EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, November 27, 2011

Give It A Shot: Northern District Of Texas Finds Printout Of Screen Shot Satisfies Best Evidence Rule

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

So, let's say that a litigant takes a screen shot of a web page, prints out the screen shot, and then seeks to introduce the printout into evidence. Does the printout satisfy the Best Evidence Rule? According to the recent opinion of the United States District Court for the Northern District of Texas in Conceal City, L.L.C. v. Looper Law Enforcement, LLC, 2011 WL 5557421 (N.D.Tex. 2011), the answer is "yes."

In Conceal City

Conceal City allege[d] that the Looper defendants and the Wiesners [we]re liable on three grounds: patent infringement, in violation of 35 U.S.C. § 271; false marking, in violation of 35 U.S.C. § 292; and unfair competition, under Texas law. The parties' dispute involve[d] a holster covered by U.S. Patent No. 5,570,827...The '827 patent intends to improve upon the inside-the-pants pistol holster. It does so by using stiff leather for the inner and outer layers and extending the layers forwardly and rearwardly to form wings. The wings maximize the flatness of the holster and thereby minimize the bulge of the pistol. The patented holster also permits the user to wear a pager or pager-like device to cover the clip connecting the holster and waistband. From the exterior, only the pager or pager-like device is visible. The intended result of these two improvements is to better conceal the pistol.

Before trial, Conceal City sought

a preliminary injunction enjoining defendants from using the production dies; manufacturing, distributing, or selling an infringing holster; and engaging in misleading advertising, such as marking the Hyde–It Holster as related to the '827 patent and advertising that the Wiesners' company is the home of the "Cell/PDA Pal."

As support for its claim that the Wiesners committed patent infringement,

Conceal City offer[ed] in evidence a screen shot of the Wiesners' website, universalholsters.com, which twice states that the Hyde–It Holster is "patented" and refers to "US Patent # 5570827" at the bottom of the page.

Conceal City objected that the admission of the printout of the screen shot violated the Best Evidence Rule, but the Northern District of Texas disagreed, concluding that the printout was an "original" for Best Evidence purposes under Federal Rule of Evidence 1001(3), which states in relevant part that

If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."



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