New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Wayback Machine Authenticated by Affidavit from Archive.com Office Manager

Download PDF

Stabile v. Paul Smith Ltd., 2015 U.S. Dist. LEXIS 101291 (C.D. Cal. July 31, 2015):

Stabile stated during her January 13, 2015 deposition that Extrapolations # 3 has appeared on her website, but she could not remember when it appeared, and it does not appear there now. (Stabile Depo. 108:24-109:6.) Stabile states in her declaration that the website launched in 2007. (Stabile Decl. ¶ 4.) Defendants have used the "Wayback Machine"5 to capture stored screen shots of Stabile's website from 20016 to 2011. (Purow Decl. ¶¶ 11-15.) Extrapolations # 3 does not appear on any of these archived URLs. (Id. ¶ 16.) On June 6, 2015, Defendants' counsel found a single marketplace listing for a work entitled Extrapolations # 3 on the One Kings Lane website. (Id. ¶ 18.)

5   The Wayback Machine uses software programs known as crawlers that store copies of website files at specific URLs as they exist at the time of capture. (Prurow Decl. ¶ 13 [Doc. # 50-2].) Each archived file has in the footer of its printout page a URL that catalogues the time and date of capture of a page of the website. (Id.) Defendants have attached an affidavit from Christopher Butler, Office Managers at the Internet Archive located in San Francisco, California describing [*8]  the function of the Wayback Machine. Defs.' Ex. 184 [Doc. # 50-3.] See Telewizja Polska USA, Inc. v. Echostar Satellite Corp., No. 02 C 3293, 2004 U.S. Dist. LEXIS 20845, 2004 WL 2367740, at *6 (N.D. Ill. Oct. 15, 2004) (affidavit verifying that Internet Archive Company retrieves copies of website as it appears on dates in question from its electronic archives is sufficient to satisfy Rule 901's threshold requirement for admissibility); see also Syncsort Inc. v. Innovative Routines Int'l, Inc., No. CIVA 04-3623 (WHW), 2008 U.S. Dist. LEXIS 35364, 2008 WL 1925304, at *5 (D.N.J. Apr. 30, 2008); Allen v. Ghoulish Gallery, No. 06CV371 NLS, 2007 U.S. Dist. LEXIS 86224, 2007 WL 4207923, at *3 (S.D. Cal. Nov. 20, 2007).

Stabile objects to this evidence as unduly prejudicial, because neither Butler nor the Internet Archive was identified in any disclosures, and they were known before Plaintiff's opposition was filed. (Evidentiary Objections to Declaration of Jonathan Purow ¶ 2 [Doc. # 61.]) Stabile also objects on the ground that the Internet pages shown are not the full captures of the website, but only isolated pages. (Id.) The captures from the Wayback Machine will not be considered conclusive evidence of what was or was not on Stabile's entire website between 2001 and 2011, but will be admitted as support for the contention that there is no evidence beyond Stabile's deposition statement that Extrapolations # 3 was displayed on her website at all, and that there is no evidence that it was displayed during the relevant time period.

6   There are conflicting statements and [*9]  evidence regarding the timing of the launch of the website and the display of Extrapolations # 3 on the website.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

(1) Electronic Spoliation — Rule 37(e)(2) Dismissal Sanction — Temporal Proximity of Spoliation to Production Due Date = Circumstantial Evidence of Intent; (2) While Discovery Sanctions Are Reviewed For Abuse Of Discretion, Findings Of Fact Related To Discovery Sanctions Are Reviewed For Clear Error; (3) Dismissal under Rule 37(e)(2) Plus Attorney’s Fees under Inherent Power Appropriately Combined [But see 2015 Advisory Committee Note: “New Rule 37(e) … authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. forecloses reliance on inherent authority or state law to determine when certain measures should be used.”]; (4) Compensatory Sanctions under Goodyear v. Haeger Appropriately Include Fees and Costs Resulting from Attempts to Settle Spoliation Motion

(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

(1) § 1927 and Inherent Power Sanctions — Extrajudicial Misconduct After Obtaining Verdict: Filing Lis Pendens Based on False Statements and in Violation of Governing Law, Filing Fraudulent Abstracts of Judgment That Represented They Had Been Court-Issued; (2) Rule 37 Sanctions for Baseless Motion to Compel Required Unless Target Shows That the Motion Was Substantially Justified Or Other Circumstances Make An Award Of Expenses Unjust

Rule 37 Dismissal Factors (10th Circuit) — Rule 37(d) Sanctions Apply Without Regard to Whether the Court Has Ordered the Delinquent Party to Appear for His, Her or Their Deposition

Rule 37 Dismissal Factors (Sixth Circuit) — Refusal to Answer Deposition Questions on Relevancy Grounds Is Not Valid Rule 30(c)(2) — Pro Se Deponent’s Attendance At Zoom Deposition While Driving A Semi, Refusing to Answer Questions, Inter Alia, Held Contumacious

Rule 26(a)(1) Disclosures and Rule 37 Preclusion: Rule 26 Does Not Require Disclosure of Legal Theories Underlying Damages Computations Provided Pursuant to 26(a)(1)(A)(i)

Rule 37 Sanctions: (1) Forfeiture of Objections to Produce Specific Categories of Documents (Including Tax Returns, Social Media Passwords) as Sanction for Violation of Discovery Order — (2) Default Judgment for Multiple Violations of Discovery Orders — (3) Ninth Circuit’s 5-Factor Test for Dismissal or Default Sanction — (4) Three Additional Factors Considered by Court of Appeals in Assessing Whether Lesser Sanctions Were Adequately Considered — (5) District Court Need Not Recite Each Factor: It Suffices If Record Permits Appellate Court to Apply Them — (6) Public Policy Favoring Disposition of Cases on the Merits Is Not Dispositive Where At Least 4 Factors “Support,” Or 3 Factors “Strongly Support,” Dismissal/Default — (7) And Lends Little Support to A Party Whose Conduct Impedes Adjudication on the Merits — (7) Order to Show Cause Why FRAP 38, § 1927 and Inherent Power Sanctions Should Not Issue for Multiple Misstatements Of Counsel At Oral Argument

Electronic Spoliation Sanctions: “Intent to Deprive” in Rule 37(e)(2) Means Willful Destruction of Evidence to Avoid Its Discovery by an Adverse Party — Relevant Circumstantial Evidence in Determining “Intent to Deprive” — Rule 37(e)(2)(C)’s Standards Trump Circuit’s Multi-Factor Test for Determining Whether Dismissal Is Appropriate — No Prejudice Required for 37(e)(2) Sanctions Because Intent to Deprive Creates Inference the Loss of Information Favored the Spoliator

Sanctions and Appealability — Fifth Circuit’s 2023 Survey of Circuit Cases Concerning Whether Judgment of Dismissal As a Sanction Bars Review of Earlier Sanctions Orders Due to Lack of Jurisdiction or Whether The Decision to Review Pre-Dismissal Sanctions Orders Is Prudential

Sanctions and Appealability — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal Imposed As Sanction under Rules 16(f), 37(b) and 41(b) and Are Unappealable — Courts of Appeal Differ As to Whether This Lack of Reviewability Is Jurisdictional or Discretionary (Jurisdictional in Second Circuit)

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice