TAP answers West's 3rd round of questions

[James Love <love@tap.org>]

The following is my response to Dorothy Molstad's most recent round of 
questions to TAP.  Dorothy has promissed to provide TAP with answers to 
five questions that we have asked West.  jamie

>TO:       Jamie Love
>FROM:     Dorothy Molstad
>RE:       Yours of 10/25
>DATE:     October 26, 1994


>     I'll be happy to answer your five questions, posted
>yesterday.  But this dialogue will be much easier for us -- and
>for everyone else to follow --if you will first answer the
>questions I posed earlier.  Again:

>1.   Regarding the cost issue, and composition of this "database
>     of judicial opinions," does anyone seriously believe the   
>     United States Justice Department lawyers can obtain the
>     information they need to prosecute drug dealers, big
>     polluters, organized crime etc. -- using
>     the $36,000 per year/ $750 per year bargain basement
>     databases you describe -- databases that include only a
>     tiny fraction of caselaw?

Dorothy, your earlier question asked: how much money would it
cost the government to create a public database of judicial
opinions?  I responded at some length, explaining that the cost
depends upon the scope of the database.  Clearly, it is fairly
cheap to collect the new opinions from the federal Supreme Court
and Circuit Courts.  These opinions are already available for
downloading from government bulletin boards, and the government
just needs to archive the data, which it does not do now. 
Likewise, many state opinions are disseminated via bulletin
boards, and they too could be archived.  John Lederer says it
would cost the State of Wisconsin about $50 per year to create a
database (archive) of its state court decisions.  This is not a
major task.  The $750 per year flat rate charge is what one of
your competitors, Lawyers Legal Research (Bellevue Washington)
now charges for all opinions from the federal supreme court and
circuit court, plus some coverage of state opinions from 26
states.  I think you know Joe Acton from LLR, give him a call and
find out how he does it.

The $36,000 per year is the amount of money that Acton offered to
charge DOJ to give the agency the federal supreme court and
circuit court data in a modified format, with a public domain
citation, including paragraph numbering.  This isn't 200 years of
case law, it is the higher federal courts and some state courts
looking forward, as I clearly indicated.

Now, there is a major difference between a database and a
research service.  Clearly DOJ would want access to a large
database which contains many additional items, and it would also
want sophisticated searching tools.  Those items would likely be
provided by West and its competitors.  The availability of a
public database would make it easier from new firms to enter this
market and offer new value added products.  That's called
competition, and we think it would be a good thing.


>    The Wall Street Journal quotes DOJ as estimating at least
>    $50 million in start-up costs alone.  You're quoting DOJ
>    estimates of $20 million to "replace" just 12 years of JURIS
>    material.  If $20 million buys only 12 years of selected
>    caselaw, it's not hard to estimate the cost of taxpayers to
>    recreate a database of reports of court decisions dating
>    back 200 years.

The $50 million dollar has no basis in reality.  I would call
your attention to the SEC's EDGAR project.  The contractor, BDM,
said that it would cost about $68 million for start-up, plus $18
per year to connect 1,400 federal depository libraries to the
EDGAR system.  For $.68 million, NYU/IMS was able to provide the
entire world access to EDGAR for two years, including start-up
costs.  One private contractor, Tax Analysts, which has supplied
West Publishing with caselaw in the past, says it can replace 12
years of JURIS federal case law for about $6 million.  The older
caselaw isn't missing, the government already has it.  As you
know, the Air Force key punched in the older law case for its
FLITE program, which began in 1964, eleven years before WESTLAW
was created.  Moreover, WEST actually used the FLITE data to
start WESTLAW.  So, we don't think it will be necessary to go
back further than 12 years for older records.  But even if you
did, it isn't necessary to get everything, if its too expensive. 
200 years of supreme court decisions would be nice, but a public
database doesn't have to start with 200 years of federal district
court opinions.  In fact, if money is tight, which it may be,
then just begin with the new cases, which are cheap to collect.

>2.   DOJ may or may not be "focusing on the citation issue, and
>     not the public database."  But anyone who practices law, or
>     does legal research, will tell you that citations are
>     useless without a body of information to cite.  As the old
>     song goes -- "you can't have one without the other."  
>     Anyway, in case I'm missing something -- please
>     explain -- what good is a citation system without a 
>     database to cite?

Yes, you are missing something, and that is any understanding of
how opinions are disseminated now.  The State of Wisconsin has
proposed issuing opinions with a public domain citation, with
paragraph numbers included in the text of the opinion. 
Publishers, including West, will collect the opinions and
redisseminate them, as they do now, but with a public domain
cite.  That is what is now being done in Louisiana, which uses
page breaks from printed slip opinions as the official interior
pagination.  That is what is being done now in Virginia, where
public domain page breaks from a non-copyrighted official
reporter is the official pin point citation.

Now we believe that it would be a good idea for the government to
archive the electronic versions of the records, as it already
archives the paper versions.  The "database," would be the
archived records.  Sound far fetched?  Well, how does West get
patent records today?  From the PTO.  Where does West get the
Federal Register and Congressional Record?  From the GPO on
magnetic tape.  Seems to work ok there.


