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Court Rules on Request for Nonpublic Data Scraped from Websites

August 27, 2018

Fenwick litigation partner Charlene Morrow talked to Bloomberg Law about a recent U.S. District Court for the District of Northern California decision compelling a website that hosts an online archive of old, expired webpages to provide evidence showing a company had hid trademark-infringing sales.

The court ruled that Levi Strauss & Co. can compel Internet Archive—which operates the Wayback Machine webpage depository—to produce documented efforts by a Germany-based jeans company to remove its webpages, along with any nonpublic copies of past webpages.

Morrow told Bloomberg Law that Internet Archive fulfills uncontested discovery requests to validate the source and date of pages found in its archive, but that Levi Strauss’ request for nonpublic information scraped from websites sets the request apart.

“It’s an unusual case because they’re trying to get information about how Internet Archive internally operates, and that’s not the usual request they get,” Morrow said.

She noted that Internet Archive’s ability and willingness to fulfill the request for old versions of the sites will depend on whether it stores nonpublic pages, and how burdensome its system makes retrieving them.

The court’s decision involved the use of 28 U.S.C. § 1782 to obtain evidence from U.S.-based entities for use in foreign proceedings.

Morrow co-authored an article with Fenwick’s Guinevere Jobson on how § 1782 can be a powerful tool as the number and complexity of cross-border and multi-jurisdictional disputes increases.

Read the full Bloomberg Law article.