In a products liability case Circuit Judge Diane Wood referenced a Facebook Fan Page. Here is the exact passage:
HP may be correct that Ferraro was not using the product in the precise manner intended by the manufacturer, insofar as the power adapter was designed to rest on a flat surface with ample ventilation, but this is beside the point. The appropriate inquiry for the consumer-expectations test is whether the product performed as safely as an ordinary consumer would expect when used in “an intended or reasonably foreseeable manner.” Lamkin, 563 N.E.2d at 457 (emphasis added). The great virtue of a laptop is that it can be used on one’s lap, while sitting on a sofa, or perhaps while in bed. Indeed, we note that the Facebook page for “Using the laptop in bed” (Mission: “Public awareness of the usage of laptops in bed”) has nearly one million “Likes.” See https://www.facebook.com/ pages/Using-the-laptop-in-bed/95445955714?fref=ts (last visited June 28, 2013). Our analysis would be no different if the power adapter had started a fire in the sofa while Ferraro was in the next room; in either case, the consumer’s use of the product would be the same. A jury could conclude that Ferraro was using the power adapter in a “reasonably foreseeable” manner when the relevant harm occurred.
Ferraro v. Hewlett-Packard Co., 2013 U.S. App. LEXIS 13569, 12-13 (7th Cir. Ill. July 3, 2013) [Emphasis added].
This quote is not earth-shattering, but it shows a judge potentially taking judicial notice of the number of “likes” on a Facebook Fan Page. This does not appear to have been argued by an attorney, given the lack of citation to a motion or affidavit. This would be proper under Federal Rule of Evidence Rule 201, which allows a court to take “judicial notice” of a fact that is “not subject to reasonable dispute” because it “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” USCS Fed Rules Evid R 201(a) and (b)(2).
A judge can log into Facebook and do a search for a Fan Page or Group. The number of people who “like” that page is a quantifiable number, which would be something that could be judicially noticed by a court.
Just as attorneys run searches on clients and opposing sides, both on Google and social media, do not be surprised if a judge takes judicial notice of social media whose accuracy cannot be questioned, such as a quantifiable number of number of followers or “likes.”
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.