It's Back! It's Wayback! It's Away, Wayback! It's Admissible!
By Bexis on July 9, 2021
With apologies to Harry Kalas.
Bexis had a couple of encounters with the "Wayback Machine" (a/k/a/ the "Internet Archive") recently. If you don't know what that is, it's digital library of Internet ephemera – web pages and the like − that have since been taken down, revised, or otherwise have become unavailable in their original locations (it contains other material, as well, like old books). Researching Bexis' recent off-label use law review article entailed searches for long-since vanished FDA material. Even more recently, Bexis advised someone looking for a 40-year-old "Dear Doctor" letter to try the Wayback Machine, since the drug in question had undoubtedly gone generic, and the manufacturer probably didn't maintain a website for that drug.
That got us (well, Bexis) thinking. Are documents and other information obtained from the Wayback Machine admissible in court? If so, how have they been used?
The answer to the first question appears to be yes, although it can take some doing. The answer to the second question is "lots of different ways." We discuss some of them in this post.
Starting with admissibility, in a criminal case, Wayback Machine material from the defendant's now-defunct website was held admissible where the Wayback Machine screenshots were authenticated by:
a witness [who] testif[ied] about how the Wayback Machine website works and how reliable its contents are. The witness also compared the screenshots with previously authenticated and admitted images from [defendant's] website and concluded, based upon her personal knowledge, that the screenshots were authentic.
United States v. Bansal, 663 F.3d 634, 668 (3d Cir. 2011).
In another criminal case, the prosecution actually "presented testimony from the office manager of the Internet Archive, who explained how the Archive captures and preserves evidence of the contents of the internet at a given time." United States v. Gasperini, 894 F.3d 482, 490 (2d Cir. 2018). As in Bansal, that witness also "also compared the screenshots sought to be admitted with true and accurate copies of the same websites maintained in the Internet Archive, and testified that the screenshots were authentic and accurate." Id. Agreeing with Bansal, Gasperini likewise found the evidence properly admitted.
We agree with the holding of the court in Bansal, and hold that the testimony presented in this case by the government was sufficient proof that a reasonable juror could find in favor of authenticity or identification. [Defendant] was free to cross-examine the witness about the nature and reliability of the Archive's procedures for capturing and cataloging the contents of the internet at particular times, and the jury was thus enabled to make its own decision about the weight, if any, to be given to the records.
Id. (citation and quotation marks omitted). See United States v. Kieffer, 681 F.3d 1143, 1154 n.3 (10th Cir. 2012) (holding Wayback Machine downloads properly authenticated); Mojave Desert Holdings, LLC v. Crocs, Inc., 844 F. Appx. 343, 346 (Fed. Cir. 2021) (relying on patent examiner's analysis of "a collection of web pages" downloaded from the Wayback Machine).
Indeed, courts "routinely take judicial notice . . . of the Internet Archive's Wayback Machine as reliable evidence of how a particular website appeared on a particular date." Munn v. Hotchkiss School, 165 A.3d 1167, 1203 (Conn. 2017) (citing Perera v. Attorney General, 536 F. Appx. 240, 242 n.3 (3d Cir. 2013); Distributorsoutlet.com, LLC v. Glasstree, Inc., 2016 WL 3248310, at *2 (E.D.N.Y. June 10, 2016); Erickson v. Nebraska Machinery Co., 2015 WL 4089849, at *1 n.1 (N.D. Cal. July 6, 2015); Pond Guy, Inc. v. Aquascape Designs, Inc., 2014 WL 2863871, *4 (E.D. Mich. June 24, 2014)).
