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Authenticity of archived websites: the need to lower the evidentiary hurdle is imminent.

                NOT ADMITTED.
        B. HEARSAY
                HEARSAY PURPOSES?
                RULE APPLY?
            CACHED WEB PAGES.


As World Wide Web usage is becoming increasingly widespread, its implications for the legal field are ever growing. The Internet contains a vast amount of information that can potentially be used in litigation. Unfortunately, that information is not permanently available since old information is constantly substituted with new content. Archiving the information could preserve it for future use. However, the question of admissibility of these archived webpages raises certain concerns.

Although discovery rules have been reshaped to conform to the current needs of pre-trial discovery, (1) evidence rules have not changed to adequately face the issue of the admissibility of webpage printouts or archived webpage printouts. (2) Courts have applied different rules and standards when dealing with this issue, which creates uncertainties to litigants. (3)

It is widely agreed in the legal community that there are three hurdles in admitting an archived webpage into evidence. (4) These barriers are: (1) authenticity, (2) hearsay, and (3) the Best Evidence Rule. (5) The hardest requirement to overcome is authenticity, and courts disagree on the interpretation of this requirement. This Note explores the issue of authenticity of archived webpage printouts and proposes changes to the Federal Rules of Evidence in order to adapt to the growth of the usage of electronically archived evidence in modern litigation.

Part I defines and provides general background information on electronically archived evidence. It emphasizes the importance of such evidence in all stages of litigation. Part II outlines case law trends regarding the application of archived webpage evidentiary requirements. It also describes the differences and similarities of those requirements as compared to the courts' analyses of electronic evidence in general. In Part III, the established procedure and some of its alternatives are challenged and criticized. Additionally, this Note proposes certain amendments to the Federal Rules of Evidence in order to adequately adapt to the rising issue of the admissibility of electronically archived evidence, including the treatment of archived webpage printouts as self-authenticating evidence.



The Internet is the largest source of information in the world. It has become a vital instrument in the modern era because it allows anyone to get information from anywhere in the world. Websites are constantly updated with new information, which can create a major drawback: while new information is filling the web space, the old information is gone forever because web-servers have limits on the amount of data they may contain.

Because of the profound benefits of information on webpages, the need to preserve them should not be underestimated. (6) The method of gathering websites by search engines is called "crawling." (7) The most well-known "crawler" engine that constantly updates its search index lists with current images of websites is Google. (8) There are several Internet engines, unlike Google, that save snapshots of websites on their server for permanent storage. (9) Their purpose is not to provide a current view of the websites, but to preserve their historical appearances. This process is called archiving or caching. (10) The largest server of archived websites is called the Internet Archive. (11) Because much of this Note revolves around the procedure established by courts to authenticate archived webpages from that resource, it is essential to describe the mechanics of the Archive's crawler.

The Archive employs the so-called "Wayback" machine to crawl and save millions of webpages each day. (12) The machine has a priority of webpages it archives--well-linked sites are found with greater frequency. (13) Once a webpage is retrieved, it is saved permanently on the server and is available to the general public, free of charge on the Internet Archive's website. (14) As of January 2013, the Archive consisted of about 240 billion archived webpages. (15)

The webpages are stored in the same format as current ones, in hypertext markup language (HTML) format. (16) The snapshots of archived webpages can be opened in any web browser that supports HTML format. The Archive assigns each retrieved webpage with a unique uniform resource locator (URL), which includes the URL of the original web page, date, and time of the archiving of that page. (17) A printout of the archived website shows that URL.


With the proliferation of the Internet, the use of electronic media has become immensely significant. Websites are important business promotion tools. Customers have the ability to find pertinent information about a business through a simple mouse click. Customers often rely on that information in their activities, sometimes to their detriment. In such situations the contents of websites may be the only available evidence to the potential plaintiffs. However, because litigation often lasts for a substantial amount of time, the information on a website could be deleted or updated by its owner by the time of trial. Defendants may also intentionally delete inculpating evidence from their websites. (18) Therefore, archived versions of webpages become extremely important for plaintiffs.

Conversely, Internet users can falsely accuse companies of detrimental reliance. In order to vindicate themselves, companies may seek to introduce the printouts of their webpage to show that it contained no such information as the plaintiff alleged. (19) They can also demonstrate that the plaintiff was put on notice and assumed all the alleged risks. Again, this could only be accomplished by introducing printouts of the current webpage or their archived version, if the webpage no longer exists, into evidence. For example, in Hook v. Intelius, Inc., an Internet user claimed that he was charged for service without his knowledge and authorization, and sued the search website company. (20) The defendant presented screenshots of the webpages that the user saw on the date he was charged for the service, showing that the webpages contained charge notices. (21)

Moreover, archived webpages can be used as proof that a party acted in accordance with its obligations. For example, to prove that a customer paid the proper fees, the party may introduce the fee chart from their webpages. (22)

Archived webpages are also frequently used in intellectual property rights cases. In such cases, the contents that appeared on defendant's webpages can be challenged as infringing upon a plaintiffs intellectual property rights. (23) On the other hand, the contents of a webpage can be used to defend against the claims of such infringements. For example, in Telewizja Polska USA, Inc. v. EchoStar Satellite Corp., the plaintiff alleged that the defendant was using the plaintiffs trademark name in violation of its intellectual property rights. (24) In response, the defendant introduced the printout of the defendant's archived webpage dated before the plaintiff received the trademark of its brand. (25)

The evidence that can be produced by archived webpages is helpful in all litigation stages: complaint, discovery, and trial. (26) It is worth reiterating that sometimes the person who could be charged will try to destroy all incriminating evidence, including electronic evidence. Lawyers would need some supporting evidence before they commence a suit. If incriminating information stored in an electronic archive library is easily available, they can proceed with the litigation. Likewise, when the lawsuit is under way, the cached webpages often help to level the field between the litigating parties by providing equal access to the electronically archived information. (27) The abundance of evidence that can be provided by cached webpages could discourage litigation and encourage settlement negotiations. (28) If a wrongdoer knows that he has no control over the evidence that was archived by third parties, he may be more willing to settle and avoid litigation costs. Archived webpage printouts could also be valuable in rebuttal arguments at trial. If, for example, a defendant denies that her website contained misleading contents, the plaintiff may present a printout of the relevant webpages to the jury as evidence. (29)


The Federal Rules of Evidence present hurdles in presenting archived webpages into evidence. This part will discuss those hurdles, and specifically will consider the issue of the similarities and differences of the courts' treatment of the two classes of evidence. It is important to understand what standards judges use for admitting or denying archived webpages. Section A tackles the issue of authenticity, Section B, the issue of hearsay, and Section C, the issue of application of the best evidence rule.


