Two parties in a breach of contract action dispute the terms and conditions of an online auction. An archived webpage of the terms is available on the Wayback Machine, a publicly available online archive that preserves and stores copies of websites captured at specific dates and times-"a digital library of Internet sites"-run by the nonprofit Internet Archive (see https://archive.org/about/). In a bench trial, the defendant asks the court to take judicial notice of the archived webpage's contents on the premise that the Wayback Machine is a source whose accuracy cannot reasonably be questioned. (Judicial notice is defined generally as a court's acceptance of the truth of a matter without formal evidentiary proof.) May the court take judicial notice of an archived webpage from the Wayback Machine, or must the defendant offer evidence authenticating the webpage before it may be admitted into evidence?
Recently, in Weinhoffer v. Davie Shoring, 23 F.4th 579 (5th Cir. 2022), the U.S. Court of Appeals for the Fifth Circuit decided this question for the first time and ruled against taking judicial notice. The court held that the Wayback Machine's archived webpages are not a proper subject of judicial notice "because a private internet archive falls short of being a source whose accuracy cannot reasonably be questioned as required by [Federal Rule of Evidence] Rule 201."
With its ruling, the Fifth Circuit became the first federal appellate court to squarely address this issue. In 2021, the Federal Circuit, in Valve v. Ironburg Inventions, 8 F. 4th 1364 (Fed. Cir. 2021), held that judicial notice could be used for the Wayback Machine to determine the dates a webpage was publicly available. However, unlike in Weinhoffer, the webpage in Valve was "otherwise authenticated" by a witness with knowledge. To date, no other circuits have decided the issue presented in Weinhoffer.
Federal district courts are divided on the issue. Some have taken judicial notice of archived webpages available through the Wayback Machine; see, e.g., Thorne v. Square, 20-CV-5119, 2022 U.S. Dist. LEXIS 31810, *4 (E.D.N.Y. Feb. 23, 2022); Pohl v. MH Sub I, LLC, 332 F.R.D. 713, 716 (N.D. Fla. 2019); UL LLC v. Space Chariot, 250 F. Supp. 3d 596, 603-04 & n.2 (C.D. Cal. 2017), while others-including a district court in the Fifth Circuit-have declined. See, e.g., Ward v. American Airlines, No. 4:20-CV-00371, (N.D. Tex. Oct. 16, 2020). In Ward, the district court noted that the Wayback Machine's terms of use disclaim any guarantee that the results it produces are accurate. Until other appellate courts decide the issue, there will be uncertainty in the other circuits.
In Weinhoffer, the plaintiff filed suit for breach of a sale contract after the defendant placed the winning bid in an online auction for a large housing module but later refused to pay when the module proved difficult to remove from storage. Although the auction was online, the defendant placed the winning on a phone call with an employee of Henderson Auctions, the auction company contracted by the plaintiff. The defendant's representative testified that he had read the auction terms on Henderson's website before bidding.
Henderson advertised and hosted the auction on its website, but when participants clicked on the link to bid, they were directed to Proxibid, a third-party website, where they could view the terms and conditions of the auction. One of the terms declared that bidders would only be liable for 20% of the bid price in the event of a breach of contract. When the plaintiff sued, the defendant argued the terms limited the damages to 20% of the winning bid. At trial, the court granted the defendant's request to take judicial notice of the Wayback Machine's archived auctions' terms. (Beyond the focus of this article, the district court also admitted an internet printout of auction terms from Proxibid's website. However, Fifth Circuit ruled that the printout was not properly authenticated and was not an exception to hearsay.)
To resolve the question of whether courts may take judicial notice of the Wayback Machine's archived webpages, the court looked to Rule 201(b)(2), which states "the court may judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." The court cited the advisory committee notes to the 1972 amendments to Rule 201 that state the "high degree of indisputability is the essential prerequisite" of judicial notice.
The court noted that the Second, Seventh and Third circuits have allowed district courts to rely on webpages from the Wayback Machine and other archive services where they are properly authenticated by the testimony of someone with personal knowledge of the reliability of the service. See United States v. Gasperini, 894 F.3d 482, 490 (2d Cir. 2018); Specht v. Google, 747 F.3d 929, 933 (7th Cir. 2014); United States v. Bansal, 663 F.3d 634, 667-68 (3d Cir. 2011).
The Fifth Circuit reasoned that the other circuits' decisions requiring authentication of the Wayback Machine's archived webpages indicates that they are not inherently or self-evidently reliable in the same way as self-authenticating documents under Rule 902. (Self-authenticating documents do not require extrinsic evidence in order to be admitted. Examples include certain public records, government websites, and newspapers.) The court held that the Wayback Machine is not a proper subject of judicial notice under Rule 201.
Weinhoffer is an important evidentiary ruling for litigators. In the Fifth Circuit, websites archived by the Wayback Machine and other private archives must be authenticated before they can be admitted. Judicial notice is not an option. Asking the opposing party to stipulate to a document's authenticity is one alternative. Providing the requisite authentication evidence is another. In Weinhoffer, the court identified the testimony of a witness with personal knowledge as one example of how Wayback Machine webpages can be authenticated, and cited a page on the Wayback Machine's website that provides instructions on how to request affidavits from the Internet Archive to authenticate its pages for use as evidence: https://help.archive.org/hc/en-us/articles/360004651732-Using-The-Wayback-Machine (last visited March 1, 2022).
Brett Venn a partner in the litigation practice group at the New Orleans office of Jones Walker. He focuses on business and commercial disputes.
Reprinted with permission from the March 7, 2022, issue of Texas Lawyer © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.
