As commerce and business transactions continue to move online at a rapid pace, relevant evidence is increasingly found on web pages. Web pages may contain not only facts, such as “who said what and when,” but also applicable contractual terms. The web, however, is in a constant state of flux. That creates challenges for attorneys, who may find themselves needing to rely on copies of web pages that have since been modified. In Weinhoffer v. Davie Shoring, the U.S. Court of Appeals for the Fifth Circuit addressed the novel issue of when district courts can properly take judicial notice of contract terms evidenced only by a “snapshot” of a web page from a web archive such as the Internet Archive’s “Wayback Machine.”
The case, decided in January, arose from an online auction conducted in connection with a bankruptcy liquidation proceeding. Under the auction contract, the bidder’s liability was limited to 20% of the bid price if the bidder breached the auction contract. Defendant Davie Shoring Inc. won the auction for a modular housing module, but refused to pay its bid, citing difficulties in physically removing the housing module from storage.
