A Tangled Web? The Developing Law of Judicial Notice of Website Author

A Tangled Web?
The Developing Law of
Judicial Notice of Website
Information
By Attorney Albert Shamash
In the 21st century, with increasing, if not yet universal, frequency,
many lawyers and the public at large have come to refer to, if not entirely
rely on, information published electronically on the world wide web.
Often, website information is easier to obtain than from older forms of
publication (printed books, journals and newspapers, for example) and
is more immediately (indeed instantly) available to anyone anywhere in
the world who has access to a computer and a connection to the Internet.1 This ease and immediacy makes it tempting to use the information
obtained as evidence through the process of judicial notice.
Judicial notice is addressed in Article II of the New Hampshire
Evidence Code, which is “virtually identical to Uniform Rule 201 and
Federal Rule of Evidence 201,” as stated in the Reporter’s Notes. These
code provisions, however, are notably silent on whether judicial notice
of website documents should be allowed and, if so, what procedures
should be followed.
This article will briefly summarize the key provisions in the current
New Hampshire Evidence Code (adopted in 1985) and some developing
case law from other jurisdictions since then to highlight some emerging issues and concerns that will probably have to be addressed in New
Hampshire, either through development of the common law or further
refinement of the Evidence Code.
Evidence Code Provisions
Rule 201 of the Evidence Code allows a court to take notice both
of “facts” and of “law.” This dichotomy is presented as follows:
(a) Kinds of facts. A court may take judicial notice of a fact. A
judicially noticed fact must be one not subject to reasonable dispute in
that it is either (1) generally known within the territorial jurisdiction
of the trial court or (2) capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned.
(b) Kinds of law. A court may take judicial notice of law. Law includes
(1) the decisional, constitutional, and public statutory law, (2) rules of
court, (3) regulations of governmental agencies, and (4) ordinances
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Author
Albert F. Shamash is the attorney member of the New Hampshire Board of Tax and Land
Appeals. The views expressed in
this article are his individually
and should not be attributed to
this agency. He is also a member of the Bar’s CLE Committee
and the Bar Journal Editorial
Advisory Board.
of municipalities and other governmental subdivisions of the United
States or of any state, territory or other jurisdiction of the United States.2
For judicial notice to be allowed, facts “not subject to reasonable
dispute” that are not “generally known” must be capable of “accurate
and ready” verification (determination) by reference (resort) to sources
of information “whose accuracy cannot reasonably be questioned.” One key question, not yet framed in any published New Hampshire
decision, is whether any website on the Internet will be considered a
source “whose accuracy cannot reasonably be questioned.” The problem is less acute with “law,” which is also expressly subject
to judicial notice. Notably, the issue of verification is not articulated in
the Evidence Code, presumably because an opposing party would be
expected to make a timely objection if the law was misstated in some
way (such as by a misprint in a law source published on the Internet
or elsewhere).
The Reporter’s Notes give some examples of facts that have been
judicially noticed in the New Hampshire case law. These include facts
as disparate as the population of a congressional district obtained
from a Bureau of the Census publication,3 life expectancy based upon
standard published tables4 and that a disease (muscular dystrophy) is
progressively debilitating by reference to a dictionary definition.5 In
light of the mid-20th century vintage of these cited cases, however, it is
clear why none deal with facts presented on an Internet website. As our
supreme court has recently noted, the Reporter’s Notes do state “[t]he
judge’s choice of sources of information [is] unlimited.”6 This could
conceivably open the door for using the Internet as a source, at least in
the absence of any provision to the contrary, but to date no published
New Hampshire decision has allowed the use of a website for judicial
notice.
The Developing Case Law
A number of federal courts and, to a lesser extent, state courts
have already grappled with various issues pertaining to judicial notice
of website information. By and large, many judges have opted to do
so, albeit with some hesitancy and caution, but others have reached
contrary conclusions and expressed strong concerns in the process.
New Hampshire Bar Journal
Spring 2009
Among the distinctions presented is whether the information comes
from an official government website or a private website, and whether
an adequate foundation for the admission of the website information
has been laid.
