Commercial Litigation and Arbitration

Judicial Notice of Internet Evidence: Notice May Be Taken to Prove the Availability of Information on Internet, But Not for Its Truth

Lifeway Foods, Inc. v. Millenium Prods., Inc., 2016 U.S. Dist. LEXIS 176002 (C.D. Cal. Dec. 14, 2016):

Courts may take judicial notice of facts which are not subject to reasonable dispute. Fed. R. Evid. 201. Publicly available government records are commonly subject to judicial notice. Von Koenig v. Snapple Bev. Corp., 713 F. Supp. 2d 1066, 1073 (E.D. Cal. 2010). Publicly available documents extend to those which were filed earlier in the current case. Britz Fertilizers, Inc v. Bayer Corp., 665 F. Supp. 2d 1142, 1177 (E.D. Cal. 2009). Finally, Courts may take judicial notice of internet publications to prove the availability of information contained in the publications, not the truth of the information. Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2009).

Here, Defendants [*3]  request that this Court take judicial notice of the June 3, 2013 "Close Out Letter" from the Food and Drug Administration to CocoKefir, CocoKefir's application to the United States Patent and Trademark Office ("USPTO"), a declaration filed earlier in this case, and social media posts by CocoKefir. Both the "Close Out Letter" and the USPTO application are publicly available government records. As such, their accuracy cannot be reasonably disputed and they are properly subject to judicial notice. With its Motion for Preliminary Injunction filed earlier in this case, Plaintiff offered a declaration by Lifeway's Vice President of Communications, Derek Miller. In the declaration, Mr. Miller testified that Lifeway was aware of CocoKefir in 2011. The accuracy of these statements cannot now be questioned by Lifeway, and they are publicly available on this Court's docket. Finally, Defendants offer screenshots from CocoKefir's social media pages for judicial notice. Defendants do not offer the social media for the truth of the matters asserted, but rather for the fact that Lifeway could have observed CocoKefir's public activity from 2011 until present day. All of the documents are properly subject [*4]  to judicial notice. The Request for Judicial Notice (Dkt. No. 29) is GRANTED.

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