Commercial Litigation and Arbitration

Internet Evidence — Web Page from Internet Archive Properly Authenticated by Affidavit

From Masters v. UHS of Del., Inc., 2008 U.S. Dist. LEXIS 107383 (E.D. Mo. Oct.21, 2008):

Plaintiff asks the Court to find that exhibit 110, a compilation of defendant's websites that had been archived by a third party, the Internet Archive, is admissible. In support of its motion, plaintiff has submitted the affidavit of Paul Hickman, an individual who attests that he has personal knowledge of how information is collected and stored at the Internet Archive. Defendant objects to the admission of such evidence, and argues that the affidavit in support of the exhibit is insufficient to properly authenticate the exhibit, as it fails to authenticate the accuracy of the data at the time of collection. Further, defendant states the exhibit is misleading and incomplete. The Court notes that defendant does not contend exhibit 110 contains inaccurate or false representations of defendant's website.

[Footnote 1] Mr. Hickman states that the Internet Archive receives data from third parties who compile the data by using software programs known as crawlers that surf the Web and automatically store copies of website files at certain points in time as they existed at that point in time. Mr. Hickman further states that this information is donated to the Internet Archive, which preserves and provides access to it. *** Defendant argues that, because a statement by the third party who originally collected the data is absent, plaintiff has not laid the proper foundation for the exhibit.

The Court has reviewed the exhibit and the affidavit in support thereof. The Court finds that Fed. R. Evid. 901 is satisfied, in that there is sufficient evidence to support a finding that the exhibit in question is what plaintiff claims it is. See Telewizja Polska USA, Inc. v. Echostar Satellite Corp., 2004 WL 2367740, at *6 (N.D. Ill. Oct. 15, 2004) ("Plaintiff has presented no evidence that the Internet Archive is unreliable or biased. And Plaintiff has neither denied that the exhibit represents the contents of its website on the dates in question, nor come forward with its own evidence challenging the veracity of the exhibit. Under these circumstances, the Court is of the opinion that [the Internet Archive employee's] affidavit is sufficient to satisfy Rule 901's threshold requirement for admissibility. Plaintiff is free to raise its concerns regarding reliability with the jury."). Further, the Court is not persuaded the probative value of the evidence is outweighed by the prejudicial effect it may have on the jury. Accordingly, the Court will grant plaintiff's motion.

Note: The Internet Archive is also known as the Wayback Machine.

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