Commercial Litigation and Arbitration

Wayback Machine Printouts Not Authenticated Absent Certification from Representative of Archive.Org

Open Text S.A. v. Box, Inc., 2015 U.S. Dist. LEXIS 11312 (N.D. Cal. Jan. 30, 2015):

Box points to three pieces of evidence to establish that Ploeger's website was indexed and therefore publicly accessible: (1) Ploeger's deposition testimony; (2) what purports to be a printout of page from the Wayback Machine's Internet Archive showing an article from Windows Magazine called "Top Ten Shareware of January 2009" as of May 26, 2001, showing a listing for TreeComp with a link to Ploeger's website, see Dkt. No. 345-11 at DEFS014863; and (3) a similar purported Wayback Machine page showing a link to "TreeComp 3.x" in in the DMOZ directory of web links, organized in the "Computers:Software:File Management:File Comparisons:Windows" section, see Dkt. No. 345-13 at DEFS014547.1

1   "DMOZ is a volunteer-compiled directory of the highest quality informational websites, organized by subject matter." Parents, Families, & Friends of Lesbians & Gays, Inc. v. Camdenton R-III Sch. Dist., 853 F. Supp. 2d 888, 891 (W.D. Mo. 2012).

The two printouts of web pages might have shown a genuine [*7]  dispute of material fact if Box had established that they were authentic. See Orr v. Bank of America, NT & SA, 285 F.3d 764, 773-74 ("In a summary judgment motion, documents authenticated through personal knowledge must be "attached to an affidavit that meets the requirements of [Fed. R. Civ. P.] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence.") (alteration in original, footnotes omitted); St. Luke's Cataract & Laser Inst ., P.A. v. Sanderson, No. 8:06-CV-223, 2006 WL 1320242, at *2 (M.D. Fla. May 12, 2006) (holding that a printout from the Internet Archive could be authenticated by way of an affidavit from 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"). But here, Box has failed to properly authenticate the exhibits. Although Box claims in its opposition that the exhibit purporting to be a Windows Magazine article "was authenticated using the Internet Archive's Wayback Machine and a declaration from the Internet Archive's Office Manager," no such declaration was attached to its motion. Box's Opposition at 4, Dkt. No. 345. Consequently, the Court cannot consider documents (2) and (3) on summary judgment.

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