Commercial Litigation and Arbitration

Wayback Machine Authenticated by Affidavit from Office Manager

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.

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