“Wayback Machine” Evidence Held to be Insufficient to Support Personal Jurisdiction

Satisfactory Secondary Evidence Prevents Sanction
September 4, 2021
Categorical Privilege Log Presented Interpretive Issues
November 17, 2021

In Abdul-Baatin v. LG ChemAmerica, Inc., No. 2217 (N.J. Super. Ct. App. Div. Nov. 12, 2021) (unpublished), evidence of defendant’s contacts with the forum was in part presented through a web page from the Wayback machine.  Defendant, a South Korean company, was sued for injuries allegedly sustained from an exploding lithium battery.  The plaintiff was injured in New Jersey.  The case presents jurisdictional issues, as well as a question of authentication of web pages from the Wayback machine.

Bloomberg[1] reports that:

A webpage on the Internet Archive’s “Wayback Machine” and other documents submitted by Isa Abdul-Baatin, together with LG Chem’s evidence, made up too slim a record for the lower court to decide it could exercise jurisdiction over the company, according to the New Jersey Superior Court, Appellate Division.

In part, the plaintiff argued that an American subsidiary, LG Chem America, Inc. (“LGCAI”), was an alter ego of defendant LG Chem Ltd. (“LG Chem”).  The court wrote:

Plaintiff opposed the motion [to dismiss for lack of jurisdiction and insufficient service of process], asserting the court had personal jurisdiction over LG Chem because LGCAI was 100% owned and controlled by LG Chem, was the alter ego of LG Chem, and operated in New Jersey. In support, plaintiff produced a webpage downloaded from the “Internet Archive Wayback Machine” listing LGCAI’s address on LG Chem’s website as of November 15, 2016, as  “920 Sylvan Ave., Englewood Cliffs, NJ.” [Emphasis added].

Plaintiff also offered other jurisdictionally-related contacts.

In part, the defendant responded:

LG Chem asserts “New Jersey is not LG Chem’s place of incorporation or its principal place of business,” and the judge’s conclusion to the contrary “based on inadmissible hearsay in  (p)laintiff’s unauthenticated Wayback Machine screenshot . . . showing an address for a legally distinct entity seventeen months before (p)laintiff’s alleged injury” is erroneous. [Emphasis added].

The appellate court held that the record was not sufficiently developed.  Jurisdictional discovery and an evidentiary hearing was required to resolve the disputed facts.

THE PERSONAL JURISDICTION ISSUE

In a similar context, I won a case in which Toshiba Corp., located in Japan, argued that it was not subject to personal jurisdiction in Maryland because it sold its products to Toshiba America, Inc. (“TAI”), in Japan.  As such, it argued that it did not transact business in Maryland.  Copiers Typewriters Calculators, Inc. v. Toshiba Corp., 576 F.Supp. 312 (D. Md. 1983).

The Court rejected that defense:

By its efforts to serve the United States market, by placing its goods in the stream of commerce which will supply that market, and by welcoming the sales and the revenue derived therefrom, Toshiba evidences its intent that its goods reach the states of the United States, in which its goods are sold. It should reasonably anticipate being haled into court in those states where sale of those goods ultimately causes damage to someone in those states…. The extent of the purposeful interjection by Toshiba of its products into Maryland is amply demonstrated by the substantial volume of the alleged deficient copiers in this state. Roughly half a million dollars’ worth of copiers were received by the plaintiff…. [W]hile Toshiba’s burden in defending an action in Maryland is more than minimal, the plaintiff’s burden of suing Toshiba in Japan exceeds that of Toshiba defending a suit here. Toshiba is represented by the same counsel which represents TAI. Moreover, Toshiba is set up to do business internationally, and depends in part on foreign consumption. Forcing Toshiba, an international corporation, to defend a suit in Maryland is patently less burdensome than requiring the plaintiff, a local Maryland dealer, to do the converse. [Emphasis added].

AUTHENTICATING EVIDENCE FROM THE WAYBACK MACHINE

The Wayback machine is an internet archive. Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 553 n. 29 (D. Md. 2007);  see eDiscovery & Digital Evidence §15:9 (Thomsen Reuters).[2]

Evidence from it has often and easily been authenticated. Lorraine, 241 F.R.D. at 553 (“Plaintiff has presented no evidence that the Internet Archive is unreliable or biased.  And Plaintiff has neither denied that the exhibit represents the contents of its website on the dates in question, nor come forward with its own evidence challenging the veracity of the exhibit.  Under these circumstances, the Court is of the opinion that [the affidavit from the representative of the Internet Archive Company] is sufficient to satisfy Rule 901’s threshold requirement for admissibility.”)(citation omitted).

For example:  “This Court follows the lead of the overwhelming number of courts that have decided the issue and takes judicial notice of the contents of WayBack Machine evidence because they ‘can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.’ Fed. R. Evid. 201(b)(2).” Pohl v. MH Sub I, LLC, 332 F.R.D. 713, 716 (N.D. Fla. 2019).

The Pohl court wrote, in the alternative, that: “As a threshold matter, Plaintiff has not provided a good-faith basis to challenge the authenticity of WayBack Machine evidence…. Even assuming that Plaintiff has proffered a good-faith basis to challenge the authenticity of WayBack Machine evidence, Defendant has produced ‘evidence sufficient to support a finding’ that WayBack Machine evidence is authentic.”

First, the Pohl defendant showed that the page was posted.  Id.  “Second, the proponent of a screenshot from WayBack Machine must show the archived screenshot is what the proponent claims it is—a printout from a particular webpage on a certain date. See Fed. R. Evid. 901(a).”  Id.

On this second point, the Pohl court described the Wayback machine’s use of crawlers as an entirely automated, and therefore reliable, process.  It also found circumstantial indicia of reliability.

As such, the proponent of printouts from WayBack Machine need only provide an “affidavit of a person with personal knowledge who can attest that the third-party crawler operates to create an unaltered copy of a website as it appears on a given day” to satisfy the authenticity requirement under Federal Rule of Evidence 901(a).

Id.; see, e.g., United States v. Penn, WL 4868443, at *5 (D. Colo. Oct. 19, 2021); Denis v. Ige, 2021 WL 3892657, at *2 n. 1 (D. Haw. Aug. 31, 2021), appeal pending.

For a general discussion of authentication of web pages, see  “‘Unfriending Evidence – Maryland Follows ‘Reasonable Juror’ Standard in Authentication of Social Media,” “Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104,” and “Maryland Murder Conviction Reverse Over MySpace Page.”

The hearsay objection in Abdul-Baatin v. LG ChemAmerica, Inc., seems to lack merit.  801(d)(2)(opposing party’s statement); Fed.R.Evid.  Fed.R.Evid. 803(6) (record of regularly conducted activity).

______

[1] Martina Barash, “LG Chem Beats Vaper’s ‘Wayback Machine’ Proof of N.J. Contacts” (Bloomberg, Nov. 12, 2021).

[2] https://1.next.westlaw.com/Document/Idb31031e8e9311da9987d4005bfcdc03/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)

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