Judicial Notice of Internet Evidence

websites.1With the explosion of the Internet over the past 20 years, some practitioners would say it was only a matter of time before courts started to take judicial notice of Internet evidence. With the proliferation of websites whose content is monitored for accuracy, more and more courts are doing just that. Courts are now willing to take judicial notice of evidence that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned pursuant to Fed. R. Evid. 201(b)(2). Of course, whether or not the court will take judicial notice of evidence from the Internet will largely depend on the website where the evidence was located.

I. GOVERNMENT WEBSITES

Federal, state and municipal websites, including those of governmental agencies, are considered self-authenticating under Fed. R. Evid. 902(5), which provides that “official publications” are self-authenticating. Fed. R. Evid. 902(5) defines “official publications” to include “a book, pamphlet or other publication purporting to be issued by a public authority.” Although electronically stored information (“ESI”) is not specifically mentioned in the Rule, courts have held that ESI is included in the phrase “other publications.” See, e.g., Williams v. Long, 585 F. Supp. 2d 679, 688 n. 4 (D. Md. 2008) (Rule 902(5) provides for self-authentication of “other publications” and it is the act of posting information on the Internet by a qualifying public authority that is the act of publication). As a general rule, because records and information located on government websites are self-authenticating under Fed. R. Evid. 902, the courts will typically take judicial notice of the content on the government’s website. Newton v. Holland, 2014 WL 318567 (E.D. Ky. Jan. 29, 2014). That includes judicial notice of the content on federal, state and municipal agencies’, departments’ and other entities’, including government-owned corporations’ websites. (citations omitted). Courts have also taken judicial notice of the content of foreign governments’ websites, particularly to establish the law of the relevant foreign jurisdiction. United States v. Broxmeyer, 699 F. 3d 265, 296 (2d Cir. 2012). Courts commonly take judicial notice of website data compiled or generated by a governmental entity for the truth of the matters asserted, provided that the facts at issue are not subject to reasonable dispute.

II. NON-GOVERNMENTAL WEBSITES

Although courts are generally reluctant to take judicial notice of evidence from non-governmental websites, there are still many circumstances in which judicial notice of non-governmental websites is appropriate. One example would be the website of a corporate or other private-sector organization. Whether a court will take judicial notice of the content of the corporate or other private-sector organization’s website mainly depends on the nature of the content at issue and the purpose for which judicial notice is taken. Corporations that are subject to federal security laws are also subject to civil and criminal penalties for false statements in their descriptions of financial conditions and business operations that are contained on their websites. Courts have taken judicial notice of such information to determine whether the corporation is large or small, or sophisticated or unsophisticated, or is engaged in a particular line of business. Liberty Mut. Ins. Co. v. Consol. Elec. & Tech. Assocs. Corp., 2007 WL 118938 (E.D. Mich. Jan. 10, 2007). Judicial notice of that type of information is premised on the presumptive truthfulness of published information whose accuracy is subject to criminal and civil sanctions. When it is offered or used against the party publishing the information on its website, the presumption is enhanced by the same circumstantial guarantees of accuracy that give rise to the hearsay exception for party admissions. The courts have also taken judicial notice of the content on a corporation’s website based on the corporation’s strong motivation to ensure the accuracy of that information. Judicial notice has been premised on the presumptive truthfulness of information that is vital to a commercial establishment’s survival. Again, when such information is offered or used against the party publishing it on their website, the presumption of accuracy is enhanced by the same circumstantial guarantees of accuracy that give rise to the hearsay exception for party admissions.

III. TRUSTED JUDICIALLY NOTICED WEBSITES

There are certain websites and types of websites that courts turn to repeatedly to take judicial notice. Many courts have taken judicial notice of the reliability and accuracy of Google Maps, MapQuest and similar websites for the purpose of determining both locations and distances. (citations omitted). Courts routinely look to internet calendars to take judicial notice of the particular days of the week that are relevant to when certain events occurred on past dates. Local 282, Int’l. Bhd. of Teamsters v. Pile Found. Constr. Co., 2011 WL 3471403 (E.D.N.Y. Aug. 5, 2011). The courts have also recently started to take judicial notice of the accuracy and reliability of global positioning system (GPS) data. United States v. Brooks, 715 F 3d 1069, 1078 (8th Cir. 2013). IV. CONCLUSION Although courts are far from taking judicial notice of content contained on Facebook and other social media sites, they have come a long way from the days when information from the Internet was deemed insufficiently trustworthy to satisfy a hearsay exception. As the Internet continues to spread throughout our daily lives, we can be certain that judicial notice of evidence from that medium will continue as well.

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