Commercial Litigation and Arbitration

Judicial Notice of Internet Evidence — Bureau of Labor Statistics Survey on Website Is Self-Authenticating under 902(5) and Bears Distinctive Characteristics of Agency’s Website within 901

Rizo v. Yovino, 2015 U.S. Dist. LEXIS 163849 (E.D. Cal. Dec. 4, 2015):


A. Plaintiff's Request for Judicial Notice

Plaintiff asks the Court to take judicial notice of the United [*12]  States Department of Labor Bureau of Labor Statistics' 2014 survey results of earnings of male and female employees by occupation, which she attached to her request and is also available at . (ECF No. 14-5.) Though Plaintiff does not state why she seeks judicial notice of this document in her request, her opposition refers to it as evidence of a pay disparity between male and female educators. Opp'n at 21-22.

Defendant objects to this request on the ground that Plaintiff fails to authenticate or lay a foundation for the document or show how the "facts" contained therein are capable of accurate and ready determination. Defendant also objects that the document reflects wages nationwide, not wages of male and female educators in California and Arizona, the states where the salaries at issue here were determined.

The Court may take judicial notice of matters that are either "generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). 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 [*13]  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 Fed. Appx. 723 (9th Cir. 2009). The printout also bears "distinctive characteristics" of the agencies' websites. 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)).

Rule 902 allows 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 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 printout from Bureau of Labor Statistics [*14]  is an official United States Government publication that is accessible via the government entity's website. The Court therefore deems it an "Official Publication" under Rule 902(5) and considers it properly authenticated. As it relates to this case, the survey results establish that, on average and in the United States as a whole, male teachers out-earn their female counterparts.5 The Court will take judicial notice of this fact.

5   During oral arguments, defense counsel disputed that this survey reflected a pay disparity between male and female educators. The Court finds otherwise. The document demonstrates that the median weekly earnings of full-time workers in the "Education, training, and library occupations" are $1,140 for men and $897 for women. A pay disparity also is shown for each of the subjections thereunder, which include post-secondary teachers ($1,409 for men and $1,143 for women); secondary school teachers ($1,108 for men and $984 for women); and elementary and middle school teachers ($1,096 for men and $956 for women).

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