The Google Knows Many Things: Judicial Notice in the Internet Era
| Jurisdiction | United States,Federal |
| Citation | Vol. 39 No. 11 Pg. 19 |
| Pages | 19 |
| Publication year | 2010 |
2010, November, Pg. 19. The Google Knows Many Things: Judicial Notice in the Internet Era
November 2010
Vol. 39, No. 11 [Page 19]
The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.
Coordinating Editors
Eric Bentley, Colorado Springs, of Flynn Wright and Fredman LLC-(719) 578-8444, ebentley@fwflegal.com; Timothy Reynolds, Boulder, of Holme Roberts and?Owen, LLP, (303) 417-8510, timothy.reynolds@hro.com
About the Author
David J. Dansky's practice includes professional negligence and business litigation-david@djdanskylaw.com.
Increasingly, courts have been willing to take judicial notice of facts ascertained from the Internet. Although the use of websites for this purpose has been constrained by considerations unique to the Internet, these constraints are being relaxed as courts become accustomed to relying on the Web for accurate information.
Is a "quickie" a brief, furtive sexual encounter or is it the brand name of a wheelchair? This was one of the questions confronting U.S. District Court Judge Victor Marrero during a bench trial as he tried to decide whether to believe the testimony of the plaintiff paralegal or her boss. The paralegal claimed that her boss created a hostile work environment by, among other things, constantly making lewd and suggestive comments to her.
At one point, the paralegal testified that her boss told her at the firm's Christmas party to keep his wife occupied while he went "into his office for a quickie" with his current girlfriend. "Just the reverse," countered the boss, "my wife was in a wheelchair. She was a paraplegic. And she was seated in a Quickie. That's the brand name of that titanium and very expensive wheelchair."
Judge Marrero did what almost anybody else in this day and age would do: he looked it up on the Internet. He discovered that "Quickie" is indeed the brand name of a wheelchair. He took judicial notice of that fact, and proceeded to toss the plaintiff's case out of court.(fn1)
Judge Marrero was not the first judge to use the Internet to help him decide an issue and he certainly will not be the last. This raises the following question: Was it appropriate for the judge to rely on a website to take judicial notice of this fact? This article attempts to answer that question.
Internet Creep
Nobody knows how immense the Internet is. According to one estimate, the world's information production in a single year (2006) was 161 exabytes or 161 billion gigabytes of individual bits of information, much of which is or will be online. In 2010, the world's data output might approach something called a zettabyte-a 1 followed by 21 zeros.(fn2)
That is a great deal of information. The Library of Congress, with 130 million items on approximately 530 miles of bookshelves-including 29 million books, 2.7 million recordings, 12 million photographs, 4.8 million maps, and 58 million manuscripts-can be stored on 10 terabytes (10,000 gigabytes). So, the Library of Congress could be stored 161 million times over in the world's current data glut. The Internet, according to one study, is populated by 168 million websites; Google says it has indexed more than a trillion individual Web pages.(fn3)
The Internet first crept into the practice of law and then transformed it. Older lawyers might recall having a special room at the office-called a library-that had bookshelves in it. On those bookshelves sat quaint little objects called books-the Colorado Reporter and the like. Now all those volumes have gone the way of the dinosaur, replaced by a little screen and a modem. There is more usable, relevant, current, and easily searchable legal data sitting on the top of most lawyers' desks than was ever available in a good-sized legal library back in the day.
People pump information into the World Wide Web for a variety of reasons. Some want to sell something and others want to vent, chat, rant, recruit, alarm, or inform. It is easy, free, unedited, anarchic, and unregulated. As a result, online information comes in all calibers of quality and reliability, from junk to the latest article from The New England Journal ofMedicine.
In the legal context, the following questions arise:
* Is there anything one can find on a website that is so reliable as to be beyond reasonable dispute?
* When, if ever, is it legitimate for a court to take judicial notice of adjudicative facts that are brought to its attention from the Internet?
Judicial Notice: The Basics
Judicial notice occurs when a court makes an on-the-record declaration of the existence of a fact normally decided by the trier of fact, without requiring proof of that fact. Only a fact whose truth or existence is so clear that no room is left for any reasonable mind to dispute it is a candidate for judicial notice. The purpose of judicial notice is twofold: (1) to promote judicial efficiency, and (2) to keep juries from making findings that would nullify reality. As one treatise puts it, judicial notice "controls the jury to prevent it from finding the world is flat but also makes jury service more tolerable by not forcing the jurors to endure harangues from lawyers from the Flatlanders."(fn4)
Rule 201 of the Colorado Rules of Evidence (this rule and its identically worded federal counterpart are referred to here as Rule 201) governs the use of judicial notice of adjudicative facts. Judicial notice of legislative facts or "non-evidence" facts is not governed by this rule.(fn5) Adjudicative facts are those facts that pertain to the transaction or event at issue between the immediate parties to a lawsuit-the "who, what, where, when, how, and with what motive or intent" of a particular case, the dispositive facts of the case.(fn6)
Under Rule 201(b), an adjudicative fact can be established by judicial notice rather than by the formal presentation of evidence only if the fact is not subject to reasonable dispute. A fact is not subject to reasonable dispute if it is either: (1) "generally known within the territorial jurisdiction of the trial court";(fn7) or (2) "capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned."(fn8)
Procedure
A party is entitled on timely request to a hearing regarding the propriety of court taking judicial notice and the tenor of the matter noticed.(fn9) A court can take judicial notice of an adjudicative fact at any stage of the proceeding, including the appellate stage.(fn10) In a civil case, the jury must be instructed that a fact judicially noticed is to be accepted as conclusively proved.(fn11) In a criminal case, the jury must be instructed that it may, but is not required to, accept as conclusive any fact judicially noticed.(fn12) The Colorado appellate courts have repeatedly cautioned that because taking judicial notice of adjudicative facts entails bypassing the normal fact-finding process, courts should be slow to use it, reserving it only for the clearest of cases.(fn13)
Other Rules of Evidence
Rule 201 does not trump other exclusionary rules of evidence. An adjudicative fact does not become admissible just because it is indisputable. Irrelevant evidence does not become relevant if it is the subject of judicial notice and prejudicial evidence does not become any less prejudicial if it is judicially noticed.(fn14)
The relationship between Rule 201(b)(2) and the hearsay rules, particularly Rule 802,(fn15) requires careful consideration. Hearsay and judicial notice considerations overlap but are not identical: "It takes more than an exception to the hearsay rule . . . to justify judicial notice."(fn16) That something more is indisputability.
The most common use of judicial notice under 201(b)(2) is in noticing the contents of court records,(fn17) and it is in this area that the interaction between the judicial notice and hearsay rules has the greatest "capacity for mischief."(fn18) Courts routinely determine that their own records and files are sources whose accuracy cannot be reasonably disputed. This does not mean, however, that all the information that finds its way into a court file is eligible for judicial notice. A court may take judicial notice from its files that a pleading was filed on a certain date, or that a judgment was entered against a certain person, or that a witness testified to x; however, it is generally recognized that a court will not take judicial notice of the truth of the pleading or of the testimony.(fn19)
The Tactical Advantages of Judicial Notice
There are clear tactical advantages in persuading a court to take judicial...
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