The Internet is truly a wonderful thing. It offers a seemingly infinite amount of information on virtually any subject imaginable. On the other hand, most Internet users are well aware that some of the information on the Web is of questionable validity and much of the information must be verified with additional sources before it can be trusted. Yet, despite the Internet’s obvious shortcomings, litigants and courts cite to materials on the Web with alarming frequency. Even worse, courts have been willing to take “judicial notice” of supposedly irrefutable facts simply because those facts appear on the web.
In both state and federal court in Pennsylvania, judicial notice may be taken of a fact that is “not subject to reasonable dispute.” Such facts include those that are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Do newspaper or corporate Web sites qualify as such infallible sources? Some courts appear to think so.
For example, in the recent case of Riverlife Task Force v. Planning Commission, the Pennsylvania Supreme Court took judicial notice that a Pittsburgh slot machine license had been transferred from one company to another. The source for the court’s information? A news article from a local newspaper’s Web site. Without intending any disrespect to the newspaper industry, it is doubtful that a newspaper’s Web site is the type of unimpeachable source that is so infallible that its accuracy cannot reasonably be questioned.
While the fact judicially noticed in Riverlife was not a significant (or contested) issue in that case, in many cases, courts have taken judicial notice of key facts on the basis of information found on the Internet. Take the 2007 decision of the Eastern District of Pennsylvania federal court in Victaulic Co. v. Tieman. In Tieman, the court reviewed a non-compete provision in an employment contract in order to determine, in response to a motion to dismiss under Rule 12(b)(6), whether the restrictions in the contract were reasonable. The provision restricted the former employee from engaging in certain activities wherever the plaintiff company’s products were sold. Thus, the scope of the company’s market was a significant issue in the case.
The court found that the company “undisputedly sells its products ‘worldwide,’” basing this conclusion on the company’s Web site, which, the court noted, “verifies that it is a global business with facilities in North America, Asia, Europe and the Middle East.” The court indicated that it could “take judicial notice of this information as a matter of public record that is capable of accurate and ready determination by a source whose accuracy cannot reasonably be questioned.” The court also took judicial notice that Victaulic sold products in the building services, industrial, water and wastewater, mining, and oilfield industries, relying again on the company’s Web site for this information. Eventually, the court ruled that the non-compete provision was invalid because it was unreasonable as a matter of law.
On appeal, the 3rd U.S. Circuit Court of Appeals reversed. The court expressed “particular concern . . . that the District Court used the Web site at www.victaulic.com to establish certain facts about Victaulic’s business.” The court noted “anyone may purchase an internet address, and so, without proceeding to discovery or some other means of authentication, it is premature to assume that a webpage is owned by a company merely because its trade name appears in the uniform resource locator.” Moreover, the court noted, “a company’s website is a marketing tool,” which might be “full of imprecise puffery that no one should take at face value.” In short, the district court erred in “taking a bare ‘fact’ that is reflected not in the pleadings, but on a corporate website, and then drawing inferences against the non-moving party so as to dismiss its well-pleaded claims on the basis of an affirmative defense,” a process that the court held was “far too far afield from the adversarial context of litigation.”
The trial court’s use of the Victaulic Web site in Tieman is not exactly unusual. Many courts have taken judicial notice of facts found on corporate web sites. For example, last year, a federal court in New York took judicial notice that the iPod and iPhone “are critical to Apple’s financial success” — a proposition that certainly seems intuitive — on the basis of an Apple press release posted on its Web site. Again, is a corporate press release (or, as the 3rd Circuit pointed out in Tieman, something that appears to be a corporate press release) posted on the Web really the type of source whose accuracy cannot reasonably be questioned?
Well before the Internet became ubiquitous, litigants and courts struggled with the requirements for, and application of, judicial notice. The advent of the Internet, however, provides every litigant and judge with a ready source of information to fill any gap in the evidentiary record. Given the high standard for taking judicial notice, courts should resist the temptation to resort to the Internet and its bottomless well of information as a way to fill those gaps.
This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.
Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP