Relying on Internet Sources in the Appeals Courts

JurisdictionUnited States,Federal
CitationVol. 44 No. 11 Pg. 81
Pages81
Publication year2015
44 Colo.Law. 81
Relying on Internet Sources in the Appeals Courts
Vol. 44, No. 11 [Page 81]
The Colorado Lawyer
November, 2015

Columns

Appellate Practice

Relying on Internet Sources in the Appeals Courts

By Christina F. Gomez

This column provides practical, how-to articles on appellate practice that discuss recent decisions from the Colorado Supreme Court, the Colorado Court of Appeals, the U.S. Supreme Court, and the Tenth Circuit. Column Editors Marcy G. Glenn (mglenn@hollandhart.com), Christina F. Gomez (cgomez@hollandhart.com), and Stephen G. Masciocchi (smasciocchi@hollandhart.com) are partners with the law firm of Holland & Hart LLP, and are members of the firm’s Appellate Practice Group. Reader feedback is welcome.

Judge Richard Posner, U.S. Court of Appeals for the Seventh Circuit, recently reignited the debate over Internet research by appellate courts when he cited his own medical research findings from various websites—including the National Institutes of Health, Mayo Clinic, WebMD, Wikipedia, and a drug manufacturer—in reversing a summary judgment decision on a prose prisoner's deliberate indifference claim.[1] Writing for the majority in Rowe v. Gibson, Judge Posner acknowledged that the website materials were neither in the trial court record nor the subject of judicial notice. Nonetheless, he inquired, "is there no room for anything in between?"[2]

Judge Posner apparently found that "something in between," concluding that the materials did not themselves create a triable issue, but did "underscore the existence of a genuine dispute of material fact" already in the record.[3] In particular, the materials gave credence to the prisoner's testimony that he suffered severe pain each day when prison officials refused to let him take the Zantac prescribed for his gastroesophageal reflux disease when he ate, instead giving it to him several hours before and after his meals. They also cast doubt on the medical opinion of the prison doctor (himself a defendant) that the Zantac did not need to be taken before or with a meal to be effective.[4] Judge Rovner concurred in the result, but expressed that there was no need to rely on extra-record Internet research to support it.[5]

In a forceful dissent (to which Judge Posner responded in a separate Appendix[6]), Judge Hamilton criticized the majority decision as "an unprecedented departure from the proper role of an appellate court."[7] He opined that Internet research can be appropriate "to provide context and background information to make court decisions more understandable," but not "to find a genuine issue of material, adjudicative fact, and thus to decide an appeal."[8] According to Judge Hamilton, this practice violates the rules of evidence and the law of judicial notice, prevents the factual record from being closed on appeal, and threatens the neutrality of the courts.[9]

The Seventh Circuit judges' disagreement over the proper use of Internet research highlights an important issue facing appellate courts and practitioners across the nation: When is it appropriate to rely on extra-record information gleaned from the Internet?

Using Extra-Record Materials on Appeal

Ordinarily, appellate courts will not decide cases based on materials that are not in the trial court record.[10] A limited exception applies if the appeals court takes judicial notice of the materials —which requires that the facts stated in those materials be either generally known within the court's jurisdiction or capable of accurate and ready determination from sources whose accuracy cannot reasonably be questioned.[11]

But in practice, parties sometimes refer to extra-record, non-judicially noticed materials in their appellate briefs; amicus curiae regularly cite information and statistics from outside sources; and appellate courts frequently cite similar sources in their opinions. This practice has dramatically increased in the last several years, with the proliferation of resources available over the Internet. So why are parties and courts doing it, and is it problematic?

The Appeals Courts' Reliance on Internet Sources

The Tenth Circuit recognized several years ago that "[i]t is not uncommon for courts to take judicial notice of factual information found on the world wide web."[12] Indeed, in the past ten years, federal and state appellate courts in Colorado cited Internet information in more than 250 published opinions and many more unpublished opinions.[13] Yet in most cases, the courts simply cited the information, without taking judicial notice of it.

A review of the way the appeals courts are using Internet sources is helpful, both to understand what kinds of online information may be useful to the courts and to consider the limitations and appropriate bounds on such use. Below is a summary of the ways in which Colorado's federal and state appellate courts have used Internet sources over the last ten years.

Defining Terms

Courts have long relied on dictionaries as an aid in interpreting statutory, regulatory, and contractual terms, and are increasingly turning to online dictionaries to do this.[14] Occasionally, courts cite other, non-dictionary sources for this purpose. For instance, the Tenth Circuit cited Investopedia.com to describe an investment term,[15] the Colorado Supreme Court cited an online Lexis-Nexis® publication to describe a medical term,[16]and the Colorado Court of Appeals cited REI's website to define a term used in skiing.[17] Relying on less known, less reliable sources could be problematic in some instances, but in each of these cases the court simply used the source to explain terms relevant to the case, not to interpret the language of a statute or contract.

Explaining Background Facts

Courts frequently cite Internet sources to explain background facts that are not explained by the record. For example, in a wrongful death action filed after a motorist struck a road construction worker, the Tenth Circuit noted that the normal speed limit was not in the record but could be approximated from a state highway website.[18] In a First Amendment case challenging the designated locations for protest activities, the Tenth Circuit took judicial notice of a Google map and satellite image of the site.[19] And in a Social Security appeal, the Tenth Circuit cited online medical resources to explain the claimant's health...

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