St Luke's Cataract and Laser institute, PA. v. Sanderson, Not Reported in F.8unp.2d...
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`7
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`KeyCile Yellow Flag - Negative Treatment
`Distinguished by
`Saudi v. :‘V‘Iaroun. M.D.Fla.,
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`November 4, 2009
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`2006 WL 1320242
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`United States District Court, M.D. Florida,
`Tampa Division.
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`ST. MIKE'S CATARAC’I‘ AND
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`LASER INSTITUTE, P.A., Plaintiff,
`v.
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`James C. SANDERSON, James C. Sanderson,
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`M.D., LLC, and Mark Erickson, Defendants.
`
`No.8:oo-CV-223—T—MSS.
`
`1 Maya, 2006.
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`Attorneys and Law Firms
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`David J. Stewart, Stacey X. Moilohan, Alston & Bird, LLP,
`Atlanta, GA, John D. Goldsmith,
`fihyain NS. Dixit.
`Jim,
`Trenam, Kemker, Scharf, Barkin, Frye, O'Neill and Mullis,
`P.A., Tampa, FL, for Plaintiff.
`
`It. Wiiiiam I...arson, Ir, Ruth Eden Precburg, Larson &
`Larson, PA ., Largo, FL, for Defendant.
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`Opinion
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`ORDER
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`MARY S. SCRIVEN, Magistrate Judge.
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`*1 THIS CAUSE comes on for consideration ofPlaintifi‘s
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`Archive were “double hearsay.” 1d. The court disagreed,
`finding that the text and graphics from the website were
`not statements and the content of the website constituted
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`an admission by a party-opponent and was therefore, not
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`hearsay. In’. Second, the plaintiff argued that the printouts
`from Internet Archive should not be admitted because they
`had not been authenticated. Id. at 6. The plaintiff did not
`present evidence that the printouts were inaccurate or that
`
`the
`Internet Archive was unreliable or biased, only that
`defendant had failed to meet the authentication requirements
`ofi’editfivid. 901. Id.
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`The defendant had attached to the printouts the affidavit
`of Ms. Molly Davis, the administrative director for Internet
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`Archive. Id . Ms. Davis' affidavit was submitted to verify
`that the copies of the web pages retrieved from Internet
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`Archive were accurate representations of the web pages as
`they appeared in Internet Archive's records. 1d. Her affidavit
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`also described in detail the process Internet Archive uses
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`to allow Visitors to search archived web pages through its
`“Wayback Machine.” 1d,; (PIMOL, Ex. B) Most importantly,
`the affidavit contained specific attestations of authentication
`as to the web page in dispute. Thus,
`the court found the
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`affidavit of Ms. Davis to be “sufficient to satisfy Rule 901‘s
`threshold requirement for admissibility.” Id.
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`Here, Plaintiff contends that a certified copy of Ms. Davis‘
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`affidavit used in Telewizja, I along with the affidavits of Mr.
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`Benjamin Fertic 2 and Mr. Bradley Houser3 , are sufficient
`to authenticate the printouts it seeks to introduce from
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`Internet Archive. In response, Defendants contend that the
`declarations of Mr. Fertie and Mr. Houser, two fact witnesses,
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`Motion for Admission of Evidence (the “Motion”) (Dkt.46-I)
`and Defendants response thereto (Dkt.49-l).
`
`are insufficient to authenticate the printouts from Internet
`Archive. According to Defendants, these two witnesses did
`
`from the
`that printouts of pages
`requests
`Plaintiff
`laserspecialistcom and the lasereyelidcom websites taken
`from W‘wwarchiveerg (hereinafter referred to as the “Internet
`
`Archive”) and supporting declarations be admitted to show
`how the sites have appeared at various times since 2000. In
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`support of its Motion, Plaintiff relies on Ikilewizjo Pets/<0
`USA, Inc.
`1’.
`tic/Brawn?" Satellite (Snip. 2004 WI. 23677 0
`{NI).II.1.), a case from the Northern District of Illinois which
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`dealt with admitting evidence from Internet Archive.
