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Signatures Needed for Reno/Rivlin letter on Case Law Solicitation
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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE
CROWN JEWELS CAMPAIGN - JURIS, LEGAL INFORMATION
AUGUST 4, 1994
- Signatutures needed on letter to Attorney General Janet
Reno and OMB Director Janet Rivlin asking for a public comment
period on the upcoming solicitation for computer assisted legal
research services.
The following letter to Attorney General Janet Reno and OMB
Director Alice Rivlin asks the Department of Justice (DOJ) to
accept public comments in a formal "Request for Comment," or RFC,
before issuing a solicitation for computer assisted legal
research (CALR) services. We are trying to prevent DOJ from
issuing a solicitation that is anti-competitive, and that
continues to provide West Publishing and Mead Data Central with
an unfair advantage in competing for DOJ's CALR contract. We are
also pressing DOJ to require bidders to use a non-proprietary
system of citations for case law, and to place copies of federal
case law into the public domain.
States are walking away from West's monopoly. The Supreme Courts
of Louisiana and Colorado now allow lawyers to cite cases using a
uniform public domain citation form. Louisiana's form consists
of case name, docket number, excluding letter, court abbreviation
and month, day and year of issue. Pinpoint cites are to the page
numbers designated by the Court. In Colorado, the Supreme Court
permits the use of paragraph cites instead of West's page number
cites. The Wisconsin State Bar Associations Board of Governors
recommended in June 1994 that the state move toward a vendor
neutral and medium neutral citation system using numbered
paragraphs for Wisconsin case law. It is further recommended that
Wisconsin establish an official repository of opinions which will
be the official text of the case law. Vendors will compete by
the value they add to the opinions, not by controlling access.
Iowa, California, Illinois and Utah are discussing such changes.
If you are willing to join us in signing this letter, please send
the following information to Mike Ward (mike@tap.org; voice:
202/387-8030; fax 202/234-5176).
Name: ____________________________
Title: ______________________________
Affiliation: ___________________________
Postal Address: ________________________________
City: ______________________
State: _____________________, Zip Code: ______________________
Telephone: (for verification) ________________________
Fax: ________________________________
Internet address: _____________________
version 1.0
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August xx, 1994
Ms. Janet Reno
Attorney General
U.S. Department of Justice
Washington, DC 20530
Ms. Alice Rivlin
Director
Office of Management and Budget
Washington, DC 20530
Dear Attorney General Reno and OMB Director Rivlin:
We are writing to urge the Department of Justice (DOJ) not to
issue its anticipated Request for Proposal (RFP) for computer
assisted legal research (CALR) until it first issues a Request
for Comment (RFC). The pending CALR procurement is very
important because it will determine whether the DOJ will repeat
its past errors in the future by continuing to give ownership of
its case law decisions to West Publishing Company. The
alternative is for the government to own its case law, to have a
vendor, at a modest cost, insert paragraph numbers which become
the universal pinpoint citation form and to sell copies of the
data to all vendors who want it. Vendors' products would compete
on the basis of the value they add to the basic cases and not by
controlling access to the case law.
The DOJ officials in the Justice Management Division who are
working on this procurement have stated they will issue an RFP
for CALR services in August. We believe this 5-year procurement
contract will be deficient in several important ways:
1. Private Citation System. The contract will not require the
contractor to use a public domain system of citation to
federal judicial opinions. At present one firm, West
Publishing, claims that it "owns" the page numbers of
judicial decisions that it publishes. Since West is the
official reporter for many federal courts, West has a
monopoly over an essential part of the system of citation to
federal law.
2. Private Ownership of Judicial Opinions. DOJ will allow the
bidder to retain a proprietary ownership of the text of
federal judicial opinions. DOJ made this mistake earlier in
the JURIS system, which gave West the ability to pressure
the government to shut down JURIS in late 1993. Presently,
only two firms, West Publishing and Mead Data Central, own
copies of the database of historical copies of federal
judicial opinions in digital form. As a result of West's
suing Mead, there exists a secret settlement agreement which
gives Mead the limited right to use the West page numbers
and which reportedly may restrict Mead's right to provide
third parties with copies of the historical records of its
database.