>3.   When oh when are you going to stop spreading the outright
>     falsehood that "lawyers must use the West page numbers to
>     cite much of the outstanding caselaw," and "courts
>     generally require the use of a West cite?"  For the truth,
>     please read this June 5, 1992 letter from Professor Robert
>     C. Berring of the University of Southern California
>     to the Honorable William J. Hughes, Chairman, Subcommittee
>     on Intellectual Property and Judicial Administration.


Funny that you should bring up Professor Berring's letter.  Over
the past several days I have exchanged several email messages
with Professor Berring, following a public request to law-lib,
asking him to explain the crucial methodology point which makes
his research on this point highly misleading, particularly as it
is used by West.  Professor Berring, a consultant to West,
purported to do a study of the courts that require a West
citation, by only looking at the rules for in-state citations. 
Therefore, any state with a non-west reporter (about half the
states) or a rule that allows a cite to a docket number, was
deemed to "not require" a West cite.  The huge flaw in this study
was that Professor Berring did not consider court rules for "out
of jurisdiction" cites.  That is to say, while New York,
Virginia, Louisiana or other states may not require a west cite
for cases decided in their own states, they do require a West
cite for cases decided in other states or by most federal courts. 
Why the omission?  Professor Berring, who does consultant work
for West, told me that he thought this controversy was only about
local CD-ROM publishers who wanted to publish in-state cases. 
Well, the dispute is of course, much broader.  Many publishers
want to disseminate collections of case law from several or all
states and/or from the federal government.  Lawyers generally
want to cite authorities from wherever they can be found.  West
brings this ridiculous Berring letter up all the time.  Now Bob
Berring has talked with me and others privately about what he
did.  Apparently, because of his business relationship with West,
he doesn't want to be the one that exposes the flaws the West
defense on this point.  But if you really believe that I am wrong
about this, please ask Professor Berring to issue a statement
that says that his study includes rules to out-of-jurisdiction
cases.  He won't because it doesn't.


(The berring letter follows.)


Hon. William J. Hughes
Chairman, Subcommittee on Intellectual
 Property and Judicial Administration
House Committee on the Judiciary
207 Cannon House Office Building
Washington, DC 20515

Dear Chairman Hughes:

When Representative Frank was chairing the May 14 hearing
regarding H.S. 4426, he asked me to make an informal survey of
the rules for federal district and circuit courts and those state
courts which do not have official case reporters to determine
which, if any, required cites to the National Reporter System
publications of West Publishing Company.  The results of the
survey are enclosed with this letter.

There are currently eighty-seven federal district courts and
fourteen federal circuit courts (including the Temporary
Emergency Court of Appeals).  In conformity with Representative
Frank's request, I have conducted an informal survey of the rules
for each of these courts.  A cursory review, adopting the
broadest possible interpretation of the rules of the federal
district and circuit courts, finds that fifteen out of the one
hundred and one courts surveyed appear to require citation to
West publications.  Taking the language of each rule on its face
yields the above count.  However, in practice the required
citation to West publications may be a flexibly enforced
guideline, as only a few courts threaten rejection of briefs
containing nonconforming cites.

A search of court rules for the states without official reporters
(again, adopting the broadest possible interpretation of the
rules), revealed that seven states (Delaware, Indiana, Iowa,
Kentucky, Mississippi, Oklahoma and Tennessee) appear to require
citation to West's National Reporter System publications for
those state cases.  Some of these court rules, however, apply
only to selected situations, such as the Tennessee rules
which only require citations to National Reporter System
publications if the case is from a jurisdiction other than
Tennessee.

This informal survey was not comprehensive.  The search did not
go beyond a review of the court rules and state statutes, and, as
pointed out above, it may be that there is a flexibility in
practice not accounted for, even in the seven states which
apparently require cites to West publications.

I also would like to emphasize that citation practice is not
fixed.  Citation requirements reflect the available sources of
information.  If reliable alternative information sources were to
develop, it is certain that citation to these new sources would
be allowed.

I hope that this information will prove of value to the
Subcommittee.  If you have any questions regarding the above,
please do not hesitate to contact me at the above address and
phone number.

Sincerely,


Robert C. Berring

>4.   Finally, I can not speak for or explain why LEXIS or any 
>     West competitor would support imposition of a government 
>     controlled citation system and/or legal database.  You'll
>     have to ask them.

I have.  The public domain citation system is seen as essential
for allowing competition on a level playing field.  The public
domain database is supported by some publishers as a way to avoid
West's claims of copyright to corrections in the text of the
"official" published opinions.

>     I look forward to hearing from you, and to responding with
>answers to your five questions.

    I look foward to hearing from you.

>Regards,

>Dorothy


regards, jamie

----------------------------------------------------------------------
James Love, TAP; internet:  love@tap.org
P.O. Box 19367, Washington, DC 20036; v. 202/387-8030; f. 202/234-5176
12 Church Road, Ardmore, PA 19003; v. 610/658-0880; f. 610/649-4066