Back to Citation Page
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. [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.[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. [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).[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. [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. [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 Page 6 of 6