The authenticity rules of archived webpages resemble, with some exceptions, the authenticity rules that are applied to evidence in general. The rule states that "[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." (30) The requirement of authenticity is a significant barrier to admitting archived webpage printouts into evidence, and courts put considerable emphasis on it. This requirement is frequently tried in courts, so the current trend can be tracked.

The authenticity rule "requires only a prima facie showing of genuineness and leaves it to the jury to decide the true authenticity and probative value of the evidence." (31) Rule (901b) sets up a nonexclusive list of ways to authenticate evidence. (32) The courts have utilized at least two ways prescribed in Rule (901b) to admit archived websites: a) " [testimony of a [witness with [knowledge," and b) "[e]vidence describing [the] process or system." (33)


Electronic evidence can be authenticated through testimony of a witness who possesses sufficient knowledge of the evidence. The witness can be the person responsible for the contents of the webpage, or the person who maintained the information in electronic form, for example, a representative of an electronic archive. (34)

In the Telewizja Polska case, a media corporation alleged an illegal use of its brand name on a TV network's website. (35) The corporation presented archived copies of the website as evidence of this allegation. In response, the network filed a motion in limine to exclude the printouts, on the grounds that they were not properly authenticated and were unreliable. (36) The magistrate judge denied the network's motion, stating that the network "presented no evidence that the Internet Archive is unreliable or biased." (37) The court deemed sufficient the testimony of an agent of the Internet Archive, who verified that the "Internet Archive Company retrieved copies of the websites as it appeared on the dates in question from its electronic archives." (38) In denying the network's motion in limine, the judge also dismissed the argument that the archived webpage was double hearsay. (39)

In Specht v. Google, Inc., the court followed the same reasoning as the court in Telewizja Polska, (40) The plaintiff sued for an illegal use of the brand name of one of their products. (41) At the close of discovery, the plaintiff submitted screenshots of the defendant's webpage, obtained through Wayback, the Internet Archive's product. (42) The screenshots showed the alleged violation, and were certified by the plaintiff, who himself ran the search on Wayback. (43) The defendant moved to bar the evidence on the grounds that the screenshots were not authenticated. (44) Citing Telewizja Polska, the court agreed that "the screen shots were not authenticated by an officer or employee of the Internet Archive." (45)

In Audi AG, Inc. v. Shokan Coachworks, Inc., the plaintiffs were able to authenticate archived websites in a different manner. (46) To prove trademark infringement of their logo, the plaintiffs presented printouts of the defendant's website to show the contents of the defendant's website at different times. (47) Although the printouts were not certified by an employee of the Internet Archive, the court admitted the evidence because of the testimony of defendant's web designer, who confirmed that the logo appeared on the website at certain times in the past. (48)


The Federal Rules of Evidence also permit authenticating evidence by ways of "describing a process or system and showing that it produces an accurate result." (49) This does not mean, however, that it is always necessary for the computer programmer to testify in order to authenticate computer-generated documents. Anyone who has knowledge of the particular record system in question may authenticate a computer printout. (50) At least one court has applied this rule to admit screenshots of archived web pages into evidence. (51) In Hook v. Intelius, the plaintiff alleged that the defendant's website company charged for services without his knowledge and authorization. (52) The defendant presented screenshots of the webpages that the plaintiff saw on the date he was charged for the service, showing that the webpage contained notice of charges. (53) The plaintiff moved to bar the copies of the archived webpages from evidence on the grounds that they were not properly authenticated and there was no way to prove that the copies were what they purported to be. (54) The court denied the motion because employees of the website company testified in detail how the process of archiving and gathering information worked. (55) The testimony was "sufficient to support a finding that the process used is standard in the industry and produces an accurate result." (56)


Contrary to the courts discussed supra, some courts are reluctant to admit archived electronic evidence because, according to their reasoning, the evidence fails the authenticity hurdle. Some cases reveal a general skepticism of all information on the Internet, while others would have permitted authentication of the archived websites, if the proponents of the evidence followed the proper procedure. (57) Perhaps the most skeptical tone toward electronic evidence was presented in a relatively old case, St. Clair v. Johnny's Oyster & Shrimp. (58) In rejecting the authenticity of the information found on the Internet, the judge said: "There is no way [the pjlaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet.... For these reasons, any evidence procured off the Internet is adequate for almost nothing ... (59)

Instead of following this strict reasoning, more recent cases have not admitted archived webpages for failure to follow the accurate procedure, which requires the testimony of an employee of the Internet Archive system. (59) (60) In Novak v. Tucows, Inc., the plaintiff sought to admit archived webpages showing an infringement of its domain name by the defendant. (61) The plaintiff did not authenticate the printouts as required by Rule (901). (62) The court dismissed the evidence and hinted that because the archived Internet documents can be retrieved through the Wayback Machine, which gathers information from third parties, there is a substantial hurdle to authenticating the archived webpages. (63)

In St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, the plaintiff tried to authenticate the printouts of the archived electronic documents procured from the Internet Archive system to show what the defendant's website looked like in 2000. (64) To support the authenticity of the printouts, the plaintiff submitted affidavits of two fact witnesses who testified that the printouts correctly portrayed the webpage as it looked in 2000. (65) Nevertheless, the court dismissed the evidence because the "[pjlaintiff ha[d] not met the requirements for authentication." (66) In the court's view, plaintiffs must provide an affidavit of an Internet Archive representative with personal knowledge of the Wayback process. Such affidavits "would satisfy [plaintiffs obligation to this Court." (67)

