CJEO Formal Opinion No. 2021-016 — Independent Investigation of Information Contained in Electronic Court CMSs

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Formal Opinion 2021-016
[Issued September 21, 2021]
INDEPENDENT INVESTIGATION OF INFORMATION CONTAINED IN
ELECTRONIC COURT CASE MANAGEMENT SYSTEMS
I. Question
The Committee on Judicial Ethics Opinions (CJEO) was asked to provide an
opinion on whether, in a non-criminal matter, a judge1 may search the court’s electronic
case management system (CMS) for information regarding a party, attorney, or facts
relevant to the matter before the judge.
1 As used in this opinion, judge refers to all judicial officers, including trial court
judges, appellate justices, and other judicial officers who are subject to the California
Code of Judicial Ethics. (Cal. Code Jud. Ethics, canon 6A [anyone who is an officer of
the state judicial system and who performs judicial functions is a judge within the
meaning of the code and shall comply with the code except as otherwise provided].)

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II. Summary of Conclusions
Canon 3B(7) of the California Code of Judicial Ethics 2 provides that “[u]nless
authorized by law, a judge shall not independently investigate facts in a proceeding and
shall consider only the evidence presented or facts that may be properly judicially
noticed. This prohibition extends to information available in all media, including
electronic” (emphasis added). How this canon applies to using an electronic case
management system (CMS) in all matters, whether civil or criminal, is the subject of this
opinion.
It is the committee’s view that a judge may use a CMS to search for information
that will assist in the proper performance of judicial duties. A judge may also use a CMS
to independently investigate facts in a proceeding where the investigation is authorized
by law. The committee advises that canon 3B(7) prohibits only those CMS searches that
are performed to independently investigate adjudicative facts where the investigation is
not authorized by law or where the information is not the proper subject of judicial
notice. Adjudicative facts are those that may resolve factual issues or relate to evaluating
credibility in the matter before the judge.
III. Authorities
A. Applicable Canons
Canon 2A: “A judge . . . shall act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary.”
Canon 3: “A judge shall perform the duties of judicial office impartially,
competently, and diligently”
Canon 3B(7): “A judge shall accord to every person who has a legal interest in a
proceeding, or that person’s lawyer, the full right to be heard according to law. Unless
otherwise authorized by law, a judge shall not independently investigate facts in a
2 All further references to the code, canons, or advisory committee commentary are
to the California Code of Judicial Ethics.

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proceeding and shall consider only the evidence presented or facts that may be properly
judicially noticed. This prohibition extends to information available in all media,
including electronic.”
Advisory Committee commentary following canon 3B(7): “A judge is statutorily
authorized to investigate and consult witnesses informally in small claims cases. Code of
Civil Procedure section 116.520, subdivision (c).”
Canon 3E(1): “A judge shall disqualify himself or herself in any proceeding in
which disqualification is required by law.”
Canon 3E(2): “In all trial court proceedings, a judge shall disclose on the record as
follows: [¶] (a) Information relevant to disqualification. [¶] A judge shall disclose
information that is reasonably relevant to the question of disqualification under Code of
Civil Procedure section 170.1, even if the judge believes there is no actual basis for
disqualification.”
Canon 3E(4): “An appellate justice shall disqualify himself or herself in any
proceeding if for any reason: [¶] (a) the justice believes his or her recusal would further
the interests of justice; or [¶] (b) the justice substantially doubts his or her capacity to be
impartial; or [¶] (c) the circumstances are such that a reasonable person aware of the facts
would doubt the justice’s ability to be impartial.”
B. Other Authorities
Code of Civil Procedure sections 116.520, 116.770, 170.1, 391, 391.2, 527.6,
527.8, 527.85
Civil Code section 1954.13
Evidence Code sections 450-460
Family Code sections 3031, 6306
Penal Code sections 18155, 18175
Probate Code section 2620
California Rules of Court, rules 3.300, 5.440, 5.445, 8.252
Catchpole v. Brannon (1995) 36 Cal.app.4th 237
Conservatorship of Presha (2018) 26 Cal.App.5th 487