We urge the DOJ to learn from its past mistakes. Starting
with this procurement contract, the DOJ should own the
federal case law. One vendor has offered for $5 million to
key in to electronic form the last 20 years of federal case
law not using West's data to create a publicly owned
database for the DOJ.
3. Contract Bundling. The procurement will be written so that
the winning firm will have to offer a complete menu of CALR
databases. Only two firms, West and Mead, can possibly bid,
and Mead's ability to bid may be constrained by its secret
settlement of the West-Mead antitrust case.
DOJ was asked by several small businesses and non-profits to
divide the procurement, so they can bid on various parts of it.
Several firms have indicated that they are prepared to bid on
smaller sections of the service, such as online access to Supreme
Court decisions, specialized databases such as tax-related case
law, or prospective case law. These companies also agree to
provide DOJ with public domain citation systems and a non-
proprietary copies of the case law, which would be available to
the public and other vendors.
Among the groups opposing the DOJ's procurement are:
1. American Association of Law Libraries who strongly support
using a system of citation that can be put in the public domain.
The Association would also like to see all case law put into the
public domain.
2. An 80-member consortium of universities and computer
companies working to develop computer technology and voice
recognition software programs for use by lawyers and judges. To
develop these technologies, the researchers need inexpensive
electronic access to millions of pages of legal text, which can
even be out of order, so it cannot be used by others. Only West
and Mead have this information and they refuse to give it to the
consortium at less than the market price, which is prohibitive.
It is believed Mead and West are also developing speech
recognition technologies for lawyers.
3. Many businesses who want to use the latest electronic
technologies to produce new and better products for lawyers and
researchers using case opinions.
4. Public interest groups who believe that data and records
created with public monies should not become the property of
private companies and resold to the government and the public at
very high prices. These public records should be easily and
inexpensively available to the public in libraries and through
the Government Printing Office (GPO) as well as through competing
private vendors who buy the information from the GPO and add
value to it.
Most importantly, government procurement is different from all
other purchases. In addition to providing services and goods
needed to operate government agencies, it should be used, and
historically has been used at various times, to benefit all
consumers by causing changes in the general market place. The
federal government is the largest consumer of CALR; spending over
$50 million annually. If it retains ownership of federal court
decisions, it will change the marketplace for all purchasers of
federal case law band very quickly for all state case law.
Public ownership permits innovative companies to use this data in
new and different ways, increasing the products available and
reducing prices.
State Supreme Courts are eliminating West's monopoly over their
case law. On December 17, 1993, the Supreme Court of Louisiana
issued an order requiring a "uniform public domain citation form"
with a parallel citation to West's Southern Reporter for all
opinions and actions issued after December 31, 1993. The
citation form consists of the case name, docket number, court
abbreviation and month, day and year of issue. Pinpoint cites
are to the page numbers designated by the court and parallel West
citations are not required. In May 1994, the Colorado Supreme
Court started permitting the use of paragraph numbers as an
alternative to West's page citations. The Wisconsin State Bar
Association's Board of Governors recommended in June 1994 that
Wisconsin adopt a vendor neutral and medium neutral citation
system using numbered paragraphs for Wisconsin case law. They
also urge Wisconsin to establish an official repository of final
opinions which will be owned by the State. Vendors will compete
based on the value they add, not by controlling access. Similar
changes are also being considered in Iowa, California, Utah and
Illinois. By the time the proposed DOJ solicitation expires in
1999-2000, it appears that the DOJ will be far behind the
learning curve and unable to catch up quickly or cheaply because
they do not own their own case law.
At this time we are only asking that DOJ be prevented from
issuing an RFP for CALR without first issuing a request for
comment (RFC) on the procurement. Then DOJ can fully consider
public comments about measures which will improve the
procurement. This is little to ask given the great public
importance of this matter and the enormous total cost of this
procurement -- $50 - 100 million over five years.
Sincerely,
Taxpayer Assets Project
Government Accoutability Project
Government Purchasing Project
National Campaign For Freedom of Expression
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