Here is another great article that focuses on how courts can contend with parties supplementing briefs with internet facts, often not in the record. “Trial by Google: Judicial Notice in the Information Age” forthcoming in the Northwestern Law Review:
This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature – attributes that have the potential to undermine the integrity of the factfinding process. The theory proposed here, which is the first attempt to conceptualize judicial notice in the information age, remedies these potential failings by setting forth both an analytical framework for decision, as well as a process for how courts should memorialize rulings on the propriety of taking judicial notice of Internet sources to allow meaningful review.
This article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data now available on the Internet will allow judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process.9 The factual reliability of the Internet is not uniform. Certain information sources from government websites, mapping services, or official reporting agencies may be sufficiently accurate, and thus ―admissible‖ under judicial notice doctrine.10 Certain other sources, built by anonymous contributors, or aggregating information may be much less accurate.11 Drawing those lines about accurate sources will in the first instance be left to trial judges, ill-equipped to make decisions under the time pressures of trial.12 Further, appellate courts will be unable to examine these choices without an established process for evaluating and recording those evidentiary decisions.13 The theory proposed here addresses these uncertainties by setting forth both an analytical framework for decision, as well as a set process for how courts should record and memorialize that decision.
This article develops a decisional framework for judges, litigants, and scholars as to how to evaluate the appropriateness of judicial notice of adjudicative facts obtained on the Internet (and through other social media information sources). It is a framework informed by the principles already established in the Federal Rules of Evidence including, of course, the rule that specifically governs judicial notice, Rule 201. Concerns for reliability, authenticity, ―best evidence‖ and the proper judicial role in an adversary
system run throughout the Federal Rules, establishing preferences for certain forms of evidence over others and procedures for evaluating admissibility.14 Efficiency is clearly prized in the rules, reflecting Holmes‘s famous ―concession to the shortness of life,‖ but not to the exclusion of other concerns, such as a distrust of hearsay, a preference of adversarial, not inquisitorial, presentation and the importance of due process.15 These conflicting, but fundamental principles ground the core of our approach to solving questions of judicial notice in an information era.
In assessing whether, in the language of Rule 201, a source proffered as worthy of judicial notice is one whose ―accuracy cannot reasonably be questioned,‖ courts should look to three factors: (1) knowledge of the subject matter; (2) independence from relevant bias; and (3) motivation to ensure accuracy of the posted information.16 As applied, these framing principles avoid creating a static definition of acceptable sources. In an ever-evolving technological medium, identifying particular websites or information sources is less valuable than developing a theory of how to evaluate the sources at issue. It is a theory that can adapt to the changes of even more expansive information sources that will likely be available in the next decades.
Interestingly enough, Judge Posner reviewed and comment on a draft of the article.