Commercial Litigation and Arbitration

Judicial Notice of Internet Evidence — Judicial Notice of Non-Governmental Internet Publications Limited to Their Existence — Statements Not Considered for Their Truth

Platt v. Bd. of Comm’rs on Grievances and Discipline, 2016 U.S. Dist. LEXIS 131423 (S.D. Ohio Sept. 26, 2016):

This matter is before the Court upon Plaintiffs' Motion for Partial Summary Judgment (Doc. 50) and Defendants' Cross Motion for Partial Summary Judgment (Doc. 56). These motions have been fully briefed. (Docs. 55, 60, 62, 68). Also before the Court is Plaintiffs' Motion to Take Judicial Notice. (Doc. 52). Defendants have filed a Response in Opposition (Doc. 57) and Plaintiffs have filed a Reply (Doc. 61).


Plaintiffs challenge provisions of the Ohio Code of Judicial Conduct which prohibits judicial candidates from making public political party speeches and endorsements of another candidate, Ohio Code J. Cond. 4.1(A)(2)-(3); and places restrictions on direct, personal monetary solicitation of campaign contributions by judicial candidates, Ohio Code J. Cond. 4.4(A). Plaintiffs have brought several constitutional claims, but at issue here is Plaintiffs' claim that these provisions are unconstitutionally vague and violate the First Amendment.


A. Judicial Notice

Plaintiffs seek to have this Court take judicial notice of three internet publications concerning endorsements made by sitting members of the Ohio Supreme Court which were found to not be a violation of the Ohio Code of Judicial Conduct. Two of these publications were gathered from newspaper websites. The third publication is an opinion piece from a website entitled

Under Federal Rule of Evidence 201(b), a court "may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy [*3]  cannot reasonably be questioned." Fed. R. Evid. 201. "[A] court may take judicial notice of at least some documents of public record." Passa v. City of Columbus, 123 F. App'x 694, 697 (6th Cir. 2005). However, judicial notice is limited to the existence of the documents, and a court is not to consider the statements contained in the document for the truth of the matter asserted. In re Omnicare, Inc. Sec. Litig., 769 F.3d 455, 467 (6th Cir. 2014); see also Passa, 123 Fed.Appx. 694, 697 ("in general a court may only take judicial notice of a public record whose existence or contents prove facts whose accuracy cannot reasonably be questioned").

Plaintiffs specifically ask this Court to consider the statements in the internet publications concerning "the disposition of these grievances" to support their position that "one must guess at the scope of what is permitted and prohibited under Rule 4.1(A)(3)." (Doc. 52, PAGEID #1282). This Court cannot consider such statements under Rule 201(b). Therefore, Plaintiffs' Motion to Take Judicial Notice is DENIED.


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