The Real Deal: Authenticating YouTube Evidence

The Real Deal: Authenticating YouTube Evidence

Amid Randazza v. Cox’s “tortured history” and “procedural maneuvering by both sides,” we navigate toward the matter of authenticating a YouTube transcript and video when submitted in support of a summary judgment motion.

In 2012, plaintiffs Marc Randazza, a First Amendment attorney, his wife and young daughter filed suit against defendant Crystal Cox, a self-proclaimed “investigative blogger,” and defendant Eliot Bernstein, “alleging violations of individual cyberpiracy protections for various registered websites under 15 U.S.C. § 8131, cybersquatting for various registered websites under 15 U.S.C. § 1125(d), their right of publicity under NRS 597.810, their common law right of publicity, intrusion upon seclusion, and civil conspiracy.”

The Randazzas claimed that not only had the pair registered dozens of Internet domain names that incorporated the family’s names and Cox had written blog posts containing objectionable characterizations, but also that Cox had attempted to extort them by demanding the family agree to purchase Cox’s “reputation management” services to remove this allegedly defamatory material from the Internet and rehabilitate their cyber reputations. Cox, who was the only defendant to appear and answer the allegations, asserted that the lawsuit was filed in order to “harass and stifle her First Amendment freedoms of speech and expression.” The defendant also strongly objected to the plaintiffs’ characterization of her actions and motivation as “extortion.”

Both the plaintiffs and the defendant sought summary judgments. The court denied these motions because all parties had not sustained their initial summary judgment burdens.

Specifically with regard to YouTube evidence submitted by the plaintiffs, the Nevada court relied on United States v. Hassan to hold that neither the transcript nor the video had been properly authenticated.

The single court having addressed how to authenticate a video, albeit in a criminal context, found that videos from the online video network are self-authenticating as a certified domestic record of a regular conducted activity if their proponent satisfies the requirements of the business-records hearsay exception.

In order for the evidence to meet this exception, its proponent, Mr. Randazza, had to provide certification that satisfied three requirements:

(A) that the records were made at or near the time by — or

from information transmitted by — someone with knowledge;

(B) that they were kept in the course of a regularly conducted activity of a business;

(C) that making the record was a regular practice of that activity

The court found that although Mr. Randazza has attested that the YouTube transcript he had was a true and correct copy of the video, he had neither adequately established that he was the person with personal knowledge who had prepared the transcript nor established when it was prepared and that it was complete and accurate.

Similarly, the YouTube video had not been authenticated because the plaintiffs had “not proffered the certificate of YouTube’s custodian or other qualified person verifying that the page had been maintained as a business record in the course of regularly conducted business activities.” Without this certification, the video had not been properly authenticated and could not be considered by the court.

As this cybersquatting case plods on, the 2011 case of Obsidian Finance Group, LLC and Kevin Padrick v. Crystal Cox might be of interest to readers. The defendant lost that defamation case but, earlier this year, a federal appeals court disagreed with the ruling and granted her a new trial.

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