The U.S. Supreme Court has described the Internet as “a vast library including millions of readily available and indexed publications” with content as “diverse as human thought.”1 These publications, which include a wide variety of websites ranging from governmental sites to non-governmental sites and educational/medical/scientific sites to commercial sites, contain a vast amount of factual information which could support a litigant’s case at trial or on a summary judgment motion. Where it is relevant in a given case, may a court take judicial notice of that factual information, thereby relieving a party of the burden of establishing it through admissible evidence? Expressed differently, is New York’s judicial notice rule potentially applicable to information on a website, as distinct from a book or other written source; and if so, when in fact will it be applied to website information?
While a review of the cases over the past 20 years reveals that New York courts, following the lead of the federal courts, are taking judicial notice of facts from websites, the cases do not set forth any analytical framework for determining when judicial notice is or is not appropriate. To this commentator, the New York courts’ receptiveness to the notion of taking judicial notice of facts from websites is a welcome development. However, the absence of an analytical framework is troubling as there is now uncertainty as to when a New York court will take judicial notice of a website-mentioned fact, and the distinct possibility of “facts” being noticed when they should not be. This column, after a brief discussion of New York’s approach to judicial notice generally, will suggest such a framework.2
Judicial Notice: the Basics
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