Pohl v. Mh Sub I, 2019 U.S. Dist. LEXIS 182695 (N.D. Fla. Oct. 23, 2019):

ORDER ON MOTIONS IN LIMINE AND SANCTIONS

This Court has considered, without hearing, parties' various motions. For the reasons stated below, Plaintiff's Motion in Limine, ECF No. 87, is DENIED; Defendant's Motion to Compel or Strike Witness as Sanctions for Spoliation of Evidence, ECF No. 100, is DENIED; Plaintiff's Motion for Sanctions Regarding Defendant's Improper Attempts to Rely on Late-Disclosed Witness de Peralta, ECF No. 102, is DENIED; Defendant's Motion In Limine RE. Screenshots, ECF No. 106, is [*2]  GRANTED.

At the outset, it bears noting that the parties appear to seek additional discovery, but neither party has moved to re-open discovery. Both parties cite to this case's procedural posture to justify their late-disclosures and requests for additional discovery.¹ If either party seeks additional discovery, they should file the appropriate motion, or should have so moved in the alternative in the motions pending before this Court.

I

This case concerns alleged copyright infringement of photographs of teeth. In April 2016, Plaintiff, Dr. Mitchell A. Pohl, performed a reverse-image search on Google of the before-and-after photos of patient Belinda. ECF No. 40-1, ¶ 21. In doing so, Plaintiff claims to have discovered seven websites on which Belinda's before-and-after photos appeared—seven websites that were not his own. ECF No. 40-1, ¶ 22. Plaintiff now moves this Court to exclude certain dentists' website screenshots from WayBack Machine ("WayBack Machine evidence") and the testimony of Mr. Ian de Peralta. ECF No. 87. According to Defendant, the evidence Plaintiff seeks to exclude proves that the before-and-after photos of patient Belinda did not appear on the websites at issue. ECF [*3]  No. 99, at 1-2. In short, the evidence goes to the root of the infringement analysis.

In response to Plaintiff's motion in limine, Defendant requests this Court take judicial notice of the WayBack Machine evidence under Federal Rule of Evidence Rule 201. ECF No. 99. Defendant also opposes Plaintiff's motion to strike the testimony of Mr. de Peralta. ECF No. 99.

While these motions were pending, the parties filed additional motions. Defendant moved to compel or strike witness as sanction for spoliation of evidence. ECF No. 100. Plaintiff filed a response in opposition, and Defendant filed a reply. ECF No. 103 & 104. Plaintiff then moved for sanctions regarding Defendant's improper attempts to rely on late-disclosed witness de Peralta. ECF No. 102. Defendant filed a response in opposition. ECF No. 105. Finally, Defendant moved to exclude certain screenshots taken by Plaintiff. ECF No. 106. Plaintiff filed a response in opposition. ECF No. 113.

II

This Court first addresses Plaintiff's motion in limine to exclude WayBack Machine evidence. Defendant requests this Court take judicial notice of WayBack Machine evidence. Federal Rule of Evidence 201 "provides for taking judicial notice of facts that are not subject to reasonable dispute because they are [*4]  capable of accurate and ready determination by resort to sources whose accuracy cannot reasonable be questioned." Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999).

