Commercial Litigation and Arbitration

Printout Offered to Show What Appears on Website ≠ Hearsay — 403 Unfair Prejudice Prong “Unnecessary and Useless” in Bench Trial — Internet Search Results or Snippets without Context May Be of Minimal Relevance — Good Quotes

Invisible Fences, Inc. v. Fido’s Fences, Inc., 2014 U.S. Dist. LEXIS 16663 (E.D. Tenn. Feb. 11, 2014):

The Court finds the following from Foreword Magazine, Inc. v. OverDrive, Inc., No. 1:10-cv-1144, 2011 WL 5169384, at *4 (W.D. Mich. Oct. 31, 2011)persuasive: "[T]hese exhibits [screen shots of websites] are offered to show the use of trademarks in commerce or the mentioning of those marks by various news organizations. Plaintiff is clearly not offering these screen shots for the truth of the matter asserted. When a printout from a third party website is offered merely to show that certain images and text appeared on the website, they are not statements at all and thus fall outside the ambit of the hearsay rule."  ***

Moreover, "[i]n bench trials, the application of the unfair prejudice portion of Rule 403 has been seen as an unnecessary and 'useless procedure.'" United States v. Hall, No. 98-6421, 2000 WL 32010, at *2 (6th Cir. Jan.4, 2000) (citing 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5213 (1978 & Supp. 1999) ("Since the judge must hear the evidence in ruling on the motion to exclude the evidence under Rule 403, exclusion of the evidence on grounds of prejudice in a bench trial is described as a 'useless procedure.'")); Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir.1994); Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. Unit A 1981)); see also United States v. Sperl, 458 F. App'x 535, 543 (6th Cir. 2012) (citing Hall for this proposition in the context of Rule 404(b)). Of course, "[e]xcluding relevant evidence in a bench trial because it is cumulative or a waste of time is clearly a proper exercise of the judge's power." Schultz, 24 F.3d at 632 (quoting Gulf States, 635 F.3d at 519). Those issues, however, are best determined in the context of the offered evidence. As the cases cited by IFI suggest, internet search results or other "snippets" sans context may be of minimal probative value in this case. See In re Bayer, 488 F.3d 960, 967 (Fed. Cir. 2007) ("Search engine results-which provide little context to discern how a term is actually used on the webpage that can be accessed through the search result link-may be insufficient to determine the nature of the use of a term or the relevance of the search results to registration considerations."). But even minimal relevance may be enough to admit the evidence unless the Court concludes the evidence is cumulative  or a waste of time. Because this is a bench trial, many of IFI's concerns are simply inapplicable. The Court is competent to discern which evidence is persuasive and which is not, and the Court is confident IFI is fully capable of raising such arguments at the appropriate time.

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