A frequently cited case is Dingle v. Bioport, 270 F.Supp.2d 968
(W.D. Mich. 2003),7 where the defendants asked the district court to
take judicial notice of information posted on three private websites
“dedicated to the anthrax vaccine.”8 In Dingle, a key legal issue was
whether or not there had been prior “public disclosure” of the facts
alleged by the plaintiffs in their lawsuit, brought on behalf of the government, concerning alleged violations of the False Claims Act by the
defendants. The court denied the defendants’ request to take judicial
notice of the information on these private websites because the judge
concluded the information was “subject to reasonable dispute” and he
“could not verify the information found on these websites for accuracy
or authenticity;” 9 his analysis was based on Fed.R.Evid. 201(b) which is
substantially the same as Rule 201(a) of the New Hampshire Evidence
Code quoted above. The Dingle court did observe, citing earlier cases,
that “public records and government documents available from reliable
sources on the Internet” are “generally considered ‘not to be subject to
reasonable dispute’”10 One example of government information available on an official
website is the Bureau of Prisons “Inmate Locator.”11 Several district
courts have relied on the information contained on this website to rule
summarily on prisoner habeas corpus petitions (where the prisoner’s
present whereabouts was at issue) without further proof.12 Another
common example is when a court takes judicial notice of information
contained on another court’s website.13 At least one court has used
public and private websites on the Internet to establish the geographic
location of cities, streets and the county seat of government.14 One procedural pitfall for the proponent seeking to introduce facts
available on a government website is illustrated in Polley v. Allen, 132
S.W.2d 223 (Ky. App. 2004). Polley held that it was reversible error for the
trial court to take judicial notice of information from a federal government website because at trial the proponent “did not lay a foundation
to demonstrate the accuracy and reliability of the statistical information. While [she] asserts that the statistics came from the United States
Department of Labor, Bureau of Labor Statistics, she did not identify
the uniform resource locator (url) of the website on which they were
published” and therefore the appellate panel in Kentucky stated it could
not “determine if [the information] was ‘capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably
be questioned.’”15 Judicial notice of private (non-governmental) website information
is more frequently subject to dispute. Here, the inquiry may depend on
who maintains the website and what evidentiary use is intended for the
information obtained. In O’Toole v. Northrop Grumman Corp., 499
F.3d 1218 (10th Cir. 2007), the facts at issue concerned lost earnings
after the plaintiff employee withdrew money from a company retirement account. Despite the defendant company’s objection, the appellate
court had little difficulty affirming the taking of judicial notice by the
trial court of the actual earnings history published on the company’s
Spring 2009
own website. The company had no explanation “why its own website’s
posting of historical retirement fund earnings is unreliable.” The appellate court also noted the company could have asked the trial court
for a Rule 201(e) hearing on the issue, but did not do so. [See footnote
2 supra.]
On the other hand, some reservations have been expressed regarding the use of company website information to make relevant findings,
especially at an early stage in the proceedings. See Victaulic Co. v.
Tieman, 499 F.3d. 227, 236 (3rd Cir. 2007): “While the rules allow
a court to take judicial notice at any stage of the proceedings,. . . we
believe that it should be done sparingly at the pleadings stage. Only in
the clearest of cases should a district court reach outside the pleadings
for facts necessary to resolve a case at that point.” The Third Circuit in Victaulic expressed further concerns. These
include the need for proper authentication (see Article IX of the New
Hampshire Evidence Code), because “[a]nyone may purchase an internet address, and so, without proceeding to discovery or some other means
of authentication, it is premature to assume that a webpage is owned
by a company merely because its trade name appears in the uniform
resource locator.”16 The problems posed by fraudulent websites have
been widely noted, including a recent article in this journal.17 Even
sharper sentiments regarding the propriety of using website information
were expressed by a federal judge in Texas in 1999.18
A second concern expressed in Victaulic involves the recognition
that “a company's website is a marketing tool. Often, marketing material is full of imprecise puffery that no one should take at face value.
[Citation omitted.] Thus courts should be wary of finding judicially
noticeable facts amongst all the fluff; private corporate websites, particularly when describing their own business, generally are not the sorts
of ‘sources whose accuracy cannot reasonably be questioned’ . . . that
our judicial notice rule contemplates.”19 The Victaulic court vacated
the dismissal of plaintiff’s case and remanded for further proceedings,
summarizing its reasoning as follows: “Taking a bare ‘fact’ that is
reflected not in the pleadings, but on a corporate website, and then
drawing inferences against the non-moving party so as to dismiss its
well-pleaded claims on the basis of an affirmative defense, takes us, as
a matter of process, far too far afield from the adversarial context of
litigation.”20 (Emphasis in original.)