For other appellate cases judicially noticing Wayback Machine material, or treating it as authoritative without mentioning judicial notice, see Monster Energy Co. v. City Beverages, LLC, 940 F.3d 1130, 1140 (9th Cir. 2019) (citing Wayback Machine material – apparently researched independently by the court – for when certain material was available on a particular website); Arteaga v. United States, 711 F.3d 828, 834 (7th Cir. 2013) (treating Wayback Machine material from government website as authoritative); Khan v. Bank of New York Mellon, 525 F. Appx. 778, 780 (10th Cir. 2013) (taking judicial notice of governmental material from Wayback Machine); Motor Vehicle Administration v. Geppert, 233 A.3d 102, 111 n.15 (Md. 2020) (relying on Wayback Machine material that the appellant left repealed regulations on its website for years); State v. Ramseur, 843 S.E.2d 106, 116 nn.7-8 (N.C. 2020) (treating Wayback Machine material as authoritative legislative history); Snow v. Snow, 68 N.E.3d 1138, 1145 (Mass. 2017) (same); Ennabe v. Manosa, 319 P.3d 201, 214 n.15 (Cal. 2014) (treating as authoritative Wayback Machine copy of administrative materials that were "never reduced to hardcopy and existed as an online resource"); Irwin v. Commonwealth, 992 N.E.2d 275, 285 (Mass. 2013) (treating Wayback Machine material as authoritative legislative history); State v. Hutchings, 285 P.3d 1183, 1192 (Utah 2012) (using Wayback Machine material to establish date that a new jury instruction became available); Burts v. Burts, 266 P.3d 337, 340 n.5 (Alaska 2011) (treating Wayback Machine material as authoritative regulatory history); Cardona v. Kreamer, 235 P.3d 1026, 1029 n.3 (Ariz. 2010) (treating federal government Wayback Machine material as authoritative). Contra Juniper Networks, Inc. v. Shipley, 394 F. Appx. 713, 713 (Fed. Cir. 2010) (denying motion to take judicial notice of Wayback Machine material for the first time on appeal).
There appear to be about 200 trial level judicial decisions citing to Wayback Machine materials. We decided to look for materials of particular interest to our readers, so we narrowed our search by adding drug/device related search terms. Judicial notice of Wayback Machine evidence resulted in dismissal of a food-related consumer fraud claim in Cosgrove v. Oregon Chai, Inc., ___ F. Supp.3d ___, 2021 WL 706227 (S.D.N.Y. Feb. 21, 2021). After taking judicial notice of Wayback Machine excerpts from the defendant's website, Cosgrove found no actionable misrepresentation:
On the theory that the provision of different flavors . . . products may have been of recent vintage, the Court also examined archival copies of Defendant's website using the Internet Archive Wayback Machine. . . . [C]ourts 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 reasonably be questioned under Federal Rule of Evidence 201. . . . [Under Rule 201, t]he parties may submit a letter limited to this issue within 14 days.
Id. at *12 n.5 (citations and quotation marks omitted) (Rule 201 governs judicial notice).
United States ex rel. Oliver v. Philip Morris USA, Inc., 101 F. Supp.3d 111 (D.D.C. 2015), aff'd, 826 F.3d 466 (D.C. Cir. 2016), was a False Claims Act case. The Wayback Machine came in handy for the defendant, which searched it to establish that the plaintiff/relator's allegations were, in fact, public knowledge prior to the suit:
Defendant has submitted new evidence purporting to show that the [disputed] requirements were publicly available throughout the period when Oliver alleges that the fraud occurred. . . . Defendant searched the Internet Archive, a website that offers permanent access for researchers, historians, scholars, people with disabilities, and the general public to historical collections that exist in digital format[, and]. found "archived pages . . . linking to copies of [the disputed materials] that contain the [contract] provisions at the heart of this case.
Id. at 117 (citations quotation marks, and footnote omitted). The court found the material "authentic":
The Court has carefully examined the webpages and is confident that the pertinent language is on the webpages themselves and is not embedded in any image file. . . . Defendant has submitted to the Court the actual archived webpages. That relevant language on those webpages is visible without clicking on any links. The Court is confident that it is examining the archived websites and not the live web. . . . In light of the above, the Court concludes Defendant has submitted sufficient evidence to support a finding that the archived webpages are authentic.
Idaida 122-23 (citations omitted). On the strength of this information, Oliver was dismissed under the FCA's "public disclosure" jurisdictional bar. Id. at 123-24. See United States ex rel. Kester v. Novartis Pharmaceuticals Corp., 43 F. Supp.3d 332, 349 (S.D.N.Y. 2014) (similar successful use of Wayback Machine materials to establish public disclosure bar).
In United States v. Shrum, 2011 WL 1753488 (E.D. Ark. May 9, 2011), the FDA Office of Criminal Investigations used the Wayback Machine to investigate "Canadian" Internet pharmacies.
