By Michael Hoenig - New York Law
Journal - January 11, 2016
Can judges appropriately conduct their own, independent Internet
research as part of a beyond-the-record "judicial fact-finding"
effort? Should they be permitted to do so in order to better
decide motions, cases and appeals before them? Is it proper for
them to try to hunt down germane facts from, let's say, "highly
reputable" websites or other Internet sources, or must judges
render decisions based only on the record and showings made by
the parties? Can judges properly "supplement" the facts before
them from Internet sources as a form of assistance to
The foregoing questions are a mite "loaded" since rules of
evidence for many years have allowed judges to take "judicial
notice" of so-called "adjudicative facts." Thus, Federal Rule of
Evidence 201, for example, allows a judge to "judicially notice
a fact that is not subject to reasonable dispute" because it
either is "generally known" or can be "accurately and readily
determined" from sources "whose accuracy cannot reasonably be
questioned." And the court can take such judicial notice on its
own. The Advisory Committee's Note to Federal Evidence Rule
201(b) says that "adjudicative facts" are facts that "relate to
the parties," such as, "who did what, where, when, how, and with
what motive or intent." Importantly, however, it must be the
type of fact that is "not subject to reasonable dispute."
The operation of the "judicial notice" rule is itself undergoing
some deep scrutiny, particularly because of the explosive growth
of information and data available on the Internet. Much of such
information is considered to be reliable enough for societal
decision-making outside the courtroom. As a result, there are
urgings that the scope of judicial notice should expand just as
reliable information on the Internet has expanded. An
interesting law review article by law professors Jeffrey Bellin
and Andrew G. Ferguson discussing such issues is called "Trial
By Google: Judicial Notice in the Information Age."1
But let's put aside the long-standing concept of judicial notice
and return to the questions posed at the outset. Let's say that
the Internet information embraced within our questions falls
short of the judicial notice standard. Should judges be allowed
to do beyond-the-court record Internet research to help further
their judicial decision making? Or, perhaps to "supplement" the
record? Or maybe to help "confirm" or "refute" a party's
evidence? These issues are not academic. They surfaced recently
during an appeal in the U.S. Court of Appeals for the Seventh
Circuit. The tensions split the appellate panel. The
intellectual divide among the judges resulted in a pungently
intriguing dissenting opinion. Later, there was a split among
even more Seventh Circuit judges during the application for a
rehearing en banc.
The seismic judicial fracas appeared in a case called
v. Gibson.2 This
was a lawsuit by an Indiana prison inmate named Jeffrey Rowe who
claimed that prison staff members were deliberately indifferent
to his pain from reflux esophagitis when they denied him access
to free medication for 33 days and insisted on giving him the
medication at times other than prison mealtimes. Misconduct with
deliberate indifference by prison officials to an inmate's
medical needs was held in a 1994 U.S. Supreme Court decision to
violate the "cruel and unusual punishment" clause of the Eighth
Amendment which, in turn, is held to apply to state action by
interpretation of the due process clause of the Fourteenth
a result, these kinds of suits by prisoners are popularly
referred to as "Eighth Amendment" claims.
Inmate Rowe was diagnosed with gastroesophageal reflux disease
(GERD). He complained of pain. The prison physician told him to
take a 150-milligram Zantac pill (a stomach acid inhibitor)
twice a day. Initially, Rowe was given the pills and he could
take them when he wished. But later, the prison decided that
inmates such as Rowe, who take psychiatric medications, should
not be allowed to keep any pills in their cells. Further, Rowe
allegedly could not afford to buy the Zantac pills at the
Another physician later restored Zantac to Rowe but allowed it
to be taken only at 9:30 a.m. and 9:30 p.m, both times being
many hours distant from his meals. This regimen, Rowe
complained, did not alleviate his pain because, optimally,
Zantac should be taken before meals "to prevent symptoms." Rowe
A physician named as a defendant in Rowe's suit, a specialist in
preventive medicine, submitted an affidavit opining, from a
review of Rowe's records, that his condition didn't require
Zantac at all. In another affidavit, the defendant-doctor said
that it did not matter what time of day Rowe received the
medication since each Zantac pill is fully effective for 12-hour
increments and, further, it does not have to be taken before or
with a meal to be effective. The district judge granted summary
judgment to defendants. Rowe appealed.
