Open Issue: Taking Judicial Notice Of A Website

Under what circumstances can “contents of a website … ever be judicially noticed under Rule 201”? The Eleventh Circuit noted this open issue which it did not need to decide because the proponent failed to “provide the necessary information,” which was required under FRE 201(c), in Lodge v. Kondaur Capital Corp., _ F.3d _ (11th Cir. May 8, 2014) (No. 13–10919)

Judicial notice may be taken under FRE 201. FRE 201(c)(2) provides that the court "must take judicial notice if a party requests it and the court is supplied with the necessary information." The proponent bears the burden to satisfy the requirements of the rule. A recent Eleventh Circuit case considered the obligation to provide the court "with the necessary information."

Trial Court Proceedings: Request For Judicial Notice

In the case, the plaintiff debtors brought an action under the Fair Debt Collection Practices Act (FDCPA) against a law firm and assignee of promissory note/security deed in plaintiffs's home after the plaintiffs filed a bankruptcy petition. A magistrate judge had recommended that the plaintiffs's motion for summary judgment be denied and the defendant's motion be granted. The magistrate judge did not consider information about the defendant's website since it was not raised in the opening summary judgment brief and the defendants did not have a chance to respond. In filing objections to the magistrate judge's Report and Recommendation, the plaintiffs requested that the district court take judicial notice of the defendants’ websites which list "foreclosure services" and to "show that the defendants are debt collectors."

However, "the district court agreed with the magistrate judge that the court was not required to consider the information from the defendants’ websites because the Lodges (1) presented it for the first time in their reply brief; (2) failed to support it with citations to evidence in the record; and (3) did not present it in their “Statement of Material Facts Not In Dispute.” The district court denied the Lodges’ request to take judicial notice of the defendants’ websites and the document from the “Georgia Press Association Public Notice Website” because, inter alia, the Lodges did not present that evidence and argument to the magistrate judge." Lodge, _ F.3d at _. The district court adopted the Report and Recommendation, denying summary judgment for the plaintiffs but granting if for the defendants. Among the issues raised on appeal, the plaintiffs challenged the refusal to take judicial notice of the web sites.

Eleventh Circuit Review: Noting An Open Issue

The Eleventh Circuit found no abuse of discretion. The plaintiffs failed to provide either the "screenshots of the websites or the websites’ addresses." Consequently, "Without the necessary information concerning the websites, and in light of the timing of the request, the district court was not required to take judicial notice under Rule 201." While the district court had discretion to take judicial notice, the circuit noted that "the taking of judicial notice of facts is 'a highly limited process'" since "the taking of judicial notice bypasses the safeguards w hich are involved with the usual process of proving facts by competent evidence in district court." Lodge, _ F.3d at _ (quoting Dippin’ Dots, Inc. v. Frosty Bites Distribut., LLC, 369 F.3d 1197, 1205 (11th Cir. 2004) (quotation marks omitted)).

The circuit found it unnecessary to "decide here whether the contents of a website may ever be judicially noticed under Rule 201 because the Lodges wholly failed to provide the necessary information." Lodge, _ F.3d at _. The circuit also found a separate, independent basis to support the refusal to take judicial notice was based on a local rule "providing that the court will not consider any fact that is 'set out only in the brief and not in the movant’s statement of undisputed facts.'” Lodge, _ F.3d at _ (quoting NDGA LR 56.1B(1), (2)(b)). Because the plaintiffs did not challenge this portion of the ruling, they "abandoned any challenge they may have had to this alternative basis." Lodge, _ F.3d at _.

Conclusion

The Lodge case shows the consequences of failing to provide the court "with the necessary information." It seems that the plaintiffs could have readily done so but the failure to do so ensured that information they wanted before the court was not considered.

While the Eleventh Circuit noted an open issue, other courts have taken judicial notice of web site information including in the following examples:

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Photo Description: Forsyth Street Entrance to the Elbert P. Tuttle Court Of Appeals Building, Eleventh Circuit Court of Appeals, Atlanta, GA. Learn more about the courthouse.

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