REQUEST OF WEST GROUP TO TESTIFY West Group ("West"), through its undersigned counsel, hereby requests the opportunity to testify at the public hearing to be held regarding the Judicial Conference of the United States ("Judicial Conference") Committee on Automation and Technology ("Committee") Federal Register "Notice of Opportunity to Comment and of Public Hearing on the ABA Citation Resolution" of February 21, 1997. West understands that this public hearing is to be held on Thursday, April 3, 1997 beginning at 9:00 a.m. in the ceremonial courtroom of the U.S. District Court for the District of Columbia, 3rd and Constitution Ave., N.W., Washington, D.C. As a leading publisher of reports of federal court decisions in its Supreme Court Reporter, Federal Reporter, Federal Supplement, Bankruptcy Reporter, Federal Rules Decisions and U.S. Claims Court Reporter publications, in its West CD ROM Libraries products and on its WESTLAW online legal research service, among others, West is vitally interested in and would be affected by -- and its customers and other users of its products and services would be affected by -- any new citation system adopted by the federal courts. West's vital interest is, in fact, clear from the ABA Citation Resolution (formally, 1996 ABA Recommendation 107 -- "ABA Recommendation") itself. Specifically, a West publication, Federal Reporter, is cited in the citation example used in the Recommendation and West, or West products and services, are mentioned fourteen times in the accompanying Report. No other legal publisher (or its products/services) is mentioned so often. In short, it is clear that West -- and, more importantly, West customers and other users of West products/services -- would bear the primary impact of the ABA Recommendation if adopted by the federal courts. West has carefully followed and commented on various proposals for new caselaw citation systems as they have been raised, considered and debated by the Judicial Conference and Committee during the period 1990 through 1992, the American Association of Law Libraries, the ABA and its Special Committee on Citation Issues, the Supreme Courts of Louisiana, Colorado, Wisconsin, South Dakota and Maine, various state bar associations and others. In fact, no other interested party has followed these proceedings as closely, or participated in them as extensively, as West. As a result, West believes that it has a good deal of knowledge of and experience with the related issues that can be helpful to the Judicial Conference and Committee as they proceed to study and consider these issues again. For instance, during the 1990-1992 consideration by the Committee and Judicial Conference of the "Electronic Citation System" ("ECS") proposal, West was particularly active in identifying issues, providing relevant factual information and comments, and testifying. West trusts that the Committee and Judicial Conference found this input to be helpful during their earlier considerations. West believes that it can be equally helpful now. West also notes that, in the various considerations of new caselaw citation systems identified above, West and its positions on copyright and citation issues have consistently been criticized by other participants, often based on misinformation regarding the true facts or applicable law. Since this history is likely to repeat itself during this inquiry, including during the hearing itself, West also requests the opportunity to testify to correct such misinformation. West believes it is very important for the Committee and Judicial Conference to consider the ABA Recommendation in light of the TRUE FACTS. Dated: March 13, 1997. Respectfully Submitted, OPPENHEIMER WOLFF & DONNELLY James E. Schatz Plaza VII, Suite 3400 45 South Seventh Street Minneapolis, MN 55402 Telephone: 612-344-9433 Facsimile: 612-344-9376 COUNSEL FOR WEST GROUP COMMENTS OF WEST GROUP REGARDING THE ABA CITATION RESOLUTION West Group ("West") submits these comments in response to the notice published in Federal Register on February 21, 1997 by the Judicial Conference of the United States ("Judicial Conference") Committee on Automation and Technology ("Committee"). The Committee seeks written public comments relative to the "ABA Citation Resolution" (formally, 1996 ABA Recommendation 107 -- "ABA Recommendation") regarding two subjects: (1) Whether the federal courts should adopt the form of official citation for court decisions recommended by the ABA resolution; and (2) The costs and benefits such a decision would have on the courts, the bar and the public. As a leading publisher of reports of federal court decisions in its Supreme Court Reporter, Federal Reporter, Federal Supplement, Bankruptcy Reporter, Federal Rules Decisions and U.S. Claims Court Reporter publications, in its West CD ROM Libraries products and on its WESTLAW online legal research service, among others, West is vitally interested in and would be affected by -- and its customers and other users of its products and services would be affected by -- any new citation system adopted by the federal courts. Further, West has carefully followed and commented on various proposals for new caselaw citation systems as they have been raised, considered and debated by the Judicial Conference and Committee during the period 1990 through 1992, the American Association of Law Libraries, the ABA and its Special Committee on Citation Issues, the Supreme Courts of Louisiana, Colorado, Wisconsin, South Dakota, Maine and North Dakota, various state bar associations and others. As a result, West has a good deal of knowledge of and experience with the related issues that can be helpful to the Judicial Conference and Committee as they proceed to study and consider these issues again. As West made clear during the 1990-1992 consideration by the Committee and the Judicial Conference of the "Electronic Citation System" ("ECS") proposal and relative to the other citation proposals noted above, West generally doesn't believe that new caselaw citation systems are