The court in Chamilia, LLC v. Pandora Jewelry, LLC struck the screenshots of the archived webpages for the same reason. (68) The plaintiff, who claimed that the defendant misappropriated the plaintiffs designs, presented screenshots of the defendant's website, found through the Wayback Machine. (69) No affidavit from an Internet Archive employee was provided to the court. (70) Admission into evidence was denied because the screenshots "suffered from fatal problems of authentication under Fed. R. Evid. 901." (71)


"'Hearsay' is a statement, other than one made by declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted." (72) Passing a "hearsay hurdle" is simpler than establishing the authenticity for archived Internet contents. (73) Courts will typically ask three questions in order to establish whether or not evidence is hearsay: (1) is there a statement; (2) is it offered for its truth; and (3) do any of the exceptions to the hearsay rule apply. (74)


The hearsay rules unambiguously require a statement. "[F]or verbal or nonverbal conduct to fall within the definition of the hearsay rule ... it must be either an expressly assertive written or spoken utterance, or nonverbal conduct expressly intended to be an assertion...." (75) That means that "[w]hen an electronically generated record is entirely the product of the functioning of a computerized system or process ... there is no 'person' involved in the creation of the record, and no 'assertion' being made. For that reason a statement is not a statement and cannot be hearsay." (76) In other words, information automatically generated or collected by computers should not be considered either statements or hearsay.

Because the Internet Archive collects webpages automatically, it follows that such archived webpages should not be considered hearsay. Some courts have adopted this reasoning. (77) In Perfect 10, the plaintiff alleged that defendants infringed upon his trademark and copyrights. (78) To support this allegation, the plaintiff provided screenshots of the defendant's website and the website of a third party that had a link to the defendant's website. (79) The defendant objected, arguing that the screenshots were hearsay and were thus inadmissible. (80) The court rejected this argument, holding that "to the extent that these images and text are being introduced to show the images and text found on the websites, they are not statements at all--and thus fall outside the ambit of the hearsay rule." (81)

The court in Telewizja reiterated this rationale. (82) In denying the defendant's motion to bar the archived webpage from evidence, the court concluded that archived webpages are not statements and cannot be considered hearsay or double hearsay. (83) Furthermore, the judge considered the contents of the archived webpage as an admission of the defendant, therefore avoiding the hearsay rule. (84)


Even if a court decides that information contained on the actual or archived webpage amounts to a statement, that statement must be offered to prove the veracity of the information in order to be barred by the hearsay rule. (85) In Standring, the government obtained printouts of the defendant's website in order to show that the defendant was offering services proscribed by the Internal Revenue Service. (86) The defendant objected to the printouts as hearsay. The court dismissed this argument by reasoning that the government was trying to show the contents of the defendant's website rather than prove that the contents on the website were correct. (87)


After a court determines that a statement in an archived webpage qualifies as hearsay, it examines the exclusions to the hearsay rule. (88) There are about thirty exceptions to the hearsay rule, but only a few of them are relevant in the analysis of the admissibility of webpage screenshots into evidence: business records, market reports, and public records. (86)

Memoranda, reports, records, or data compilations "made at or near the time [of the event] by--or from information transmitted by--someone with knowledge" are immune from the hearsay rule. (90) In one court's decision it was noted that the "business records exception is one of the hearsay exceptions most discussed by courts when ruling on the admissibility of the electronic evidence." (91) However, this exception was amply probed in connection with the issue of admissibility of e-mails, faxes and other electronically stored information. (92) The exception had not yet been argued in cases where the issue was admissibility of archived webpages.

"Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations" are also excluded from the hearsay rule. (93) It is reasonable to conclude that there should be no difference whether the market records were stored in books or were displayed on webpages. This exception, however, was never argued in courts.

The "record or statement of a public office," with certain qualifications, survives the hearsay hurdle. (94) The "public records" exception regarding the issue of admissibility of websites' screenshots found much greater support in courts. For example, in EEOC v. E.I. DuPont de Nemours & Co., the court held that a copy of the Census Bureau's webpage qualified as a public records exception and was admitted into evidence. (95) The courts have yet to scrutinize the application of this exception to archived webpages.

Rule 807 provides that a statement not falling under any exception can still overcome the hearsay rule if:
   (1) the statement has equivalent circumstantial guarantees
   of trustworthiness; (2) it is offered as evidence of a
   material fact; (3) it is more probative on the point for
   which it is offered than any other evidence that the
   proponent can obtain through reasonable efforts; and (4)
   admitting it will best serve the purposes of these rules and
   the interests of justice. (96)


The Federal Rules of Evidence state that "[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise." (97) This rule, known as the "Best Evidence" rule, requires production of the original document, but there are some exceptions for when a duplicate is permitted. (98) Additionally, "[f]or electronically stored information, 'original' means any printout--or other output readable by sight--if it accurately reflects the information." (99)

The Best Evidence Rule can be seen as constructed leniently toward the admission of webpage printouts. An accurate printout of a webpage would, at least theoretically, automatically pass this hurdle. That might explain why the Best Evidence Rule issue did not appear in most cases dealing with admission of a website's current or archived contents into evidence. When the issue was raised in Perfect 10, the court emphasized that the webpage printouts were subject to the Best Evidence Rule. (100) Thus, the printouts were used to demonstrate images and text as they appeared on the Internet, and therefore met the requirements of the rule (.101)


The Federal Rules of Evidence have not kept up with advances in technology and the proliferation of evidence that they can produce in litigation. (102) The 2006 amendments to the Federal Rules of Evidence made positive contributions to address that gap. However, the amendments dealt primarily with discovery issues, i.e., the methods of obtaining electronic evidence. (103) The question of the admissibility of electronic evidence is still absent from the rules. The proposed provision for self-authentication should be added to Rule 902, (104) and should read as follows:
   (13) Archived Webpages. The printout of an
   electronically archived webpage which bears the time
   when the webpage was archived and the unique Internet
   address code. The proponent of such evidence should
   certify in writing that the printout of the webpage is
   exactly what the webpage looked like at the time it was
   electronically archived.

