Electronic Discovery and Evidence

Archived Web Pages

Keeper of Expired Web Pages Is Sued Because Archive Was Used in Another Suit. "The Internet Archive was created in 1996 as the institutional memory of the online world, storing snapshots of ever-changing Web sites and collecting other multimedia artifacts. Now the nonprofit archive is on the defensive in a legal case that represents a strange turn in the debate over copyrights in the digital age.  Beyond its utility for Internet historians, the Web page database, searchable with a form called the Wayback Machine, is also routinely used by intellectual property lawyers to help learn, for example, when and how a trademark might have been historically used or violated. . . "

Fox News Trusts Google!

(6-17-04) US channel's BBC remarks censured. "UK media watchdog Ofcom has criticised US cable channel Fox News over views a presenter expressed about the BBC. Ofcom said Fox News breached guidelines when commentator John Gibson claimed the BBC had displayed "a frothing-at-the-mouth" anti-American bias. . . The network [in defense of Gibson] also said searching for the phrase "BBC anti-American" into the Google internet search engine resulted in 47,200 hits.

Comment: . American courts have not treated web content with such trustworthiness as Fox News does.

For example, in St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774, 775 (S.D. Tex. 1999), after the plaintiff was injured on a sea vessel, he sought to establish ownership of the sea vessel from evidence obtained from the web. The court rejected the trustworthiness of the data and stated:

While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity of the alleged contentions that Plaintiff wishes to rely upon. . . . There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in FED. R. EVID. 807. Instead of relying on the voodoo information taken from the Internet, Plaintiff must hunt for hard copy back-up documentation in admissible form.

Instant Messaging Electronic Evidence

Are ICQ logs admissible in court?March 15, 2001

"The posting of thousands of instant messages between a CEO and his executives has created a cottage industry for people looking for evidence of possible illegal activity. But whether information derived from the logs could be used in court is an unsettled legal question. Hundreds of pages of ICQ instant messaging logs were posted on the Web and copied onto various sites last week. The logs, apparently snatched by a hacker from a computer used by Sam Jain, CEO of eFront, have prompted a personal nightmare and crippled his company.
Judging from the messages posted on various Web sites, hundreds of people have been scanning the files, looking for everything from gossip to evidence of nefarious activities. The logs, which include discussions regarding business partners, employees and affiliated Web sites, could lead to possible legal troubles. . .
"It's always up to the judge," he said. "Ultimately, the judge can let anything he wants into evidence, and illegally obtained information can still be legally admitted." Yarbrough said the information contained in the logs would have to go to the heart of the case to pass muster with a judge. It would also have to be authenticated, to make sure that the messages were actually typed by eFront's founder."

Comment: Keep an eye out for listservs and threaded discussions in your electronic discovery. They may contain some excellent electronic evidence.

Archived web pages

WayBack Machine

"Browse through 30 billion web pages archived from 1996 to a few months ago."