necessary or would benefit the bench and bar. As enumerated during the 1990-1992 ECS process, West believes that the disadvantages resulting from the increased complexity and costs such new citation systems would entail overwhelm any claimed advantages. West's involvement with the foregoing proposals, and its experience with the new citation systems that have been adopted in the States of Louisiana, Colorado, South Dakota and Maine, have confirmed this belief. However, West understands and appreciates the fact that others have different views on the subject and that some state jurisdictions have decided to implement new citation systems. West believes that it is up to each jurisdiction to make its own decision on what citation system to use based on the specific situation in that jurisdiction. When a new citation system has been adopted, West has reviewed and considered the specific situation, the needs and concerns of the customers and other users of its related products and services, and the needs and concerns of the bench and bar in question, and has made the changes in its editorial procedures, products and services that it felt would best serve such needs and answer such concerns in concert with what its customers were willing to support in terms of additional editorial effort and features -- and thus cost. This has generally meant that the new citations have been included in West case reports as parallel citations and any numbering of paragraphs by the courts has been reflected in West case reports. No other changes generally have been made. West intends to continue with this policy of individual review and consideration of citation developments to determine what changes it will make. ECS PROPOSAL From 1990 through 1992, the Committee considered a proposal to implement ECS made by its Library Program Subcommittee. The Committee reportedly made a recommendation to the Judicial Conference that ECS be adopted in conjunction with -- and to support -- the development and deployment of systems "to disseminate appellate court opinions electronically." Standard Citation to Electronic Opinions, Revised Draft Report (10/17/91), at p. 2. While not announced formally, it was later reported that the ECS proposal was considered and rejected by the Judicial Conference on September 22, 1992. See, e.g., "Judicial Conference Nixes Electronic Citation System" Leader's Legal Tech Newsletter (Oct. 1992). Subsequent to the rejection of the ECS proposal, the federal judiciary continued to develop and deploy new computer systems to disseminate circuit court opinions electronically. This program has been successfully completed and all circuit courts now disseminate their opinions electronically. The absence of ECS has not slowed or otherwise jeopardized this program in any way. While it reportedly rejected the ECS proposal by a large margin, the Judicial Conference did allow individual federal courts to adopt and use electronic citation systems if they so desired. The only federal court to do so that West is aware of is the United States Court of Appeals for the Sixth Circuit ("Sixth Circuit") that, on December 17, 1993, announced that, commencing on January 1, 1994, it would begin adding electronic citations in the ECS format to its opinions designated for publication for use as optional parallel citations. Although the Sixth Circuit has continued to add ECS citations to its opinions, there apparently has been little use of these ECS citations as parallel citations or otherwise by either the bar or by the Sixth Circuit itself (or any other court). West concludes from the foregoing history that the vast majority of federal courts do not think that electronic citations would be beneficial. At least, few federal courts have adopted electronic citation systems although the possibility has been open to them. Moreover, as noted above, there has been little use made of the Sixth Circuit's ECS citations by either the bench or bar. It seems apparent, then, that there is no ground swell of support for electronic citations at the federal level. ABA RECOMMENDATION AND DISCUSSION The ABA Recommendation, adopted at the August 1996 annual meeting, calls for "All jurisdictions [to] adopt a system of official citation to case reports that is EQUALLY EFFECTIVE for printed case reports and for case reports electronically published on computer disks or network services . . . ." ABA Recommendation at p. 1 (emphasis added). While West doesn't see a need for new citation systems as discussed above, IF THEY ARE GOING TO BE ADOPTED, and a few have been, West believes it is of utmost importance that they in fact be "equally effective" for print AND electronic caselaw sources. West further believes that in order for a new citation system to be TRULY "equally effective" for print and electronic caselaw sources, parallel citations to a print source must be required. If this is not done, the new system would allow users of electronic caselaw sources to DIRECTLY locate a cited case while forcing users of print caselaw sources to perform an ADDITIONAL research step that would be time consuming and therefore more expensive. To explain, a citation such as "1996 5Cir 15" would allow a researcher to directly locate the related case in most electronic sources by simply entering the citation as a query; the result being the prompt appearance of the case on the user's computer screen. In contrast, such a citation would not inform a researcher in what volume or on what page of a print source the case cited could be found. Instead, the print researcher would have to access and use an additional intermediate research tool -- a process that would take extra time and thus be an additional expense -- that would be necessary to learn WHERE the case with the "1996 5Cir 15" citation could be found in the print source. Examples of such intermediate research tools are tables of cases included in most digest products, Shepard's, Insta-Cite and Auto- Cite. /1/ There can be no question that the forced use of such additional research tools