Far Out: No Judicial Notice of Archived Websites from the Wayback Machine
In the world of business litigation, some judicial decisions are groundbreaking. Others are not, but still kind of amusing. The Fifth Circuit’s recent decision in Weinhoffer v. Davie Shoring, Inc. falls into this second category.
Lots of us are probably familiar with the Wayback Machine. Lots of us have probably even used the Wayback Machine to look up archived websites. When we do, we probably all assume that the information the Machine spits out is “authentic.” And we’re probably right about that! Is there any good reason to think the nonprofit that hosts the Wayback Machine would archive bogus or “inauthentic” websites? Alas, as our friends at DSI learned the hard way, “authenticity” means something different in federal courts than it does in common usage.
In federal courts, materials must be “authenticated” before they come into evidence. Typically, witnesses with knowledge of the materials authenticate them. For example, the author of a letter will testify that he or she wrote the letter, thus verifying that the letter is “authentic,” i.e., the genuine article. Or custodians of business records or medical records will testify that the records are authentic. And so on. In some instances, though, such authentication is not required. For example, Federal Rule of Evidence 201(b)(2) allows federal courts to take “judicial notice” of “a fact that is not subject to reasonable dispute” because it “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” For example, a federal court can take judicial notice of another federal court’s docket or an order that it issued because, you know, courts are an information source “whose accuracy cannot reasonably be questioned” (or at least not wisely questioned). United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994).
In the above case, DSI argued that the court should take judicial notice of the third-party’s archived website because, it contended, the Wayback Machine is a source “whose accuracy cannot reasonably be questioned.” Not a ridiculous proposition. Nevertheless, the Fifth Circuit Court of Appeals rejected DSI’s argument. It held that “the district court erred in taking judicial notice of the [website’s] terms because a private internet archive falls short of being a source whose accuracy cannot reasonably be questioned as required by Rule 201.”
What are the implications of this decision? Narrowly speaking, probably not many (unless you were planning in the near future to introduce an archived website from the Wayback Machine into evidence in your federal court case). Broadly speaking, however, the decision reflects an, uh, um, how to say this nicely . . . healthy judicial skepticism (yes!) about the authenticity of information derived from the interwebs. So propounders of archived websites (or other internet-sourced evidence) beware! Courts may take a more nuanced view than the rest of us about the “authenticity” of such evidence.