Courts have expressed reluctance, if not outright misgivings, about
relying on information revealed by a Google search. The basis for this
reluctance is the knowledge that “Google is continually updating its
search system, and results from an identical search can vary from day
to day.”21 Reluctance has also been expressed regarding taking judicial
notice of information presented in a “Wikipedia Encyclopedia” entry on
the Internet.22 Wikipedia is a well-known, user-edited website and it has
been noted that “Anyone can edit [a Wikipedia] article anonymously,
hit and run. From the very beginning, that has been Wikipedia’s greatest
strength and its greatest weakness.”23
Despite these understandable cautions, an abuse of discretion
can occur if a trial court improperly refuses to take judicial notice of
website information (or to withdraw judicial notice previously granted).
In Denius v. Dunlap, 330 F.3d. 919 (7th Cir., 2003), the appellate
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“…given the range of rulings regarding
judicial notice of website information and the
lack of an express provision in the Evidence
Code, the careful litigator should not blithely
assume that either the trial court or an
appellate court will take judicial notice of
website information…”
court ruled “the district court abused its discretion in withdrawing its
judicial notice of the information from NPRC's official web-site.” The
NPRC (National Personnel Records Center) is a government website
maintained by an agency that is the “repository for millions of military
personnel, health and medical records” as stated on its website and the
appellate court criticized the defendants for contesting the question
of whether judicial notice was proper: “The defendants have simply
caused additional judicial work by contesting a factual issue that, according to information readily available in the public domain, cannot
be reasonably disputed.”24 The Denius court further noted: “Judicial
notice may be taken at any time, including on appeal,” referencing the
federal counterpart to Rule 201(f) [quoted in fn. 2 supra].25
In reviewing a trial court’s rulings on judicial notice, New Hampshire follows the abuse of discretion (unsustainable exercise of discretion) standard.26 As held in State v. Gagnon, reversal of a criminal
conviction is indicated when a trial court improperly takes judicial
notice of an element of a crime that was not proven by the State (an
issue of whether the charged conduct occurred on a “way” as defined in
RSA 259:125).27 Gagnon indicates there will be some degree of appellate scrutiny regarding how and when trial courts take judicial notice,
especially in criminal cases.
Summary and Conclusions
Judicial notice is an established procedural tool for saving valuable
judicial time and avoiding the additional costs imposed on litigants
who would otherwise need to prove facts using more cumbersome and
time-consuming means. As noted by the New Hampshire Supreme Court
in Gagnon, “the underlying theory” of judicial notice “is that there is
no need to prove what everyone knows.”28
Use of judicial notice may also expedite the resolution of cases:
notwithstanding one of the concerns noted in Victaulic, discussed above,
judicial notice can often be employed at a preliminary stage of the
proceedings, such as on a motion to dismiss (when noticed facts outside
the pleadings are relevant );29 courts have also, in some circumstances,
taken judicial notice of facts at the appellate level.30
Nonetheless, given the range of rulings regarding judicial notice
of website information presented above and the lack of an express
provision in the Evidence Code, the careful litigator should not blithely
assume that either the trial court or an appellate court will take judicial
notice of website information if requested to do so simply on the basis
that Internet usage is now such a prevalent and accepted practice. At
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the very least, care should be taken to authenticate the source of any
website information offered to a court.31 Consideration should also be
given regarding who maintains the website (government or a private
source) since the test for judicial notice should involve an analysis of
whether the information source meets the tests of reliability or accuracy,
as well as verifiability. The current New Hampshire Evidence Code simply provides a
general procedural template for resolving judicial notice questions, but
makes no mention of whether it is permissible to take judicial notice
of website information and the appropriate conditions for doing so.
This omission leads to some uncertainties regarding whether a New
Hampshire court will take judicial notice of any particular website information. Courts in other jurisdictions have given differing, sometimes
contradictory, answers to these questions and the issues that have arisen
are likely to gain additional relevance as Internet use (and potential
abuse) continues to increase. The present tangle of concerns awaits a
more definite resolution, either by amendments to the Evidence Code
and/or case law developments in New Hampshire.