would be an added burden and expense. Since those involved in the citation controversies agree that the vast majority of legal researchers today (up to 80% of them) still rely mainly or solely on print caselaw sources, it is not fair to implement a new citation system that would disadvantage this majority. /2/ A different situation may exist at some unknown -- and presently unknowable -- point in the future, and, if so, a new rule could be adopted at that point. Moreover, West notes that citations to print caselaw sources are commonly used in a wide variety of electronic caselaw sources. This means that citations to print sources are not only useful in locating caselaw in the print sources cited, but are also helpful in locating caselaw in a wide variety of electronic services. As only some examples of this wide use of citations to print sources (because there are many, many others), case reports contained in the following sources contain citations to print caselaw sources: WESTLAW, West CD- ROM Libraries products, LEXIS, Michie CD-ROM products, Matthew Bender Authority CD-ROM products and LOIS's (Law Office Information Service) online service. To make West's suggestion concrete, using the example given in the ABA Recommendation at page 2, the new citation form would be as follows (where a print citation is available) until future change in the legal information marketplace indicates that a different citation form should be used: Smith v. Jones, 1996 5Cir 15, paragraph 18, 22 F.3rd 955 This result is consistent with ALL jurisdictions that have recently adopted new citation systems, those jurisdictions being Louisiana, Colorado, South Dakota, Maine and North Dakota. Louisiana has adopted a new caselaw citation system based on the year of decision, docket number and slip opinion pagination, together with a MANDATORY parallel print citation. Order Regarding Citation of Louisiana Appellate Decisions (LA 12/17/93). Although Colorado has not yet implemented the paragraph numbering part of its new citation system, its new system is based on an initial print citation plus paragraph or page number pinpoint indicators. Memorandum Regarding Citation of Electronically Reported Cases (CO 5/5/94). South Dakota (effective January 1, 1996) and Maine and North Dakota (effective January 1, 1997) have adopted new citation systems based on the year of decision, a new numbering scheme for cases and paragraph numbers as pinpoint locators, together with MANDATORY parallel print citations. In the Matter of the Adoption of a New Rule -- Rule 95-13 (SD 10/30/95); Order, Docket No. SJC-216 (ME 8/20/96); In the Matter of Uniform, Medium-Neutral Case Citations, Order (ND 1/15/97). In EACH of these situations, the court implementing the new system has concluded that the new system would not work or be fair without the MANDATORY use of parallel citations to print caselaw sources. The history described above is consistent with the ABA Recommendation which states at one point that courts should "STRONGLY ENCOURAGE parallel citations . . . to commonly used printed case reports" and indicates at another point that such parallel citations should be MANDATORY -- i.e., "the standard form of citation, shown for a decision in a federal court of appeals, SHOULD BE Smith v. Jones, 1996 5Cir 15, paragraph 18, 22 F.3d 955." ABA Recommendation at p. 1-2 (emphasis added). Further, the most recent citation proposal that West knows of, made in Tennessee by the Tennessee Bar Association on January 2, 1997, includes the following requirement: When available, initial citations shall include the volume and initial page number of the South Western Reporter in which the opinion or decision is published. Petition of Tennessee Bar Association for the Approval of Citation System for Tennessee Appellate Decisions (TBA Link) at p. 8 (1/2/97). In fact, the only recent proposal for a new caselaw citation system that would not require the parallel citation of a print caselaw source that has been considered and acted upon by a jurisdiction is the system proposed in Wisconsin that has not been adopted by that State's Supreme Court. In the Matter of Amendment of Supreme Court Rules: Electronic Archive of Appellate Opinions, Rules and Orders; Citation of Wisconsin Appellate Opinions -- SCR 80.01 and 80.02 -- Order #95-01 (5/24/95). West believes that there are very good policy and practical reasons for the foregoing history. CONCLUSION For the many reasons discussed during the 1990-1992 ECS process, West doesn't believe that new caselaw citation systems are needed or would benefit the bench and bar, but does believe that the decision of whether to implement a new caselaw citation system should be up to each jurisdiction to make based on its particular situation. If the Committee and Judicial Conference conclude that a new citation system is necessary or advisable in the best interests of the federal bench and bar, West strongly urges the Committee and Judicial Conference to REQUIRE parallel citation of a print caselaw source in order that the interests of ALL legal researchers and writers be EQUALLY served. Dated: March 13, 1997 Respectfully Submitted, OPPENHEIMER WOLFF & DONNELLY James E. Schatz Plaza VII, Suite 3400 45 South Seventh Street Minneapolis, MN 55402 Telephone: 612-344-9433 Facsimile: 612-344-9376 COUNSEL FOR WEST GROUP FOOTNOTES /1/ West notes that Insta-Cite and Auto-Cite are solely electronic services and Shepard's is increasingly becoming so. These types of electronic sources are of no help to those, including members of the public, without computers or who rely solely on print research sources. /2/ West notes that this majority includes those who, for whatever reason, cannot afford computers or the use of electronic caselaw sources, and who therefore must rely on the print caselaw sources available for free use at thousands of public law libraries across our country. This group often includes solo or small firm practitioners and pro se litigants. These types of users should not be disadvantaged. END OF FOOTNOTES