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HyperLaw Letter to Clerk, Fifth Circuit Re ABA Citation Proposal, March 21, 1997
HyperLaw's letter response to a letter dated March 7, 1997 from the Clerk of Fifth Circuit.
March 21, 1997
Charles R. Fulbruge III
Clerk
United States Court of Appeals
Fifth Circuit
600 Camp Street
New Orleans, LA 70130
Dear Mr. Fulbruge:
[1] I have read your letter of March 7, 1997
to the Judicial Conference committee concerning the ABA
Citation Resolution. As you know, I have had prior
communications with you concerning Fifth Circuit opinion
publication practices and its relationship with West
Publishing Company.
[2] In sum, the way in which the Fifth
Circuit disseminates opinions epitomizes almost all of the
problems that exist in how the federal courts disseminate and
cite opinions and the problems with the historic relationship
between the courts and West Publishing Company.
[3] What I state below is based upon my
personal experience as well as the information disclosed in
the trial of HyperLaw's litigation against West.
[4] West is the Slip Opinion printer for the
Fifth Circuit. Under the contract and arrangements between
West and the Fifth Circuit, West obtains access to opinions
prior to their public release so that West can prepare the
printed Slip Opinions.
[5] West includes its own copyrighted digests
and synopses in the printed official Slip Opinions–indeed,
the Slip Opinions, with one exception, appear to the casual
observer almost as if they were taken from the West Federal
Reporter.
[6] It is the position of West Publishing
Company that anyone who photocopies a Fifth Circuit Slip
Opinion is committing copyright infringement because when
copying the opinion, one also copies West copyrighted
information, i.e., the digests and synopses. West calls this
"intermediate copying." Thus, no publisher may scan a Fifth
Circuit opinion, perform optical character recognition, then
remove West copyrighted digests, and then publish the
opinion. The Fifth Circuit Slip Opinion contract does not
require that West not claim infringement were Fifth Circuit
Slip Opinions to be so copied.
[7] The primary difference between the
appearance and content of a Fifth Circuit Slip Opinion and
the opinion as it appears in the Federal Reporter is that
Federal Reporter version includes the names of counsel but
the Slip Opinion does not. Unlike many circuits, the Fifth
Circuit does not include the names of counsel in its
opinions, although it appears to "cooperate" in assisting
West to compile this information at the same time the Slip
Opinions are being prepared.
[8] Documents filed in the January, 1997
trial of HyperLaw's litigation against West show that while
West is preparing a Fifth Circuit Slip Opinion, your offices
faxes to West the docket sheet which contains all of the
attorney names and apparently coordinates with West in their
preparation of the counsel listing for the Federal Reporter.
West actually prepares the counsel listing simultaneous with
preparation of the Slip Opinions–but, when the Slip Opinion
is then printed, West merely omits the counsel names. West
then claims a copyright on the counsel names, a bald position
taken by West at the trial.
[9] The day the Slip Opinion is released,
West immediately loads the Slip Opinion to Westlaw. Other
publishers must rely upon the frequently ineffective Fifth
Circuit bulletin board–and, since the Fifth Circuit bulletin
board opinions files are prepared by West, the opinions must
first be loaded to the bulletin board.
[10] After the Slip Opinions are printed, your
office acknowledges that it sends to West corrections to the
printed Slip Opinions. But, unlike other Circuits like the
Fourth and First Circuit, the Fifth Circuit does not place
corrected opinions or orders correcting opinions on the
bulletin board. Now, the argument that Fifth Circuit do not
have the resources pretty much falls apart–since, it would be
simple for the Fifth Circuit in its contract with West to
have West make the corrections and send back the corrected
file to the Fifth Circuit bulletin board. After, all, West
has the original file and the corrections received from your
office and is making the corrections in any event.
[11] Interestingly, as to the Fifth Circuit's
practice of sending the corrections to West for free [others
must pay], in a letter your office sent to me, it was stated
that this was done pursuant to a contract. Your office did
not identify the contract. It almost sounded as if the Fifth
Circuit considers West to be the official publisher of its
final opinions. Indeed, there are repeated examples of the
Fifth Circuit so considering West to be its official
publisher. This is certainly a reasonable interpretation to
this statement that appears on the Fifth Circuit bulletin
board:
Please Note: Opinions are maintained on this system for
30 days from date of the opinion. During this 30 day
period, the opinion is subject to corrections prior and
subsequent to the printing process, and to its
availability in the Advance Sheets of the Federal
Reporter.
[12] The Fifth Circuit, unlike most other
Circuits, does not place the unpublished opinions on its
bulletin board, even though it has these opinions in
electronic form. Again, the Fifth Circuit relies upon West
to provide information as to the unpublished opinions. The
Fifth Circuit Internal Operating Procedures states:
Unpublished Opinions-The style of all unpublished
opinions is published in table form in the Federal
Reporter. See e.g. 40 F.3d 384.
Interestingly, again, West claims a copyright in these tables
which are provided by the Fifth Circuit to West. Really.
The Fifth Circuit does not place these tables on its Bulletin
Board.