The purpose is not to provide broad rules for all types of electronic evidence. That task could not be accomplished within the confines of this Note. However, in a broader sense, this proposal could be applied to other amendments to the rules concerning the admissibility of electronic evidence.


Allowing archived webpage printouts to be self-authenticating is not a new concept, but has not received much support in the legal community. The lack of support may be explained by the apparent simplicity of authentication without resorting to changes of the rules. It may not seem complicated to procure testimony from an Internet Archive representative stating that the webpage copy is exactly how it appeared in the Archive database, and therefore what it looked like when it was on the Internet. However, this simplicity is misleading.

First, the main problem of admissibility is not the authenticity in and of itself, but the arbitrary application of that requirement by courts. It is the different interpretations of authenticity that parties stumble upon in the course of litigation. (105) As discussed supra, some judges do not believe that archived webpages can be properly authenticated at all, while others allow authentication provided that a legitimate procedure is followed. Notwithstanding the fact that the current trend of cases indicates that judges are becoming more lenient in their treatment of this kind of evidence, (106) the lack of settled principles for archived webpages creates intolerable complexities in modern litigation.

Second, assuming that a litigant finds himself in a court that does allow authentication of archived evidence through the testimony of an Internet Archive representative, the procedure is not infallible. According to the Internet Archive's Frequently Asked Questions (FAQ) page, "the Internet Archive reserves the right to decline any request it deems to be unreasonable." (107) The term "unreasonable" is not defined in the guidelines, thus creating more uncertainties for litigants. Furthermore, the Internet Archive provides no expedited service. (108)

Third, the procedure for obtaining a representative's affidavit is superfluous by its nature. The representative will simply look at the copy of the webpage that was sent for authentication, compare it with the actual copy of that page on the Internet, and see if any changes were made. (109) This procedure does not seem to require any special knowledge or some restricted access to the database. All that may be needed is access to the Internet. Both parties to a litigation would have a similar capacity to find the archived webpage online and compare it with the proponent's snapshot of that page.

Fourth, the argument in favor of the established procedure for demonstrating authenticity of the archived website assumes that the proponent of such evidence obtained the information from the Internet Archive and not from other sources. Internet Archive representatives can only certify archived webpages from their own databases, and as a result leaves self-archiving and other web crawler data as inadmissible, while potentially more beneficial. (110) Additionally, the Internet Archive respects the so-called "Robots.txt" exclusion. The exclusion provides that if the website owner is not willing to allow Internet Archive to save the copies of that website, the owner must include special code (Robots.txt) on the main page. Even more troubling is the Archive's procedure for allowing website owners to recall a previously cached version from the Internet Archive. (111) It is not hard to imagine a scenario where, upon the commencement of litigation, a defendant requests that the Archive delete the damaging information archived.

Fifth, the Archive representative's affidavit serves only to prove that the printout of the archived webpage reflects the way it appears on Wayback servers. (112) The affidavit does not address the ultimate authenticity concern that the presented copy of the archived webpage resembles the "original" webpage at the time it was archived, i.e., "the accuracy of the Internet Archive's records must itself be established." (113)

Many scholars point to the clumsiness of the rules for electronic evidence in general. (114) Some propose various alterations to the Federal Rules of Evidence to address this concern. (115) For example, some argue the archived webpages should be considered through the prism of the Best Evidence Rule. (116) kinder this approach, courts would first consider whether the evidence is a duplicate as defined by the rules. (117) Only after that determination would the trier of law make a decision whether this duplicate is in fact what its proponent purports it to be. (118) However, this solution does not add much to the established rules. As was shown above, the courts do apply the Best Evidence Rule to archived webpages. In fact, any kind of evidence must satisfy the original or duplicate requirement of the rule. (119) Moreover, while the proponents of this change argue that authenticity of archived webpages must be allowed to be established "in the same manner as contemporaneous [webpages]," (120) the proponents advise the adoption of already established practices for proving authenticity: "an affidavit or testimony from an Internet Archive representative." (121) This approach, however, does not target the very imperfections of the admissibility of archived electronic evidence, the authenticity requirement.


Abandoning the authenticity requirement for archived webpages would serve a positive role for modern litigation. Several goals would be accomplished by this change. First and foremost, the unpredictability factor would be eliminated. Self-authentication would end the long debate over whether archived electronic evidence is admissible. Second, it would wipe out the uncertainties and imperfections of the current authentication procedure. Although most courts agree that authenticity should not be a huge hurdle to overcome, (122) recent case law proves that the courts have steered away from this notion. (123) Under the proposed rule, courts would not need to decide what method of authentication is better applied in each particular case. Third, the uniformity of procedure and predictability of the outcome of the admissibility question would save a litigant's time and money in dealing with the admissibility issue.

Certainly, these practical benefits lay a foundation for all arguments in favor of self-authentication of any evidence type. (124) However, the self-authentication of archived webpages has no reasonable alternative. As previously discussed, the current procedure does not add much to the reliability of evidence, the core justification for authentication. (125)

Self-authentication should not be seen as radical or far-reaching. The Federal Rules of Evidence could reasonably be interpreted as already encompassing archived websites as self-authenticating, even without adding the proposed language to the rules. Rule 902 lists twelve non-exclusive examples of self-authenticating documents. (126) The seventh example allows for self-authentication by "[a]n inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control." (127) Any webpage, archived or not, uses a unique URL address that links a particular page to the Internet server. (128) That URL address cannot be used twice. The printout of an archived webpage contains its URL address and the print date on the cover. (129) The printout also bears the logo of the Internet Archive, on which the page was found. (130)

Some jurisdictions treat certain types of electronically stored information, like e-mails and faxes, as self-authenticating. (131) Even more jurisdictions are lenient in admitting printouts from government websites into evidence without asking for authentication by extrinsic evidence. (132) The argument's purpose in allowing self-authentication for these types of evidence is that they possess indicia of reliability. For example, e-mails bear the precise time, unique senders' and receivers' e-mail addresses that can be attributed to specific persons. (133) The same arguments can be laid out for archived webpages. They all contain a unique URL address that is attributed to a specific webpage, the date on which the website was "crawled" or archived, and the time when the webpage was printed. (134) These characteristics speak strongly in favor of a high level of reliability, which should prompt treating such evidence as self-authenticating.

