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Transcript -- Hearing, Automation Committee U.S. Judicial Conference re ABA Citation Proposal, April 3, 1997
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1 COMMITTEE ON AUTOMATION AND TECHNOLOGY
2 SUBCOMMITTEE ON POLICY AND PROGRAMS
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6 SUBCOMMITTEE MEMBERS
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8 HONORABLE EDWARD W. NOTTINGHAM, CHAIRMAN
9 HONORABLE DAVID A. BAKER
10 HONORABLE PAUL J. BARBADARO
11 HONORABLE RICHARD L. NYGAARD
12 HONORABLE JAMES ROBERTSON
13 HONORABLE ROGER G. STRAND
14 HONORABLE H. FRANKLIN WATERS
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19 In re: A.B.A. Resolution on Citations
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22 Public Hearing
23 Ceremonial Courtroom
United States District Court
24 Washington, D. C.
Thursday, April 3, 1997
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1 WITNESSES
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3 Joel Klien ............................................. 4
J.D. Fleming ........................................... 18
4 James Carbine .......................................... 30
Gary Spivey ............................................ 39
5 James Love ............................................. 42
Ollie Smoot ............................................ 53
6 Marc Rotenberg ......................................... 61
James Schatz ........................................... 73
7 Robert Oakley .......................................... 86
Eleanor Lewis .......................................... 92
8 Alan Sugarman .......................................... 105
Cleveland Thornton ..................................... 118
9 O.R. Armstrong ......................................... 131
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Vicky J. Stallsworth, RPR, CRR
23 Official Court Reporter
U. S. Courthouse, Room 6818
24 333 Constitution Ave., N.W.
Washington, D.C. 20001
25 (202) 789-2859
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1 P R O C E E D I N G S
2 JUDGE NOTTINGHAM: Good morning and welcome. Before
3 we get started with the speakers, I would like to say just a
4 few words about what we're doing at this hearing, what we hope
5 to accomplish and how the hearing came about.
6 The American Bar Association approved a resolution
7 last August that calls for State and Federal courts to develop
8 a standard citation system and adopt a recommended format for
9 that system. The Federal Judiciary has responded to the
10 A.B.A. resolution by soliciting comments from the public and
11 from the Judiciary and by convening this hearing.
12 The panel of Judges that is here is drawn from the
13 membership of the Judicial Conference's Committee On
14 Automation and Technology, which has jurisdiction in the
15 Judicial Conference's scheme of things over this issue. The
16 Judicial Conference of the United States develops
17 administrative policy for the Federal Judiciary.
18 The purpose of soliciting comments and the purpose
19 of this hearing has been to obtain information and will be to
20 obtain information pro and con about the application of the
21 A.B.A. resolution to the Federal Judiciary.
22 The examination of the issues is just beginning, and
23 this Committee has no decision-making function. Its function
24 is solely fact gathering and information gathering. The
25 Subcommittee will make a recommendation to the full Committee.
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1 And the full Committee will make a recommendation to the
2 Judicial Conference.
3 Over 300 comments have been received from the
4 public, Judges, and staff in the Federal courts. A brief
5 survey of Judges was conducted, and over 400 Judges responded
6 to the survey.
7 All of the letters and comments that have been
8 received have been made public. A compilation of the survey
9 forms that was undertaken of the Federal Judges has also been
10 made public. And a room has been available for viewing the
11 materials. I understand a copy of the materials is available
12 today for your review if you want to do that.
13 There were 16 requests to testify, and the Committee
14 has determined to accommodate all of the requests. Since the
15 time of the initial decision, three requests have been
16 withdrawn for one reason or another, so we're down to 13.
17 That is all I have to say by way of introductory
18 remarks. I understand our first speaker is Mr. Klien.
19 MR. BOWDEN: Joel Klien is the Acting Assistant
20 Attorney General, U.S. Department of Justice, Antitrust
21 Division.
22 Mr. Klien, you'll have 15 minutes, at which time,
23 I'll give you a three-minute warning.
24 TESTIMONY OF JOEL KLIEN
25 MR. KLIEN: Thank you, Your Honor. I'm pleased to
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1 be here this morning to represent the Department of Justice's
2 views with respect to the A.B.A. proposal. We filed written
3 comments indicating our support for the proposal, and I would
4 just like to outline today why we came to that conclusion. In
5 particular, I would like to say, of course, the Antitrust
6 Division itself has been actively involved in this issue,
7 because we think it does have some competitive consequences.
8 In a nutshell, as we see it, the benefits, in terms
9 of really lowering prices and making new and more efficient
10 opportunities in legal research available, significantly
11 outweighs the burdens. And there are some burdens in the
12 transition that would be required to implement the A.B.A.
13 system; but, nevertheless, we think that the benefit/burden
14 ratio strongly favors this proposal.
15 As to the benefits, I would like outline the two
16 that I think are particularly material to this decision.
17 First is the issue, when you have a system, as we currently
18 have, where West, essentially, controls the official reporting
19 mechanism, there are substantial and currently, I think,
20 unresolved copyright issues, which have a huge impact on the
21 distribution of the -- of this information and the cost of
22 legal research.
23 West has continually asserted a copyright in the
24 star pagination, in essence, meaning, as a result, that people
25 who produce CD-ROMs and other technology are required
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1 essentially either to litigate against West or to pay the
2 royalty fees. Until quite recently, West did not even
3 universally agree to these royalties. That came about as part
4 of a negotiated settlement with us in a West/Thomson merger.
5 But as a result of that, there is no doubt that
6 there are substantial transaction costs if one wants to put
7 competitive products on the market. And in that respect, I
8 would just actually quote from testimony of Thomson, which is
9 currently the parent of West Company. And Thomson, prior to
10 the merger, had actually commented about the West copyright
11 issue and its implication for legal research.
