Capturing Online Evidence Before It's Gone (Specht v. Google)

As legal teams address the myriad aspects of a case, it can be easy to overlook the importance of securely capturing and preserving digital content, such as websites, social media sites, and online videos. After all, the evidence is publicly available, and even if it gets removed, there are tools such as the Internet Archive (also known as the Wayback Machine) that can demonstrate what a site looked like in the past – right?

Unfortunately for many attorneys and their clients, overreliance on the Wayback Machine is a risky strategy. Courts have rejected captures from such archive sites as inadmissible without proper authentication, emphasizing the importance of establishing rigorous online evidence collection processes for your team – even before litigation commences and/or critical evidence is removed.

Specht v. Google Inc., 747 F.3d 929 (7th Cir. 2014) exemplifies the criticality of proper digital evidence authentication in legal proceedings, particularly intellectual property litigation. In Specht, Plaintiffs brought trademark infringement and unfair competition claims against Google for infringing upon Plaintiffs’ “Android Data” trademark. Google challenged Plaintiffs’ submission of screenshots from an internet archive service showing webpages that displayed the Android Data mark. The district court excluded these screenshots as not properly authenticated due to the lack of an affidavit describing the reliability of the archive service. The Seventh Circuit affirmed the district court’s ruling, stating that the district court correctly “required authentication by someone with personal knowledge of reliability of the archive service from which the screenshots were retrieved.” Id. at 933.

This case highlights the need for attorneys to ensure that any digital evidence, whether from an internet archive or directly from a website, is properly authenticated before presenting it in court. Under Federal Rules of Evidence 901(b)(9) and 902(13), this requires a declaration from a qualified person that includes all details of the process by which the content was collected. When digital evidence is captured via simple screenshots, the process usually is not documented sufficiently to enable an attorney to produce an adequate certification, resulting in the exclusion of evidence and impacting case outcomes.

The outcome in Specht may have differed if the plaintiffs’ legal team had captured and preserved the original web pages displaying the Android Data mark with Page Vault. Unlike traditional screenshots, Page Vault's patented technology ensures that captures are of high quality and include important metadata that authenticates the evidence. Page Vault captures also include affidavits that explain when and how the capture was made, in accordance with relevant rules of evidence, removing the burden from attorneys and paralegals.

Intellectual property litigation teams should consider capturing online evidence as soon as possible, even before the litigation process formally begins. Doing so, especially with an easy-to-use, fast, and accurate capture tool like Page Vault, will avoid the risky practice of relying on screenshots of internet archiving services and provide high-quality, legally defensible evidence that can be relied upon in court.