The requirement of the proponent's certification of the completeness and accuracy of the printouts increases reliability of archived webpages. Some jurisdictions already permit authentication of electronic evidence by a witness who observed the presence of the relevant information in electronic format. (135) In United States v. Whitaker, the defendant was charged with a drug related offense. (136) To prove the defendant's intent to distribute drugs, the prosecution used the defendant's computer records. (137) When authenticity of these records was challenged, the prosecution introduced testimony of a special agent who was present when the records were retrieved from the computer. (138) The court was satisfied with that type of authenticity and admitted the evidence. (139) This authentication method was embraced in a number of other jurisdictions. (140) For example, the court in Toytrackerz, LLC v. Koehler ruled that the information regarding "who retrieved the website printout, when and how the pages were printed, or on what basis the printouts accurately reflect the contents of the website on a certain date." (141) Applying this standard, the court held that if a person who viewed and printed a webpage provides sufficient information regarding these criteria, the authentication requirement would be satisfied. (142) These courts came close to allowing self-authentication of webpage printouts, although not naming it as such. (143) These courts still require some sort of authentication, however minimal. Such form of authentication cannot technically be called self-authentication because the testifying person is presumably not the party to the litigation, and therefore such testimony is extrinsic. This trend can be applied to the argument for self-authentication of archived websites. The proponents of the evidence would in most cases be the persons who personally observed the relevant information on the Internet. By providing a sworn affidavit of the accuracy of observed website and printout of the archived version, the courts could allow authentication. And because in most cases the plaintiffs would testify about the accuracy, that affidavit would not be treated as extrinsic, thus triggering self-authentication.

It is also important to remember that the Federal Rules of Evidence do not require the showing that evidence is authentic, only that a reasonable jury would find it authentic. (144)

Certainly, archived webpages, as any kind of evidence, have potential risks. Those risks include the possibility of tampering or hacking, an unfair advantage by a party introducing such archived webpages, possible confusion by the jury, and other limitations of such evidence in general. Because of these risks, some argue that the archived webpages should not be self-authenticated. This Note now considers all of the risks and argues they do not outweigh the benefits that could arise from treating the archived websites self-authenticating. (145)

The most common fear attributed to archived webpages is the possibility of forgeries and/or being hacked by a third party, which would compromise the information uploaded by the website's owner. (146) It is argued that electronic evidence, including archived webpages, is "much easier to manipulate than traditional forms of evidence." (147) As one scholar put it: "[a]uthors create, revise, and delete sites on a daily basis. No external checks exist to ensure that information on a site is accurate." (148) However, these fears can be challenged.

First, the mere possibility of tampering with electronic content should not itself bar or impede the introduction of electronically stored evidence. Some courts follow this logic by refusing to dismiss the electronic evidence because of its potential to be tampered with. (149) They have held that there needs to be some indication of interference with the evidence, not merely speculation. (150) This burden should rest on the challenging party, not the proponent party. (151) The possibility of evidence manipulation should go to its weight, not admissibility. (152)

It is also important to differentiate the archived/cached webpage from the active webpage. It is easier to alter or revise active webpages than archived webpages. Once a webpage is archived, it is out of its owner's control. Furthermore, if potential forgery of the printouts is a concern, the opposing party could point out any inconsistencies with the "original" webpage with all consequences to the party that forged the printout. The possibility of forgery to the printout by the injured party/plaintiff creates an incentive for the website's owner/defendant to keep track of any revisions. This burden is not great. Moreover, if a party would go so far as to somehow alter or add contents of the page to make it look as if it actually appeared on a website, that party could easily do the same with an Internet Archive representative's affidavit. Seen from this angle, the affidavit itself does not add much to the reliability of evidence. Contrary to that argument, it can be reasoned that cached webpages are harder to tamper with than most other types of evidence.

Second, the possibility of hacking the defendant's website should not burden the plaintiffs ability to introduce the webpage printout into evidence. The responsibility for maintaining websites resides with the site's owner, who is in a better position to control the veracity of their own website's contents. Therefore, website owners should be potentially liable for any information posted on their websites.

Another risk that archived webpages present is an unfair advantage. It is argued that webmasters do not necessarily save all the versions of their websites. A situation where a plaintiff cached the previous appearance of the webpage and the webmaster or website owner did not, would give "a potentially unfair advantage to the side attempting to present cached web pages." (153) This attitude, however, discourages diligent record keeping by webmasters and, in fact, encourages them to deliberately refuse to archive the contents of their websites. More likely than not if an injured party found a way to obtain an archived copy of a website, the website's owners could do the same.

A related concern that is emphasized by the proponents of a stricter rule of admissibility is jury confusion. It is assumed that presenting the cached websites with proper technical explanation would confuse the jury. (154) The opposing side's technical explanation on how websites could be altered would further befuddle the jury. However, even conceding that both parties would present the technical background of cached websites and their risk of being tampered with, this concern alone should not prevent it from being admitted into evidence. All such technical information would go to the weight of the evidence, not its admissibility. (155)

Finally, the opponents of a more lenient application of the authenticity requirement to archived electronic evidence point to its limitations, which include reliability of the source of information and the scope of availability. (156) While it is true that Internet information has no third party check, that alone should not generate a hostile attitude toward the source of information. Doing so would drive society back to the unwarranted presumption that the "Internet is good for nothing" and that "it contains voodoo information." More often than not, the only reason why archived evidence is introduced is because it has in some way injured or misled a party. Moreover, the fact that not all websites are archived does not damage the argument because the issue of authentication arises only when at least one party obtains the archived version of a webpage.

