This post was originally published in October 2020 and was updated on March 31, 2023.
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This article was originally published on February...
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We’re guessing that many lawyers—perhaps even you—have had an issue come up in litigation regarding an adversary or a third party and thought, “If only we could have known what their website said about this topic back then.”
When you think about it, old versions of websites could very well contain information that goes to the heart of a contested issue in a lawsuit. For example, information that could serve as an admission of some sort or show that a person or entity had knowledge of certain relevant facts.
But just because a website doesn’t currently display that information doesn’t mean it’s gone forever. Enter the Internet Archive Wayback Machine.
The Internet Archive is a non-profit organization based in San Francisco, California that has been building an online library of internet sites and “other cultural artifacts in digital form” since 1996. Its mission is “to provide Universal Access to All Knowledge.”
The organization has more than 20 years’ worth of web history accessible through the Wayback Machine. There are currently more than 330 BILLION web pages in the organization’s archive. However, the Internet Archive only collects web pages that are publicly available. It does not archive pages on secure servers, pages that require a password to access or pages that are accessible only after a visitor submits an online form.
While there are several ways that the Wayback Machine’s records of archived websites could be useful in certain legal disputes, the use of these records is not just theoretical. Lawyers are actively putting records from the Wayback Machine to use in lawsuits they are litigating.
In one case, lawyers representing a client that sold a division of itself to another company used historical screenshots of that division’s website in subsequent litigation over which party was responsible for product liabilities associated with that division.
The lawyers for the seller used the Wayback Machine to find warnings regarding the product at issue on the division’s website prior to the sale closing (which at the time was maintained by the seller). The lawyers also found that those warnings remained on the website—which became property of the buyer upon the closing—for years after the closing. The lawyers were ultimately able to use the screenshots to undermine the buyer’s claim that it did not know it was assuming liabilities associated with the division and its product.
In another case, a trucking company brought a trademark infringement suit against a truck driver job site, alleging that the site unlawfully used the company’s trademark. The trucking company planned to introduce screenshots at trial of the defendant’s website taken from the Wayback Machine to show the alleged unlawful use of its trademark.
The Wayback Machine could, in theory, be a powerful tool in patent cases as well. Some lawyers have noted that its records could be a source of prior art, which would invalidate the patent at issue in a patent dispute.
You need not look any further than Lexis Advance® for dozens more examples of the Wayback Machine being used in litigation. According to the database, more than 150 U.S. federal and state court opinions, going back to 2006, reference the Wayback Machine. The majority of these cases (if not all of them) appear to refer to the Wayback Machine in the context of using its records in the underlying legal dispute.
No matter how persuasive records from the Wayback Machine might be, they still have to be authenticated in order to be admissible in court as evidence.
Perhaps as a result of the number of incoming requests from lawyers wanting to authenticate its records, the Internet Archive has posted its policy regarding requests for documents or other records for use in legal proceedings.
Although the Internet Archive urges lawyers to seek judicial notice for records from the Wayback Machine (which courts have granted previously) or a stipulation from an opposing party regarding the records’ authenticity, the organization will provide a signed affidavit authenticating records. Each request costs the party seeking the affidavit $250, plus either $20 or $30 for each extended URL requested, as well as an additional $100 for notarizing the affidavit.
(For lawyers and others interested in requesting an affidavit from the Internet Archive, the organization has an FAQ page regarding affidavits and the process for obtaining one.)
While parties seeking to admit records from the Wayback Machine into evidence may face hurdles in doing so, authentication does not have to be one of them. And, of course, there might be additional uses for these records outside of serving as admissible evidence, such as serving as the bases for questions at depositions and as exhibits to various pre-trial court filings.
The Wayback Machine and the records it keeps are a unique source of information for lawyers and their clients. In some legal disputes, the ability for a lawyer to determine what a client, adversary or third party previously said online about a topic could make or break their client’s case.
Given the proliferation of the business operations and marketing content that lives online on publicly accessible websites, there is little doubt that the Wayback Machine’s value to lawyers will continue to increase.
Lexis Advance is a registered trademark of RELX Inc. Wayback Machine is a registered trademark of Internet Archive.