The Seventh Circuit panel reversed the grant of summary judgment
to defendants on all issues. Two judges held there was enough of
a factual issue to justify a trial on Rowe's claims of a
deliberate indifference to a serious health need. But one of the
two judges concurred only in the result, not in the use of
Internet research outside the record employed by the first
judge. The third appellate judge dissented, criticizing
exactingly the resort to beyond-the-record Internet research by
the first judge. Taken together, the opinions reflect an
explosive mixture of fundamental debate about the judicial task
and its methodology.
Let's zoom in on some of the tensions. Judge Richard A. Posner
concluded that there was sufficient evidence of "deliberate
indifference." In building his case on the point, Posner
researched websites of the National Institutes of Health on
GERD; the website of the manufacturer of Zantac (Glaxo Smith
Kline); Wikipedia about "ranitidine," the medication for which
Zantac is the trade name; the American College of Preventive
Medicine website re the defendant doctor who submitted
affidavits in the case; the Mayo Clinic's website on treatments
of esophagitis and prescription strengths for Zantac, among
Judge Posner took head-on the dissenting judge's criticism of
his Internet research. "In citing even highly reputable medical
websites in support of our conclusion that summary judgment was
premature, we may be thought to be 'going outside the record' in
an improper sense." Some may say that judges "should confine
their role to choosing between the evidentiary presentations of
the opposing parties, much like referees of athletic events."
But, said Posner, "[w]e don't insulate judges like that."
Nevertheless, "we must observe proper limitations on judicial
judges must "acknowledge the need to distinguish between
judicial web searches for mere background information that will
help the judges and the readers of their opinions understand the
case, web searches for facts or other information that judges
can properly take judicial notice of (such as when it became
dark on a specific night) …, and web searches for facts normally
determined by the factfinder after an adversary procedure that
produces a district court or administrative record."5
But what about medical information? Says Posner: When such
information can be gleaned from the websites of "highly
reputable" medical centers, it is "not imperative" that it
instead be presented by a testifying witness. Such information
"tends to fall somewhere between facts that require adversary
procedure to determine and facts of which a court can take
judicial notice, but it is closer to the second in a case like
this," where the defense evidence was "sparse" and the appellate
court need only determine whether a sufficient factual dispute
precludes summary judgment. Judge Posner was not deeming the
Internet evidence he cited to be "conclusive or even certifying
it as being probably correct, though it may well be correct
since it is drawn from reputable medical websites." He was using
it only to underscore the existence of a "genuine dispute of
material fact," namely Rowe's reported pain.6
Citing a "high standard" for taking judicial notice and a "low
standard" for allowing in evidence in the conventional way (by
testimony subject to cross-examination), Judge Posner asks:
"[I]s there no room for anything in between? Must judges abjure
visits to Internet websites of premier hospitals and drug
companies, not in order to take judicial notice but to assure
the existence of a genuine issue of material fact that precludes
summary judgment? Are we to forbear lest we be accused of having
'entered unknown territory'?" Additionally, "[s]hall the
unreliability of the unalloyed adversary process in a case of
such dramatic inequality of resources and capabilities of the
parties as this case be an unalterable bar to justice?"7
Judge Posner said that this was not the case "in which to
fetishize adversary procedure in a pure eighteenth-century
form," given what he concluded was "inadequacy of the key
defense witness," a doctor.8 However,
reacting strongly to the stinging dissenting opinion by Judge
David Hamilton, Posner added an "appendix," in a paginated
"response" to what he called "misleading" statements by the
Before we get to Judge Hamilton's dissent, let's briefly examine
what the concurring opinion said on the issue. Circuit Judge
Ilana Rovner categorized the dispute as one that had "morphed
into a debate over the propriety of appellate courts
supplementing the record with Internet research." She wanted to
make it "clear" that she believed the resolution of this appeal
required no "departure from the record."10
Hamilton's dissent called the reversal "unprecedented" and
"clearly based on 'evidence' this appellate court has found by
its own Internet research." The majority has pieced together
information found on several medical websites that seems to
contradict the only expert evidence actually in the summary
judgment record. Although the majority denies that its Internet
research actually makes a difference to the outcome of this
case, when the opinion is read as a whole, "the decisive role of
the majority's Internet research is plain."11 To
help explain why the majority's decision is unprecedented, Judge
Hamilton divided his dissenting opinion into four parts.
