Judges and arbitrators are in the information business. They want to get the decision right. And they need information to make the right decision.
Usually, the information is provided by the parties in a closed system. Only the record counts. But sometimes the information provided isn’t enough, and the decision maker knows it. It is then awfully tempting to turn to the biggest source of information available: the internet.
Judge Posner and the internet
Somewhat famously – and controversially – Judge Posner did this while he was on the Seventh Circuit Court of Appeals in Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015). The Court was faced with an appeal from a case by a pro se prisoner, Mr. Rowe. Mr. Rowe claimed he was being mistreated because he was provided Zantac to treat his acid reflux disease only at certain times instead of with his meals. Later, he was denied it altogether. He couldn’t present his case very well and was unable to overcome evidence provided by the prison doctor that his treatment was just fine. The case was dismissed on summary judgment.
Judge Posner did some basic online research, including looking at WebMD and the Zantac website. That research, along with other evidence presented, gave credence to Mr. Rowe’s claim that he was in pain, and the prison was deliberately indifferent to his medical condition. The judgment of dismissal was reversed, and the case was remanded to give the plaintiff another chance.
Judge Posner was careful to note he wasn’t making factual findings or taking judicial notice based on what he found on the internet. But he was concerned that the adversary system wasn’t working well in a case where the very doctor that was a defendant put in the evidence supporting summary judgment. Because Mr. Rowe was in prison, he could neither find nor afford to pay an expert to refute that evidence. In this case, Judge Posner wrote, strict adherence to rules of evidence and precedent would make a “heartless . . . fetish of adversary procedure.”
The concurring judge thought the case could be decided in Mr. Rowe’s favor without going outside the record and onto the internet. The dissenting judge found using the internet was an “unprecedented departure from the proper role of an appellate court “and that it “runs contrary to long-established laws and raised a host of practical problems the majority fails to address.”
The ABA opinion
The ABA Standing Committee on Ethics and Professional Responsibility has weighed in on the issue in its Formal Opinion 478. It begins with the Rule 2.9(C) of the ABA Model Code of Judicial Conduct. That rule says, “a judge shall not investigate facts in a matter independently and shall consider only the evidence presented and any facts that may properly be judicially noticed.”
That seems simple enough. But in practice it may not be that simple. And it requires analysis of the interplay between Rule 2.9(C) and Rule 201 of the Federal Rules of Evidence.
Rule 201 allows judicial notice of a fact “not subject to reasonable dispute” because it is (1) “generally known” or (2) “accurately and readily determined” from a source “whose accuracy cannot reasonably be questioned.” But even if a fact meets this test, the court still must allow the parties to (1) contest the need to notice the fact, and (2) challenge the accuracy of the fact.
This all led the Committee to suggest that the court first turn to the parties if it determines more information is needed to decide the case. And it suggests that the court should never use the internet to check or discredit the facts presented by the parties.
The forbidden search
The Committee illustrates the analysis in some useful hypotheticals. The first posits a case involving overtime pay. Defense counsel argues that plaintiff could not have worked overtime because the defendant’s restaurant is in an “industrial area” and is open only for breaks and lunch and not during the weekend. The skeptical judge turns to Yelp and Google Maps and finds the restaurant is listed as open from 7 am to 10 pm, seven days per week.
This is a violation of Rule 2.9(C), says the Committee. The judge should have asked the parties to provide evidence on this key point in the case.
In the next hypothetical, the judge is unfamiliar with environmental contamination cases. The judge is assigned a case in the area and reads online background information, including articles.
This does not violate the rule. General background learning is like attending CLEs or reading books. It is fine if the source is reasonably believed to be reliable. But the Committee adds a caveat: “Even general subject-area research is not permissible, however, if the judge is acquiring information to make an adjudicative decision of material fact.”
Background or facts?
The next hypothetical is a little more complicated. A social media-savvy judge is assigned to a complex multi-party case. The judge decides to review the social media and websites of all the parties and out-of-town lawyers to get background about the parties, read the lawyers’ writings, and determine what kind of clients the lawyers represent.
Gathering information about the parties online is forbidden. It is independent factual research prohibited by the rules.
The Committee thinks lawyers are different. If the judge’s research is merely to become familiar with the lawyers, just as the judge may have reviewed a legal directory to see if the lawyer is authorized to practice in the jurisdiction, the judge may obtain some background on line. But if the research will affect how the judge will weigh or consider adjudicative facts, it is not allowed.