12 And in its congressional testimony in 1992, it said,
13 and I quote: That the West program has, quote, forced
14 libraries and others to pay tens of millions in monopoly
15 charges for access to legal texts and has deprived users of
16 the improved choices, quality, and timeliness that competition
17 could have provided.
18 We believe that submission is correct. And we
19 believe it's important in thinking about the availability of
20 these materials to the public.
21 Beyond the copyright issue, there is a second issue
22 that goes really to the question of efficiency. And think of
23 it this way: If the West proposal is adopted, from the day
24 that what we now call slip opinions come out, you will
25 essentially have the official opinion, numbered and ready to
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1 be cited. And that -- that will serve several key functions
2 even beyond copyright.
3 As people work through -- for example, at the
4 Antitrust Division, I get a memo oftentimes on District Court
5 opinion based on the slip. As we evolve and go through the
6 process and we prepare recommendations for the Solicitor
7 General, you end up having, first, to cite the slip.
8 Sometimes we end up citing CCH when it comes out.
9 Subsequently, we end up citing the advance sheets and so
10 forth. It is not an enormously burdensome process to change
11 the cites and correct the jump pages as you go forward. But
12 there is time involved in this.
13 Second of all, if you are in the process of trying
14 to scan these things, even if you're willing to pay the
15 copyright fees, it's quite costly to star paginating as you go
16 through; whereas, if you could take the test from day one and
17 use it, you wouldn't have to do that kind of manpower
18 intensive effort.
19 Also, you would increase uniformity right from the
20 get-go. Right now, for example, in some of the work we do, we
21 get citations to the Patent Quarterly. We get involved in
22 intellectual property issues and so forth. And if you had a
23 single unified text from day one, you wouldn't have whatever
24 small -- and I don't want to overstate this -- problems of
25 different citations that one has to crosscheck.
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1 And, lastly, and this is one of my least favorite
2 personal experiences in life, I frankly think a paragraph
3 system, even given some of the length of paragraphs that take
4 place in judicial opinions, makes it quite easy to jump cite
5 check.
6 And the time I spent across my career looking at
7 other people's briefs with some incredulity of quotes that I
8 couldn't believe came from judicial opinions, and you have to
9 read through the whole page to find it, I think you actually
10 make it more efficient moving toward a paragraph system.
11 JUDGE BARBADARO: Mr. Klien, as a lawyer, do you
12 think that it will cause any changes in the way that we write
13 opinions or in the way that opinions are cited if the focus
14 becomes on a unit as small as a paragraph rather than a page?
15 MR. KLIEN: I doubt it. I doubt it. Now, I'm not
16 only a lawyer, but I was a law clerk for a couple of years
17 myself. And, of course, the first rule -- and I saw some of
18 the comments by some of your colleagues on that, and I'm sure
19 they were heartfelt. But the first rule I always found is
20 that the style of writing is really indigenous to the Judge in
21 that most Judges, you know, when they come to the court, come
22 with a manner and style. And with all candor, I would find it
23 astonishing that Judge Posner's style would change if he had
24 to number the paragraphs. His opinion really is trademark,
25 his opinion writing, in many ways.
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1 The way I see the system would work, frankly, is one
2 would have software on your secretary or assistant's computer.
3 And at the end of a draft, it would be an adaptation for
4 paragraph. And this happens. I mean, the Canadians use this
5 all the time. And I don't see any evidence that there's some
6 kind of standardization.
7 And, of course, Judge Barbadaro, the fact is that
8 West puts in all those paragraph numbers, you know, they have
9 all those key numbers in the Federal Reports. And, again, I
10 don't think that has affected the flow of the text.
11 So I -- I don't -- I don't see that as a problem.
12 And that comes to, I guess, the second question: What is the
13 burden on the Judiciary. And I think there are some. I mean,
14 trying to change large institutions to move from one type
15 of -- sort of system to another is never without cost. But
16 the two elements of the A.B.A. proposal seem to me to be quite
17 manageable, and the cost will decrease rather rapidly as
18 people get accustomed to it.
19 First of all, you have to number your pages within
20 the Circuit or within a District. And I think that that is a
21 doable proposition. While certainly, in our major Districts,
22 there are a nontrivial number of opinions that come out, I
23 think the clerk's office eventually will be able to quite
24 comfortably consecutively number.
25 And, again, we have experience with this. I mean,
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1 there are courts today, a couple of Circuits, I think the
2 Supreme Court of South Dakota, I believe, Louisiana, that are
3 doing this. And one of the things I would suggest to you --
4 because I've been in this position myself. We get sort of
5 orders from Congress how to reorient our business in the
6 Department of Justice. They want goals, time tables set out,
7 and so forth. And it meets with immediate resistance from the
8 staff of the division and any other divisions that it will be
9 burdensome, it will be difficult.
10 The important thing here is that the people who have
11 done it don't say so. The Courts that have actually engaged
12 in this process have not filed comments, as far as I'm aware,
13 suggesting that this is a difficult process to implement,
14 particularly costly, or burdensome.
15 Now, in all candor, and I will just close with this
16 thought, because I've given it some thought, I think, aside
17 from the fact that it is new and different, your -- it's
18 perfectly reasonable to have the following response over this,
19 which is to say, the benefits, such as they are, will accrue
20 to the public. I think they will. I genuinely do think that
21 we will lower prices significantly and make the process more
22 efficient.
23 We spent a lot of time investigating the issue in
24 terms of the impact. We looked at, for example, in Louisiana,
25 I believe that, as a result of the Louisiana adoption of the
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1 system, the cost of CD-ROMs, including the cost of West
2 CD-ROMs, has come down by half. And that's a nontrivial
3 amount in legal research. You're talking thousands of dollars
4 just in Louisiana.
