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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.


Here’s the story: A company went bankrupt. The company’s bankruptcy trustee hired an auctioneer to sell a piece of its equipment. The auctioneer posted the equipment to its website and invited interested parties to bid on it. When interested parties clicked on the link to bid, however, they were directed to a third-party website. The “terms of use” for the third-party website included one term that “declar[ed] that bidders would be liable only for 20% of the bid price in the event of a breach of contract.” (You can probably see where this is going.)


A company called Davie Shoring, Inc. (“DSI”) submitted the winning bid for the equipment in the amount of $177,500.00. After the auction ended, DSI “refused to pay for the [equipment] when it proved difficult to remove from storage.” In the ensuing lawsuit (by the bankruptcy trustee against DSI), the question arose: did DSI owe the bankruptcy estate $177,500.00 (the amount of its winning bid) or only 20% of that amount (per the third-party website’s terms of use). Naturally, the resolution of that question turned upon the admissibility of an archived version of the third-party’s website, downloaded from the “Wayback Machine” — “an online digital archive of web pages” that is maintained “by the Internet Archive, a nonprofit library in San Francisco, California.”


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.

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