[13] The Fifth Circuit knows that West
collects and publishes its "unpublished" opinions on Westlaw,
because, the Fifth Circuit like the other federal courts uses
Westlaw (and not Lexis.) One interesting question is whether
the Fifth Circuit provides these unpublished opinions in
electronic form to West as part of its "special
relationship." But, in any event, West obtains the
unpublished opinions and the federal courts (which have
discounted access to Westlaw) and large firms that can afford
the Westlaw and Lexis tab are able to research these
unpublished opinions, but the general public and those with
limited funds are not able to access those unpublished
opinions.
<A Name =PCITE14>[14] The Fifth Circuit Slip Opinion contract
is a sole source contract: only West may bid on the contract.
The Fifth Circuit does not make public the West contract in
its entirety. Considering that West faces no competition in
obtaining this contract, it is hard to understand why the
contract is kept a secret..
[15] I now wish to address some of the
specific statements you make and do not make in your letter.
[16] You state:
We estimate an opinion clerk would have to spend an
additional five minutes per opinion to assign a decision
and docket the appropriate information on AIMS. We
also estimate another five minute per opinion for the
authoring judge's staff to number the paragraphs of the
opinions.
<A Name =PCITE17>[17] There are roughly 500 published Fifth
Circuit opinions per year. At ten minutes per opinion based
upon your estimate, sequencing and paragraph numbering all
published opinions would require fewer than 100 hours
annually. There are fifteen judges (not including senior
status judges) in the Fifth Circuit and each judge has at
least a secretary and two law clerks, so we are talking about
2 hours for each judge's staff employee per year. In
addition, the paragraph numbering task could easily be
assigned to your slip printer, West Publishing Company.
<A Name =PCITE18>[18] You state also that:
At least in this court, our opinions are identifiable by
case number, court and date of decision, e.g., Smith v.
Jones, NO. 97-10113 (5th Cir. Mar. 7, 1997).
<A Name =PCITE19>[19] However, you do not suggest how one would
pin-point cite to the opinions. Perhaps one could use the
Slip Opinion pagination. The printed Slip Opinions are
consecutively paginated by West through out the year.
[20] Two observations can be made here:
first, the Fifth Circuit electronic opinions prepared by West
as slip printer and available on the bulletin boards and the
Internet omit the official slip pagination. Second, the
Fifth Circuit never uses this citation form when citing to
its own opinions: the Fifth Circuit endorses West and the
Federal Reporter by citing only to the Federal Reporter.
<A Name =PCITE21>[21] You also state that:
"Now that virtually all the circuit courts' opinions are
available on the Internet, there is a great public
access to the court's decisions."
[22] Of course, there are major problems with
access to the Fifth Circuit opinions. First, the opinions
are not citable. Second, they do not contain corrections.
And, third they purport to be but are not a complete set of
opinions. Opinions are published in West's Federal Reporter
which appear neither on the BBS nor on the Internet. There
are opinions on the BBS that do not make it to the Internet,
and there are opinions on the Internet that are not on the
BBS.
[23] One problem is that the Fifth Circuit
removes the opinions from its BBS once they appear in the
Federal Reporter (all Fifth Circuit opinions for the last 100
years could be stored on a hard drive costing less than
$150.) By the time an opinion appears in the Federal
Reporter, it has been removed from the Bulletin Board. So,
one cannot easily point out that an opinion was not loaded.
<A Name =PCITE24>[24] The second problem is that the Fifth
Circuit does not maintain a comprehensive list of opinions
that should be on the Bulletin Board. Were the ABA
recommendations as to sequencing opinions be followed (as is
now done in the Third and Sixth Circuit without the sky
falling in), then one could easily determine what was
missing. That is why it makes sense to sequence opinions
[and, if the list were available on the Internet showing
withdrawn opinions, I doubt if anyone would bother calling
your clerk's office.]
[25] The third problem is that the Fifth
Circuit has pawned off the responsibility to run the Internet
site on a law school (admittedly, something that the other
Circuit's have done as well.) So, one cannot even assign any
accountability as to the missing opinions, and, their
reaction is they post what is given to them. So, no one
takes responsibility for what is on the Internet site and
what is not.
[26] Your letter also does not address
something that is very important, and that is the situation
in the various district courts in the Fifth Circuit. I
believe only one of the district courts in your Circuit makes
its opinions available electronically and nothing you state
would resolve the problems of access to citable authoritative
district court opinions. And, of course, in the federal
court system, for many administrative matters the district
courts are subject to direction from the Circuit court. So,
in a sense the Fifth Circuit shares responsibility for the
serious problem concerning district court decisions in your
Circuit.
[27] Finally, your letter does not in any way
address the problems of those without access to searchable
opinions, including for example middle class clients and
small businesses who do not have access to federally funded
access to Westlaw and Lexis and cannot afford to fund
expensive research either by themselves or by their counsel.
[28] I hope that you will reconsider your
letter and that the Fifth Circuit will remedy the problems
described above.
[29] For your information, I enclose a copy of
HyperLaw's comments to the Automation Committee.
Sincerely,
Alan D. Sugarman
President
HyperLaw to Charles R. Fulbruge
March 20 1997
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