5 JUDGE NOTTINGHAM: But how do you know one caused
6 the other?
7 MR. KLIEN: Well, the way -- I mean, you don't know
8 in a sense that you can prove it beyond a reasonable doubt
9 until I try it, but the way you --
10 JUDGE NOTTINGHAM: How about a preponderance of the
11 evidence?
12 MR. KLIEN: Well, the way you know it is, because
13 when the Louisiana system came about, and the people who run
14 the CD-ROMs down there didn't have to star paginate, their
15 prices came down, and the West price went from, let's say,
16 3,000 to 1500. So one would assume that's simple product
17 competition, Judge.
18 But the last point to end on is I think those are
19 tangible and real. And we have certainly been concerned about
20 them because of the monopoly affects in this market and the
21 rents that have been extracted.
22 The sad thing about it is, most of the benefits
23 accrue to third parties, and most of the burdens are being
24 asked to be placed on the courts. And so, in that respect,
25 there is, perhaps, something of a mismatch. And so I would
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1 end by appealing to you better angels.
2 JUDGE ROBERTSON: Mr. Klien, let me just make clear
3 what the position of the Antitrust Division is here. You're
4 not taking the position that West's current situation is
5 unlawful.
6 MR. KLIEN: We have challenged their copyright
7 assertion, Judge Robertson. We have done that. We did that
8 in the Federal District Court in New York. We have filed an
9 amicus brief in support of an action by Matthew Bender. And
10 we are also filed in the 8th Circuit.
11 Let me step back and give you a little history on
12 that. The Court of Appeals in the 8th Circuit, probably about
13 seven, eight years ago, in a case involving West and Lexis
14 upheld West's copyright assertion with respect to star
15 pagination.
16 Subsequently, the Supreme Court decided the Fiest
17 [phonetic] opinion in which it articulated so-called sweat of
18 the brow analysis. We argued based on Fiest as an amicus
19 curi' in the Matthew Bender case in the Southern District of
20 New York that West's copyright assertion was invalid. The
21 Southern District agreed with us, and that case, as I
22 understand it, is destined for the 2nd Circuit.
23 Similarly, in another case, in the Oasis Publishing
24 case challenged copyright in the 8th Circuit, and that issue
25 was the -- the question of the continuing validity of the 8th
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1 Circuit's precedent came into play. We filed an amicus brief.
2 That case has been argued, but not resolved.
3 But my sense is this copyright issue will go forward
4 and be litigated regardless of what we do here. I would
5 suspect, given the current lay of the land, it might take some
6 time to work itself out.
7 JUDGE ROBERTSON: Well, if the Courts of Appeals
8 rule the way the Antitrust Division wants them to rule with
9 their amicus positions in those cases --
10 MR. KLIEN: It would be almost a miracle.
11 JUDGE ROBERTSON: -- does the present issue go away?
12 MR. KLIEN: No.
13 JUDGE ROBERTSON: In other words, is there anything
14 that's driving your position here except for the validity of
15 the star pagination process.
16 MR. KLIEN: The present issue does not go away,
17 Judge; although, the potential benefits are somewhat
18 diminished if the courts uniformly line up behind our
19 opposition. But that will take some while. There's no
20 litigation outside the 2nd and the 8th Circuits.
21 Beyond that, though, there are real efficiency
22 concerns. One is to have an authoritative opinion from the
23 get-go. That will lead to a certain amount of citation
24 consistency right from the get-go.
25 Second of all, there are real costs, if you -- even
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1 if there's no copyright, there are real costs to star paginate
2 off of someone else's text. If you have a judicial text from
3 day one that says D.C. Circuit 1996-2, Paragraph 1, you
4 download that. It is, in effect, is star paginated. You
5 don't have to redo it. Now, if you take it off of West, you
6 have to scan, you have to do the page breaks and so forth.
7 So I think there are efficiencies, but, again, I
8 think they become less if you eliminate the copyright issue.
9 JUDGE NOTTINGHAM: One of the things you talk about
10 in your paper is uniformity so that the Southern District of
11 New York and the Northern District of California are the same.
12 And you say this is not going to happen without action by the
13 Judicial Conference.
14 Have you researched whether the Judicial Conference
15 has statutory authority to tell every Federal Court in the
16 country that it shall adopt this particular citation form?
17 MR. KLIEN: I have not. I would certainly be
18 prepared, if it would help the Court, to submit such thing.
19 But in the end, my own suggestion is that this body would be
20 best able to assess its powers in that regard.
21 But regardless of whether one sought to impose or
22 sought to recommend, I think it would be certainly good policy
23 to suggest the intra-Article 3 issues of how you do this, I
24 think, frankly, are better left to the Judicial Conference
25 than to us.
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1 JUDGE NOTTINGHAM: Well, if it can't do it, then the
2 uniformity argument has a lot less validity, does it not?
3 MR. KLIEN: It may or may not, Judge. I guess my
4 own experience with my own children is that, sometimes, a
5 suggestion goes a little further than an order. I would
6 suspect that a -- a strong suggestion from the Judicial
7 Conference, assuming one would have concluded you're without
8 power to do it, would certainly be worth the good try here.
9 JUDGE BAKER: Mr. Klien, have you researched or
10 analyzed the extent to which anybody out in the marketplace
11 could gather the opinions from the various courts and number
12 them themselves and number the paragraphs themselves so that,
13 if the benefit is public, why shouldn't the burden also be
14 public?
15 MR. KLIEN: The question --
16 JUDGE BAKER: Or why shouldn't it be done through
17 the competitive process?