Endnotes
1.
For a concise summary of the development and growth of the Internet and publication
of documents on the world wide web, see Reno v. American Civil Liberties Union, 521 U.S.
844, 849-853 (1997).
2.
The remaining four provisions of Evidence Code Section 201 should also be of interest
to the practitioner:
(c) When discretionary. A court may take judicial notice, whether requested or not.
(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to
be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the
absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to
accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the
jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
3.
Levitt v. Maynard, 105 N.H. 447, 448 (1964).
4.
Thibeault v. Brown, 92 N.H. 235, 238 (1942).
5.
Labrie v. Labrie, 113 N.H. 255, 257 (1973).
6.
State v. Gagnon, 155 N.H. 418, 421 (2007).
7.
Aff’d. on other grounds, 388 F.3d 209 (6th Cir. 2004), cert. den., 544 U.S 949 (2005).
8.
Id. at 973. 9.
Id.
10. Id. at 972, citing “Grimes v. Navigant Consulting, Inc., 185 F.Supp.2d 906, 913 (N.D. Ill.
2002) (taking judicial notice of stock prices posted on a website), [and] Cali v. E. Coast Aviation
Servs., Ltd., 178 F.Supp.2d 276, 287 (E.D.N.Y. 2001) (taking judicial notice of documents from
Pennsylvania state agencies and Federal Aviation Administration).”
11.
http://bop.gov/iloc2/LocateInmate.jsp (last visited on February 10, 2009).
12. See, e.g., Marshek v. Eichenlaub, 266 Fed.Appx. 392-93 (6th Cir. 2008), citing Brock
v. United States, 256 Fed.Appx. 748 (6th Cir. 2007).
13. See, e.g., Graham v. Smith, 292 F.Supp.2d 153, 155, n. 2 (Me. 2003); accord, Workman
v. Wolfenbarger, 2009 U.S. Dist. LEXIS 6327 (E.D. Mich. 2009)
14. See United States v. Kelly, 535 F.3d 1229, 1236-37, n. 3 (10th Cir. 2008) (court can
confirm these facts “through simple Internet searches” of official municipality websites and
Mapquest).
15. Polley, 132 S.W.3d at 226.
16. Victaulic, 499 F.3d at 236, citing “United States v. Jackson, 208 F.3d 633, 638 (7th
Cir. 2000) (holding that information from the internet must be properly authenticated to be
New Hampshire Bar Journal
Spring 2009
admitted); [and] In re Homestore.com, Inc. Sec. Litig., 347 F.Supp.2d 769, 782-83 (C.D. Cal.
2004) (‘Printouts from a web site do not bear the indicia of reliability demanded for other selfauthenticating documents under FED.R.EVID. 902. To be authenticated, some statement or
affidavit from someone with knowledge is required . . . .’).”
17. See, e.g., Douglas Whitlock, “Internet Fraud: Preventing and Responding to Phishing and Spoofing Scams,” New Hampshire Bar Journal (Autumn, 2008), pp. 30–33.
18. In St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 774-75 (S.D. Tex.
1999), a case involving proof of ownership of a shrimp vessel, District Judge Samuel B. Kent
wrote:
Plaintiff responds that he has discovered "evidence"--taken off the Worldwide Web on
December 1, 1999--revealing that Defendant does "in fact" own [the] CAPT. LE'BRADO. .
. . (citing data from the United States Coast Guard's on-line vessel data base).
Plaintiff's electronic "evidence" is totally insufficient to withstand Defendant's Motion to
Dismiss. While some look to the Internet as an innovative vehicle for communication,
the Court continues to warily and wearily view it largely as one large catalyst for rumor,
innuendo, and misinformation. So as to not mince words, the Court reiterates that this
so-called Web provides no way of verifying the authenticity of the alleged contentions
that Plaintiff wishes to rely upon in his Response to Defendant's Motion. There is no way
Plaintiff can overcome the presumption that the information he discovered on the Internet
is inherently untrustworthy. Anyone can put anything on the Internet. No web-site is
monitored for accuracy and nothing contained therein is under oath or even subject to
independent verification absent underlying documentation. Moreover, the Court holds
no illusions that hackers can adulterate the content on any web-site from any location
at any time. For these reasons, any evidence procured off the Internet is adequate for
almost nothing, even under the most liberal interpretation of the hearsay exception rules
found in FED.R. CIV.P. 807.