Numerous courts, including our sister courts, have taken judicial notice of web pages available through the WayBack Machine. See e.g., Juniper Networks, Inc. v. Shipley, 394 Fed. App'x. 713, at *1 (Fed. Cir. 2010) (indicating, but not holding, that taking judicial notice of archived information may be appropriate); Tobinick v. Novella, Case No. 9:14-cv-80781, 2015 WL 152196, at *2 (S.D. Fla. Apr. 2, 2015) (taking judicial notice of the Internet Archive's history of page); Lee v. Michel Habashy, P.A., Case No. 6:09-cv-671-Orl-28GJK, 2010 WL 11626745, at *2 n.1 (M.D. Fla. Aug. 30, 2010) (taking judicial notice of defendant's phone number after performing a cursory search of the Wayback Machine); Erickson v. Neb. Mach. Co., No. 15-cv-01147-JD, 2015 WL 4089849, at *1 (N.D. Cal. July 6, 2015) ("Courts have taken judicial notice of the contents of web pages available through the Wayback Machine as facts that can be accurately and readily determined from sources whose accuracy cannot reasonable be questioned, . . . and the Court does so here."); Pond Guy, Inc. v. Aquascape Design, Inc., Case No. 13-13229, 2014 WL 2863871, at *4 (E.D. Mich. June 24, 2014) (taking judicial notice of the parties' historical presence as represented by the Internet Archive because "[a]s a resource the accuracy of which cannot reasonably be questioned, the Internet Archive has been found to be an acceptable source for taking of judicial [*5]  notice."); Martins v. 3PD, Case No. 11-11313-DPW, 2013 WL 1320454, at *16 n.8 (D. Mass. Mar. 28, 2013) ("I take judicial notice of various historical versions of the 3PD website available on the Internet Archive . . . as facts readily determinable by resorts to a source whose accuracy cannot reasonably be questioned."); UL LLC v. Space Chariot, Inc., 250 F. Supp. 3d 596, 603 n.2 (C.D. Cal. 2017) ("[T]he Court takes judicial notice of archived [] webpages because they 'can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.'"); Walsh v. Teltech Sys., Inc., Case No. 13-13064-RWZ, 2015 WL 12856456, at *1 n.2 (D. Mass. July 30, 2015) (asking the parties to acquaint themselves with the Wayback Machine, and indicating that the court will take judicial notice of the contents of web pages available through Wayback Machine); Under A Foot Plant, Co. v. Exterior Design, Inc., Case No. 6:14-cv-01371-AA, 2015 WL 1401697, at *2 (D. Or. Mar. 24, 2015) (granting plaintiff's request for judicial notice of an archived printout from defendant's website because "[d]istrict courts have routinely taken judicial notice of content from The Internet Archive pursuant to this rule."). These holdings come as no surprise as Intellectual Property lawyers frequently use WayBack Machine to determine issues related to infringement or invalidation of patents, trademarks, and copyrights.

This Court follows [*6]  the lead of the overwhelming number of courts that have decided the issue and takes judicial notice of the contents of WayBack Machine evidence because they "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2).

Assuming arguendo that this Court cannot take judicial notice of WayBack Machine evidence, the issue then becomes whether Defendant can authenticate the evidence. Plaintiff argues that Defendant cannot properly authenticate WayBack Machine evidence because Defendant has failed to identify an Internet Archive representative with personal knowledge of the contents of the Internet Archive website as a witness. ECF No. 87, at 3. This Court disagrees.

As a threshold matter, Plaintiff has not provided a good-faith basis to challenge the authenticity of WayBack Machine evidence. Defendant seeks to use WayBack Machine evidence to show that the before-and-after photos of patient Belinda did not appear on the websites at issue. ECF No. 99, at 1-2. Plaintiff, on the other hand, seeks to show that the before-and-after images appeared on the websites at issue using screenshots of websites taken by Plaintiff and Mr. Holliman. However, Plaintiff [*7]  has not alleged that the dates on WayBack Machine evidence are the same as the dates on the screenshots of the websites that Plaintiff and Mr. Holliman captured. This Court can envision a good-faith basis to challenge authenticity of WayBack Machine evidence if Plaintiff had made such an allegation. But that is not the case here.

