January 25, 2022
Michael J. Pistorio

Weinhoffer v. Davie Shoring, Inc., No. 20-30568 (5^th Cir. 2022)

In a decision entered on January 20, 2022, the Fifth Circuit found that archived versions of websites generated by the Internet Wayback Machine entered into evidence are not self-authenticating, and therefore inappropriate for judicial notice.

David Weinhoffer, a liquidating trustee to a bankrupt fabrication company, contracted an online auction house that utilized a third party’s website to auction off assets of the fabrication company. One of the terms on the third party’s website, which bidders were directed to when placing bids through the auction house, was that damages stemming from breach of the sale contract created by a winning bid were limited to 20% of the winning bid. Davie Shoring placed a winning bid for modular housing, but refused to pay it after the housing proved difficult to move from storage. Weinhoffer sought recovery of the full winning bid, while Davie Shoring argued that the auction limited damages to 20%.

Davie Shoring introduced the auction’s terms and conditions into evidence in two ways, one being an archived webpage from the Internet Wayback Machine. The district court accepted Davie Shoring’s request that the district court take judicial notice of the archived webpage under Federal Rules of Evidence 201(b)(2) (“source whose accuracy cannot be reasonably questioned”), and limited the damages to 20%. Weinhoffer appealed, in part arguing that the judicial notice was improper.

The Fifth Circuit found that no other Federal Court of Appeals had explicitly ruled on whether internet archival sources clear the high bar for judicial notice. The court noted a district court in the Fifth Circuit that found that the Wayback Machine was not appropriate for judicial notice since the Wayback Machine’s terms and conditions disclaim guarantees of accuracy. Additionally, the court described several instances in which documents from the Wayback Machine were allowed into evidence that were authenticated in some other way (pursuant to Rule 901). Based on these findings, the court determined that the archived website was not properly authenticated and should not have been subject to judicial notice.

The Wayback Machine provides authentication of its archived websites and documents for a fee. We note that legal authentication from the Wayback Machine was not present in the instant case.