Commercial Litigation and Arbitration

Printout from Internet Archive Sufficiently Authenticated by Affidavit from Manager Explaining How Internet Archive Saves Old Web Pages

From SP Techs., LLC v. Garmin Int’l, Inc., 2009 U.S. Dist. LEXIS 110536 (N.D. Ill. Sept. 30, 2009) (on summary judgment motion; IP case):

Plaintiff has moved to strike Defendant's Exhibit D, which consists of a print-out of a website showing the twenty lines of code that are in dispute. The website is maintained by the Internet Archive, "a website that provides access to a digital library of Internet sites." *** Exhibit D purports to show a website maintained by a third party that, in 1999, contained the twenty lines of code the inventors used to disable the "X" button on the '873 patent. According to Plaintiff, the website has not been authenticated pursuant to Federal Rule of Evidence 901. That rule, however, requires only "evidence sufficient to support a finding that the matter in question is what its proponent claims." FED. R. EVID. 901(a). Here, Defendant has attached an affidavit from a manager at the Internet Archive, who explained how that website saves old web pages and that Defendant's Exhibit D was created in 1999. *** Plaintiff's argument amounts to a suggestion that the printout of this website would be admissible only if a person with direct knowledge of the website's existence in 1999 testified that the printout was a true and accurate copy of the contents of the website on that date. Such a high standard is not required for other types of evidence, and is beyond what Rule 901 requires. See United States v. Harvey, 117 F.3d 1044, 1049 (7th Cir. 1997) (Rule 901 "requires only a prima facie showing of genuineness and leaves it to the jury to decide the true authenticity and probative value of the evidence"). The court therefore notes Plaintiff's concerns about the reliability of the printout, but nevertheless concludes that the printout is admissible as evidence and denies the motion to strike. Accord Telewizja Polska USA, Inc. v. Echostar Satellite Corp., No. 02 C 3293, 2004 WL 2367740, at *6 (N.D. Ill. Oct. 15, 2004) (admitting evidence from the Internet Archive when accompanied by an affidavit from an Internet Archive official).

[Footnote 5] The URL of the website is:

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