By Natalie D'Antonio

Some attorneys seem to have an extraordinary gift for uncovering corporate documents and policies, obtaining obscure witness information, and digging up “gold mine” notice or impeachment evidence all before lifting a finger in formal discovery. Alas, I don’t proclaim to be one of those gifted few, but I am one of the many attorneys determined to become a more skilled investigator. One of the great benefits of the modern age is that improving my investigative skills does not necessarily require me to travel far and wide to collect valuable evidence and information. With the internet at my fingertips, there are countless ways to obtain and develop facts; the only trick is being tech-savvy enough to know where to look and what tools to use.  

 

Internet Archive’s “Wayback Machine” should arguably be tool #1 in any attorney’s investigative toolbox.  Internet Archive is a 501(c)(3) non-profit that has built an American digital library dedicated to providing “universal access to all knowledge”. "Internet Archive Frequently Asked Questions". Internet Archive.  Archived from the original on October 21, 2009. In 1996, Internet Archive commenced its endeavor to archive as much internet content as possible in an effort to both preserve data from the public web and make it publicly accessible after websites have been altered or even removed. The digital library, called “Wayback Machine” grants public access to extensive free digital content including prior versions of public websites, audio files, games, software applications, books, movies and video clips.  

 

Web data for the Wayback Machine is collected both by public upload and by Internet Archive’s own automated software programs or “web crawlers” that systematically browse the public internet and preserve data by duplicating and archiving webpages. As a result, Wayback Machine has approximately 735 billion archived webpages that are accessible to the general public through https://archive.org/web/. What does this mean? It means that you can go to the Wayback Machine, enter a URL for most any public website, and access historical versions of the correlating website. You can also do a keyword search to find prior versions of a site. Search results show you how many times a website has been captured and allow the searcher to scroll through different dates from when the website was captured.  

 

How it Helps 

In addition to allowing the searcher to uncover prior versions of internet websites, the Wayback Machine provides access to archived television commercials, television news, newspaper articles, books, and radio transcripts for millions of radio programs. This can potentially give an attorney access to formal or official statements and representations made by corporations and businesses; help identify which members of a corporation may be worth deposing; and provide insight into how a company discusses or frames certain relevant events. Access to prior versions of a website may also give attorneys an idea as to which members of a company or corporation have vital information pertaining to important policies, events and decisions. Finally, a defunct company’s webpage may still be available despite the fact that it was removed from the internet long ago.  

 

Wayback Machine also allows its users to see highlighted differences between current and past versions of a webpage by utilizing the “Change” setting option. Users can also submit URLs to be archived with the “Save Page Now” service; allowing attorneys to preserve their own evidence and make it accessible to the public within the digital archive. These features can produce helpful evidence and documentation for nearly every form of litigation, but have most notably been used for intellectual property, copyright infringement and libel claims.  

 

Rules and Limitations  

Before you get too excited, it is important to note that Wayback Machine has some limitations. First, remember that Wayback Machine captures data from public websites and cannot archive data from private or encrypted platforms. The Machine is not going to be able to pull from “employee login” sections or otherwise obtain secure data. Additionally, Wayback’s web crawlers typically only archive new or updated versions of public webpages every 6 to 14 months. Popular webpages are archived more frequently, while websites that receive less web traffic likely have fewer archived data options for the same period of time. Additionally, a number of popular social networking sites, including Facebook and Twitter shut web crawlers out by using robots.txt files to block Wayback Machine from archiving content. Public webpage owners can also employ other technical means of hiding their historical web content as an alternative to completely blocking web crawlers. Some social media and video sharing websites like Youtube are still archivable, however due to the extensive and frequently updated content, there can be gaps in the captured and archived data.  

 

Using Archived Data as Evidence  

     Wayback Machine should be utilized from the inception of a legal investigation and should not be used only to generate trial exhibits. Instead, use the archived data to assist with drafting complaints, composing formal discovery requests, and selecting the list of deponents and deposition questions. Archived data can help formulate requests for admissions, give insight into what documents should be demanded in requests for production, and may even provide support for a motion to compel discovery that is being withheld. Additionally, if you are considering using Wayback Machine printouts as trial exhibits, steps should be taken during the discovery process to seek out ways to authenticate it long before you reach trial. A corporate representative may be able to authenticate a prior version of a website at deposition. A client or independent witness may be able to provide testimony from their own personal observations about prior versions of a webpage and may be able to testify that they relied on the former website content and online representations that were made by the offending corporation, entity or individual.  

 

Admissibility in Court  

    One of the trickier issues with Wayback Machine data pertains to authenticating and using website screenshots or printouts as evidence at trial. Since approximately 2003, Wayback Machine website printouts have wound their way through the court systems as trial courts have worked to determine what it takes to admit computer-archived historical data as evidence. Wayback Machine first made its courtroom debut in 2003 during a trademark infringement suit brought by Playboy Enterprises against internet entrepreneur Mario Cavalluzzo for his use of the name “Sex Court”. Cavalluzzo argued that he had the right to use the name for his own online operations because he used sexcourt.com as his website domain address prior to the air date of Playboy’s television show that utilized the name. Playboy argued that Cavalluzzo left his website inoperative for a period of time and thus failed to acquire trademark protection through continuous use requirements. At trial, Playboy’s own internet research manager testified that she used Wayback Machine to establish that the website used for marketing and airing Playboy’s version of Sex Court had been used continuously since its inception and that Cavalluzzo had used the “Sex Court” name on his website after Playboy had appropriated it. In that case, Wayback Machine internet printouts of Cavalluzzo's website were admitted into evidence over objection. See, Playboy Enterprises International Inc. v. on Line Ent., Civil Action No. CV 00-6618(DGT) (E.D.N.Y. Mar. 31, 2004).  