18 MR. KLIEN: The question would be, if the courts
19 were to put it in place, I think that's a doable suggestion,
20 Judge. But the question would be the courts would have to put
21 in place that process with a vender and acknowledge that
22 vendor --
23 JUDGE BAKER: Why?
24 MR. KLIEN: -- as a uniform basis.
25 JUDGE BAKER: Why can't the vender simply go out and
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1 gather the CCH?
2 MR. KLIEN: Because it would do me no good to cite
3 1996 U.S. Court of the Appeals for the D.C. Circuit 1 --
4 JUDGE BAKER: If it's such a good idea and catches
5 on --
6 MR. KLIEN: If West is the official authority and
7 the courts are all having the current relationship they have
8 with West -- I mean, your court has a relationship with West.
9 They edit. You edit. They add. They change. You're going
10 to want me to cite to West.
11 If I come in now and cite to CCH, at least, in my
12 experience in private practice, when we cited to CCH, courts
13 were not substantially pleased with us as a result, and we
14 were told to recite. The rules in every court that I am
15 familiar with require West citation.
16 If the courts don't change it, the market won't
17 correct it. The -- the -- if you will, in my line, the
18 installed base is simply too large so --
19 JUDGE BAKER: That's what I was wondering. I mean,
20 there is a large installed base. But my opinions that West
21 publishes are not official reports. My opinions are the ones
22 that are filed with the Clerk of Court, whether they're
23 published by anybody or not.
24 MR. KLIEN: Every court in the United States
25 recognize -- every Federal Court recognizes West is the
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1 official authority on this. So, as a result, it would be
2 useless for me if I cited Judge Baker's opinion, his first
3 opinion, 1997 in Judge Robertson's court, Judge Robertson is
4 going to say, since he doesn't have the slip opinion in
5 your -- in your chambers or in the clerk's office, he'll say,
6 could you give it to me in West, Mr. Klien.
7 JUDGE NOTTINGHAM: Well, then I --
8 MR. KLIEN: There's no way to impair that.
9 JUDGE NOTTINGHAM: Aren't you asking us to change
10 that, too? The A.B.A. resolution simply says put a case
11 number on it, put a paragraph number on it. And as long as
12 the Judges are wanting the West citation, lawyers are going to
13 have to give them the West citation, aren't they?
14 MR. KLIEN: And I think the A.B.A. suggests, indeed,
15 that there ought to be the West citation as part of the
16 parallel process. But what I would suggest to you, Judges,
17 that as a result of this transition, while you would have
18 parallel citation for a fair period of time, which is the way
19 to deal with the installed base that Judge Baker mentioned,
20 eventually, the system would evolve. But that's the only way
21 it would evolve.
22 JUDGE NOTTINGHAM: All right. Thank you, Mr. Klien.
23 Your time has expired.
24 MR. KLIEN: Thank you. My pleasure.
25 JUDGE NOTTINGHAM: Thank you, sir.
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1 MR. BOWDEN: The next speaker is J. D. Fleming,
2 chair of the American Bar Association, Special Committee on
3 Citations.
4 Mr. Fleming, you have the same 15 minutes for
5 questions and comment.
6 TESTIMONY OF J. D. FLEMING
7 MR. FLEMING: Since I'm a litigator, I can't
8 possibly open without saying may it please the panel, so I'll
9 say that.
10 I'm not here in a representative capacity. The
11 A.B.A. Special Committee on Citation Issues was created by the
12 Board of Governors in 1995 with a lifetime of one year. There
13 were a number of reasons for that. One is that, if we did not
14 put a short time limit on the committee's activities, we felt
15 that it would drag on forever, probably would never come to
16 any conclusion. That, at least, is the history of many A.B.A.
17 activities in the past. The second reason is that no one
18 would be fool enough to take on this issue for more than 12
19 months.
20 I speak to you as an individual, former chair of the
21 no longer existing Special Committee on Citation Issues. What
22 I would like to do is to highlight the work of the committee
23 briefly and then answer any questions that I am able.
24 The first step in the committee's work was to be
25 sure that we solicited input widely from people who are
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1 interested in citation issues. And that, of course, means all
2 lawyers, all Judges, many businesses, many publishers.
3 We sent out notices broadly asking for input from
4 the groups that we knew to be interested, and we allowed a
5 period of about two months for this to occur. We digested
6 those comments at the end of the two-month period. We found
7 that they represented the whole spectrum of opinion as to what
8 should happen with the citation system.
9 At the one end of the spectrum was -- I don't want
10 to name any particular publisher for any reason except that
11 they did present the view to us first, and that is West
12 Publishing. Their view was that the system has worked well
13 for many, many years. It serves its function. It functions
14 better than any other system that can be suggested. It should
15 not be tampered with. As stated to us repeatedly by a number
16 of others, including quite a number of Judges: The system
17 ain't broke; don't try to fix it.
18 At the other end of the spectrum, we found the
19 electronic publishers who focused on the domination of the
20 market by West. They urged that this be ended by creating a
21 citation that would be in the public domain. And it should be
22 the only allowed citation.
23 We selected a list of speakers, just as you have,
24 from that spectrum of positions. They were invited to come to
25 talk with us in Chicago in December of 1995. And they did
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1 that. All accepted, and all appeared.
2 We then sent out more broad requests for
3 information. We published notices on the Internet. We wrote
4 individual letters to quite a number of people, including all
5 chairs of the A.B.A. sections and divisions. We sent a copy
6 of a similar notice to every Chief Justice of the State Court
7 in the United States, advising them of what our process would
8 be, how we would go about it, inviting them to comment on it.
9 Our notices were picked up in legal publications and
10 distributed from there. And it was known very widely
11 throughout the community at large what we were doing, when we
12 were going to do it, and that citation recommendations were
13 invited.
14 In March of 1996, we prepared a preliminary report
15 setting out our preliminary conclusions and recommendations.
