Complex Litigation

When Judges Research the Internet

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 decision-making?

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 Rowe 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 Amendment.3 As 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 commissary.

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 sued.

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.

Judge's Research

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 others.

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 research."4 Thus, 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

Blistering Dissent

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 dissent.9

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 research."12 Part 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 indifference."16 Judge 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 count."19 And 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 research."

"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.

Conclusion

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.

Endnotes:

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," http://www.nationalawjournal.com/printerfriendly/id=1202736993571

3. Rowe, 798 F.3d at 623 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

4. Rowe, 798 F.3d at 628.

5. Ibid.

6. Id. at 628-629.

7. Id. at 629.

8. Ibid.

9. Rowe, 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.

17. Ibid.

18. Id. at 638-639.

19. Id. at 640.

20. Rowe v. Gibson, No. 14-3316, Order denying rehearing en banc (7th Cir. Dec. 7, 2015).

 

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