The Legal Intelligencer

Authors: Colin E. Wrabley M. Patrick Yingling

Facts are crucial—indeed, typically decisive—in litigation. In our civil justice system, determining the facts depends on the litigants, who discover, present and rebut evidence to prove their version of the relevant facts, all in an adversarial system designed to reveal the truth.

With growing frequency, however, courts in this information age—including appellate courts—are "finding" facts by "Googling," or researching on the Internet and then taking "judicial notice" of facts found online. And courts are finding a variety of facts this way, from facts about Lyme disease, as in Gent v. CUNA Mutual Insurance Society, 611 F.3d 79, 84 n.5 (1st Cir. 2010); the number of games that a National Football League lineman played in California, as in Matthews v. NFL Management Council, 688 F.3d 1107, 1113 (9th Cir. 2012); and even that "there are lots of different yellow rain hats," as in United States v. Bari, 599 F.3d 176, 178-81 (2d Cir. 2010).

What is the significance of this increasingly common practice of judicial Internet fact-finding? While we don't get to the bottom of this important question here, we highlight some of the critical issues implicated by judicial Internet research and fact-finding. In doing so, we will discuss the most recent and prominent example of appellate "Googling"—Judge Richard Posner's opinion for the U.S. Court of Appeals for the Seventh Circuit in Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015), where the court reversed a grant of summary judgment based in part on facts found on various websites and extra-record materials.

The ramifications of Posner's opinion could be significant—from minor changes in rules governing judicial notice of facts outside of the record, to more consequential changes in our adversarial fact-finding system. Most immediately though, the circuit's opinion should send a signal to litigants and practitioners alike that it is critical to understand the courts' evolving approaches to the factual record and the practice followed in the court in which they find themselves.

Judicial Notice and the Internet

Canon 2.9(c) of the American Bar Association's Model Code of Judicial Conduct states that "a judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed." The canon thus lays out the two avenues for determining facts—the parties' adversarial presentation of evidence and the court's taking of "judicial notice." In the federal system, judicial notice is governed by Federal Rule of Evidence 201, which provides that a "court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within the trial court's territorial jurisdiction; or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." "Generally known" facts are readily understood—ducks are birds, the world is round, France is in Europe. Facts in the second category—those "whose accuracy cannot reasonably be questioned"—include those found in government documents, dictionaries, maps and encyclopedias.

Courts have been reluctant to expand this second category of judicial notice, insisting that the fact at issue be genuinely indisputable. Indeed, even since the advent of the Internet, many courts have maintained their strict view of judicial notice—reflected, for example, in their frequent refusal to take judicial notice of facts found on websites such as Wikipedia, as held in Badasa v. Mukasey, 540 F.3d 909, 910-11 (8th Cir. 2008), or even more "official" sources, such as the website for the New York State Department of Insurance, as in NYC Medical and Neurodiagnostic v. Republic Western Insurance, 798 N.Y.S.2d 309, 313 (N.Y. App. Term 2004).

Still, however, there is no denying the growing trend of courts opening up their Web browsers, searching for facts they cannot find in the record, and taking judicial notice of facts found online. As two commentators recently observed, while in 1997 11 federal appellate court decisions cited to Internet sources, in 2014, that number had risen to over 600.

Internet fact research by courts is here to stay, it seems, but important questions remain: What websites and facts are trustworthy? Can any fact—regardless of how pivotal to the case—be "found" online in the absence of party-presented evidence? And what about appellate judges judicially noticing facts found online during an appeal, where the parties lack a meaningful opportunity to respond to those facts? Enter Posner and his recent opinion in Rowe.

Posner’s Online Zantac Research

Rowe involved a prison inmate, named Jeffrey Rowe, who was diagnosed with gastroesophageal reflux disease and prescribed Zantac, which he was supposed to take twice a day with meals. However, Rowe was told that he would be allowed to take Zantac only at 9:30 a.m. and 9:30 p.m., even though his meals were scheduled for 4 a.m. and 4 p.m. Rowe complained and later brought suit, alleging deliberate indifference to a serious medical need. But the district court granted summary judgment to the defendants, concluding that Rowe failed to rebut the prescribing doctor's affidavit stating that it did not matter what time of day Rowe received his Zantac.

A divided Seventh Circuit panel reversed the decision. Posner's majority opinion is filled with assertions of fact supported by online authorities, but not the summary judgment record. Although Posner cited some online authorities only to support background facts, such as the fact that Zantac is "merely a trade name for ranitidine," he cited other online authorities to contradict the doctor's opinion and create a genuine issue of material fact. For example, Posner found that, according to Zantac's manufacturer: "While Zantac can be taken at any time 'to relieve symptoms,' in order 'to prevent symptoms' it should be taken '30 to 60 minutes before eating food or drinking beverages that cause heartburn.'"

Posner defended his reliance on extra-record facts that were unsuitable for judicial notice under Rule 201. He acknowledged that those facts "tend[ed] to fall somewhere between facts that require adversary procedure to determine and facts of which a court can take judicial notice," but he concluded they were "closer to the second in a case like this in which the evidence presented by the defendants in the district court was sparse and the appellate court need only determine whether there is a factual dispute sufficient to preclude summary judgment." In dissent, Judge David Hamilton called the majority opinion "unprecedented" and countered that "the enterprise of judicial factual research is unreliable when it loses the moorings to the law of judicial notice."

Differing Approaches

Posner's approach to Internet research and judicial notice recognizes a category of judicially noticeable facts that are neither "generally known" nor "indisputable." The Second Circuit, in Bari, took a similar but more limited approach, finding that judicial notice is appropriate to "confirm hunches with a brief visit to a favorite search engine that in the not-so-distant past would have gone unconfirmed."

Other circuits appear to take a different tack. The Third Circuit, for example, has suggested that facts obtained through judicial Internet research can be used to provide background details, as in United States v. Walker, 529 F. App'x 256, 265 & n.2 (3d Cir. 2013), which cited the Urban Dictionary's definition of "murse" as "a man-purse" in a case pertaining to purse ownership, but cannot generally be judicially noticed under Rule 201, as in Victaulic v. Tieman, 499 F.3d 277, 236 (3d Cir. 2007). In particular, contrary to Posner's view in Rowe, the Third Circuit in Victaulic concluded that facts found on a corporate website could not be judicially noticed or otherwise relied upon to reach a decision.

The Internet has ushered in a new information age—an era that, it should come as no surprise, has already elicited enormous changes in our legal system. The easy access to massive amounts of information is irresistible to judges, appellate judges included. Perhaps, within limits, appellate Internet-based fact-finding, such as Posner's in Rowe, is something our profession should welcome as a means of better achieving the right and just result. What those limits are, however, and whether new safeguards are necessary are issues that the profession will need to grapple with seriously. In the meantime, litigants and practitioners—especially in appeals—would be wise to remember that the evidentiary record in their cases may never truly be closed. Key facts may be lurking somewhere in the vast realm of the World Wide Web, and courts may even be willing to base their rulings on those facts.

 

Reprinted with permission from the November 18, 2015 edition of the “The Legal Intelligencer”© 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.