Commercial Litigation and Arbitration

More Thoughts On Wikipedia As a Reliable Authority for Experts

From Samuel N. Fraidin, thoughts on Alfa v. OAO (posting of March 4, 2007):

1. Experts are frequently allowed to bring in material that would otherwise be hearsay (e.g., books whose authors aren't available to be cross examined), but under Rule 703 that is limited to sources that are typically consulted by experts in the field. (See also Rule 702(1)-(2).) I would be surprised if Wikipedia is typically relied on by experts in any field. The Alfa court didn't say it is.

2. The Alfa Corp. opinion lists judicial opinions that cite Wikipedia articles, but none of those opinions allow Wikipedia information to be relied on in any significant way. They only use it for background information, and some even say the point is not relevant to the holding (e.g., Patel v. Gonzales, 173 Fed.Appx. 471, 473 (7th Cir. 2006)).

3. The Nature study the opinion cites did not compare Wikipedia to Encyclopedia Britannica in the subject area this expert was using it for. It only compared articles on scientific topics. It is not difficult to come up with reasons why the study's results would have been different if non-science articles had been compared (e.g., scientific questions are more likely to have a correct answer, political considerations that could motivate people to falsify Wikipedia entries are not present in many scientific fields). Also, the Nature study itself does not appear to have been subject to peer review.

4. The Alfa court said the opposing side would have an opportunity to discredit the expert and the Wikipedia information. But isn't citing Wikipedia like citing a piece of paper you found in the street? You don't know who the author is or why he or she wrote the article. No one is accountable if it contains inaccurate information (cf. business records). This seems like exactly the sort of material the rules of evidence are designed to keep out.

5. The Campbell opinion, cited in the Alfa opinion, focused on the disclaimers on the Wikipedia website. Along similar lines, the Poirer court (Poirier v. Educational Credit Management Corp., 346 B.R. 585 (Bankr. D.Mass. 2006)) declined to take judicial notice of a web page "loan calculator" because the page contained a disclaimer stating that the calculator might not produce accurate results.

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