Part I reviews the facts in the record and "shows that the
majority has actually based its decision on its Internet
II explains why the majority's reliance on its own factual
research is contrary to law.13 Part
III addresses the practical problems posed by the majority's
decision to do its own research.14 Part
IV points out "problems with the reliability of the majority's
factual research and shows that the enterprise of judicial
factual research is unreliable when it loses the moorings to the
law of judicial notice."15
Interested readers likely will enjoy reviewing Judge Hamilton's
observations at least for their quality of forceful rebuttal.
Just a few highlights follow, for flavor. "Only by relying on
its independent factual research can the majority establish an
arguable basis for applying this theory that the course of
treatment was so clearly inadequate as to amount to deliberate
Hamilton does not oppose using "careful research" to provide
context and background information to make court decisions more
understandable, but using "independent factual research to find
a genuine issue of material, adjudicative fact, and thus to
decide an appeal, falls outside permissible boundaries." This
case "will become Exhibit A in the debate."17
Well-established case law holds that "a decision-maker errs by
basing a decision on facts outside the record." Thus, if a
district judge bases a decision on such research, "we reverse
for a violation of Rule 201" (the "judicial notice" rule of
evidence). The judicial notice rule is the "narrow exception"
permitting "some judicial research into relevant facts." Courts
"must use caution and 'strictly adhere' to the rule before
taking judicial notice of pertinent facts."18
American law has not recognized the majority's category of
evidence, "which might be described as nonadversarial evidence
that the court believes is probably correct." Quoting the
Advisory Committee's Note to Federal Evidence Rule 201, Hamilton
emphasizes: "A high degree of indisputability is the essential
prerequisite." To be "close" to judicial notice "does not
so on, with lots more criticism in this vein.
The defendants filed a petition for rehearing en banc, namely,
for review by the entire array of eight active sitting Seventh
Circuit judges. On Dec. 7, 2015, the court issued its decision
denying the petition. However, the order states that the denial
was because "the vote was a tie" (4-4). The order declares: "The
panel majority should not be read as holding that we expect
district judges to do their own factual research or as
suggesting anything at all about the propriety of Internet
"In short," says the en banc order, "that some Internet sources
lend credence to Rowe's assertion that the timing [of taking
medication] may matter is not at all dispositive of the result."
And, further, "any factual research conducted by the panel
majority was unnecessary to that outcome…"20 Accordingly,
the Seventh Circuit seems to have rejected endorsement of Judge
Posner's approach. But there's little doubt issue has been
joined, at least intellectually.
The battle lines about whether and to what extent judges may
properly "test" or "supplement" the court record by doing
factual Internet research of their own have been
well-articulated in the majority and dissenting opinions of the
Seventh Circuit in Rowe.
However, this is not only a "judges" issue. Litigating counsel
must understand the growing conflict, the boundaries of
allowable Internet research in the judicial task and the true
nature of permissible "judicial notice." Reading the Rowe
opinions would be a good start.
1. 108 Northwestern U.L. Rev. 1137 (2014).
2. 798 F.3d 622 (7th Cir. 2015), 2015 U.S. App. LEXIS 14573 (7th
Cir. Aug. 19, 2015), pet. for rehearing en banc denied (Dec. 7,
2015). For articles on these developments, see, E.G. Pearson,
"Judicial Internet Research: Does the First SCOTUS Decision of
OT 2015 Bode Ill for Dr. Posner?" http://www.natlawreview.com/print/article/judicial-Internet-research-does-first-scotus-deci...;
E.G. Pearson, "Split Circuit: Seventh Circuit Debate Over
Judicial Internet Research Ends in Tie," http://natlawreview.com/print/article/split-circuit-seventh-circuit-debate-over-judicia...;
A.S. Bayer, "When Judges Rely on Their Own Online Research,"
798 F.3d at 623 (citing Farmer
v. Brennan, 511 U.S. 825, 837 (1994)).
798 F.3d at 628.
6. Id. at 628-629.
7. Id. at 629.
798 F.3d at 632-635.
10. Id. at 635 (concurring opinion).
11. 798 F.3d at 636 (dissenting opinion).
12. Id. at 636-638.
13. See Id. at 638-640.
14. See Id. at 640-643.
15. Id. at 636. Part IV appears at 798 F.3d at 643-644.
16. Id. at 638.
18. Id. at 638-639.
19. Id. at 640.
v. Gibson, No. 14-3316, Order denying rehearing en
banc (7th Cir. Dec. 7, 2015).
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