In Sensory Path Inc. v. Fit & Fun Playscapes LLC, NO.: 3:19CV219-GHD-RP, NO.: 3:22CV32-MPM-RP (N.D. Miss. Dec. 20, 2022), Mississippi Magistrate Judge Roy Percy, among other rulings, denied the defendant’s motion to strike a trial exhibit which was an affidavit attesting to the authenticity of the archived screenshots from the “Wayback Machine.”
In this case alleging copyright infringement and violation of unfair competition laws, each of the parties sought to strike from the pretrial order certain of the opposing party’s trial exhibits due to a failure to disclose in discovery.
One of those was Exhibit SP-3 which the defendant sought to strike. The plaintiff asserted that the affidavit was a certificate of authenticity provided under the Federal Rules of Evidence; that one of the exhibits attached thereto was a copy of an archived internet screenshot from the defendant’s website that was previously attached to the plaintiff’s complaint; and that the other attached exhibit was a copy of another archived internet screenshot from the defendant’s website.
The affidavit was made by a “Records Request Processor” at the Internet Archive, a website that provides access to archived internet pages through its service known as the “Wayback Machine.” The affidavit described the process by which the Wayback Machine archives internet files and makes them accessible to visitors to Internet Archive’s website, and the affidavit attested to the authenticity of the archived screenshots attached as exhibits to the affidavit. The plaintiff asserted the affidavit was provided as a certificate of authenticity of the attached Wayback Machine records as was specifically contemplated by the Fifth Circuit in Weinhoffer v. Davie Shoring, Inc. (where the Fifth Circuit ruled that Wayback Machine evidence is not self-authenticating).
Regarding the affidavit, Judge Percy stated: “The court agrees. The affidavit’s description of the Wayback Machine’s processes contains no substantive testimony regarding issues relevant to the claims or defenses in this case; the information goes towards the authenticity of the attached screenshots and nothing more.”
Continuing, he said: “Sensory Path provided the subject affidavit to Fit and Fun in advance of the pretrial conference, which was conducted over 30 days before this case is set to be tried. The court finds this constitutes reasonable notice in this case…This does not mean that Fit and Fun may not still challenge the authenticity of the attached screenshots; it means only that the affidavit was provided sufficiently in advance of trial to give Fit and Fun reasonable notice of Sensory Path’s intent to use it to authenticate the attached screenshots.”
As a result, Judge Percy denied the defendant’s motion to strike the proposed trial exhibit.
So, what do you think? Do you think the Court would have denied the motion without the affidavit being provided for the Wayback Machine evidence? Please share any comments you might have or if you’d like to know more about a particular topic.
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