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Fremont Indemnity Co. v. Workers’ Comp. Appeals Bd. (1984) 153 Cal.App.3d
965
Gimbel v. Laramie (1960) 181 Cal.App.2d 77
Harris v. Rivera (1981) 454 U.S. 339
In re Marriage of Davenport (2011) 194 Cal.App.4th 1507
Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133
Cal.App. 4th 26
Planning & Conservation League v. Castaic Lake Water Agency (2009) 180
Cal.App.4th 210
Wechsler v. Superior Court (2014) 224 Cal.App.4th 384
CJEO Formal Opinion 2015-007 (2015), Disqualification for Prior Appearance as
a Deputy District Attorney in a Nonsubstantive Matter, California Supreme Court
Committee on Judicial Ethics Opinions
CJEO Oral Advice Summary 2019-029 (2019), Appellate Disqualification for
Prior Assignment as Coordinated Proceedings Judge, California Supreme Court
Committee on Judicial Ethics Opinions
CJEO Oral Advice Summary 2018-023 (2018), Disqualification Responsibilities
of Appellate Court Justices, California Supreme Court Committee on Judicial
Ethics Opinions
Rothman et al., California Judicial Conduct Handbook (4th ed. 2017) appendix G
ABA Committee on Professional Ethics, Opinion Number 478 (Dec. 8, 2017)
Thornburg, The Lure of the Internet and the Limits on Judicial Fact Research
(Summer/Fall 2012) 38:4 Litigation 41
IV. Discussion
A. Electronic Case Management Systems
At its most basic level, a CMS contains what was traditionally stored in paper files
but is now stored electronically in searchable databases and other formats. A CMS
receives, stores, organizes and retrieves case data, including documents that are

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electronically filed with a court, created electronically by a court, or electronically stored
with the court, as well as electronic copies or versions of documents that were originally
paper records and have been digitized. Some CMSs may also contain calendar
information and additional features that allow for the creation of and access to other
information, such as comments, impressions, notes, research results, or to-do lists that are
associated with a specific case or are created for general use by a judge or court
staff. Judges usually access information contained in a CMS through a ‘viewer’
application, which provides total or limited access to all the information and data stored
in a CMS. CMSs and companion judicial viewer applications provide immediate access
to comprehensive data. Some CMSs may also link to or provide access to a court’s
document management system, which may include templates, prior orders, frequently
cited cases, or internal court memoranda, operating as a brief bank.
Unlike paper files, the information stored in a CMS is readily accessible, easily
searchable, and may contain more than what is in a paper file. Depending on the features
of a court’s individualized CMS, the system’s settings, other judges’ privacy settings, and
a judge’s access rights, search results may be limited to matters assigned to a specific
judge or may be more comprehensive. It is not unexpected that a CMS search will yield
relevant results from all the case records and other information within the judge’s case
type or discipline or from within the judge’s entire court.
B. Permissible CMS Searches
Electronic case management systems are an integral part of California court
operations, providing an efficient mechanism for judges and court staff to electronically
review court documents and effectively manage caseloads. These electronic systems
provide easy and immediate access to court records as well as other information that can
be searched and viewed instantaneously.
Canon 3B(7) of the code states that “[u]nless authorized by law, a judge shall not
independently investigate facts in a proceeding and shall consider only the evidence

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presented or facts that may be properly judicially noticed. This prohibition extends to
information available in all media, including electronic” (emphasis added). For judges
using their court’s CMS as a regular and necessary part of their judicial function, the
question becomes: what electronically stored information are they authorized by law to
search for or view?
There are many statutes, court rules, and cases that authorize a judge to search for
and view information relevant to the matter assigned to the judge. In some instances, an
independent investigation of relevant facts is required.3 In other instances, an
independent investigation is permitted, such as to avoid inconsistencies with other orders 4
or to determine whether there are grounds that justify issuing an order. 5 In small claims
cases, a judge may investigate the controversy with or without providing notice to the
parties.6 In certain matters, a judge may engage in an independent investigation as part of
the court’s supervisory duties.7
3 Fam. Code, § 6306 [a court shall ensure that a search is conducted to determine
certain information regarding the subject of the proposed order].
4 Fam. Code, § 3031 [a court considering the issue of custody or visitation is
encouraged to make a reasonable effort to ascertain whether there are other orders in
effect that concern the parties or the minor]; Cal. Rules of Court, rules 5.440 & 5.445
[courts should identify cases and information related to a pending family law case to
avoid inconsistent orders].
5 Pen. Code, §§ 18155, 18175 [gun violence restraining orders]; Code Civ. Proc., §§
391, 391.2 [vexatious litigant findings based on prior unmeritorious litigation practices],
§§ 527.6, subd. (i) [civil harassment], 527.8, subd. (j) [workplace harassment], 527.85,
subd. (j) [harassment at postsecondary educational school campus or facility]; Civ. Code,
§ 1954.13, subd. (c) [transitional house participant abuse or program misconduct].
6 Code Civ. Proc., §§ 116.520, subd. (c); 116.770, subd. (c) [a judge may conduct
an independent investigation in small claims court matters that are on appeal in superior
court]; Advisory Com. com. foll. canon 3B(7) [a judge may investigate in small claims
cases].
7 Prob. Code, §§ 2620, subd. (d) [a court may consider any information necessary to
determine the accuracy of a conservatorship accounting]; Conservatorship of Presha
(2018) 26 Cal.App.5th 487, 49-498 [a judge may consider a court-appointed
conservator’s billing practices in other cases to determine whether the conservator is
properly discharging the conservator’s duties].