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`not rely on their personal knowledge of how the Wayback
`Machine operates. The witnesses merely provided their
`opinions about how the process works. Further,
`the lay
`opinions given by these individuals in their declarations
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`were incorrect as to how the Wayback Machine works.4
`Defendants also contend that the declaration of Ms. Davis,
`taken two years ago in an unrelated case,
`is insufficient
`to authenticate the printouts Plaintiff seeks to admit in the
`present case.
`
`In Telewizja, the plaintiff sought to bar the defendant from
`introducing evidence from Internet Archive to prove what the
`plaintiffs website looked like on various dates in 2004. 1d. at
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`5. First, the plaintiff argued that the printouts from Internet
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`*2 Rule 901 of the Federal Rules of Evidence requires
`authentication of evidence “as a condition precedent
`to
`admissibility.” FedREvid. 9m . This requirement is satisfied
`by “evidence sufficient to support a finding that the matter
`in question is what
`its proponent claims.” Id. Web—sites
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`

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`St. Luke's Cataract and Laser institute Phat v. Sanderson Not Reported in t: Supp Ed
`70 Fed. R. E'vi‘ai' sarr;“"'r74”””“
`
`
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`fire.
`are not self—authenticating. Sim l"rv!eciion Z‘i‘t'relmjv,
`V. Tender (70/73., 2005 WI. 2484710, slip op. at 6, n. 4
`(M.D.Fla. October 7, 2005). To authenticate printouts from
`a website, the party proffcring the evidence must produce
`“some statement or affidavit from someone with knowledge
`[of the website]
`for example [a] web master or someone
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`else with personal knowledge would be sufficient.” m M?
`Homestore.mm. 1m). Seoul/g. 347 FISuprd ”.769. 782
`(C..t).t.3al.2004).
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`Plaintiff
`
`Here,
`authentication.
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`has
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`not met
`
`In order
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`the
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`requirements
`for
`to satisfy the requirement of
`
`the printouts
`to show that
`is,
`that
`FedRiivid. 90l,
`from Internet Archive are accurate representations of the
`laserspecialist.com and lasereyclidcom websites on various
`dates since 2000, Plaintiff must provide the Court with a
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`statement or affidavit from an Internet Archive representative
`with personal knowledge of the contents of the Internet
`Archive website. The declarations of Mr. Fertic and Mr.
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`Footnotes
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`Houser do not meet this requirement as neither individual
`has personal knowledge of the content of the Internet
`Archive website. Further, Ms. Davis‘ affidavit
`from a
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`is insufficient to satisfy
`previous litigation, without more,
`this requirement. However, an affidavit by Ms. Davis, or
`some other representative of Internet Archive with personal
`knowledge of its contents, verifying that
`the printouts
`Plaintiff seeks to admit are true and accurate copies of Internet
`Archive's records would satisfy Plaintiffs obligation to this
`Court. Accordingly,
`the Court ORDERS that Plaintiffs
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`Motion (Dkt.46-l) is DENIED without prejudice.
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`DONE and ORDERED in Tampa, Florida on this 12th day
`ofMay 2006.
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`Parallel Citations
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`70 Fed. R. Evid. Serv. l74
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`1
`2
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`3
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`4
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`Plaintiffclaims it is in the process of obtaining a certified copy ot‘Ms. Davis‘ affidavit to supplement its Motion. (Pl. Mot. at 2, n. l)
`Mr. Fertic attached to his declaration (Dkt. IO—l) “true and correct” images of pages from Internet Archive, which he claimed showed
`how the laserspecialistcom website appeared “as ofDecember 7, 2003.”
`
`Mr. Houser attached to his declaration (Dkt.9~1) “true and correct” images of pages from Internet Archive, which he claimed showed
`how the laserspecialisteom website appeared “as of October 18, 2000” and “June 7, 2004.”
`Plaintiff acknowledges that the declarations of Mr. Fertic and Mr. Houser were incorrect. They declared, and Plaintiff believed, that
`Internet Archive stored all of the pages of a website on a particular date. Plaintiff has discovered that Internet Archive actually stores
`information on a page by page basis, meaning a different date may be assigned to each page ofa website. Plaintiff“will submit new
`amended declarations to accurately reflect the new information it has learned about how Internet Archive works.” (Pl. Mot. at 5, n. 3)
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