NY Courts May Take Judicial Notice of Google Maps Under New State Law
Originally published in the New York Law Journal, an ALM Media publication, on June 25, 2018.
By: Dan M. ClarkUsing digital mapping services in court will be easier for litigants thanks to a bill passed by the state legislature last week. Senate Bill S9061, sponsored by State Sen. Michael Gianaris, D-Queens, will allow judicial notice of online web mapping or global imaging websites, like Google Maps and Google Earth. That will make using those services in court a lot easier. It will also save litigants time and money, Gianaris said. “Typically any case of this kind would have to be validated by other evidence to support,” Gianaris said. “We already rely on Google maps to tell us where we are or where we’re going, why don’t the courts do the same?” The bill applies to both civil and criminal cases, a spokesman for Gianaris said. Litigants can already use digital mapping services in court, but they have to take steps to validate those resources. Attorneys have to either provide supporting evidence that shows the map is accurate or bring in an expert witness that can testify about the validity of the map. That can be expensive if a litigant has to pay for an expert witness to travel for the court appearance. The bill aims to cut down on those costs while speeding up the process, said Assemblyman Jeffrey Dinowitz, D-Bronx, who sponsored the bill in the State Assembly. “It would save time and this is not just the plaintiff, the defendants could benefit from this too,” Dinowitz said. Albany County District Attorney David Soares said the change will save the state’s prosecutors money in particular. When using a map from Google, for example, a prosecutor could be forced to fly in a mapping expert from the company’s headquarters in California. “You have to bring in a person who’s familiar with how the map was produced to testify to lay a foundation for allowing that map to come in, which is absurd,” Soares said. Sometimes it’s easier than that. A police officer can testify about the geography of a map, Soares said. They can point to a street presented on the map and testify to its accuracy, for example. “You’re more or less trying to orient a juror to where an incident took place,” Soares said. Digital mapping services are not always perfect. The bill provides an avenue for litigants to rebut the use of such a map before it’s used in court if they believe it’s not accurate. The litigant planning to use the map will have to give notice at least 30 days before a trial or hearing. The opposing side then has until 10 days before a trial or hearing to request that the map not be used. A common reason to rebut a map would be the date of its origin, said David Ferstendig, who litigates civil and commercial litigation with his own firm, the Law Offices of David L. Ferstendig in Manhattan. “Google doesn’t run around taking pictures of everything and every place,” Ferstendig said. “Sometimes it’s quite accurate, sometimes it’s not that accurate. Sometimes the image it gives you is not necessarily everything that you want.” One example would be a motor vehicle case where a stop sign is involved. A litigant could try to use Google’s street view to show that there was not a stop sign at an intersection. The opposing attorney could rebut the map by showing the stop sign in question was put up after the map was produced by Google. Digital maps can be commonly used in any case that involves time or distance, such as motor vehicle accidents. They could also be presumed to help in cases about condition, Ferstendig said. There is nothing in the legislation that limits the use of those maps, which typically have images of streets, homes and businesses. That could be helpful in premises liability cases, where someone is trying to show a particular condition and how long it may have persisted, Ferstendig said. That could also be open to rebuttal, with a litigant claiming the image was taken before the condition was corrected. “The concept here is that Google maps can give you some physical issues that can be factual in a whole slew of instances, maybe in a personal injury accident to know where things are located,” Ferstendig said. Judicial notice of digital maps is already allowed in federal courts, according to a memorandum of support accompanying the bill. If signed by Cuomo, the change would take effect in courts immediately.