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A judge may also search the court’s CMS for case management purposes. This
includes searching a CMS to determine whether to coordinate, relate, or consolidate
cases.8 A judge may also search the CMS to determine whether the judge should
disqualify himself or herself based on prior involvement in the matter, prior
representation of a party, or a financial interest in a party. 9 These examples are not
exhaustive. There are many other statutes, regulations, and rules of court, as well as case
law, that authorize a judge to independently investigate a matter. An independent
investigation using a CMS that is performed pursuant to such authority is permitted by
canon 3B(7). (Canon 3B(7) [prohibiting independent investigation of facts in a
proceeding unless otherwise authorized by law].)
A judge who searches a CMS for court records that are the proper subject of
judicial notice also complies with canon 3B(7). (Canon 3B(7) [a judge may consider
facts that may be properly judicially noticed]; Evid. Code, § 450 [judicial notice may not
be taken of any matter unless authorized or required by law]; Evid. Code, § 452
[authorizing judicial notice of court records]; Evid. Code, § 455 [requiring a reasonable
opportunity to be heard on any permissive judicial notice].) 10 For example, a judge who
8 Cal. Rules of Court, rule 3.300(h) [a judge must determine whether certain cases
should be ordered related], rule 5.440 [courts should identify cases related to a pending
family law case to make effective use of court resources].
9 Code Civ. Proc., § 170.1 [setting forth the grounds for disqualification of trial
court judges]; canon 3E(4)-(5) [setting forth the grounds for disqualification of appellate
justices]; CJEO Formal Opinion 2015-007, Disqualification for Prior Appearance as a
Deputy District Attorney in a Nonsubstantive Matter, Cal. Supreme Ct., Com. Jud. Ethics
Formal Opn., p. 14 [a judge who appeared in a case as a deputy district attorney in a
nonsubstantive role is not disqualified unless the judge actively participated in the case];
CJEO Oral Advice Summary 2019-029, Appellate Disqualification for Prior Assignment
as Coordinated Proceedings Judge, Cal. Supreme Ct., Com. Jud. Ethics Oral Adv. Sum.,
p. 5 [a justice who served as a coordination judge is not required to disqualify where he
was not actively involved nor made any decisions as the coordination judge on the matter
on appeal or other related matters].
10 A comprehensive discussion of the law relating to mandatory and permissive
judicial notice is beyond the scope of this opinion. With regard to the judicial ethics

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must decide whether res judicata or collateral estoppel applies may perform a limited
CMS search for the court’s prior ruling, which may be judicially noticed. (Planning &
Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 225
[judicial notice of court records in a separate action is permissible when considering a
demurrer based on res judicata].)
C. Impermissible CMS Searches
The canon 3B(7) prohibition on the independent investigation of facts in a
proceeding addresses two primary concerns — judicial impartiality and protecting due
process rights. A judge who engages in fact-finding may demonstrate a lack of
impartiality or embroilment and, if the judge relies on information obtained from an
independent investigation, deprive a party of the opportunity to confront and respond to
certain evidence. (Canon 2A [a judge shall act at all times in a manner that promotes
public confidence in the impartiality of the judiciary]; canon 3B(7) [a judge shall accord
to every person who has a legal interest in a proceeding, or that person’s lawyer, the full
right to be heard according to law]; Catchpole v. Brannon (1995) 36 Cal.App.4th 237,
259, fn. 9 [an independent factual inquiry is uncharacteristic of an impartial judge];
Fremont Indemnity Co. v. Workers’ Comp. Appeals Bd. 153 Cal.App.3d 965, 971, 974
[independent investigation in a case may violate the requirements of due process and
erode public confidence in the integrity and impartiality of the judiciary].) These
issues raised by CMS searches, canon 3B(7) necessarily requires a judge to determine
that a specific fact, document, court record, or other item of information is the legally
permitted subject of judicial notice before engaging in an electronic search of the court’s
system for that item. (Evid. Code § 451 [specifying matters subject to mandatory judicial
notice; Evid. Code §§ 452-452.5 [specifying matters subject to permissive judicial
notice]; Evid. Code §§ 453-460 [specifying procedures and rules regarding the propriety
of taking judicial notice]; Cal. Rules of Court, rule 8.252(a) [specifying procedures for
judicial notice on appeal]; Kaufman & Broad Communities, Inc. v. Performance
Plastering, Inc. (2005) 133 Cal.App. 4th, 26, 39-42 [discussing and detailing documents
that constitute cognizable legislative history for purposes of judicial notice].)

