Delaware Trial Handbook § 11:3. JUDICIAL NOTICE OF GOVERNMENT RECORDS

A court may take notice of records that are required to be kept and published by the Constitution of the State of Delaware such as the Journals of the Legislature.15 The extent to which a court may take judicial notice of other government records is not specifically delineated,16 although one court has held that it make take judicial notice of a report from the U.S. Housing and Human Development Agency indicating a mortgage rate, because the historical interest rate information was provided by the federal government, the information was not subject to reasonable dispute and was capable of accurate and ready determination by resort to sources whose accuracy could not reasonably be questioned.16.1  Another court took judicial notice of the contents of a press release issued by a federal regulatory agency.16.2  Further, courts take judicial notice of SEC filings, provided that the statements in such filings are not the subject of reasonable dispute.16.3 A court may take judicial notice of the records of the Recorder of Deeds and plots of subdivision.17

A court may take judicial notice of records of the same court in which the action is pending, as well as any other Delaware state court or federal court sitting in or for Delaware.18  A court, however, will not take judicial notice of the truth of statements in court filings.18.1

A party asking a court to take judicial notice of government records must furnish the court with sufficient information to enable it to comply properly with the request and must notify all adverse parties either in the pleadings or at least twenty days before trial. The court, however, may permit such notification to be given at any time in the interests of justice.19 A court should not take judicial notice of such records sua sponte without giving the parties notice and an opportunity to explain and rebut such documents and records.20

15. Rash v. Allen, 76 A. 370, 377 (Del. Super. 1910).

16. Former 10 Del.C. § 4308 provided that a court could accept as competent evidence a certified copy of any record or paper belonging to any public office or legally in the custody of any public officer, except printed copies of schedules and classifications and tariffs of rates, fairs and charges filed with any federal regulatory commission, could be received into evidence without certification and would be presumed to be correct copies. This statute was repealed by 63 Del. Laws ch. 62, § 1, eff. June 30, 1981. See also Mitchell v. Delaware Alcoholic Beverage Control Comm., 193 A.2d 294, 301 n.2 (Del. Super. 1963), rev’d on other grounds, 196 A.2d 410 (Del. 1963) (taking judicial notice of public records).

16.1. Estate of Osborn ex rel. Osborn v. Kemp, C.A. No. 3171-VCP, slip op. at 24-25 n. 95, Parsons, V.C. (Del. Ch. Aug. 20, 2009), aff’d, 991 A.2d 1153 (Del. 2010).

16.2. Midland Funding LLC v. Johnson, C.A. No. CPU4-10-007831, slip op. at 7 & n.8, Rocanelli, J. (Del. Comm. Pls. Jan. 26, 2012, amended Feb. 1, 2012).

16.3. Gantler v. Stephens, 965 A.2d 695, 703 (Del. 2009); In re General Motors (Hughes) Shareholder Litigation, 897 A.2d 162, 170-71 (Del. 2006); Omnicare, Inc. v. NCS Healthcare, Inc., 809 A.2d 1163, 1167 n.3 (Del. Ch.), app. dismissed mem., 822 A.2d 397 (Del. 2002); Narrowstep, Inc. v. Onstream Media Corporation, C.A. No. 5114-VCP, slip op. at 13-17, Parsons, V.C. (Del. Ch. Dec. 22, 2010).

17. State v. Halko, 188 A.2d 100, 104 (Del. Super. 1962).

18. D.R.E. 202(d)(l)(B). See also Powell v. Dept. of Services for Children, Youth and their Families, 963 A.2d 724, 736 (Del. 2008); In the Interest of Stevens, 632 A.2d 18, 28 (Del. 1995); Bailey v. State, 450 A.2d 400, 405 (Del. 1982); Masten v. State, 626 A.2d 838, 842 n.2 (Del. Super. 1991), aff’d, 616 A.2d 1214 (Del. 1992); Gibson v. North Delaware Realty Company Stoneybrook Townhomes, C.A. No. 95A-08-011-JOH, slip op. at 7, Herlihy, J. (Del. Super. Aug. 20, 1996) (taking judicial notice of report of the Chief Magistrate of the Justice of the Peace Court); Patten v Simone, C.A. No. 90C-JA-29, slip op. at 2, Herlihy, J. (Del. Super. Aug. 7, 1992), reh’g denied, C.A. No. 90C-JA-29, Herlihy, J. (Del. Super. Aug. 7, 1992) (judicial notice of guilty plea). This rule is generally consistent with prior common-law practice. See Johnston v. Chrysler Corp.,  178 A.2d 459, 462 (Del. 1962) (court may take judicial notice of records in other cases before it involving the same plaintiff); State v. Naylor, 207 A.2d 1, 7 (Del. Super. 1965) (court may take judicial notice of its own records and those of inferior courts); Lewis v. Corroon & Reynolds Corp., 57 A.2d 632, 636 n.2 (Del. Ch. 1948), overruled on other grounds by Zeeb v. Atlas Powder Co., 87 A.2d 123 (Del. 1952) (assuming that court could take judicial notice of records of other cases in same court); State v. Gaster, C.A. No. 5008, slip op. at 4, Walsh, J. (Del. Super. Oct. 28, l975)(taking judicial notice of its own records). But see Frank v. Wilson & Co., 32 A.2d 277, 280 (Del. 1943) (refusing to take judicial notice of proceedings in other cases in the same court, pre-dating the current rules of evidence).

18.1.  Pulieri v. Boardwalk Properties, LLC, C.A. No. 9886-CB, slip op. at *8 n.24, Bouchard, C. (Del. Ch. Feb. 18, 2015).

19. D.R.E. 202(d)(2).

20. Ruggles v. Riggs, 477 A.2d 697, 706 (Del. 1984); Lifmann v. Aronson, 367, 212 A.2d 403, 404 (Del. 1965).

© 2010  David L. Finger