In an opinion issued earlier this year, the U.S. Court of Appeals for the Fifth Circuit placed a limitation on the use of content archived by the Internet Archive’s “Wayback Machine” without additional authentication. The Internet Archive is a nonprofit digital library that seeks to maintain an archive of publicly accessible web pages at various points in time.
The Fifth Circuit reversed, finding that the evidence [a snapshot of a page retrieved from the “Wayback Machine”] was not admissible. For a district court to take judicial notice of a document under Federal Rule of Evidence 201, it explained, the document must come from a source “whose accuracy cannot reasonably be questioned.” The Fifth Circuit observed that no other court of appeals had squarely addressed whether a district court can take judicial notice of a copy of a web page from a web archive. Some district courts, relying on dicta in a 2010 order issued by the Federal Circuit in Juniper Networks v. Shipley, had taken judicial notice of such snapshots. Other district courts, however, had disagreed.
The Fifth Circuit noted that the Second, Third, and Seventh circuits had found archive snapshots admissible only when they could be authenticated under Rule 901. The Second and Third circuits had upheld admission of evidence where someone with personal knowledge had authenticated the archive copy, while the Seventh Circuit had rejected evidence because it had not been authenticated. Those decisions, the Fifth Circuit reasoned, implied that web archive snapshots “are not inherently or self-evidently reliable,” but must be authenticated by someone with personal knowledge. Because Davie Shoring had not submitted such authentication evidence, the district court erred in taking judicial notice of the snapshot…..
The Weinhoffer rule is likely to be adopted by other courts. The Fifth Circuit framed its decision as a corollary to decisions of other circuits. State courts where rules of evidence are patterned after the federal rules may find the decision instructive as well. Evidence will not get any fresher, so attorneys thinking of relying on web snapshots would be well-advised to secure authentication evidence sooner rather than later.