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concerns are particularly applicable to independent investigations of adjudicative facts,
which are facts that are specific to a particular case, such as “who did what, where, when,
how, and with what motive or intent,” and that are usually resolved by a fact finder.
(ABA Com. on Prof. Ethics, Opn. No. 478 (Dec. 8, 2017) pp. 4–5, quoting 2 Davis,
Administrative Law Treatise (1958) § 15.03, p. 353; Thornburg, The Lure of the Internet
and the Limits on Judicial Fact Research (Summer/Fall 2012) 38:4. Litigation 41, 44–45
[general information and background information about a party or the subject matter of a
pending case constitutes adjudicative facts if it is of factual consequence in the matter].)
It is, therefore, the committee’s opinion that an independent investigation of facts when
the facts are adjudicative in nature is prohibited unless the review of such information is
permitted by statute or is a proper subject of judicial notice. 11
D. Permissible CMS Searches that Produce Adjudicative Facts
The committee recognizes that judges regularly and routinely search case files and
information using a CMS in furtherance of the proper performance of the duties of
judicial office. Many of these tasks are predominately administrative in nature or
conducted in connection with administrative functions. Using a court-provided CMS in
furtherance of the duties of judicial office is not generally inconsistent with a judge’s
ethical obligations. A judge who searches a CMS for non-adjudicative information and
11 Limiting the prohibition on independent investigations to adjudicative facts is also
consistent with other sections of canon 3B(7) that allow for ex parte communications in
limited circumstances. For example, canon 3B(7)(a) permits ex parte communications
among judges and court personnel that do not concern factual information. (Ibid. [a
judge may consult with other judges and court personnel but should make reasonable
efforts to avoid receiving factual information outside the record or an evaluation of that
factual information].) Canon 3B(7)(b) also permits limited ex parte communications
“where circumstances require, for scheduling, administrative purposes, or emergencies
that do not deal with substantive matters” if no party will gain an advantage and the judge
notifies the parties and provides an opportunity to respond.

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reviews only those results that include non-adjudicative information complies with canon
3B(7).
Similar to internet searches, it is not uncommon to conduct a search not knowing
what information will be provided. Due to the nature of CMSs, which provide immediate
and easy access to large quantities of information, a judge should be aware that a CMS
search could produce results that include some adjudicative and non-adjudicative facts.
This is particularly the case when reviewing information that is not part of a case record
but nonetheless available in a CMS. For example, a judge may have access to other
judges’ notes in an electronic CMS environment. Those notes may contain a judge’s
credibility assessments of parties or attorneys. When initiating a CMS search while
performing necessary judicial functions, a judge should attempt to avoid reviewing
adjudicative facts unless review of such information is authorized by law or if the
adjudicative facts may be properly judicially noticed. A judge may not initiate or use a
CMS search for the purpose of independently investigating adjudicative facts that pertain
to resolving factual issues or to assess credibility in an assigned matter unless the judge
has determined that review of those facts is permitted by statute or the facts are the proper
subject of judicial notice.
E. Disqualification and Disclosure Considerations Following Inadvertent
Review of Adjudicative Facts
A judge who inadvertently reviews adjudicative facts should first consider their
capacity to remain impartial in the matter in light of the information that has been
reviewed. (Canon 2A [a judge must act at all times in a manner that promotes public
confidence in the impartiality of the judiciary]; canon 3 [a judge shall perform the duties
of judicial office impartially].) A judge may determine that he or she is able to disregard
this information, just as a judge is presumed to disregard irrelevant or inadmissible
evidence presented by a party in the decision-making process. (Harris v. Rivera (1981)
454 U.S. 339, 346 [trial judges routinely hear inadmissible evidence that they are

