Judicial Notice of Internet Evidence — Secretary of State Website Records — When Public Records Are Presumed Authentic and Trustworthy, Burden of Showing a Basis for Exclusion Falls on Opponent of the Evidence

Bank of Am., N.A. v. 04, Inc. (In re Owner Mgmt. Serv., LLC), 2015 Bankr. LEXIS 1468 (Bankr. C.D. Cal. April 29, 2015):

Well-settled Ninth Circuit precedent specifically deals with evidentiary objections at the summary judgment stage. In general, at the summary [*11]  judgment stage, the Court does not focus on the admissibility of the evidence's form, but on the admissibility of its contents. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) ("Fraser") citing Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) ("To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56."). Because the [evidence] could be presented in an admissible form at trial, we may consider the [evidence's] contents in the summary judgment motion. Fraser at 1037; accord Hughes v. United States, 953 F.2d 531, 543 (9th Cir. 1992) (litigation adviser's affidavit may be considered on summary judgment despite hearsay and best evidence rule objections; the facts underlying the affidavit are of the type that would be admissible as evidence even though the affidavit itself might not be admissible); J.F. Feeser, Inc. v. Serv-A-Portion, Inc.,909 F.2d 1524, 1542 (3d Cir. 1990) (hearsay evidence produced in an affidavit may be considered on summary judgment if the declarant could later present the evidence through direct testimony); Williams v. Borough of W. Chester, 891 F.2d , 465 n. 12 (3d Cir. 1989) ("hearsay evidence produced in an affidavit opposing summary judgment may be considered if the out-of-court declarant could later present that evidence through direct [*12]  testimony, i.e. in a form that would be admissible at trial.") (internal quotation marks omitted).

***2. Secretary of State Website Records

Defendants argue that the Secretary of State Business Entity [*13]  Information was simply printed off the Internet, are not "public record" and are not documents filed by anybody with the Secretary of State. Defendants claim the truth of the matter set forth in this document are not established by judicial notice. See, Lustgraaf v. Behrens, 619 F.3d 867, 885 (8th Cir. 2010), U.S. v. Corinthian Colleges, 655 F.3d 984, 998-999 (9th Cir. 2011) and Pina v. Henderson, 752 F.2d 47, 50 (2d Cir. 1985).

The contents of the evidence would be admissible under Rule 803(8)(A)(i) which provides a hearsay exception for records or statements of public offices, which includes agencies, Rule 101(b)(3), dealing with official activities of the office or agency reasonably necessary for the performance of the duties of the office. The Secretary of State's office supports Businesses by registering and authenticating business entities and trademarks and enabling secured creditors to protect their financial interests. The Secretary of State Websites provide access to domestic stock, domestic nonprofit and qualified foreign corporations, limited liability company and limited partnership information of record with the Secretary of State.

When public records are presumed authentic and trustworthy, the burden of establishing a basis for exclusion falls on the opponent of the evidence. Johnson v. City of Pleasanton, 982 F.2d 350, 352-53 (9th Cir. 1992), citing Keith v. Volpe, 858 F.2d 467, 481 (9th Cir.1988). Defendants offered no evidence [*14]  on the unreliability of the information from the Secretary of State website. The websites contain disclaimers but this does not show that the information is not reliable, correct or incomplete in that the Court understands these records to be the information submitted by the entities or individuals indicated on the records and not an independent investigation by the Secretary of State. Thus, the business entity search records produced by the Secretary of State Websites would be admissible at trial because the business information was compiled by a public office necessary for the performance of the duties for that office. In addition, if necessary, Plaintiff could obtain certified copies of the records.

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