The resourceful law clerk
The judge is presiding over a case involving insurance coverage for plaintiff’s property that was destroyed by fire. Both sides presented experts. They don’t agree with each other, of course. In preparation for writing the decision, the judge’s clerk creates a memo summarizing articles on the internet about proper ways to investigate fires to determine their origin.
The law clerk is guilty of improper independent factual investigation, says the Committee. The judge would violate the rule if the information is used.
Other courts, other cases
A judge searches the court’s electronic records to see whether a party is or was subject to other judicial proceedings and finds several cases. Some are pending, and some are concluded. Did that search violate the rule 2.9 (C)?
It depends on how it is used. Under Fed. R. Ev. 201, a judge may take judicial notice of court records as to their factual existence and the occurrence and timing of events like filing of pleadings and hearings being held. But a judge cannot assume the truth of allegations or findings in the records. And notice must be given if the judge plans to take judicial notice of facts.
Another caveat is that the judge is not to review documents filed under seal. That would be independent research about facts to which the parties do not have access and may not even know about, says the Committee.
Other codes and cases
As the ABA Opinion points out, different states have different codes and may have different case law about judicial investigation and use of the internet. They need to be consulted in any case.
So where does this all leave commercial arbitrators? Arbitrators aren’t judges, after all. They are not subject to codes of judicial conduct. But they do have their own codes of conduct.
The Code of Ethics for Arbitrators in Commercial Disputes
Let’s focus on The Code of Ethics for Arbitrators in Commercial Disputes. I’ll refer to it as “the Code.” This was approved and recommended by the American Arbitration Association and the American Bar Association.
Note first that the Code has no equivalent to Rule 2.9(C) of the ABA Model Code of Judicial Conduct. Nor is there an equivalent arbitration rule to Fed. R. Civ. P. 201 regarding judicial notice. After all, arbitrators aren’t bound by the rules of evidence unless the parties agree that they are. Still, the Code has some provisions that may bear on this issue.
You will, of course, need to check local codes and law in any particular case.
Fair to all parties
Canon I (D) of the Code provides some general guidance of interest. It says that arbitrators “should conduct themselves in a way that is fair to all parties and . . . should avoid conduct and statements that give the appearance of partiality toward or against any party.” Going off on an unannounced internet search leading to findings on contested facts could certainly suggest to the losing party that the arbitrator is not acting impartially.
The comments to this Canon provide some analogous considerations. They state that arbitrators are not necessarily considered to be partial or prejudiced by having knowledge of the parties, law, or customs and practices of the business involved. Nor are they deemed to violate the requirement of impartiality if they have views on general issues likely to arise in the arbitration. But they must not prejudge any of the factual or legal determinations to be addressed during the arbitration.
This is analogous to the ABA Comments that allow judges to acquire background information from reasonably reliable sources. But they must not use those sources to make factual determinations. For that, they need to involve the parties. The Code comment doesn’t address factual research during the arbitration. But the principal is largely the same. Background research is fine. Determining the specific facts in dispute based on outside evidence not.
The right to be heard
Canon IV (B) is also of interest: “The arbitrator should afford to all parties the right to be heard . . .” and “[t]he arbitrator should allow each party a fair opportunity to present its evidence and arguments.”
A party could well argue that, if an arbitrator goes off on his or her own internet research path and makes a factual determination based on that research, it has not had a fair chance to present its evidence and arguments. Fairness suggests that the parties be given a chance to address the new evidence the arbitrator turned up on line. We all know that many “facts” found on the internet are suspect, and their source is not always reliable or even known. Fairness dictates that the parties have a chance to evaluate and comment on the evidence the arbitrator may turn up, just as they are able to do with evidence presented by their opponents.
In fact, the Code contemplates that an arbitrator may need more facts to property decide the dispute and suggests how to address the problem. Cannon IV (E) says:
When the arbitrator determines that more information than has been presented by the parties is required to decide the case, it is not improper for the arbitrator to ask questions, call witnesses, and request documents or other evidence, including expert testimony.
This Canon does not contemplate solving the problem with a Google search.