Even assuming that Plaintiff has proffered a good-faith basis to challenge the authenticity of WayBack Machine evidence, Defendant has produced "evidence sufficient to support a finding" that WayBack Machine evidence is authentic. See Fed. R. Evid. 901(a). A screenshot from WayBack Machine raises two issues of authenticity. First, the proponent of a screenshot from WayBack Machine must show that the printouts are from the WayBack Machine website and were printed on a certain date. In this case, Defendant may properly authenticate the screenshots from WayBack Machine by providing testimony of a witness who saw and printed the posting from the WayBack Machine website, so long as the screenshots contain circumstantial indicia of authenticity. See SMS Audio, LLC v. Belson, Case No. 16-81308-CIV, 2017 WL 1533971, at *3 (S.D. Fla. 2017) (citation omitted) ("[C]ourts generally permit the authentication of web postings, bearing [*8]  a web address and the date printed, by a witness who saw and printed the posting 'for the limited purpose of proving that the postings had appeared on the world wide web on the days that [the witness] personally saw the postings and printed them off the computer.'"); Foreword Magazine, Inc. v. OverDrive, Inc., Case No. 1:10-cv-1144, 2011 WL 5169384, at *3 (W.D. Mich. Oct. 31, 2011) ("[C]ourts generally hold that an affidavit of a witness, when viewed in combination with circumstantial indicia of authenticity (such as the existence of the URL, date of printing, or other identifying information) would support a reasonable juror in the belief that the documents are what the proponent says they area."). Defendant has satisfied this requirement. The screenshots from WayBack Machine website have a web address and a date stamped on them showing the website from which the screenshots were taken and the date they were printed. See ECF No. 99-2. Additionally, during a telephonic hearing conducted on October 04, 2019, counsel for Defendant represented to this Court that Mr. Patrick Stack, Defendant's corporate witness, testified during his deposition that he personally took the screenshots from the WayBack Machine.

Second, the proponent of a [*9]  screenshot from WayBack Machine must show the archived screenshot is what the proponent claims it is—a printout from a particular webpage on a certain date. See Fed. R. Evid. 901(a). The issue, then, is what must a proponent proffer to make such a showing.

The archived data viewable using the WayBack Machine is compiled using software programs known as crawlers, which surf the Web and automatically store copies of web files, preserving these files as they exist at the point of time of capture. ECF No. 99-3, at 2 (emphasis added); see also Abu-Lughod v. Calis, Case No. CV 13-2792 DMG (RZx), 2015 WL 12746198, at * 2 (C.D. Cal. 2015). "The crawler does not exercise any 'decisionmaking' power as to what will be preserved but simply takes a screenshot of a website at a particular point in time." Abu-Lughod, 2015 WL 12746198, at *2. Additionally, screenshots from the WayBack Machine contain circumstantial indicia of reliability. That is, when a screenshot is captured using the WayBack Machine, the screenshots will display the URL of a web page archived by the WayBack Machine along with the date the screenshot was captured by the crawler. See ECF No. 99-3, at 2 ("The Internet Archive assigns a URL on its site to the archived files in the format http://web.archive.org/web/[Year in yyyy][Month in mm][Day [*10]  in dd][Time code in hh:mm:ss]/[Archived URL] . . . A web browser may be set such that a printout from it will display the URL of a web page in the printout's footer."). As such, the proponent of printouts from WayBack Machine need only provide an "affidavit of a person with personal knowledge who can attest that the third-party crawler operates to create an unaltered copy of a website as it appears on a given day" to satisfy the authenticity requirement under Federal Rule of Evidence 901(a). Abu-Lughod, 2015 WL 12746198, at *2.

Defendant has provided two affidavits, albeit from different cases, of a representative from the Internet Archive that has personal knowledge about how third-party crawler operates. ECF No. 99-3. This Court may properly consider this evidence to determine authenticity of WayBack Machine evidence. Fed. R. Evid. 104(a) ("The court must decide any preliminary question about whether . . . evidence is admissible. In so doing, the court is not bound by evidence rules, except those on privilege."). The affidavits provided by Defendant is sufficient to show that WayBack Machine evidence is authentic.

For these reasons, Plaintiff's motion in limine to exclude WayBack Machine evidence, ECF No. 87, is denied.

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