Affidavit Authenticating Website Evidence Must State that Affiant Visited Site and Screen Shots Accurately Portray What Witness Saw — Authentication of Internet Archive Evidence

Sam’s Riverside, Inc. v. Intercon Solutions, Inc., 790 F. Supp. 2d 965 (S.D. Iowa 2011):

An affidavit used to oppose a motion for summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4) (emphasis added); Fed. R. Civ. P. 56(e)(1) (2010) ("A supporting or opposing affidavit must be made on personal knowledge . . . and show that the affiant is competent to testify on the matters stated."); see also Fed. R. Evid. 602 ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."). "In evaluating evidence related to possible summary judgment, a court may not consider affidavits that do not satisfy" the personal knowledge requirement of Rule 56. Aucutt v. Six Flags Over Mid-Am., Inc., 85 F.3d 1311, 1317 (8th Cir. 1996) (citing El Deeb v. Univ. of Minn., 60 F.3d 423, 428?29 (8th Cir. 1995) and Cummings v. Roberts, 628 F.2d 1065, 1068 (8th Cir. 1980)).

The Second Hainline Declaration does not set forth any facts that show that Hainline has personal knowledge about any of the matters discussed in that declaration. See 2d Hainline Decl. ¶¶ 1-14. For example, Hainline states that certain Internet screen shots are "true and accurate representation[s]" of certain web pages. E.g., id. ¶¶ 1, 4. However, the cited declaration does not state that Hainline ever visited those web pages or had any personal knowledge about the contents of the websites he mentions.

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Footnote 19. Indeed, Hainline testified in his deposition that he did not visit the Websites at all between his January 2004 phone call with Brundage and the fall of 2008. Clerk's No. 152 at 16 (Hainline Dep. Tr. 139:1-7). Therefore, by Hainline's own admission, he does not have personal knowledge of the content of the Websites during that time period. Thus, the Court is hard-pressed to see how Hainline might be able to testify about whether certain images are true and accurate representations of the Websites during that period..... Additionally, the Second Hainline Declaration does not demonstrate that Hainline had personal knowledge about the accuracy of the Contested Screen Shots [from the Wayback Machine]. See 2d Hainline Decl. at 1--3; see also Fed. R. Evid. 901. It does not indicate, for example, that Hainline personally visited Archive.org and printed — or supervised the printing of — the Contested Screen Shots. Cf. Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002) (concluding that printouts of live websites were sufficiently authenticated by a declarant's statement that the printouts were "true and correct copies of pages printed from the Internet that were printed by [the declarant] or under his direction").

[Internet Archive/Wayback Machine] Defendants argue that the Contested Screen Shots are inadmissible because, inter alia, they "were not properly authenticated." See Clerk's No. 177 at 3. In response, Plaintiff argues that it has properly authenticated the Contested Screen Shots in two separate ways.... First, Plaintiff argues that the Second Hainline Declaration is sufficient to authenticate the Contested Screen Shots.... The Court does not agree. As discussed above, the Second Hainline Declaration does not meet the personal knowledge requirement of Rule 56. Therefore, the Court may not consider it. See Aucutt, 85 F.3d at 1317.

Footnote 24. The case cited by Plaintiff does not compel a different conclusion. See Clerk's No. 185 at 1 (citing Netscape Commc'ns v. Valueclick, Inc., 707 F. Supp. 2d 640, 644 n.6 (E.D. Va. 2010). In Netscape, the witness who authenticated a document retrieved from Archive.org was the person who wrote the document and posted it online. See 707 F. Supp. 2d at 644 n.6. Thus, the witness had personal knowledge about the content of the archived document. See id. In that situation, the court concluded that the witness' testimony was sufficient to authenticate the document, notwithstanding the fact that the particular copy at issue had been retrieved from Archive.org. Id. (citing Fed. R. Evid. 901(b)(1)). By contrast, nothing in the Second Hainline Declaration indicates that Hainline had personal knowledge of the content of the Websites or the content of the website located at www.samsriverside.com. ..3. Therefore, Netscape is inapposite.

Second, Plaintiff argues that it has properly authenticated the Contested Screen Shots by submitting the Butler Affidavit. See Clerk's No. 185 at 1-2. Christopher Butler is an employee of the Internet Archive who has personal knowledge about how the Wayback Machine works. See Butler Aff. ¶ 1. In his affidavit, Butler states that the six screenshots attached to that affidavit as Exhibit A are true and accurate printouts of the Internet Archive's records of the appearance of certain pages from the Websites on certain dates. Id. ¶¶ 8-13. Other courts have concluded that an affidavit from an Internet Archive employee is sufficient to authenticate screen shots taken from Archive.org. See, e.g., St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, No. 8:06-CV-223, 2006 U.S. Dist. LEXIS 28873, 2006 WL 1320242, at *2 (M.D. Fla. May 12, 2006) (concluding that an affidavit by a "representative of Internet Archive with personal knowledge of its contents, verifying that the printouts Plaintiff seeks to admit are true and accurate copies of Internet Archive's records would satisfy Plaintiff's obligation to this Court."). The Court finds these cases persuasive and, therefore, concludes that the Butler Affidavit is sufficient to authenticate the specific screen shots that are mentioned in — and attached to--the Butler Affidavit. See id.

Footnote 25. The Court cannot agree, however, with Plaintiff's suggestion that the Butler Affidavit is sufficient to authenticate every image that Plaintiff's counsel has identified as a screen shot from Archive.org. See Clerk's No. 185 at 2. Although the Butler Affidavit may be sufficient to show that records from Archive.org generally are reliable, Plaintiff must still demonstrate that the Contested Screen Shots are what they say they are — i.e., that they are true and accurate representations of Archive.org's records. See Fed. R. Evid. 901(a).

However, none of the Contested Screen Shots are attached to the Butler Affidavit; therefore, the Butler Affidavit does not authenticate any of the Contested Screen Shots. ***See Nooner v. Norris, 594 F.3d 592, 603 (8th Cir. 2010) (holding that "only evidence that would be admissible at trial may be relied upon to counter a motion for summary judgment" (quoting Sokol & Assocs., Inc. v. Techsonic Indus., Inc., 495 F.3d 605, 611 n. 4 (8th Cir. 2007)); see also Specht v. Google Inc., No. 09 C 2572, 2010 U.S. Dist. LEXIS 133772, at *26--27 (N.D. Ill. Dec. 17, 2010) ("Because Plaintiffs did not properly authenticate them, the Court will not consider the Internet Archive[] printouts from Plaintiffs' Summary Judgment Exhibits . . . .").

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