Instead of relying on the voodoo information taken from the Internet, Plaintiff must hunt
for hard copy back-up documentation in admissible form from the United States Coast
Guard or discover alternative information verifying what Plaintiff alleges. Accordingly,
Plaintiff has until February 1, 2000 to garner legitimate documents showing that Defendant
owns the CAPT. LE'BRADO. If Plaintiff cannot provide the Court with credible, legitimate
information supporting its position by February 1, 2000, the Court will be inclined to grant
Defendant dispositive relief."
19.
Victaulic, 499 F.3d at 236.
20.
Id. at 237.
21. Dorner v. Commercial Trade Bureau of Cal., 2008 U.S. Dist. LEXIS 70425 (E. Dist.
Cal. 2008) at p. 5.
22. Cynergy Ergonomics, Inc. v. Ergonomic Partners, Inc., 2008 U.S. Dist. LEXIS 39039 (E.D. Mo. 2008) at p. 6.
23. James Glerick, “Wikipedians Leave Cyberspace, Meet in Egypt,” Wall Street Journal,
Vol. 252, Issue 33 (August 8, 2008) at W1.
24.
Denius, 330 F.3d at 927.
25.
Id. at 926.
26. State v. Gagnon, 155 N.H. at 419, citing State v. Cox, 133 N.H. 261, 266 (1990) (“abuse
of discretion”) and State v. Lambert, 147 N.H. 295, 296 (2001) (explaining what is meant by
the “abuse of discretion” or “unsustainable exercise of discretion standard”).
27.
Id. at 419-20.
28.
Id., quoting from C. Douglas, New Hampshire Evidence Manual 59 (4th Ed. 2000).
29.
See., e.g,. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F3d 1025 (9th Cir. 2008).
30. Compare Denius, discussed supra, with F & G Research v. Paten Wireless Tech, Inc.,
2007 U.S.App. LEXIS 24246 at pp. 7-8 (Fed. Cir. October 15, 2007), where the appellate court
refused to take notice of information on four company websites because “fact-finding is the
basic responsibility of district courts, rather than appellate courts,” quoting DeMarco v. United
States, 415 U.S. 449, 450 (1974). Cf. State v. Gagnon, 155 N.H. at 421-22.
31. For an example of how to request judicial notice of website information, see www.courtinfo.
ca.gov/courts/supreme/highprofile/documents/s168302-motion-judsupport.pdf (last accessed
on February 11, 2009). This site contains a motion for judicial notice, legal memorandum and
supporting factual declaration filed with the California Supreme Court on November 17, 2008
(to notice the “Official Title and Summary of Proposition 8” issued by the Secretary of State
and posted on this agency’s website). For a detailed discussion of how to authenticate Internet
website postings and other forms of "ESI" (electronically stored information) under the federal
rules, see Lorraine v. Market American Ins. Co., 241 F.R.D. 534, 537-38 and 555-56 (D.Md.
2007). 4 Reasons to Take a DOVE Case
“DOVE provides the opportunity for
me to provide short-term service to the
victims of domestic violence at a time
when they need help and support the
most.”
Attorney Kysa Crusco
“One reason many of us went to law
school was the prospect of representing
the downtrodden and abused. That is
exactly what the DOVE cases involve.
I find it very rewarding to spend some
time helping someone who has been
abused and has no real chance without
our help.”
Attorney Jack B. Middleton
“As lawyers, we have a unique
opportunity to help vulnerable people.
DOVE is a great program that enables
lawyers to advocate for survivors
and have an immediate and positive
impact.”
Attorney David L. Nixon
“A lawyer is often the domestic violence
victim’s last best hope for protection.”
Attorney Donald F. Hebert
For more information contact Pam Dodge, DOVE Project, 2 Pillsbury Street, Suite 300, Concord, NH 03301
or call Pam Dodge @224-6942 Ext. 3230 or email [email protected]
Spring 2009
New Hampshire Bar Journal
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