This tool allegedly enabled the agent to obtain a screen-shot depicting a pharmacy web-site as it appeared on a specific date in the past. The Court admitted the testimony and images of the pharmacy web-site which depicted a statement at the bottom of the image noting that the FDA did not approve of purchases from this web-site.
Id. at *1. The material was ultimately excluded as hearsay, but armed with this information, the government was able to use live witness testimony "about the banner" and obtained a conviction. Id. at *2.
In Schilf v. Eli Lilly & Co., 2010 WL 3909909 (D.S.D. Sept. 30, 2010), plaintiffs sought to authenticate Wayback Machine historical drug labeling through "the office manager for Internet Archive," but failed to include this individual on their witness list. That failure resulted in preclusion of the witness, although "Defendants d[id] not object to the documents" themselves. Id. at *5. See also Medscript Pharmacy, LLC v. D&D Pharma LTC, LLC, 444 F. Supp.3d 909, 911-12 (N.D. Ill. 2020) (defendant obtained summary judgment using Wayback Machine materials to show prior use in dispute over prescription drug plan trademarks), Colella v. Atkins Nutritionals, Inc., 348 F. Supp.3d 120, 121 n.2 (E.D.N.Y. 2018) (plaintiff relied on Wayback Machine regarding certain nutritional claims allegedly made by manufacturer but "removed after litigation commenced"; case dismissed for lack of FDCA "net carb" violation); Moorer v. Stemgenex Medical Group, Inc., 2017 WL 1281882, at *5 (S.D. Cal. April 6, 2017) (plaintiffs' "attachment of Defendants' archived [in the Wayback Machine] webpages is necessary, especially here where the parties disagree over the significance of the patient satisfaction reports"; utilizing incorporation doctrine on motion to dismiss consumer protection claim); Tompkins v. 23andMe, Inc., No. 5:13-CV-05682-LHK, 2014 WL 2903752, at *1 n.1 (N.D. Cal. June 25, 2014) (judicial notice of Wayback Machine materials establishing content of defendant's website on date of FDA warning letter), aff'd, 840 F.3d 1016 (9th Cir. 2016); Jazz Pharmaceuticals, Inc. v. Roxane Laboratories, Inc., 2012 WL 3133943, at *2 (Mag. D.N.J. July 30, 2012) (use of Wayback Machine materials to prove prior art in generic drug patent litigation; motion to amend denied as prejudicial; granting motion to compel arbitration), aff'd, 2013 WL 785067 (D.N.J. Feb. 28, 2013); In re Hydroxycut Marketing & Sales Practices Litigation, 810 F. Supp.2d 1100, 1114 n.4 (S.D. Cal. 2011) (use of Wayback Machine materials to establish dietary supplement company's use of certain website names at relevant times).
Lawyers do have to do their homework, however. Wayback Machine materials without sufficient authentication have been disregarded. See ATEN International Co. v. Uniclass Technology Co., 932 F.3d 1364, 1368 (Fed. Cir. 2019) (Wayback Machine material that was merely in the "same year" as the "critical date" could not support jury verdict); Dillon v. NICA, Inc., 2011 WL 6296729, at *6 (Tenn. App. Dec. 14, 2011) (witness "could not satisfy the authenticity requirement relative to the entirety of the [86-page] exhibit as proposed for admission"); McFall v. Perrigo Co., 2021 WL 2327936, at *3 (C.D. Cal. April 15, 2021) (defendant "did not authenticate [Wayback Machine material], and the court has no basis to find that this document was obtained from a government website or is what Defendants claim it to be"); Hsu v. Puma Biotechnology, Inc., 213 F. Supp. 3d 1275, 1284 (C.D. Cal. 2016) (refusing to consider Wayback Machine material because it was extrinsic evidence on a motion to dismiss introduced "for the first time in a reply brief").
Thus, Internet-archived material obtained through the Wayback Machine is, if properly authenticated, admissible in court – subject to any other generally applicable requirements. Its potential uses seem to be limited only by the imagination of counsel, so the Wayback Machine is definitely something that defense counsel should keep in mind.
Posted in Evidence, Other