Finally, Canon V (B) provides that “[a]n arbitrator should decide all matters justly, exercising independent judgment, and should not permit outside pressure to affect the decision.” The canon appears to focus on resisting outside pressure rather than on independent research. And yet, the cannon is phrased in the conjunctive. The matter is to be decided “justly,” among other things. A losing party would likely – and justifiably – conclude that losing a case based on an arbitrator’s internet search does not fit within most people’s notion of justice. Again, a party normally should be given a chance to address and refute or explain “facts” unearthed on the internet.
Perhaps unethical, but a ground for overturning an award?
Ethics are important. But is there a ground for overturning an award when the arbitrator has arguably breached an ethical obligation by basing a decision on independent internet research?
As the Code introduction itself makes clear, “the arbitration rules and code do not have the force of law.” To get an arbitration award set aside, a party must bring itself within the applicable statute and rules. Code Introduction at p. 1 (citing, Merit Insurance Company v. Leatherby Insurance Company, 714 F.2d 673, 681 (7th Cir. 1983), Posner, J.) Interesting. Judge Posner again.
The grounds for overturning arbitration awards are very limited. They are generally found in the Federal Arbitration Act or the state equivalent. Because the FAA applies in cases involving interstate commerce, and a typical commercial arbitration usually involves interstate commerce, let’s focus on that.
The grounds for overturning an arbitration award do not include errors of fact or law. (But the parties could provide for an arbitral appeal to address such errors, as I discuss in in Chapter 21 of my recent ABA book, Arbitrating Patent Disputes: A Practical Guide). Instead, the grounds focus on the integrity of the process and matters such as procuring an award by fraud or corruption, evident partiality of an arbitrator, or exceeding the powers given the arbitrator by, for example, deciding an issue the parties did not agree to arbitrate. See FAA, 9 U.S.C. § 10.
But one ground is worth considering: “refusing to hear evidence pertinent and material to the controversy . . .” 9 U.S.C. § 10(a)(3). Now, of course, an arbitrator going off on his or her own fact-finding expedition on the web isn’t, strictly speaking, “refusing to hear evidence.” The arbitrator is bringing in more evidence.
Still, I could imagine a principled argument that, given the reasonable expectation and requirement that the parties be able to present evidence material to the controversy, relying on internet evidence undisclosed to the parties until the award is issued is at least equivalent to refusing to hear evidence. In that case, a fact is found to be true without the parties being able to address the “fact” with evidence.
I have no idea whether one could ultimately prevail on this ground in an attack on the award. I haven’t located a case addressing the issue. But I don’t think most arbitrators would want to risk an attack on the award on this ground.
A few suggestions
So, what is an arbitrator to do? I have a few suggestions for you to consider.
It is alright to go to the internet to get some general background in an area. In fact, with the special expertise an arbitrator usually brings to a case, the arbitrator should be able to determine whether the information found on the internet is likely to be accurate and useful.
Looking into the background of the lawyers involved and their social media postings or articles is fair game if it is just for general background.
What an arbitrator should avoid is coming to any factual determinations based on what is found on the internet. If the arbitrator feels more facts are necessary, the Code suggests a way to do that: ask the parties for more information. That’s the way to go.
But what if, in doing background searching and reading, the arbitrator happens upon some information that is pertinent to a fact at issue in the arbitration? That may be a little tricky.
In many cases he or she could simply ignore the information. After all, the internet is often unreliable, and the parties are likely to have the best evidence on the issue. If the arbitrator can be sure not to give any weight to the online information in coming to a decision, ignoring it could be the right course. After all, parties often offer proof that the arbitrator may find immaterial, unreliable, or not credible enough to support a decision. So, the arbitrator disregards it. A random internet factoid could be given the same treatment.
But some facts aren’t easily ignored. If so, the best alternative may be to simply let the parties know that, in the arbitrator’s background searching, information has surfaced that appears to have some bearing on the case. The parties would then be asked to address that information. This gives the parties a fair opportunity to explain away or refute the internet’s version of the truth.
In the end, a careful arbitrator may want to avoid any internet or other independent investigation to assure that all facts come from the parties. The parties agreed to have the arbitrator decide the case – not Wikipedia.
Still, a decision maker may conclude that some additional information that can easily be found on line will help to make a better decision. If so, careful attention must be paid to what is and is not fair to the parties The rules for judges and the code of ethics for arbitrators provides some useful guidance on this.