332 F.R.D. 713 (N.D.Fla. 2019), 4:17cv181-MW/CAS, Pohl v. MH Sub I, LLC

Docket Nº:4:17cv181-MW/CAS
Citation:332 F.R.D. 713, 104 Fed.R.Serv.3d 1639
Opinion Judge:Mark E. Walker, Chief United States District Judge
Party Name:Mitchell A. POHL, D.D.S., Plaintiff, v. MH SUB I, LLC, d/b/a Officite, Defendant.
Attorney:Alexander Charles Cohen, Joel Benjamin Rothman, Schneider Rothman Ip Law Group, Craig Anthony Wirth, Sriplaw, Boca Raton, FL, Martin Bruce Sipple, Ausley & McMullen, William Harlon Hollimon, Holliman PA, Tallahassee, FL, for Plaintiff. Brian G. Rich, Joseph Peter Jones, Berger Singerman LLP, Tall...
Case Date:October 07, 2019
Court:United States District Courts, 11th Circuit, Northern District of Florida

Page 713

332 F.R.D. 713 (N.D.Fla. 2019)

104 Fed.R.Serv.3d 1639

Mitchell A. POHL, D.D.S., Plaintiff,

v.

MH SUB I, LLC, d/b/a Officite, Defendant.

No. 4:17cv181-MW/CAS

United States District Court, N.D. Florida, Tallahassee Division

October 7, 2019

Page 714

[Copyrighted Material Omitted]

Page 715

Alexander Charles Cohen, Joel Benjamin Rothman, Schneider Rothman Ip Law Group, Craig Anthony Wirth, Sriplaw, Boca Raton, FL, Martin Bruce Sipple, Ausley & McMullen, William Harlon Hollimon, Holliman PA, Tallahassee, FL, for Plaintiff.

Brian G. Rich, Joseph Peter Jones, Berger Singerman LLP, Tallahassee, FL, Matthew Scott Nelles, Euyelit Adriana Kostencki, Nelles Kostencki PLLC, Fort Lauderdale, FL, for Defendant.

ORDER ON MOTIONS IN LIMINE AND SANCTIONS

Mark E. Walker, Chief United States District Judge

This Court has considered, without hearing, parties’ various motions. For the reasons stated below, Plaintiff’s Motion in Limine, ECF No. 87, is DENIED; Defendant’s Motion to Compel or Strike Witness as Sanctions for Spoliation of Evidence, ECF No. 100, is DENIED; Plaintiff’s Motion for Sanctions Regarding Defendant’s Improper Attempts to Rely on Late-Disclosed Witness de Peralta, ECF No. 102, is DENIED; Defendant’s Motion In Limine RE. Screenshots, ECF No. 106, is GRANTED.

At the outset, it bears noting that the parties appear to seek additional discovery, but neither party has moved to re-open discovery. Both parties cite to this case’s procedural posture to justify their late-disclosures and requests for additional discovery.1 If either party seeks additional discovery, they should file the appropriate motion, or should have so moved in the alternative in the motions pending before this Court.

I

This case concerns alleged copyright infringement of photographs of teeth. In April 2016, Plaintiff, Dr. Mitchell A. Pohl, performed a reverse-image search on Google of the before-and-after photos of patient Belinda. ECF No. 40-1, ¶ 21. In doing so, Plaintiff claims to have discovered seven websites on which Belinda’s before-and-after photos appeared— seven websites that were not his own. ECF No. 40-1, ¶ 22. Plaintiff now moves this Court to exclude certain dentists’ website screenshots from WayBack Machine ("WayBack Machine evidence") and the testimony of Mr. Ian de Peralta. ECF No. 87. According to Defendant, the evidence Plaintiff seeks to exclude proves that the before-and-after photos of patient Belinda did not appear on the websites at issue. ECF No. 99, at 1-2. In short, the evidence goes to the root of the infringement analysis.

