Authentication of Internet Archive Evidence Requires Affidavit from Knowledgeable Employee of Archive

From Specht v. Google, Inc., 758 F. Supp. 2d 570 (N.D. Ill. Dec. 17, 2010):

Google has also moved to exclude screen shots of several websites that Plaintiffs retrieved from the Internet Archive's Wayback Machine. ***

According to Google, Plaintiffs produced these screen shots at the close of discovery***. It alleges that the late production deprived them of the opportunity to explore the reliability of the Internet Archive's files, or ask Specht about them at his deposition. Additionally, the screen shots were not authenticated by an officer or employee of the Internet Archive, but rather through declarations of [Plaintiff] Specht for and, and Philip Cacioppo for sonixms. com. Pls.' Summ. J. Ex. ¶¶ 5, 8, 46, Ex. 44 ¶¶ 5-6. This is an improper method to authenticate screen shots from the Internet Archive. See Audi AG v. Shokan Coachworks, Inc., 592 F.Supp.2d 246, 278 (N.D.N.Y. 2008) (indicating that pages from Internet Archive search results can be submitted into evidence only by authentication of a "knowledgeable employee" of the Internet Archive); St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, No. 06-CV-223, 2006 U.S. Dist. LEXIS 28873, 2006 WL 1320242, at *2 (M.D. Fla. May 12, 2006) ("Plaintiff must provide the Court with a statement or affidavit from an Internet Archive representative with personal knowledge of the contents of the Internet Archive website.") (emphasis in original). A court in the Northern District of Illinois found that a party properly authenticated web pages retrieved from the Internet Archive when it included an affidavit from an Internet Archive employee to verify the pages. Telewizja Polska USA, Inc. v. Echostar Satellite Corp., No. 02-CV-3293, 2004 U.S. Dist. LEXIS 20845, 2004 WL 2367740, at *6 (N.D.Ill. Oct. 15, 2004).

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