Federal Evidence Review

Judicial policy-making body approves initial measures concerning the use of Internet materials in opinions, in Report Of The Proceedings Of The Judicial Conference Of The United States, at 10-11 (March 17, 2009)

As evidence includes information on the Internet, courts have increasingly used and referred to Internet sites and materials in opinions. For example, some courts have taken judicial notice of information from the Internet under FRE 201. See, e.g., Taking Judicial Notice Of Agency Web Site Records On Appeal For The First Time; Limits To Relying On Internet Materials and Information In Court (Part II) (Third Circuit criticized district court’s judicial notice and use of Internet information on motion to dismiss complaint); Limits To Relying On Internet Materials And Information In Court (Part I) (Eighth Circuit remands immigration case in which the court relied on Wikipedia information). Information on the Internet is not static. After it is initially cited, it can be modified or even removed.

How should courts preserve the information that is used in an opinion? The Judicial Conference of the United States, the policy-making body regarding the administration of the U.S. courts, adopted some guidelines on this issue earlier in the year. See 28 U.S.C. § 331 (describing role and responsibilities of the Judicial Conference of the United States). The Conference left to each judge how to preserve cited materials, but encouraged their preservation. Additional guidelines will be developed. Cited materials should be publicly available without any fees assessed on the Public Access to Court Electronic Records (PACER) service. Courts should avoid “implied endorsement or preferential treatment” of commercial vendor databases.

As noted in the Conference Report, the following measures were adopted:

“Concerned that internet-based materials cited in judicial opinions could easily be changed or lost if not preserved, and that hyperlinks to commercial databases in opinions might create an appearance of preference for a particular service provider, the Committee on Court Administration and Case Management recommended that the Conference approve suggested practices for courts on the use of internet citations in judicial opinions. On recommendation of the Committee, the Judicial Conference approved the following:

a. That all internet materials cited in final opinions be considered for preservation. Each judge, however, should retain the discretion to decide whether the specific cited resource should be captured and preserved.

b. That the Administrative Office work with the Committee on Court Administration and Case Management to develop guidelines to assist judges in making the determination of which citations to preserve. The guidelines will discuss considerations for citation to internet resources, criteria for evaluating whether to capture cited internet resources, the process of capturing and maintaining cited internet resources, and the use of hyperlinks to commercial databases in final opinions.

c. That chambers staff be involved in the process of preserving internet resources. This will ensure that cited internet resources are captured and preserved at the time they are viewed and relied upon by the judge. While each chambers should determine the best method of adjusting its workflow to allow it to efficiently preserve the information it deems important, the suggested guidelines regarding the process of capturing and maintaining internet materials should be used to assist them in this process.

d. That cited and preserved internet resources be made available on a non-fee basis, as is done with final opinions in PACER and on court websites.

e. That the judiciary avoid including in final opinions working hyperlinks that lead directly to materials contained within commercial vendor databases to prevent a stated or implied endorsement or preferential treatment. To the extent that a court determines that such hyperlinks are to be used in opinions, it is recommended that an appropriate disclaimer be provided.”

Report Of The Proceedings Of The Judicial Conference Of The United States, at 10-11 (March 17, 2009).

For subsequent issues developing on this topic, see Judicial Conference Encourages Preservation Of Internet Materials Cited In Opinion (Part II) .