Furthermore, it is worth noting that the procedure for self-authentication would only eliminate one requirement of admitting an archived website, authenticity. Authenticity "by no means assures admission of an item into evidence, as other bars, hearsay for example, may remain." (157) Conversely, the Best Evidence Rule puts an additional safety check in preventing unreliable evidence. (158) Finally, even if an exhibit is eventually admitted the jury decides how much weight to give to any particular piece of evidence based on both parties' testimonies, and thus serves as the final arbiter of the evidence.


Courts have passed the time when Internet content was regarded as untrustworthy and inherently unreliable. It is now generally settled that archived websites are not per se inadmissible. (159) Yet there is still "a wide disparity between the most lenient positions courts have taken in accepting electronic records as authentic and the most demanding requirements that have been imposed." (160)

Litigants should remain aware of the judicial hurdles that exist for archived webpages. The main problem that arises in attempting to admit archived websites into evidence is the authenticity requirement. The current trend of court decisions indicates that this requirement can be satisfied by the testimony or affidavit of an employee of the Internet Archive who has personal knowledge to confirm that a printout of a webpage is in fact what the proponent purports it to be.

However, this procedure has not met the demands of modern litigation. It has its fallacies and does not protect the admission of unreliable evidence. The authenticity hurdle has proven to be redundant for archived webpages. The proposed changes to the Rules of Evidence do not adequately solve the problem because the proposals do not suggest reforming the key problem--authenticity. (161) The only solution that would address the problem with authenticity would be to allow archived websites as self-authenticating under Rule 902. The courts can implement this change by changing their interpretation of the Rule to include archived electronic evidence. If the existing Rule 902 cannot be interpreted this way, adding a specific exception for authenticity of archived websites would be warranted. That change would establish a clear standard for litigants, allowing them to strategize discovery and trial more efficiently. The risks of implementing such a change would not outweigh the apparent benefit for litigants and the courts.

(1.) See Jonathan L. Moore, Time for an Upgrade: Amending the Federal Rules of Evidence to Address the Challenges of Electronically Stored Information in Civil Litigation, 50 Jurimetrics J. 147,153 (2010).

(2.) See id. at 163 n.136.

(3.) Id. at 162-64.

(4.) See Steven Goode, The Admissibility of Electronic Evidence, 29 Rev. Litig. 1, 7 (2009); Jonathan D. Frieden & Leigh M. Murray, The Admissibility of Electronic Evidence under the Federal Rules of Evidence, 17 Rich. J.L. & Tech. 5 (2011); Leah V. Romano, Note, Electronic Evidence and the Federal Rules, 38 Loy. L.A. L. Rev. 1745, 1746-48 (2005).

(5.) See Goode, supra note 4; Frieden, supra note 4; Romano, supra note 4.

(6.) Filip Boudrez & Sofie Van den Eynde, Archiving Websites, EDAVID, 6 (July 2002),

(7.) Google Basics, Google, http ://support. google. com/webmasters/bin/ wer=70897 (last updated Dec. 9, 2011).

(8.) Id.

(9.) Aleph Archives, BackupURL, and WebCite to name a few.

(10.) Boudrez & Van den Eynde, supra note 6, at 11-12.

(11.) Internet Archive, (last visited Apr. 17, 2013).

(12.) Frequently Asked Questions, The Wayback Machine, INTERNET ARCHIVE, (last visited Apr. 17, 2013) [hereinafter Archive FAQ\.

(13.) Id.

(14.) Id.

(15.) brewster, Wayback Machine: Now With 240,000,000,000 URLs, Internet Archive Blogs (Jan. 9, 2013),

(16.) Deborah R. Eltgroth, Best Evidence and the Wayback Machine: Toward a Workable Authentication Standard for Archived Internet Evidence, 78 Fordham L. Rev. 181, 198 (2009).

(17.) See Archive FAQ, supra note 12.

(18.) See John Patzakis, Face book Spoliation Costs Lawyer $522,000; Ends His Legal Career, eDiscovery L. & Tech Blog (Nov. 15, 2011 9:10 PM),

(19.) See Mathew Fagan, Note, "Can You Do a Wayback on That?" The Legal Community's Use of Cached Web Pages in and out of Trial, 13 B.U.J. Sci. & Tech. L. 46,58 (2007).

(20.) Hook v. Intelius, Inc., No. 5:10CV239 (MTT), 2010 U.S. Dist. LEXIS 117213, at *2 (M.D. Ga. Mar. 28, 2010).

(21.) Id. at *4-5.

(22.) See Fagan, supra note 19, at 59.

(23.) Id.

(24.) Telewizja Polska USA, Inc. v. EchoStar Satellite Corp., No. 02 C 3293, 2004 WL 2367740, at *5 (N.D. 111. Oct. 15, 2004).

(25.) Id.

(26.) Fagan, supra note 19, at 58-59.

(27.) Id. at 59.

(28.) Id.

(29.) See, e.g., Dell Inc. v. Innervision Web Solutions, 2005 WL 1794618 (UDRP-ARB Dec.) (2005) (Johnson et al., Arb.), available at

(30.) Fed. R. Evid. 901(a).

(31.) United States v. Harvey, 117 F.3d 1044, 1049 (7th Cir. 1997).

(32.) Fed. R. Evid. 901(b).

(33.) Id.

(34.) See Telewizja Polska, 2004 WL 2367740, at *6 (holding that that an affidavit of an agent of the archived database system, Wayback, suffices to authenticate the archived copy of a web page); Specht v. Google, Inc., 758 F.

Supp. 2d 570, 580 (N.D. Ill. 2010) (ruling that only representatives of the Internet Archive service could properly authenticate the screenshots of several archived websites); Audi AG, Inc. v. Shokan Coachworks, Inc., 592 F. Supp. 2d 246, 278 (N.D.N.Y. 2008) (holding that copies of archived websites can be authenticated by a "knowledgeable employee" of the Internet Archive or a person who uploaded the contents to the website); St. Luke's Cataract & Laser Inst. P.A. v. Sanderson, No. 08-11848, 2006 U.S. Dist. LEXIS 28873, at *6 (M.D. Fla. May 12, 2006) (concluding that an affidavit from an employee of the Internet Archive with personal knowledge of the contents of the Archive's website meets the requirement of authentication of archived websites); United States v. Barlow, 568 F.3d 313, 315 (5th Cir. 2009) (holding that a testimony of a person who was writing in a chat room sufficient to authenticate the content of that chat room).

