The Wayback Machine can be incredibly helpful in all kinds of cases. It allows you to pull previous copies of a website, seeing how it looked months or years ago. You can pull old local rules from circa 2007 and see the actual PDF; you can find out if that prior art product was on sale back in 2010; you can you can see exactly when the opposing party started (or stopped) marking their products.
But can the Court take judicial notice of a Wayback machine page? Judge Fallon addressed that issue last week for (as far as I know) the first time in Delaware. She answered no, the Court cannot:
InformData asks the court to take judicial notice of three printouts of webpage captures from the Wayback Machine. . . . Although some courts have taken judicial notice of the contents of webpages available through the Wayback Machine, InformData cites no binding authority requiring this court to do so. At this stage of the proceedings, the court is persuaded by case authority holding that evidence from the Wayback Machine "is not so reliable and self-explanatory that it may be an appropriate candidate for judicial notice." Weinhoffer v. Davie Shoring, Inc., 23 F.4th 579, 584 (5th Cir. 2022) . . . ; see also Ward v. Am. Airlines, Inc., 2020 WL 8300505, at *1 (N.D. Tex. Oct. 16, 2020) (explaining that "the organization that maintains waybackmachine.org itself disclaims any guarantee that the results it produces are accurate."). Consequently, the court declines to take judicial notice of the webpage capture printouts.
SambaSafety Inc. v. Sentinel Information Systems LLC, C.A. No. 24-1224-RGA, D.I. 43 at 1-2 n.3 (D. Del. Dec. 16, 2025).
Of course, the Court noted that it declined to take notice "[a]t this stage of the proceedings," and the outcome might change depending on the context in which judicial notice is requested.
Here, the defendant had requested judicial notice of a prior version of its website, in a trade secret action, to show that it had possessed the alleged trade secret information prior to any alleged access to the plaintiff's trade secrets. Id., D.I. 26 at 3.
Would requesting judicial notice under different circumstances impact the analysis? I can imagine circumstances where it might go the other way, but it's hard to say.
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