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Practice Tip: Web Site Hyperlinks as Adoptive Admissions
Companies are increasingly communicating with consumers via the Internet. With the explosion of the Internet during the last decade, the company Web site has become one of the most comprehensive and convenient locations to obtain information on a product. As the number of people using the Web has increased, company Web sites have gone from bare-bone sites of basic corporate information to becoming the starting point in any search for information on a company and its products. The swell in the use of such Web sites has increased their importance as a corporate voice and as a resource for consumers. Should a company change its Web site if a governmental or private agency issues a report that presents findings relating to one of its products and a risk of personal injury?
Ignore it, and a plaintiff may well point to a printout of the company Web site touting the benefit of the product without mentioning the report months after it issued. Refute it, and a plaintiff may attempt to use the refutation as the basis for punitive damages. So should you link to it? Doing so informs the public of the report's existence, thereby discharging, to some extent, a duty to warn. However, by doing so, the company may also risk adopting the report as an adopted admission under Federal Rule of Evidence (FRE) 801(d)(2)(B) or a state analog.
Under FRE 801(d)(2)(B), a party can be held to have adopted the statements of a third party when the party “manifest[s] an adoption or belief in its truth.” The test is whether the party “acted in some significant, identifiable way, in direct reliance … so as to demonstrate the party's belief in and intentional adoption of that information.” FRE 801 n.72. But what does that mean in the case of the Web site link to a report?
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