16 And we distributed that widely. Copies of that report were
17 sent, so we understand, to each Chief Judge in the Federal
18 system.
19 Comments were received from many people. From that
20 point on, that's March, now our efforts having started in
21 October, until we filed our final report and recommendation
22 with the House of Delegates in May of 1996, we continued to
23 take into account comments received after that point until the
24 debate opened in the House of Delegates on August the 6th.
25 We were fortunate to receive quite a number of
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1 suggestions from quite a number of sources. And we were
2 fortunate to be able to decide for ourselves quickly that
3 there were no genuine issues of material fact as to what the
4 committee was considering. There was very little factual
5 disagreement. There was extreme emotion. There still is.
6 You've seen much of it in the course of the comments you've
7 received.
8 But if you focus on the facts and the citation of
9 any evidence to support the contentions as to those facts, you
10 find the facts are not in dispute. The committee considered
11 the undisputed facts, and here they are.
12 First, electronic publication has great advantages.
13 It is cheaper, not because, necessarily, of copyrights. It's
14 cheaper because you can print a CD-ROM faster than you can
15 print a volume. And you can print it at a lower cost. The
16 CD-ROM can slip in your coat pocket. A volume of Fed.2d.
17 cannot.
18 A library has to house this material. For CD-ROMs,
19 the library can be half of a shelf in the lawyer's office.
20 For print Reports, the library has to be room after room of
21 shelves. For solo and small practitioners, this is extremely
22 advantageous, and that's the fastest growing segment of
23 computer users in the law.
24 So number one, great benefits could be realized from
25 electronic publication. Number two --
22
1 JUDGE NOTTINGHAM: Mr. Fleming --
2 MR. FLEMING: Yes, sir.
3 JUDGE NOTTINGHAM: -- let me ask you a question on
4 that point. Your proposal doesn't imply anything about the
5 type of publication, does it? It simply requires the number
6 and the paragraph number in the case.
7 MR. FLEMING: That's correct, Your Honor.
8 JUDGE NOTTINGHAM: From that point, it's in, as you
9 call it, the public domain, and anybody can do it with it what
10 they want. You're not proposing that we, the Federal
11 Judiciary, produce the CD-ROMs.
12 MR. FLEMING: We're not, Your Honor, unless you
13 choose to.
14 JUDGE NOTTINGHAM: So how is that going to lower the
15 costs of legal services? Some private entity is still going
16 to have to produce the CD-ROM.
17 MR. FLEMING: That's correct, Your Honor. As I say,
18 aside from any copyright questions, it will reduce the cost,
19 because the cost of producing a CD-ROM is far less than the
20 cost of producing a book.
21 Lawyers will pay to get, then, the information in
22 the least expensive fashion they can. This day and time, the
23 overhead costs for lawyers is deadly. Lawyers have to be
24 concerned about that. Some lawyers have gone out of practice
25 because they can't carry the overhead cost.
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1 Books amount to a sizable part of that overhead
2 cost. CD-ROMs, just the raw material for the CD-ROMs is a
3 small fraction of the books. No one disputed that. Let me
4 underline that again. No comment received by our committee
5 disputed the fact that publication through electronic media is
6 far less expense than publication through books.
7 The next point, traditional citation doesn't work
8 for electronic citation. It does for books. For electronic
9 citation, you don't know the volume, and you don't know the
10 page number until the book has been published.
11 The report is produced by the Court in computer file
12 form. It can be released and, in fact, is released for
13 publication within hours or days.
14 If you have to wait for the book to be published for
15 a citation, you cannot put that citation on the electronic
16 publication when it's released. So that the traditional
17 citation method is not effective for electronic publication.
18 Based on this, the committee concluded that a new
19 citation system is necessary. You know what it is. The --
20 the final question the committee asked is: Is this practical?
21 And we decided that by looking at the comments before us. We
22 found some publishers said this is too expensive. It has
23 formidable technical problems. It cannot be done. We found
24 others who said it can easily be done.
25 JUDGE NOTTINGHAM: Mr. Fleming, let me interrupt
24
1 you. Judge Robertson and Judge Baker have to leave now for
2 another prior commitment. They will return as soon as the
3 other commitment is done. I wanted you to know, when they got
4 up, that it wasn't because of anything you said.
5 MR. FLEMING: I take no offense, Your Honor.
6 JUDGE BAKER: We will have access to your remarks
7 through the court reporter.
8 MR. FLEMING: Thank you very much, sir.
9 On the question of practicality, we were not given
10 information by the commenters that allowed us to reach a
11 reliable conclusion. There were contentions made. There were
12 forceful arguments made that it was either impractical or no
13 sweat. But we weren't given any doubt.
14 We went out and looked for that information. We
15 looked to the Supreme Court of Canada, which has been doing
16 this now for some time. We looked to the Supreme Court of
17 South Dakota, which had been doing it for about a year.
18 We talked with the clerks. We talked with the
19 people who are using this new citation system and who
20 implemented the new system. They told us that the cost of
21 implementation was quite low, under a few thousand dollars.
22 The burden was almost nonexistent. It took an hour to train
23 the first secretary at most in the use of the macros to apply
24 the paragraph numbers and, after that, a few minutes.
25 JUDGE BARBADARO: Mr. Fleming, let me ask you a
25
1 practical question.
2 MR. FLEMING: Yes, sir.
3 JUDGE BARBADARO: I use my computer as the primary
4 method of doing legal research.
5 MR. FLEMING: Yes, sir.
6 JUDGE BARBADARO: But I rarely read cases off the
7 screen. And I like the books. Is there any solution to the
8 problem of finding the cite in the book other than parallel
9 citation or conversion tables that you or any of the people
10 that appear before you could come up with?