(35.) Telewizja Polska, 2004 WL 2367740, at *5.

(36.) Id.

(37.) Id.

(38.) Id.

(39.) Id at *5-6.

(40.) Specht, 758 F. Supp. 2d at 580.

(41.) Id. at 574.

(42.) Id. at 579.

(43.) Id.

(44.) Id at 580.

(45.) Id.

(46.) Audi, 592 F. Supp. 2d at 255.

(47.) Id. at 277.

(48.) Id at 278.

(49.) Fed. R. Evid. 901(b)(9).

(50.) See United States v. Moore, 923 F.2d 910, 914-15 (1st Cir. 1991) (holding that the head of the bank's consumer loan department could authenticate computerized loan data).

(51.) Hook v. Intelius, No. 5:10CV239(MTT), 2010 U.S. Dist. LEXIS 117213, at *2 (M.D. Ga. Mar. 28, 2010).

(52.) Id

(53.) Id. at *4-5.

(54.) Id. at *6.

(55.) Id at *12.

(56.) Id. at *12.

(57.) Compare St. Clair v. Johnny's Oyster & Shrimp, 76 F.Supp. 2d 773, 77475 (S.D. Tex. 1999), with Hook v. Intelius, No. 5:10CV239 (MTT), 2010 U.S. Dist. LEXIS 117213, at *2 (M.D. Ga. Mar. 28, 2010).

(58.) St. Clair, 76 F. Supp. 2d at 773.

(59.) Id. at 774-75.

(60.) Novak v. Tucows, Inc., No. 06-CV-1909, 2007 U.S. Dist. Lexis 21269 at *17 (E.D.N.Y. Mar. 26, 2007), aff'd, 2009 U.S. App. LEXIS 9786 (2d. Cir. May 6, 2009).

(61.) Id. at *14.

(62.) Id. at *17-18.

(63.) Id. at *17-18.

(64.) St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, No. 08-11848, 2006 U.S. Dist. Lexis 28873, at *1 (D.M.D. Fla. May 12, 2006).

(65.) Id. at *2-*3.

(66.) Id. at *5.

(67.) Id. at *6.

(68.) Chamilia, LLC v. Pandora Jewelry, LLC, No. 04-CV-6017, 2007 U.S. Dist. Lexis 71246, at *19 (S.D.N.Y. Sept. 24, 2007).

(69.) Id.

(70.) Id.

(71.) Id

(72.) Fed. R. Evid. 801(c).

(73.) Goode, supra note 5, at 42.

(74.) Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 563 (D. Md. 2007).

(75.) Id.

(76.) Id. at 564.

(77.) See Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002); Telewizja Polska, 2004 WL 2367740 at *5.

(78.) Perfect 10, 213 F. Supp. 2d at 1152.

(79.) Id. at 1153.

(80.) Id.

(81.) Id. at 1155.

(82.) See Telewizja Polska, 2004 WL 2367740 at *5.

(83.) Id.

(84.) Id. (citing Van Westrienen v. Americontinental Collection Corp., 94 F. Supp. 2d 1087, 1109 (D. Or. 2000)).

(85.) See generally United States v. Standring, No. L04-CV-730, 2006 WL 689116 (S.D. Ohio Mar. 15, 2006).

(86.) Id. at *2.

(87.) Id.

(88.) See Fed. R. Evid. 803; Fed R. Evid. 804.

(89.) Fed. R. Evid. 803; Fed R. Evid. 804.

(90.) Fed. R. Evid. 803(6).

(91.) Lorraine, 241 F.R.D. at 572.

(92.) See Frieden, supra note 4, at 33-34 n.174.

(93.) Fed. R. Evid. 803(17).

(94.) Fed. R. Evid. 803(8).

(95.) EEOC v. E.I. DuPont de Nemours & Co., No. Civ. A. 03-1605, 2004 WL 2347559, at *1 (E.D. La. Oct. 18, 2004).

(96.) Fed. R. Evid. 807.

(97.) Fed. R. Evid. 1002.

(98.) Fed. R. Evid. 1003.

(99.) Fed. R. Evid. 1001(d).

(100.) Perfect 10, 213 F. Supp. 2d at 1155 n.4.

(101.) Id.

(102.) Paul R. Rice, Electronic Evidence: Law and Practice 492 (2d ed. 2008) (noting that "new evidentiary problems faced in the Internet Age have been directly addressed in few, if any, of these evidence codes"); George L. Paul, The "Authenticity Crisis" in Real Evidence, Law Prac. Today, Mar. 2006, ("Certainly no action has been taken by Congress to change the Federal Rules of Evidence to address the recent wave of digitization.").

(103.) Moore, supra note 1, at 153.

(104.) Fed. R. Evid. 902.

(105.) Rice, supra note 102, at 492.

(106.) See supra Part II.A.

(107.) Frequently Asked Questions for Lawyers, Internet Archive, (last visited Feb. 26, 2013) [hereinafter FAQ for Lawyers].

(108.) Id.

(109.) Id.

(110.) See id.

(111.) Id.

(112.) Novak v. Tucows, Inc., No. 06-CV-1909, 2007 U.S. Dist. LEXIS 21269, at * 17-18 (E.D.N.Y. Mar. 26, 2007) ("[T]he authorized owners and managers of the archived websites play no role in ensuring that the material posted in the Wayback Machine accurately represents what was posted on their official websites at the relevant time. As [plaintiff] proffers neither testimony nor sworn statements attesting to the authenticity of the contested web page exhibits by any employee of the companies hosting the sites from which plaintiff printed the pages, such exhibits cannot be authenticated as required under the Rules of Evidence."), aff'd, 330 F. App'x 204 (2d Cir. May 6, 2009). See also Chamilia, LLC v. Pandora Jewelry, LLC, No. 04-CV-6017, 2007 U.S. Dist. LEXIS 71246, at * 18 n.4 (S.D.N.Y. Sept. 24, 2007).

