Technology’s Effect on Advocacy
having been created by the actual declarant). See:
Iglesia Ni Cristo v. Cayabyab, No. 18-cv-00561- BLF, 2020 LX 30879, at *13 (N.D. Cal. Mar. 31, 2020) (sustaining objection on motion for summary judgment to screenshots when lacking proper authentication). In seeking to exclude evidence from archived internet sources or object to a request for judicial notice of the same, it is important to make a clear and specific challenge to the reliability of the evidence: Shipley v. Meta Platforms, Inc., No. 25-cv- 03324-WHO, 2026 LX 323669, at *7 (N.D. Cal. July 16, 2026) (denying plaintiff’s evidentiary objections where it was not shown the archived webpages were unreliable); Keller v. Chegg, Inc., No. 22-cv-06986-JD, 2023 U.S. Dist. LEXIS 142809, at *4 n.2 (N.D. Cal. Aug. 15, 2023) (taking judicial notice of archived webpage of the defendant’s Terms of Use where the plaintiff offered no reason to believe the documents were inaccurate). Of note is the outcome in Payman v. Amber S, 2018 Cal. Super. LEXIS 88640, *13 (Sup. Ct. Los Angeles May 10, 2018), where the court considered archived internet webpages despite the lack of an authenticating declaration and lack of foundation, where both sides submitted their own evidence from the Wayback Machine. (declining to consider archived webpages on motion for summary judgment as not properly authenticated without a declaration from the Internet Archive’s Office Manager);
Kaping v. Barrett Daffin Frappier Treder & Weiss, LLP, No. 2:17-cv-00697-JAM-CKD PS, 2017 U.S. Dist. LEXIS 89195, at *6 (E.D. Cal. June 9, 2017) (declining to take judicial notice of a purported printout from the Internet that did not include official letterhead or other designation, such as a webpage address that would tend to self-authenticate its veracity); UL LLC v. Space Chariot, Inc., 250 F. Supp. 3d 596, 604 n.2 (C.D. Cal. April 20, 2017) (taking judicial notice of the existence of images on an archived webpage, despite objection that neither the declarant nor his staff archived the images); Iglesia Ni Cristo v. Cayabyab, No. 18-cv-00561- BLF, 2020 LX 30879, at *13 (N.D. Cal. Mar. 31, 2020) (sustaining objection to screenshots where someone other than the declarant took the screenshots). Courts will typically limit the scope of judicial notice to the existence of the information as it appeared on the date the webpage was archived or captured. ( D'Angelo v. FCA US, LLC, 726 F. Supp. 3d 1179, 1191 (S.D. Cal. Mar. 28, 2024)). To use archived online materials obtained from the Wayback Machine for purposes of a motion for summary judgment, or at trial, it is imperative to afford sufficient time to obtain a declaration or affidavit from the Records Request Processor based on the current Internet Archive’s policy (https://archive.org/legal). See:
Open Text S.A. v. Box, Inc., No. 13-cv-04910-JD, 2015 LX 26858, at *7 (N.D. Cal. Jan. 30, 2015)
Many courts reject hearsay objections given the automated nature of Wayback Machine’s process:
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Consumer Attorneys of California
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