There is a constant debate amongst judges, law clerks, and practitioners about the proper use of extra-record material in connection with the appeal, such as material available online, blog posts, etc. It is not uncommon to see federal appellate briefs rely on online sources as a basis for establishing factual prerequisites on appeal. In a recent case I handled, the opposing side (represented by one of the largest firms in the country) used websites to support numerous “facts” that were contained in the statement of facts in the brief. I pondered whether to seek to strike the use of such extra-record material in that instance, but ultimately decided not to because the points were relatively collateral. But this does beg the question: is such a practice ever appropriate? Can you simply avoid the requirement of introducing record evidence in the district court and nevertheless rely on web materials on appeal? The answer is surely no, but we all know that the temptation is there for anyone to simply Google whatever is being argued about on appeal and see what pops up. Some judges might say this is appropriate, while others would insist to the contrary. Rule 10 (concerning modification of the record on appeal) should normally serve as a gateway, but we have all seen briefs that simply disregard those constraints.
Relatedly, we are seeing more and more in terms of websites being relied upon in Sixth Circuit opinions. A simple search on Lexis of Sixth Circuit opinions over the past two years reveals nearly a hundred opinions that contained some web link in them. These websites run the gamut from scientific articles to “wikinvest.” And, in fairness, most of these sites seem to be for providing background context. But where do we draw the line between background context and fact-finding via the web? And does this raise the specter that counsel might deliberately decline to introduce certain facts below, confident that they can rely on websites to establish them on appeal?
Adding to this debate is a recent Seventh Circuit decision, Mitchell v. JCG Industries. In that case, Judge Posner went beyond the record not to a source on the web, but actually conducted an experiment in chambers. The case involved a dispute by employees concerning their entitlement to pay for donning and doffing clothing that related to their employment. There was a factual dispute concerning how much time it actually took the employees to complete those tasks. As a result, Judge Posner undertook an experiment by purchasing the actual clothing and equipment worn by the employees and having three members of the court staff don and doff the equipment while being timed. While Judge Posner assured the reader that the experiment “was not evidence – the intention was to satisfy curiosity rather than to engage in appellate factfinding,” this further contributes to the blurring of the lines between potential fact finding and expansion of the record on appeal versus learning some background context through research.
