Federal Evidence Review

In judicial calculation of statutory attorney's fees in a Title VII retaliation suit, the trial court, sua sponte, could take judicial notice of the Consumer Price Index (CPI) but must comply with the FRE 201(e) "procedural requirement" that "the parties be given notice and an opportunity to object; here judge should not have taken judicial notice of the CPI found on the web unless it allowed parties the "opportunity to contest the application of the CPI or to argue for a particular manner of applying it," in Pickett v. Sheridan Health Care Center, __ F.3d __ (7th Cir. Dec. 15, 2011)

Under FRE 201 judicial notice is a substitute for evidence. It is important to recognize it not only as a result, but also as a process by which certain facts are established as true without the necessity of a formal proof. But what of simple facts "found" on the Internet? Are there any particular cautions in taking judicial notice of such facts?

In the case, plaintiff Pickett prevailed in a Title VII retaliation action against her employer, Sheridan Health and received an award of $65,000. The plaintiff also sought in a motion to the trial court that the defendant be required to pay the plaintiff's attorneys fees. The judge granted plaintiff's fee request in part, but the judge reduced the amount almost by half - from the asked-for $131,000 to $70,000.

On appeal, the plaintiff contended that the trial court erred in calculating the award of statutory attorney's fees to the plaintiff employee's attorneys in the Title VII suit. It noted that in trying to calculate this rate, the judge took judicial notice of the Consumer Price Index (CPI) into its calculations of the attorney compensation rate. The plaintiff appealed the $70,000 the court awarded in attorney fees, contending that trial court erred, in part, by sua sponte taking judicial notice of the CPI in its consideration of the applicable fees.

The Seventh Circuit agreed, vacated the award and remanded for further proceedings. The circuit noted that the trial judge was "reluctan[t] to approve the hourly rate sought" by plaintiff's counsel. In particular, the court's calculation was based on applying "lower rates that resulted from the district court's sua sponte use of the Consumer Price Index" among other measures.

The circuit acknowledged the "challenging task of determining a reasonable hourly rate" for an attorney in Chicago. In addition, the Seventh Circuit recognized the trial judge's "discretion to rely on these measures [such as the CPI], the district court erred in one important particular." Essentially the circuit recognized that taking judicial notice of an adjudicative fact was not simply a result. It was also a process. The trial judge should have employed the process due to the parties under FRE 201(e), "giv[ing] the parties the opportunity to debate the strengths and weaknesses of applying these measures in this particular case."

The circuit acknowledged that the CPI was a fact that could be judicially acknowledged. As the circuit explained:

we have never addressed whether a court may take judicial notice of the CPI, we now hold that the CPI belongs to the category of public records of which a court may take judicial notice.

Pickett, __ F.3d at __ (citing Pugh v. Tribune Co., 521 F.3d 686, 691 n.2 (7th Cir. 2008) (judicial notice of publicly reported stock prices); Indianapolis Water Co. v. McCart, 89 F.2d 522, 526–27 (7th Cir. 1937) (judicial notice of an upward trend in prices); Marine Cleaning, Inc. v. United States, 43 Fed.Cl. 724, 734 (Fed.Cl. 1999) (judicial notice of the CPI)).

The circuit explained that it was not the facts recognized by the court that were problematic. It was rather a question of process and that use of the Internet in developing these facts added a new cause for concern:

Federal Rule of Evidence 201(c)(1) authorizes a court to take judicial notice without a request from a party. However subsection (e) of Rule 201 emphasizes that a party “is still entitled to be heard” when a court takes judicial notice before notifying a party. Underlying this rule is the notion that “[b]asic considerations of procedural fairness demand an opportunity to be heard on the propriety of taking judicial notice and the tenor of the matter noticed.” Fed.R.Evid. 201(e) advisory committee's note. Thus, Rule 201 contains a procedural requirement—“namely, that the parties be given notice and an opportunity to object to the taking of judicial notice.” We have recognized the authority of a court to take judicial notice of government websites.

Pickett, __ F.3d at __ (footnote omitted; citing United States v. Hoyts Cinemas Corp., 380 F.3d 558, 570 (1st Cir. 2004); Denius v. Dunlap, 330 F.3d 919, 926 (Cir. 2008); Bova v. U.S. Bank, N.A., 446 F.Supp.2d 926, 931 n. 2 (S.D.Ill.2006).

While not an extensive part of its analysis, the circuit warned that judicial notice of materials on the Internet pose very important problems for the application of judicial notice:

However, given that the Internet contains an unlimited supply of information with varying degrees of reliability, permanence, and accessibility, it is especially important for parties to have the opportunity to be heard prior to the taking of judicial notice of websites.

Pickett, __ F.3d at __

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