In Weinhoffer v. Davie Shoring, Inc., No. 20-30568 (5th Cir. Jan. 20, 2022), the Fifth Circuit Court of Appeals ruled that the district court abused its discretion by improperly admitting evidence, including an archived webpage from a website known as the “Wayback Machine,” ruling that Wayback Machine evidence is not self-authenticating.

Case Discussion

In this contract dispute over the terms of an online auction, Henderson Auctions advertised and hosted the auction on its website, but when auction participants clicked on the link to bid, they were directed to Proxibid, a third-party website, where they could view the auction’s terms and conditions and place their bids. Among these terms was a term declaring that bidders would be liable for only 20% of the bid price in the event of a breach of contract. Instead of using the website, Warren Davie, Davie Shoring’s principal, placed the winning bid of $177,500 on a phone call with a Henderson employee. After the auction concluded, Davie Shoring refused to pay for the module when it proved difficult to remove from storage.

Liquidating trustee David Weinhoffer sued, seeking recovery of Davie Shoring’s bid of $177,500. During the bench trial. Davie argued that the terms of the auction limited the damages to 20% of the winning bid ($35,500), testifying that he read the auction terms, including the 20% damages limitation, on Henderson’s website before bidding. At trial, Davie Shoring introduced the auction terms and conditions in two forms: (1) as an internet printout labeled “Exhibit 41” and (2) as an archived webpage from the Wayback Machine.

Exhibit 41 was introduced through the testimony of Renita Martin, Henderson’s office manager, but she got them from Proxibid’s website to produce them in response to the subpoena since they weren’t on the Henderson site anymore. Weinhoffer objected to Exhibit 41, contending that it was irrelevant, unauthenticated, and hearsay. The district court ruled that Martin had properly authenticated Exhibit 41 because, although she was not its author, her job description indicated that she was a proper custodian. The district court also ruled that Exhibit 41 was within one of Federal Rule of Evidence 803’s hearsay exceptions.

As for the Wayback Machine evidence, the same terms were located on a Wayback Machine version of the Proxibid webpage. The district court took judicial notice of the terms and conditions as they appeared in the archived webpage, explaining that the archived webpage was a “source[ ] whose accuracy cannot reasonably be questioned” under Federal Rule of Evidence 201 and entered judgment for Weinhoffer in the amount of $35,500 plus costs. Weinhoffer timely appealed.

Circuit Court’s Ruling

The Court stated: “We first address whether the admission of Exhibit 41 was proper under the Federal Rules of Evidence. As Exhibit 41 was not properly authenticated, we reverse the district court.” Noting that “Martin’s testimony is the only way Davie Shoring attempted to authenticate Exhibit 41. However, Martin had no personal knowledge of the terms applicable to the auction. Martin had to search a third party’s website to obtain the terms because Henderson did not have them in its possession. Moreover, Martin’s testimony indicates that she was unfamiliar with Proxibid’s website and that she needed the assistance of a colleague to locate the terms. Thus, Martin’s authentication testimony only amounts to an affirmation of her memory that Exhibit 41 is what she found on the internet… The district court abused its discretion by relying on inadmissible evidence when it reduced Weinhoffer’s…damages; we accordingly reverse its ruling.” The Court also ruled that Exhibit 41 did not fit under Rule 803’s exceptions to the prohibition for considering the evidence hearsay, finding that an abuse of discretion as well.

As for the Wayback Machine evidence, the Court stated: “None of our sister circuits have squarely addressed whether archival internet sources like the Wayback Machine possess the ‘high degree of indisputability [that] is the essential prerequisite’ of judicial notice… In this circuit, a district court found that documents from the Wayback Machine were not appropriate for judicial notice, citing the Wayback Machine’s terms of use which disclaim any guarantees of accuracy regarding content stored there.”

Continuing, the Court stated: “Beyond the context of judicial notice, our sister circuits have allowed district courts to rely on archived webpages where someone with personal knowledge of the reliability of the archive service has been authenticated pursuant to Rule 901…This reliance on personal knowledge indicates that exhibits derived from these sources are not inherently or self-evidently reliable in the same way as documents designated as self-authenticating by Rule 902… Here, there was no testimony to authenticate the archived webpage…Our sister circuits’ decisions that the Wayback Machine is not self-authenticating are persuasive in the context of judicial notice. In sum, the district court erred in taking judicial notice of the terms because a private internet archive falls short of being a source whose accuracy cannot reasonably be questioned as required by Rule 201.”

Finding that “the errors were not harmless and they affected Weinhoffer’s substantial rights”, the Court did “REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.”

So, what do you think? Do you agree with the Court that the Wayback Machine evidence is not self-authenticating?  Please share any comments you might have or if you’d like to know more about a particular topic.

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