I would like to "capture" the content of a web page in a form that
would be acceptable as evidence in a court of law, but obviously this
type of evidence would be easy to fabricate.  Would it be sufficient
to, say, have the web page(s) printed and authenticated by a notary?

Also, the evidence would need to be collected with the date specified,
but one could argue that the information was locally cached and therefore
out-of-date.  Of course, the cache can be disabled and/or cleared, but
what is generally accepted in a Texas court and/or Federal court?

---

Request for Question Clarification by pafalafa-ga on 24 Jul 2005 19:11 PDT

Interesting question, and I don't see an awful lot of case law on this
particular topic (though it's a hard one to research).  However, I did
find one relevant case:


http://cyberlaw.stanford.edu/packets/vol_2_no_3/002728.shtml


The courts accepted an archived website as evidence, and also accepted
an affidavit about the validity of the website.


You might want to consider having a notary or lawyer print out a copy
of the website in question along with its URL and attest that it is a
true image as printed on such and such a date.  I don't know for sure
it would be accepted by the courts, but it couldn't hurt to have it!


There may well be other cases on this topic, but I'm afraid a
comprehensive search of legal databases involves a level of effort
that goes well beyond what can be undertaken for a $20 question.

Let me know if that one case seems relevant to your situation.  And best of luck...

pafalafa-ga

---

Request for Question Clarification by hagan-ga on 26 Jul 2005 08:28 PDT

Alternatively, would a brief discussion of the Federal Rules of
Evidence and a Federal case (rather than a Texas state court case) on
point answer the question satisfactorily?

---

Clarification of Question by bipolarbear-ga on 26 Jul 2005 09:30 PDT

pafalafa,

I believe you answered my question.  I was thinking there was a
straightforward answer, since the web has been around for 10+ years,
but...this is the law.  :-)  If you'll post this info in the answer
I'll be happy to pay the list price for your trouble, since this is
just what I was looking for.  If I had wanted the $500 answer, I would
have hired a lawyer!

hagan, thanks for your comment but since my entire legal education is
from Judge Judy, I wanted to avoid trying to digest the rules of
evidence and instead get a more general "use A but not B" answer.

bpb,

Thanks for getting back to me on this, and I'm glad to hear that the
information I provided was what you were looking for.

I've poked around a bit more, and like I said earlier, there isn't a
heck of a lot of case law on this particular topic, other than the
Polska/Echostar case.

A commenter, below, also mentioned the recent dellcomputerssuck.com
(ha, ha) decision.

This was an ICAAN decision (the official arbiter of domain names),
rather than a US court case, but it did include a finding on use of
archived pages in the Internet Archive, so it may be of interest as
well.  Here's the decision itself:



http://www.arb-forum.com/domains/decisions/445601.htm


and a bit of commentary on the case:


http://www.iplawobserver.com/2005/07/using-suck-with-competitors-name-in.html


Hope that's useful to you.  Thanks again.


paf


search strategy:  Google search on [ "website as evidence" ]

I was hoping for a more concrete answer, but there just isn't one
given that this is a legal question with little case law.  Considering
the complexity of the issue, I am quite happy with the answer.  It
must be good, since this exact subject was on the front page of the
next day's WSJ!

Since website owners can change their content anytime, you might also
find www.archive.org (Wayback Machine) usefule for records of old
versions of the same site or page.

In an article that appeared in Wall Street Journal, July 27, page 1,
entitled "Lawyers' Delight: Old Web Material Doesn't Disappear", Dell
Computers' legal team used the Wayback Machine to prove that
DellComputersSuck.com was being used in bad faith.  They won the case.

You may wish to look at the Texas Rules of Evidence and Federal Rules of Evidence:

Federal Rules of Evidence, Rule 1001
------------------------
For purposes of this article the following definitions are applicable:
... (3) Original. An "original" of a writing or recording is the
writing or recording itself or any counterpart intended to have the
same effect by a person executing or issuing it. An "original" of a
photograph includes the negative or any print therefrom. If data are
stored in a computer or similar device, any printout or other output
readable by sight, shown to reflect the data accurately, is an
"original".
------------------------
See Cornell Law School's Legal Information Institute website:
http://straylight.law.cornell.edu/rules/fre/rules.htm#Rule1001


Texas Rules of Evidence, Rule 1001
------------------------
For purposes of this article the following definitions are applicable:
(c) Original. An "original" of a writing or recording is the writing
or recording itself or any counterpart intended to have the same
effect by a person executing or issuing it. An "original" of a
photograph includes the negative or any print therefrom. If data are
stored in a computer or similar device, any printout or other output
readable by sight, shown to reflect the data accurately, is an
"original."
------------------------
See the Texas Courts website:
http://www.courts.state.tx.us/publicinfo/TRE/tre-98.htm#RULE1001

Printouts of websites should be treated as originals, which can be
used to establish the content of the websites at a particular time, if
a proper foundation can be laid that they accurately reflect the
content of the website at the time the printout was made.

You can also explore those rules for the business records exception,
and the requirements to make a business record self-authenticating.
(FRE 803(6), 902(11); Texas Rules of Evidence 803(6), 902(10))

Here's a cached version (appropriately enough) of the article
mentioned by battalion10:

Google cache of "Lawyers' Delight: Old Web Material Doesn't
Disappear," by David Kesmodel (Jul. 27, 2005)
The Wall Street Journal
http://64.233.167.104/search?q=cache:i8uv9YjO7L8J:online.wsj.com/article_email/0,,SB112242983960797010-H9je4Nglad4o52ta3mIbqyJm4,00.html