Report: “American Airlines Told Internet Archive Not Evidence in Refund Suit”

From Law360:

A Texas federal judge has asked American Airlines Inc. for more evidence that it can compel arbitration under a third-party travel agency’s terms of use with passengers seeking refunds for flights canceled due to COVID-19, saying search results pulled from an internet archive website won’t suffice.

U.S. District Judge Reed O’Connor ordered the airline on Friday to submit either a declaration or deposition supporting its argument by Oct. 30, ruling he will not accept as evidence a copy of Expedia Group’s and Hotwire’s terms of use pulled from nonprofit library Internet Archive’s Wayback Machine, which allows users to retroactively view websites and pages on certain dates.

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“Although American is correct that numerous district courts have taken judicial notice of documents on Wayback Machine pursuant to Federal Rule of Evidence 201, none of the cases upon which American relies is a decision from the Fifth Circuit or a district court within the Fifth Circuit,” the judge said. “Further research also reveals that the organization that maintains waybackmachine.org itself disclaims any guarantee that the results it produces are accurate.”

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