11 MR. FLEMING: Let me underline, again, the
12 traditional citation, if it is the encouraged and the norm for
13 citation, is not usable, because it can't be put on the case
14 as soon as it's created on the computer and released. So
15 aside from references back and forth, the reason for our
16 recommendation is that. That is the basic underlying reason.
17 JUDGE BARBADARO: Well, I like the fact that people
18 are going to use cases as soon as they're available. But the
19 reality is, at least my experience is, that most of the time,
20 I'm using things that have already been published. And I want
21 to find them in the book.
22 And, for example, when I get a U.S. Report cite, I
23 don't have a lot of back issues of the U.S. Reports. I need
24 to go to the Supreme Court Reporter. And I hate having to use
25 a conversion table.
26
1 Is there any solution, other than a conversion
2 table, if you have this citation system that you're proposing?
3 I see you could use parallel citation. I can see a conversion
4 table. Is there anything else that would allow me to find it
5 in the book easily?
6 MR. FLEMING: The easiest way by far is the
7 computer, an on-line service, because, now, the publication of
8 reports that are using the new system contain the old
9 citation. They contain the docket number. They contain every
10 locater that exists.
11 Westlaw, for example, in publishing the South Dakota
12 Reports, includes paragraph numbers, sequential case numbers,
13 when they're available, the volume and page number citations
14 and the docket numbers.
15 You can look up -- you can search for any and all of
16 those citations on your computer; locate it quickly. That
17 tells you what book to look at, if you want to look at a book,
18 and you go look at it.
19 I don't like to read things on the screen as well as
20 I do in print, because I like to underline it. So, normally,
21 I locate it on the computer, I print the page I'm going to
22 look at, and I underline that page and put it in a notebook.
23 So I use a combination. Many people use combinations. As
24 time goes on, it will be more and more computers.
25 Let me mention to you quickly one thing that I
27
1 submitted to you in my summary of my testimony. This is an
2 E-mail from Justice Sandstrom of the North Dakota Supreme
3 Court that I received just a couple of days ago. I learned
4 from the A.B.A. Journal that Justice Sandstrom designed, had
5 built, and implemented the new citation system in South
6 Dakota. So can a Judge do it? You bet. There's one. You
7 may want to talk with him.
8 Here is what he said: Thank you for your e-mail
9 about the cost and difficulty of implementing medium neutral
10 citation in North Dakota. I have consulted with the Clerk of
11 Court in preparing this response. We implemented the system
12 with ease and very little cost. Out-of-pocket costs have been
13 minimal, parenthesis, mostly for postage to mail the rule,
14 close parenthesis.
15 We used the South Dakota rule as a model. After
16 reviewing the South Dakota paragraph numbering macro for Word,
17 I wrote macros for WordPerfect. The use of the macros was
18 explained to those who typed the opinions. This took a few
19 minutes. A new field to hold the citation was added to our
20 docket system.
21 Out-of-pocket costs were less than $500. And other
22 time costs were minimal. It is practical. That's what we
23 found. That's the basis for our recommendation.
24 One final comment, I have not mentioned competitive
25 factors. The A.B.A. committee found it unnecessary to get
28
1 into those factors at all. Our recommendation is not made for
2 the purpose of affecting competition in any way. Will it
3 affect it? Of course. Henry Ford didn't put out the Model A
4 or the Model T to drive the Buggy out of business. That may
5 have been the result, but it was not the reason. The A.B.A.
6 doesn't recommend this citation method to affect competition;
7 though, that may be a result.
8 I would be glad to answer questions.
9 JUDGE STRAND: Well, the only thing I would do is
10 just follow up what Judge Barbadaro said. I think the biggest
11 problem for many is that, for example, if my law clerk
12 receives a brief, and it has just the new citations, the only
13 real difficulty is conversion. And I think conversion tables
14 are probably some kind of an answer. Maybe they'll be on-line
15 or maybe they'll be available in some form that will be very
16 easy to use.
17 That's the one area that I haven't been able to find
18 a very good answer for in the materials that we've received.
19 And in talking to my law clerk, I haven't been able to
20 convince her that it wouldn't be some kind of a burden in that
21 regard. And I think that's the most difficult problem that I
22 see, at least at this point.
23 MR. FLEMING: Judge Strand, may I say very quickly
24 that I came up in the days of the blue and white books. I
25 used those books a long time. I got very comfortable with
29
1 them. I have no problem with them. There will be things of
2 that sort again with the new system.
3 You're going to hear from Shepard's. What Shepard's
4 told us is that they will be there to supply cross-reference
5 needs, period. That's what the committee was told. With a
6 computer, you can do it. With books, you have to have a
7 cross-reference table. That's the simple answer.
8 If you have all the books adjacent to your office,
9 as most Federal Judges do, the books are fairly convenient.
10 With me, I'm on the 22nd floor in our building. The library
11 is on the 23rd floor. I only walk to the library or send an
12 associate up there if I absolutely have to. Otherwise, I use
13 the computer. Most lawyers do the same thing. Thank you.
14 JUDGE WATERS: Sir, let me ask you --
15 MR. FLEMING: Yes, sir.
16 JUDGE WATERS: Mr. Fleming, let me ask you an
17 application matter. I believe your recommendation is that all
18 decisions receive the citation. Did you give any thought to
19 what that means? By that, I mean, what if it's a simple order
20 of two lines doing something, but it a decision. You decided
21 something. Or does the Judge still have the right and the
22 duty to determine what ought to be published, quote-unquote?
23 MR. FLEMING: Your Honor, we did give attention to
24 that. In paragraph 20 of our report, you'll find our
25 statement that the Courts must make that decision. An A.B.A.
30
1 committee can't. It would be a fool to try, and we didn't.
2 What we said is the Court decides what it wants to have out
3 there to be cited back to it. That should continue.
