Judicial Notice of Internet Evidence — Notice of Report of Citizens Commission Appointed by L.A. County Board of Commissioners As Downloaded from County Website, Bearing County Seal — Not Hearsay Per 803(8)

Shorter v. Baca, 2015 U.S. Dist. LEXIS 53019 (C.D. Cal. April 21, 2015):

This case arises from the alleged mistreatment of Plaintiff Lecia Shorter, while incarcerated [*2]  for a 32-day period as a pretrial detainee. While in the County's custody, Shorter alleges that Defendants denied her needed medical care, subjected her to unsanitary living conditions, deprived her of food, clean clothes, and access to exercise, and conducted overly invasive searches. Shorter further contends that she was misclassified as mentally ill and denied access to her attorney. Plaintiff raises claims under 42 U.S.C. § 1983 premised on violations of the First, Fourth, Eighth, and Fourteenth Amendments of the U.S. Constitution. She also brings state law claims for negligent and intentional infliction of emotional distress, defamation, assault and battery, negligent hiring and supervision, and negligence. Many of the facts below are disputed, but are viewed in the light most favorable to Plaintiff, the non-moving party.

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b. Evidentiary Objections to the CCJV Report

Defendants object to admission of the CCJV [the Citizens' Commission on Jail Violence] Report. Defs. Evid. Objs. at 6. Specifically, they argue that (1) the report is not authenticated and lacks foundation under Federal Rule of Evidence 901, and (2) that the document is offered for the truth of the matter asserted and thus constitutes inadmissible hearsay under Federal Rule of Evidence 801.

Under Federal Rule of Evidence 901, evidence that a public record or report is from the public office where items of that nature are kept satisfies the requirement that admitted evidence be authenticated. Premier Nutrition, Inc. v. Organic Food Bar, Inc., 2008 U.S. Dist. LEXIS 78353, 2008 WL 1913163, at *5 (C.D. Cal. Mar. 27, 2008) aff'd, 327 F. App'x 723 (9th Cir. 2009).

Here, Ms. Lee declares, under penalty of perjury, that she attached "true and correct copies of excerpts from the Report of the Citizens' Commission on Jail Violence published by the Citizens' Commission on Jail [*54]  Violence." Lee Decl. ¶ 7. She also states that she obtained the report directly from the Los Angeles County Government website: http://ccjv.lacounty.gov/reports. The printout also bears "distinctive characteristics" of the County's website, specifically, the County Seal. CCJV Report at 1; Haines v. Home Depot U.S.A., Inc., 2012 U.S. Dist. LEXIS 47967, 2012 WL 1143648, at *7 (E.D. Cal. Apr. 4, 2012) ("courts have considered the 'distinctive characteristics' of the website in determining whether a document is sufficiently authenticated." (citations omitted)). The report, obtained from the County's website, is properly authenticated under Rule 901.

Moreover, Rule 902 allow for the self-authentication of certain documents, including official publications: "Books, pamphlets, or other publications purporting to be issued by public authority." Fed. R. Evid. 902(5); Paralyzed Veterans of Am. v. McPherson, 2008 U.S. Dist. LEXIS 69542, 2008 WL 4183981, at *7 (N.D. Cal. Sept. 9, 2008). Federal courts routinely consider records from government websites to be self-authenticating. See, e.g., Estate of Gonzales v. Hickman, 2007 U.S. Dist. LEXIS 84050, 2007 WL 3237727, at *2 (C.D. Cal. May 30, 2007); Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 551 (D. Md. 2007) ("Given the frequency with which official publications from government agencies are relevant to litigation and the increasing tendency for such agencies to have their own websites, Rule 902(5) provides a very useful method of authenticating these publications. When combined with the public records exception to the hearsay rule, Rule 803(8), these official publications posted on government agency websites should be admitted [*55]  into evidence easily."); U.S. ex rel. Parikh v. Premera Blue Cross, 2006 U.S. Dist. LEXIS 70933, 2006 WL 2841998, at *4 (W.D. Wash. Sept. 29, 2006) (considering documents that can be found on Government websites, such as GAO Reports and Health and Human Services' Reports self-authenticating).

Here, the CCJV Report is available to the public at a Los Angeles County government website, and bears the seal of the County of Los Angeles. The report was commissioned by the Board. Thus, this report is an "Official Publication" under Rule 902(5).

Accordingly, the CCJV Report is properly authenticated.

Defendants also assert that the report is inadmissible hearsay. Defs. Ev. Obj. at 6.

Generally an out of court statement offered for the truth of the matter asserted is considered hearsay and is inadmissible. Fed. R. Evid. 801, 802. However, Federal Rule of Evidence 803(8) excludes from the rule against hearsay "a record or statement of a public office" if it includes "factual findings from a legally authorized investigation" where the opposing party "does not show that the source of information or other circumstances indicate a lack of trustworthiness." Fed. R. Evid. 803(8). Therefore, factual determinations in government reports, whether they contain facts, opinions, or both, are admissible under this exclusion. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 164, 109 S. Ct. 439, 102 L. Ed. 2d 445 (1988) ("the language of the Rule does not create a distinction between 'fact' and 'opinion' [*56]  contained in such reports" and the legislative history of the rule "contain[s] no mention of any dichotomy between statements of 'fact' and 'opinion' or 'conclusions.'"). Thus, the Court may presume "that the tendered public records are trustworthy" and 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 (1992).

In this case, the CCJV Report appears to fall within the public records heresay exclusion as it documents factual findings from a legally authorized investigation. See, e.g., Montiel v. City of Los Angeles, 2 F.3d 335, 341 (9th Cir. 1993) (holding that the district court should have presumed the Report of the Independent Commission on the Los Angeles Police Department, i.e. the Christopher Commission Report, was trustworthy, which the defendant could challenge); Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th Cir. 1999) (holding that a report prepared by the city's Financial Review Committee was properly admitted because defendants produced no evidence to raise doubts as to the reliability of the report); U.S. v. Lewis, 27 Fed. Appx. 768, 769 (9th Cir. 2001) (finding that the District Court should have admitted the Shooting Review Board Report). Nor does the fact that the CCJV Report includes recommendations or opinions exclude it from Rule 803(8). The burden is on the Defendants to raise any issues as to the Report's trustworthiness. [*57]

Significantly, Defendants do not dispute any of the facts contained within the CCJV Report. Indeed, the County's 30(b)(6) witness confirmed in her deposition that the County itself adopted the findings of the Report and implemented policy changes in response to it. Walton Dep. at 175:10-16.

Accordingly, Defendants evidentiary objections to the admissibility of the CCJV report are OVERRULED without prejudice to raise issues of trustworthiness at trial.10

10   The same substantive analysis applies to Defendants evidentiary objections to the DOJ letter "reporting its conclusions with regard to Los Angeles County's compliance with the Memorandum of Agreement ('MOA') that requires adequate mental health care and suicide prevention at the Los Angeles County Jail System." DOJ Letter at 1. Those objections are likewise OVERRULED.

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