"Can You Do a Wayback on That?" The Legal Community’s Use of Cached Web Pages in and out of Trial by Matthew Fagan

Can cached web sites be introduced as evidence at trial in civil and criminal cases, and, more pointedly, should they be? … In Part II, I describe webcaching technology and the different kinds of webcaching services to provide a better understanding of the strengths and weaknesses of this technology. Following this is an overview of how caching is currently used in the legal community and a discussion of representative cases where the issues prevalent in caching arise. Parts III and IV discuss the strengths and weaknesses, respectively, of caching services. Next, in Part V, I review the admissibility of cached web pages under the Federal Rules of Evidence. Finally, Part VI presents recommendations on how the legal community can effectively use cached web pages while avoiding some of the major pitfalls of archived web sites.

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