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presumed to ignore when acting as fact finders]; In re Marriage of Davenport (2011) 194
Cal.App.4th 1507, 1526 [the mere fact that a court reviewed evidence is not sufficient to
overcome the presumption that a judge will distinguish and recognize only those facts
that properly may be considered]; Gimbel v. Laramie (1960) 181 Cal.App.2d 77, 84 [the
nature of judicial office and the judicial process requires a judge to divorce from the
judge’s mind inadmissible matters that may be brought to light in a trial].) However, if a
judge determines that he or she is unable to disregard what has been inadvertently
viewed, the judge must disqualify on the grounds of impartiality. (Code Civ. Proc., §
170.1, subd. (a)(6)(A)(ii) [a judge shall disqualify if the judge believes there is a
substantial doubt regarding his or her impartiality]; canon 3E(1) [a judge shall disqualify
where disqualification is required by law]; canon 3E(4)(b) [an appellate justice shall
disqualify himself or herself where the justice substantially doubts his or her capacity to
be impartial].)
A judge must also consider whether a person aware of the search and inadvertent
review of adjudicative information would have reasonable doubts concerning
impartiality, which would require disqualification. (Code Civ. Proc., § 170.1, subd.
(a)(6)(A)(iii) [a judge shall disqualify if a person aware of the facts might reasonably
entertain a doubt that the judge would be able to be impartial]; canon 3E(4)(c) [an
appellate justice shall disqualify himself or herself if the circumstances are such that a
reasonable person aware of the facts would doubt the justice’s ability to be impartial];
Wechsler v. Superior Court (2014) 224 Cal.App.4th 384, 391 [if a fully informed,
reasonable member of the public would fairly entertain doubts that the judge is impartial,
the judge is disqualified].)
A judge who inadvertently views adjudicative facts during a CMS search must
also determine whether to disclose to the parties the details regarding any information
that was inadvertently reviewed, as well as provide the parties with an opportunity to
respond to the disclosure. (Canon 3E(2)(a) [a trial court judge must disclose on the
record any information that is reasonably relevant to the question of disqualification even
if the judge believes there is no actual basis for disqualification]; CJEO Oral Advice

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Summary 2018-023, Disqualification Responsibilities of Appellate Court Justices, Cal.
Supreme Ct., Com. Jud. Ethics Opns, p. 3 [an appellate court justice may, but is not
required to, disclose information relevant to the decision to not disqualify himself or
herself].)
In deciding whether to disclose, a judge should again evaluate whether a party
aware that the judge had reviewed the information would reasonably doubt the judge’s
impartiality and whether the information provides a benefit to one side in a matter.
(Rothman et al., Cal. Jud. Conduct Handbook (4th ed. 2017) appen. G, p. 923, citing Cal.
Judges Assn., Jud. Ethics Update (1997) § I.D., p. 2 [a judge who learns information
about a case from the court’s computer system that may be useful to one side or the other
in an ongoing trial is required to disclose this information to the parties].) If the judge is
the fact finder in the matter, it is more likely that the judge should disclose the
information. A judge should disclose and allow the parties an opportunity to respond if
the judge intends to rely on the information in some manner to avoid due process
concerns. (Fremont Indemnity Co. v. Workers’ Comp. Appeals Bd., supra, 153
Cal.App.3d at p. 971 [due process requires that all parties are fully apprised of the
evidence considered and are provided with an opportunity to respond to the evidence and
offer other evidence in explanation or rebuttal].)
Overall, a judge’s decision to disqualify or to make a disclosure based on an
inadvertent review of adjudicative information is a highly fact-specific evaluation. The
nature of the matter before the judge and the adjudicative information that the judge
reviewed should guide the judge’s discretionary decision regarding disqualification or
disclosure.
V. Conclusion
Judges are expected to and do use CMS searches for information that will assist in
the proper performance of the duties of judicial office. Canon 3B(7) prohibits the use of
a CMS to independently investigate adjudicative facts unless the investigation is
authorized by law or the information is the proper subject of judicial notice. A judge

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using a CMS should do so with awareness that a CMS search could produce results that
include adjudicative information and attempt to avoid reviewing adjudicative
information, unless it is legally authorized or judicially noticeable.
Judges who inadvertently review court records or other information that contains
adjudicative facts as part of an otherwise permissible CMS search should consider (1)
whether they are allowed by law or judicial notice to review the information; (2) whether
the information they have viewed raises actual or reasonable doubt about impartiality;
and (3) whether they should disclose the CMS search and the information reviewed and
provide the parties with an opportunity to respond.

This opinion is advisory only. (Cal. Rules of Court, rule 9.80(a), (e); Cal. Com.
Jud. Ethics Opns. (CJEO), Internal Operating Rules & Proc. rule 1(a), (b).) It is based
on facts and issues, or topics of interest, presented to the California Supreme Court
Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court,
rule 9.80(i)(3); CJEO rules 2(f), 6(c)), or on subjects deemed appropriate by the
committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)). The conclusions
expressed in this opinion are those of the committee and do not necessarily reflect the
views of the California Supreme Court or any other entity. (Cal. Rules of Court, rule
9.80(b); CJEO rule 1(a).)