Microsoft website unreliable as a matter of law

An appellate court in Michigan has affirmed the trial court’s refusal to take judicial notice of information on Microsoft’s website relating to the corruption of server event log files. The court found that Microsoft’s website is not a “source whose accuracy cannot be reasonably questioned.”

After Valrene Mae Schilke was terminated from her position as a technical analyst for Express Management Services, she did what a lot of fired IT workers have probably dreamed of doing: she wrought havoc on the company’s network. Unfortunately for Schilke, however, she didn’t cover her tracks well enough to prevent investigators from tracing malicious activity to the IP address for her home computer. She was charged with one count of “unauthorized access to a computer” under Michigan law, and a jury convicted her of the crime.

At trial, Schilke admitted that she changed the network’s administrative password, deleted user accounts, and took home backup tapes and CDs without authorization. Schilke was also accused of deleting the computer system’s “event log,” but she denied this claim. She argued that a known defect in Microsoft software was instead responsible for the missing event log information. She asked the court to take judicial notice of information contained on Microsoft’s website regarding corruption of event log files.

According to the decision, under Michigan law, for a court to take judicial notice, a fact “must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” The trial court found that the alleged problem with the event logs was not “capable of accurate and ready determination,” and that “the Microsoft web site does not constitute ‘a source whose accuracy cannot be reasonably questioned.’”

The appellate court held that the trial court did not err in refusing to take judicial notice of the Microsoft website. It affirmed the defendant’s conviction and sentence.

People v. Schilke, 2005 WL 1027039 (Mich.App., May 3, 2005).