Commercial Litigation and Arbitration

Website Summaries of Judicially-Noticeable Government Documents Satisfy 803(17)

From Global Computere Enters. v. United States, 2009 U.S. Claims LEXIS 259 (Fed. Cl. May 29, 2009):

QSS also argues that commercially obtained materials purporting to be excerpts from federal financial IT procurements are inadmissible hearsay to which no exception applies. *** During oral argument, QSS's counsel stated:

Evidently, [GCE] went out to this website, and there are these procurement summaries, which are summaries of the solicitation. So necessarily, if there's a summary, there is a summarizer. I don't know that there's any reliability that the summarizer, when she or he was putting those together, would have even known or was wearing the rose colored glasses that GCE wears . . . . Instead, those summaries talk in terms of services. Again, for performance work stated for SETS II in the Mod[ification] 30, services are the same. So we see through the summaries what the summarizer thought. But we don't know what training the summarizer had or if they even knew that they should try and split the world into those two halves.

[See also] Def.-Intervenor's Opp'n & Reply 28 (stating that these documents "are merely excerpts that do not show the entire scope of work of the purported procurements, which thereby renders their reliability suspect"). GCE, however, asserts that QSS's "quibbles with the supposed lack of authentication of the solicitation and documents" are unnecessary because these materials are (1) public documents of which the court can take judicial notice, and (2) authenticated by Mr. Lucas in his initial declaration. Pl.'s Mem. 21 n.14; accord id. at 21 (arguing that to the extent that the Internet materials constitute hearsay, "they fall comfortably within an exception to the hearsay rule, which allows for the admission of 'commercial publications' notwithstanding their hearsay status" (quoting Fed. R. Evid. 803(17))).

[Footnote 29] QSS is "not claiming that there's hearsay in those government RFPs. . . . What we're focusing on . . . are the procurement summaries." Perm. Inj. Hr'g Tr. 77:19-22. According to GCE, "agency solicitations are plainly admissible because they are publicly available documents of which the Court may take judicial notice" pursuant to Federal Rule of Evidence 201(b).

Market reports and commercial publications are excepted from the hearsay rule. See Fed. R. Evid. 803(17) (excluding from the hearsay rule "[m]arket quotations, tabulations, lists, directors, or other published compilations, generally used and relied upon by the public or by persons in particular occupations"). Mr. Lucas describes, a "market research/intelligence service" to which GCE subscribes, as a service that provides GCE with "pre-solicitation information and teaming opportunities." .... It is therefore apparent that GCE relies upon the information supplied by this service. Additionally, represents that one of its missions is to serve as "the leading global provider of information to [help] industry and government conduct business, thus [creating] value for our members . . . ." Mission & Vision, (last visited May 19, 2009). As such, the materials that GCE obtained from were "prepared with the view that they would be in general use by an industry or members of the public having a general need to rely on information of that type." Conoco Inc. v. Dep't of Energy, 99 F.3d 387, 393 (Fed. Cir. 1996). In Conoco Inc., the Federal Circuit noted that "publishers of the types of commercial documents that are typically admissible under Rule 803(17) . . . stake their business or public reputations on the accuracy of the summaries." ... The court finds that the materials GCE provided from the website are reliable and of the nature contemplated by Rule 803(17). Accordingly, the court admits these materials on this basis. Because agency solicitations are publicly available documents, QSS does not raise hearsay objections to them,*** and their contents are not disputed by the parties, the court takes judicial notice of these remaining documents and finds no reason to exclude them. Cf. Hennessy, 69 F.3d at 1354 (upholding the district court's refusal to take judicial notice of materials that were the subject of "considerable argument" by the parties because their contents were in dispute).

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