We have previously discussed the citation of websites by parties as a substitute for citing to the record on appeal, and the practice in some Sixth Circuit opinions to rely on web citations to provide background context. At the time, we noted that Judge Posner of the Seventh Circuit had gone so far as to conduct an experiment in chambers, while assuring the parties that the result “was not evidence.”
Judge Posner, however, goes much farther in yesterday’s opinion in Rowe v. Gibson. In that case, a pro se prisoner claimed that he was in great pain because he was not able to take his Zantac prescription with his meals, but the defendant, a prison doctor, provided his own “expert” opinion that the time when Zantac is taken makes no difference to its effectiveness. The court reversed the district court’s grant of summary judgment to the defendant based partly on internet research and medical journal articles found by Judge Posner stating that Zantac will prevent pain when taken right before a meal. Judge Posner defended his use of Internet sources as evidence by claiming that “[w]hen medical 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.” The dissenting judge discussed the problems with appellate courts doing their own factual research, not least that it all but requires district court judges to conduct their own Internet research to avoid reversal.
Does Rowe represent the future? The traditional rule is that facts not in the record cannot be raised in a brief. That rule is slowly loosening with the easy availability of authoritative web sources. But the line between providing background context and impermissibly expanding the record remains vague. And it is hard to imagine a consensus of federal appellate judges getting comfortable with reversing the decision below based on Internet searches, especially when those sources contradict the record. Rowe could be seen as exceptional because it involved a pro se plaintiff and a self-serving expert opinion given by a defendant. But pro se plaintiffs are the majority of all appellants (51% in 2014) and suspect expert opinions are not in short supply. Only time will tell if appellate judges will continue to resist the lure of the Internet when they find the record below less than inadequate.