     Since the Playboy case, courts across the country have developed varying opinions on the admissibility and authentication of Wayback Machine internet printouts. Maryland’s own appellate courts have not specifically dealt with evidentiary issues pertaining to Wayback printouts, but a number of federal courts have.1 Authentication requirements vary widely amongst courts. Technologically progressive courts may be willing to take judicial notice of the authenticity of a Wayback Machine printout2 under Fed.R.Evid. 201(b). See, Valve v. Ironburg Inventions, 8 F. 4th 1364 (Fed. Cir. 2021) and Pohl v. MH Sub I, LLC, 332 F.R.D. 713 (N.D. Fla. 2019) (provides a collective list of cases where judicial notice of Wayback Machine printouts were admitted through judicial notice). Other courts may find that they are unable to do so. See, Weinhoffer v. Davie Shoring, 23 F.4th 579 (5th Cir. 2022) (holding that the court could not take judicial notice of Wayback Machine’s archived webpages “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”). Some courts have specifically been reluctant to offer judicial notice due to Wayback Machine’s disclaimer that it “makes no warranty or representation regarding the accuracy, currency, completeness . . . of the content in the Collections.” See, Nassar v. Nassar, No. 3:14-CV-1501-J-34MCR, 2017 U.S. Dist. LEXIS 456, at *10 (M.D. Fla. Jan. 3, 2017). 

Best Practices for Authenticating Digital Evidence written in part by the Hon. Paul W. Grimm provides helpful insight about the scope of judicial notice for Wayback Machine printouts in federal courts:  

“Note that it is only the contents of the archived pages that may warrant judicial notice—the dates assigned to archived pages may not apply to images linked to them, and more generally, links on archived pages may direct to the live web if the object of the old link is no longer available.” 

Hon. Paul W. Grimm, Gregory Joseph, Esq, and Daniel J. Capra, Best Practices for Authenticating Digital Evidence, (2016). 

If a court declines to provide judicial notice of a printout, attorneys may be able to use Fed. R. Evid. 902(13) to allow self-authentication of printouts as “machine-generated information” through a certificate prepared by a qualified person. Specifically, a certificate of an Internet Archive Official would likely suffice. See, United States v. Bondars, No. 1:16-CR-228, 2018 WL 9755074, at *2 (E.D. Va. Aug. 20, 2018). If a more involved authentication process is required, a witness may be needed to testify about “how the Wayback Machine website works and how reliable its contents are…” United States v. Bansal, 663 F.3d 634, 668 (3d Cir. 2011). The witness may also need to compare “screenshots with previously authenticated and admitted images from [defendant’s] website…” and conclude from their own personal knowledge that the printouts are authentic. Id. In the abundance of caution, attorneys may need to be ready to present testimony from an employee of Internet Archive in order to provide a professional explanation of how Wayback Machine functions and how it produced the proposed evidence instead of relying on testimony provided by clients or witnesses who are not necessarily professionally qualified to testify as to the topic. See, United States v. Gasperini, 894 F.3d 482, 490 (2nd Cir. 2018).  

 

 “But its hearsay!”  

     It is guaranteed that attempts to admit Wayback Machine printouts will be met with objections to “inadmissible hearsay”. However, arguments of this nature should not deter attorneys from fighting to have these documents admitted into evidence. Printouts that are used to: prove notice or prior knowledge, impeach witnesses, establish individual elements of a cause of action, or that are used for any reason other than proving the statement asserted within them are not hearsay. Furthermore, numerous hearsay exceptions may apply to the documents. Screenshots and printouts that are authenticated as prior versions of a defendant’s website should be admissible hearsay as statements of a party opponent. Printouts that are authenticated as government websites under Fed. R 902(5), are also potentially admissible hearsay under the public records exception in Fed R. Evid. 803(8). A thorough and thoughtful review of evidentiary hearsay rules will allow the presenting attorney to quickly provide the court with the applicable evidentiary rule at trial and will swiftly put the objection to rest.  

 

Conclusion  

Internet Archive’s Wayback Machine holds and continues to collect a seemingly endless stream of valuable data and information. As a resource, Wayback Machine is a far cry from the traditional and more tedious methods used to uncover necessary pre-suit information. Using Wayback Machine early on in any investigation and then subsequently referencing and utilizing the relevant data during all aspects of the discovery process will allow attorneys to squeeze every last drop of usefulness out of the evidence and information. Finally, utilizing Wayback Machine printouts at trial will give juries a telescopic view into the past and allow them to scrutinize vital information that has otherwise become unavailable for public review.  

 

Biography 

Natalie D’Antonio is an associate attorney at Bekman, Marder, Hopper, Malarkey & Perlin, LLC. Natalie’s practice focuses on medical malpractice, personal injury, and representing survivors of sexual abuse. She is admitted to practice in Maryland, Pennsylvania, and the U.S. District Court of Maryland.