4 JUDGE WATERS: Okay. Thank you, sir.
5 JUDGE NOTTINGHAM: Thank you, Mr. Fleming.
6 MR. BOWDEN: Our next speaker will be James Carbine,
7 representing the American Bar Association.
8 TESTIMONY OF JAMES CARBINE
9 MR. CARBINE: As a trial lawyer, I possess a keen
10 sense of the obvious. So let me just tell you at the onset
11 that we all recognize that it is the Courts that control how
12 their judicial acts are disseminated, and it's the Courts who
13 control the cases that are cited to them.
14 I want to emphasize that the A.B.A. proposal is a
15 beginning point, a common point of reference that is designed
16 to provide a degree of workability and uniformity from
17 jurisdiction to jurisdiction. We've designed the A.B.A.
18 proposal to be evolutionary, not revolutionary. And that's
19 because the revolution has already occurred.
20 In virtually every courthouse, in virtually every
21 law library, in virtually every law firm, virtually every law
22 school around the country, judicial acts are disseminated
23 electronically, and they're researched electronically.
24 The percentage of the citable cases that will not be
25 found anywhere in a book is growing with each month. So what
31
1 we tried to do, and taking off a comment of yours, Your Honor,
2 of Mr. Fleming, the buzz word "medium neutral" is really an
3 articulation of my personal motto, which is save the books.
4 Because we want to make sure, not only because I grew up in a
5 different era, we want to make sure that it doesn't become a
6 requirement to own a computer to practice law, that if
7 somebody still wants to use the books, it has to be equally
8 workable for books and for computers.
9 And that was the design of the A.B.A. proposal, to
10 accommodate this revolutionary change which already exists and
11 is out there and is working its magic and to make the process
12 as easy and painless as possible. We wanted a system that,
13 once adopted and implemented by the Courts, would cause the
14 smallest change in the way we do things.
15 As I've traveled around the country on this issue,
16 I've had the opportunity to talk, both formally and
17 informally, with a number of Judges. My plan is to zero in on
18 the one or two or three issues that I've heard most often from
19 them.
20 Let me pick up, again, on your question, Your Honor,
21 about the -- about conversion tables and the -- and the
22 cumbersome nature of dealing with our -- our system.
23 The way I envision it is that the new universal
24 citation would take the place of the existing State Court
25 Reporter. Now, it's not perfect, but it's designed to be
32
1 essentially the same -- have the same pluses and minuses that
2 the current system has. So that, in my home state of
3 Maryland, for example, 1996 Md. 5, fifth opinion of 1996,
4 takes the place in the parallel citation to the Atlantic 2d.
5 of 407 Md. 306.
6 The problem that we can't solve -- we can get book
7 publishers to be able -- whether it's in advance sheets or the
8 hardbound copy, we can get book publishers to the point of
9 putting this on the spine of the book, 1996 Md. 1-50.
10 If you don't own a Shepard's citator, if you don't
11 have a conversion table, if you don't have a computer, the
12 worst thing that happens is you've got a bunch of sequentially
13 arranged opinions that you -- that you have to flip through
14 and see, well, now I want 49. Well, here's 47. It's a little
15 farther along.
16 To me, that's the worst and is not demonstrably
17 different than the problem we have now: If for some reason
18 somebody cites to you only the Maryland Reporter or Court
19 cites in an opinion only the Maryland Report, and we've got --
20 we want to go find the Atlantic 2d. citation.
21 In my discussions with the Judges, and, in
22 particular, I'm thinking of a visit I made to the Conference
23 of State Court Chief Justices, I've heard three principal
24 concerns.
25 The first is the fear that paragraph numbering will
33
1 greatly increase the administrative burden placed on Court
2 personnel. Second is the fear that the same thing would
3 happen because of the need to sequentially number cases. And
4 the third is what I call the question of post-release editing
5 of opinions. What I would like to do is take them all one at
6 a time.
7 First, as to the concern that the -- there will be
8 an increased burden on Court personnel by paragraph numbering,
9 we're all aware of the fact that Court's, State Courts and
10 Federal Courts, are being asked to do more with less, that
11 everybody's got budget problems.
12 And so we, as Mr. Fleming said, we took a hard look
13 at this, and we tried -- we asked a lot of questions, and we
14 didn't get too many answers because we're proposing something
15 that's new. But here's what we know, and here is what I
16 predict.
17 From the limited data available to us, we know that
18 the Courts that have actually experienced the paragraph
19 numbering have found the administrative burden to be
20 negligible. We know that there is no empirical evidence to
21 support the fear that it will be a substantial burden.
22 JUDGE NOTTINGHAM: How many opinions each year does
23 the South Dakota Supreme Court publish?
24 MR. CARBINE: That's the issue, Your Honor. The
25 courts that we've looked at so far -- and that's why I said
34
1 it's limited data -- are small courts. We have no -- no
2 one -- no major jurisdictions has undertaken this. New York
3 hasn't tried it. California hasn't tried it. Obviously the
4 Federal Judiciary hasn't tried it.
5 Let me just digress into one important point that I
6 keep hammering away in the deliberations on this issue. We
7 need a degree of uniformity, but we have built into this
8 system and highly recommend giving individual Courts,
9 individual District Courts, individual Circuit Courts as much
10 leeway as possible, as much discretion as possible to tailor
11 this uniform system to fit their -- to fit their own needs.
12 And, you know, I personally am very concerned about
13 doing central planning, where one organization tries to
14 dictate how the Federal Court system is going to do it and how
15 the Supreme Court of the North Dakota is going to do it and
16 how the Supreme Court of New York is going to do it.
17 Back to paragraph numbering, this is my prediction:
18 My prediction is that we will find that paragraph numbering is
19 new, that it's different, that it will take some getting used
20 to, but that it will not be a burden.