(113.) Goode, supra note 5, at 16.

(114.) Moore, supra note 1, at 149-53.

(115.) See Eltgroth, supra note 16, at 118.

(116.) Id. at 211.

(117.) Id. at 212-13.

(118.) Id. at 213-14.

(119.) See supra Part II.C.

(120.) Eltgroth, supra note 16, at 213.

(121.) Id. at 214.

(122.) See, e.g., United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007) (stating that authentication standard is "minimal"); Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 328 (3d Cir. 2005) ("The burden of proof for authentication is slight.") (quoting McQueeny v. Wilimington Trust Co., 779 F.2d 916, 928 (3d Cir. 1985)).

(123.) See Goode, supra note 5, at 8-10.

(124.) See 29 C.F.R. [section] 18.902 (2012).

(125.) See supra Part III.A.

(126.) Fed. R. Evid. 902.

(127.) Fed. R. Evid. 902(7).

(128.) See supra Part I.A.

(129.) See Archive FAQ, supra note 12.

(130.) FAQ for Lawyers, supra note 107.

(131.) See, e.g., Superhighway Consulting, Inc. v. Techwave, Inc., No. 98 CV 5502, 1999 WL 1044870, at *2 (N.D. III. Nov. 16, 1999) (reasoning that e-mails and faxes are self-authenticating under Federal Rules of Evidence 902(17), unless an opposing party can show unreliability of that evidence).

(132.) See, e.g., Lorraine, 241 F.R.D. at 551; United States ex rel. Parikh v. Premera Blue Cross, No. C01-0476P, 2006 WL 2841998, at *3-4 (W.D. Wash. Sept. 29, 2006) (finding that a government site was self-authenticating); Colt Def. L.L.C. v. Bushmaster Firearms, Inc., No. Civ.04-240-P-S, 2005 WL 2293909, at * 5 n.10 (D. Me. Sept. 20, 2005) (noting that "printouts from government web sites have been held to be self-authenticating pursuant to Federal Rules of Evidence 901(a) and/or authenticating official publications under Rule 902(5) of the Federal Rules of Evidence").

(133.) Jay M. Zitter, Annotation, Authentication of Electronically Stored Evidence, Including Text Messages and E-mail, 34 A.L.R.6th 253 (2008).

(134.) FAQ for Lawyers, supra note 107.

(135.) See United States v. Whitaker, 127 F.3d 595, 595 (7th Cir. 1997).

(136.) Id. at 595.

(137.) Id. at 598.

(138.) Id. at 601.

(139.) Id.

(140.) See United States v. Scott-Emuakpor, No. 1:99-CR-138, 2000 WL 288443, * 11-12 (W.D. Mich. Jan. 25, 2000); Bone v. Indiana, 771 N.E.2d 710, 716 (Ind. App. 2002); Ex parte Alabama Dep't of Mental Health and Mental Retardation, 937 So. 2d 1018 (Ala. 2006).

(141). Toytrackerz, LLC v. Koehler, 615 F.Supp. 2d 1242 (2009) (order denying preliminary injunction), available at 2:2008cv02297/ 67047/96/0.pdf?1270204556.

(142). Id.

(143). See John C. Philo, Online Research and Evidence in Products Liability Litigation, 86 Am. Jur. Proof of Facts 3d 1, [section] 8.

(144). United States v. Safavian, 435 F.Supp. 2d 36, 38 (D.D.C. 2006).

(145.) See Fagan, supra note 19, at 60-67.

(146.) Id. at 63-64.

(147.) Moore, supra note 1, at 152.

(148.) Id. at 157.

(149.) United States v. Whitaker, 127 F.3d 595, 602 (7th Cir. 1997); United States v. Bonallo, 858 F.2d 1427, 1436 (9th Cir. 1988) ("The fact that it is possible to alter data contained in a computer is plainly insufficient to establish untrustworthiness."); United States v. Glasser, 773 F.2d 1553, 1559 (11th Cir. 1985) ("If such a prerequisite [of showing absence of interference] did exist, it would become virtually impossible to admit computer-generated records....").

(150.) United States v. Allen, 106 F.3d 695, 700 (6th Cir. 1997).

(151.) Rutter Group Practice Guide Fed. Civ. Trials & Ev. Ch. 8C-C, 8-429.

(152.) Bonallo, 858 F.2d at 1436; see Steven Goode & Olin G. Wellborn, Courtroom Handbook on Federal Evidence 298 (2009).

(153.) Fagan, supra note 19, at 67.

(154.) Id. at 66.

(155.) Goode & Wellborn, supra note 152, at 298.

(156.) Fagan, supra note 19, at 60-63.

(157.) Fed. R. Evid. 901 advisory committee's note.

(158.) See supra Part II.C; see also Eltgroth, supra note 16, at 210-14 (arguing that the Best Evidence Rule provides better grounds for filtering untrustworthy evidence).

(159.) See, e.g., Attig v. DRG, Inc., No. 04-CV-3740, 2005 U.S. Dist. Lexis 5183, at *5 (E.D. Pa. Mar. 30, 2005) (the issue of admissibility of archived web pages was not disputed by parties); Victoria's Secret Stores Brand Mgmt. v. Sexy Hair Concepts, LLC, No. 07-CV-5804, 2009 U.S. Dist. LEXIS 30458 (S.D.N.Y. Apr. 8, 2009) (reasoning that archived websites are not inadmissible).

(160.) Lorraine, 241 F.R.D. at 558. See also Sheldon M. Finkelstein & Evelyn R. Storch, Admissibility of Electronically Stored Information: It's Still the Same Old Story, 23 J. Am. Acad. Matrim. Law. 45,58 (2010).

(161.) See supra Part III.A.

Karen Gazaryan, J.D. Candidate, 2013, Rutgers School of Law--Newark.
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