In response to Plaintiff’s motion in limine, Defendant requests this Court take judicial notice of the WayBack Machine evidence under Federal Rule of Evidence Rule 201. ECF No. 99. Defendant also opposes Plaintiff’s motion to strike the testimony of Mr. de Peralta. ECF No. 99.

While these motions were pending, the parties filed additional motions. Defendant

Page 716

moved to compel or strike witness as sanction for spoliation of evidence. ECF No. 100. Plaintiff filed a response in opposition, and Defendant filed a reply. ECF No. 103 & 104. Plaintiff then moved for sanctions regarding Defendant’s improper attempts to rely on late-disclosed witness de Peralta. ECF No. 102. Defendant filed a response in opposition. ECF No. 105. Finally, Defendant moved to exclude certain screenshots taken by Plaintiff. ECF No. 106. Plaintiff filed a response in opposition. ECF No. 113.

II

This Court first addresses Plaintiff’s motion in limine to exclude WayBack Machine evidence. Defendant requests this Court take judicial notice of WayBack Machine evidence. Federal Rule of Evidence 201 "provides for taking judicial notice of facts that are not subject to reasonable dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonable be questioned." Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999).

Numerous courts, including our sister courts, have taken judicial notice of web pages available through the WayBack Machine. See e.g., Juniper Networks, Inc. v. Shipley, 394 Fed.Appx. 713, at *1 (Fed. Cir. 2010) (indicating, but not holding, that taking judicial notice of archived information may be appropriate); Tobinick v. Novella, Case No. 9:14-cv-80781, 2015 WL 1526196, at *2 (S.D. Fla. Apr. 2, 2015) (taking judicial notice of the Internet Archive’s history of page); Lee v. Michel Habashy, P.A., Case No. 6:09-cv-671-Orl-28GJK, 2010 WL 11626756, at *2 n.1 (M.D. Fla. Aug. 30, 2010) (taking judicial notice of defendant’s phone number after performing a cursory search of the Wayback Machine); Erickson v. Neb. Mach. Co., No. 15-cv-01147-JD, 2015 WL 4089849, at *1 (N.D. Cal. July 6, 2015) ("Courts have taken judicial notice of the contents of web pages available through the Wayback Machine as facts that can be accurately and readily determined from sources whose accuracy cannot reasonable be questioned, ... and the Court does so here."); Pond Guy, Inc. v. Aquascape Design, Inc., Case No. 13-13229, 2014 WL 2863871, at *4 (E.D. Mich. June 24, 2014) (taking judicial notice of the parties’ historical presence as represented by the Internet Archive because "[a]s a resource the accuracy of which cannot reasonably be questioned, the Internet Archive has been found to be an acceptable source for taking of judicial notice."); Martins v. 3PD, Case No. 11-11313-DPW, 2013 WL 1320454, at *16 n.8 (D. Mass. Mar. 28, 2013) ("I take judicial notice of various historical versions of the 3PD website available on the Internet Archive ... as facts readily determinable by resorts to a source whose accuracy cannot reasonably be questioned."); UL LLC v. Space Chariot, Inc., 250 F.Supp.3d 596, 603 n.2 (C.D. Cal. 2017) ("[T]he Court takes judicial notice of archived [ ] webpages because they ‘can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.’ "); Walsh v. Teltech Sys., Inc., Case No. 13-13064-RWZ, 2015 WL 12856456, at *1 n.2 (D. Mass. July 30, 2015) (asking the parties to acquaint themselves with the Wayback Machine, and indicating that the court will take judicial notice of the contents of web pages available through Wayback Machine); Under A Foot Plant, Co. v. Exterior Design, Inc., Case No. 6:14-cv-01371-AA, 2015 WL 1401697, at *2 (D. Or. Mar. 24, 2015) (granting plaintiff’s request for judicial notice of an archived printout from defendant’s website because "[d]istrict courts have routinely taken judicial notice of content from The Internet Archive pursuant to this rule."). These holdings come as no surprise as Intellectual Property lawyers frequently use WayBack Machine to determine issues related to infringement or invalidation of patents, trademarks, and copyrights.

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."...

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