After a bankrupt corporation auctioned a large housing module, the Bankruptcy Trustee sued to enforce the sale and collect from the highest bidder. Although the debtor had contracted with Henderson Auctions, which advertised and hosted the auction on its website, 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 limitation that bidders would only be liable for 20% of the bid price in the event of a breach of contract. Instead of using the website, the defendant placed the winning bid by phone. When the auction concluded, however, the defendant refused to pay for the module when it proved difficult to remove from storage.
At trial, the defendant introduced the auction terms and conditions in two forms: (1) as an internet printout labeled Exhibit 41, and (2) as an archived webpage from a website known as the Wayback Machine, an online archive of web pages. Exhibit 41 was introduced through the testimony of Henderson’s office manager. She testified that Exhibit 41 had not been in Henderson’s possession “because the auction was no longer up on Henderson’s website,” and, therefore, she searched for the auction terms on Proxibid’s website to produced them in response to the subpoena. She explained that even if the auction page were still live on Henderson’s website, the terms and conditions would only be accessible if one clicked on the link to Proxibid’s separate site. The District Court also took judicial notice of the terms and conditions as they appeared in the archived webpage, on the basis that it was a “source whose accuracy cannot reasonably be questioned” under Federal Rule of Evidence 201.
The U.S. Fifth Circuit – both on Authenticity and Hearsay grounds – reversed:
While noting that “the standard for authentication is low”, and suggesting that the defendant “could have avoided running afoul of Rule 901 by calling someone with more direct knowledge of Proxibid’s recordkeeping”, the Court of Appeals found that Henderson’s office manager had inadequate direct knowledge to authenticate Exhibit 41. In particular: “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.”
With respect to the Hearsay issue, the Court wrote that “Martin is not a proper custodian or qualified witness as to Exhibit 41 as a business record. Martin was Henderson’s employee, but Henderson did not have custody of the record contained in Exhibit 41; Proxibid did. Martin was not familiar with Proxibid’s record keeping procedures and cannot testify that the other requirements of the Rule 803(6) are met.”
Finally, as a matter of first impression, the Court of Appeals also reversed on the Judicial Notice issue: Initially, the Court recounted various conflicting district court and other court of appeal decisions regarding the admissibility of Wayback Machine pages, including one recent Federal Circuit decision in which judicial notice of the Wayback Machine could be used to establish that an otherwise authenticated exhibit was publicly accessible on the webpage’s archive date as determined by a patent examiner who was trained and required to determine publication dates. Then, turning to the facts and circumstances of this case, the Court of Appeals held as follows: “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.”
Weinhoffer v. David Shoring, No.20-30568, 2022 WL 188095 (5th Cir. Jan. 20, 2022).