. 2008).
41 Id. at 1302.
42 Id. at 1303.
43 See U.S. v. Villanueva, 315 Fed. Appx. 845, 847 (11th Cir. 2009).
44 Id.
45 Id. at 849.
46 See Point Ruston, LLC v. Pac. Nw. Reg’l Council of the United Bhd. of Carpenters and Joiners of Am.., No. C09-5232BHS. 2009 WL 2913689 at *1, *11 (W.D. Wash. Sept. 8, 2009).
47 Point Ruston, 2009 WL 2913689 at *1 (Evaluating the sufficiency of the plaintiffs’ pleadings, including its defamation claim, pursuant to the defendant’s Fed. R. Civ. P. 12(c) motion for judgment on the pleadings).
48 Id. at *11.
49 Id. at *11.
50 Id. at *12.
51 See Dan M. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? SCOTT V. HARRIS and the Perils of Cognitive Illiberalism, 122 HARVARD L. REV. 837, 840 (2009)(providing an empirical study of how different subcommunities interpreted the tape depicted in Scott v. Harris to show that perception of a video varies based on a viewer’s perspective).
52 Scott v. Harris, 127 S. Ct. 1769, 1772 (2007).
53 Id. at 1775.
54 Id. at 1779.
55 See Dan M. Kahan et al, Whose Eyes Are You Going to Believe? SCOTT V. HARRIS and the Perils of Cognitive Illiberalism, 122 HARVARD L. REV. 837, 841 (2009).
56 See i.e. Adam Liptak, Supreme Court Enters the YouTube Era, New York Times A12 (Mar. 3, 2009) available online at http://www.nytimes.com/2009/03/03/us/03bar.html (exploring the role of appellate judges in the context of the persuasive nature of YouTube videos).
57 Parker v. Yahoo!, Inc., No. 07-2757, 2008 WL 4410095 at n. 9 (E.D.Pa. Sept. 25, 2008).
58 Id.
59 Id. (referencing Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700, 705 n. 5 (3d Cir.2004). The court in Kos, took judicial notice of facts found on the website belonging to the United States Patent and Trademark Office).
60 Id. (citing Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d Cir.2007)).
61 Victaulic Co. v. Tieman, 499 F.3d 227, 236-237 (3d Cir. 2007) available online at http://caselaw.lp.findlaw.com/data2/circs/3rd/072088p.pdf.
62 Id. at 227-228.
63 Id. at 236.
64 Id.
65 Id. (citing U.S.s v. Jackson, 208 F.3d 633, 638 (7th Cir.2000) (“holding that information from the internet must be properly authenticated to be admitted”); In re Homestore.com, Inc. Sec. Litig., 347 F.Supp.2d 769, 782-83 (C.D.Cal.2004) (“Printouts from a web site do not bear the indicia of reliability demanded for other self-authenticating documents under FED.R.EVID. 902. To be authenticated, some statement or affidavit from someone with knowledge is required....”).
66 Id. (referencing Fed. R. Evid. 201(b) Judicial Notice of Adjudicative Facts).
67 Id.
68 Id.
69 Amer. Safety Casual Ins. v. City of Waukegan, No. 07 C 1990, 2009 WL 855795 (N.D. Ill. Mar. 30, 2009).
70  Id. at *8 (citing Denius v. Dunlap, 330 F.3d 919, 926 (7th Cir.2003) and Laborers' Pension Fund v. Blackmore Sewer Constr., Inc., 298 F.3d 600, 607 (7th Cir.2002)).
71 Id. at *1-*4.
72 Id.
73 Id. at *7.
74 Id. at *8.
75 Id.
76 Id.
77 See Bruce P. Merenstein, Questioning Courts’ Trust of Web Sources, The Legal Intelligencer (Apr. 2, 2009) available online at http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202429585849 (mentioning that in some instances the corporate website material might be immaterial or uncontested).
78 Id. (referencing the Victaulic case as well as other general references where courts took judicial notice of corporate press releases).