Commercial Litigation and Arbitration

Third-Party Websites May Be Considered on Summary Judgment Because They Would Be Admissible at Trial with Proper Authentication, Where Accuracy Not in Dispute

ZW USA, Inc. v. PWD Sys., LLC, 2016 U.S. Dist. LEXIS 129549 (E.D. Mo. Sept. 22, 2016):

This matter is before the Court on plaintiff's motion for partial summary judgment and defendant's motion for summary judgment, pursuant to Fed. R. Civ. P. 56(a). Responses have been filed, and the issues are fully briefed.


Plaintiff ZW USA, Inc. and defendant PWD Systems, LLC are competitors in the dog waste disposal industry. Both companies market [*2]  dog waste disposal bags, which they sell to a variety of customers: individual dog owners, wholesalers, contractors, dog waste removal services, veterinary clinics, apartment complexes, property managers, home owners associations, airports, marinas, and campgrounds. They also sell dog waste disposal bag stations, which are dispensers from which dog owners may obtain the bags.

It is undisputed that dog owners benefit from retrieving the disposal bags by using only one hand and with minimal distraction or effort from the primary task of controlling a leashed dog. The purchasers of these bags also benefit from reducing the incidence of mistakenly dispensed and unused bags, as may happen if a hurried user reaches for a bag and accidentally takes more than one from the dispenser. Hence, the parties agree, a market exists for dog waste disposal dispensers and bags that are designed to permit retrieval of only one bag at a time with one hand.

Among the basic types of dog waste disposal bags are "roll bags" and "wicket bags," which are also called "header bags." The primary difference between header bags and roll bags is the dispensing mechanism they use. Roll bags are packaged in a single roll, [*3]  with perforations to facilitate tearing a single bag from the roll as it is dispensed from the dispensing station. Evidence has been submitted that some roll bags and dispensers are designed to allow the user to tear an individual bag from the roll with a "single pull" of the hand (i.e., in "one pull"). [Doc. #79-7 at 2-14, 17-21]1 Other designs of roll bags and dispensers allegedly do not include this "one-pull" feature. See id.

1   Plaintiff takes issue with defendant's evidentiary submission of third-party websites, suggesting they are unauthenticated and have not been admitted. But evidence need only be "admissible" at trial to be considered at summary judgment. Crews v. Monarch Fire Prot. Dist., 771 F.3d 1085, 1092 (8th Cir. 2014); see Fed. R. Civ. P. 52(c)(2) ("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."). Plaintiff has not challenged the authenticity of the websites or the accuracy of the statements regarding the companies and products advertised. Indeed, those websites would be admissible at trial through the proper authenticating witnesses to show that third-parties advertise dog waste disposal bags with "one pull" and "single pull" features. Nor has plaintiff disputed that third-parties [*4]  in fact sell such products. Because the admissibility and accuracy of the websites and the underlying products advertised is not genuinely in dispute, the Court will consider them here.

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