21 So, too, with the sequential numbering of opinions
22 at the time of release, Judge Baker asked a question that I'm
23 going to ask again, why can't you have the private sector do
24 it? It won't work.
25 What we're trying to do, if there's a policy
35
1 orientation here, is to put the Courts in charge of the policy
2 of deciding what gets numbered and how it gets numbered and
3 how things are cited to it and how their opinions and
4 decisions look. If the only -- the beauty of this system is
5 that the paragraph numbers and the citation are issued by the
6 Court at the time the opinion is released and follow the
7 opinion wherever it goes.
8 If you -- when I first started, with the very first
9 meeting that I had when I was trying to get up to speed on
10 this issue, I sat in a room with a bunch of electronic
11 publishers, who had a day-long debate on how they would have
12 the numbering system work, because they had to have a
13 foolproof numbering system for all the cases in the United
14 States, a central 800 number that you would dial to get a
15 number.
16 And the whole -- the whole force of our proposal is
17 decentralize and have parallel cites, get -- do as little
18 central planning as possible, provide a comprehensive
19 framework that works from jurisdiction to jurisdiction, and
20 then let the people who have to do the work figure out how
21 this is --
22 JUDGE BARBADARO: Isn't one advantage of central
23 planning, though, that you might be able to do away with
24 conversion tables? If you had a Federal Court numbering
25 number that you dial up and get a number assigned to your
36
1 opinion, then they could be dealt with uniformly. And when
2 they're published in books, they could be referenced that way.
3 You could have a West volume. And then, on the spine, you
4 could have opinions 1 through 100.
5 MR. CARBINE: I don't -- I don't see that working
6 any better. I don't -- I don't see how a central assignment
7 of the numbers makes it any different. You're still -- you
8 still want to have the -- the volume sequentially organized.
9 The way we've designed the suggestion for the
10 Federal system, instead of having a Fed.App., which is all the
11 Circuits all over the country, you would have 1996, 4th
12 Circuit. And the 4th Circuit could decide which of its
13 judicial acts it wanted to number and delegate to a clerk the
14 task of handing out the numbers and keeping a log of -- of
15 what the next sequential number is.
16 The best source on this is to go straight to the 6th
17 Circuit and talk to the court personnel and the Judges of the
18 6th Circuit U.S. Court of Appeals who have been doing this for
19 a couple of years now.
20 But I don't see -- I see a lot of problems with the
21 central system. And I don't see many benefits. And I don't
22 see it solving the conversion table, because you're still
23 going to be sitting there with a book organized by opinions in
24 sequence, not -- where the individual page numbers won't
25 necessarily or which will not correspond with the citation.
37
1 West, the West National Reporter system should still
2 look the same and still operate the same, because you'd have
3 1996 U.S. 4, you know, 323 S. Ct. 926, and 926 would be the
4 page on which that opinion could be found. And so, with the
5 parallel citations, you still get into the West system as
6 easily as you did before.
7 Post-release editing of opinions. By that, I talk
8 about and am referring to the value-added features provided by
9 commercial publishers to Judges in editing and polishing
10 opinions after the opinion has been released and before it's
11 published in a book.
12 There's a great concern to many of the Judges that
13 I've spoken with across the country that this value-added
14 service might be denied to them in the new regime. And I
15 can't solve the problem. The problem exists. But what I --
16 as I've thought about this, I am convinced that the problem is
17 not caused by any citation system, including the one we
18 propose. It is this revolution that's already occurred.
19 The technological revolution that's occurred has
20 redefined the point of publication. An opinion is published,
21 in a very real sense, when it's released to the parties and
22 the public. It's this immediate release of the opinion
23 electronically that causes the problem with post-release
24 editing.
25 Once again, with each passing month, it's going to
38
1 be more and more difficult to have one version of an opinion
2 available to millions of readers on the Internet and another
3 version of the same opinion in a book on a shelf.
4 So regardless of the citation convention, this
5 problem is there and is going to need to be addressed. Our
6 way of handling it was to recognize reality and to define the
7 point at which a public -- an opinion is published at the --
8 at that moment in time when it's released to the parties and
9 to the public.
10 If there are subsequent modifications to that
11 opinion, we have suggested that it be on the record so that
12 it's possible to trace the later version of the opinion and
13 link it back to the -- link it back to the first one.
14 JUDGE NOTTINGHAM: Any kind of a modification? Any
15 kind of a modification is on the record? So if you're
16 correcting a spelling of the word, everybody who searches the
17 opinion later has to search two opinions?
18 MR. CARBINE: No. But, once again, I go back to my
19 starting point. I think the Courts can decide when that's --
20 we just suggest that it be done. The Courts can decide when
21 it's necessary. But we were given a number of anecdotal
22 instances where, did you really mean to say "reversed", Your
23 Honor? Didn't you mean to say "affirmed"? And where it's a
24 substantive opinion that affects the value and citability of
25 that opinion, then I think it should have a modifying
39
1 citation.
2 JUDGE NOTTINGHAM: All right. Mr. Carbine, your
3 time is expired. Thank you.
4 MR. CARBINE: Thank you, sir.
5 MR. BOWDEN: Okay. Our next speaker will be Gary
6 Spivey, vice-president for Electronic Product Development at
7 Shepard's.
8 TESTIMONY OF GARY SPIVEY
9 MR. SPIVEY: Good morning. In view of recent
10 changes in Shepard's corporate ownership, let me clarify who I
11 represent. Shepard's is a partnership owned 50 percent by
12 Reed Elsevier, which are also the owners of Lexis, and 50
13 percent by Times Mirror, which is also the owner of Matthew
14 Bender, which company has been previously referenced.
15 I'm here on behalf of Shepard's, not on behalf of
16 any of our corporate partners. Nor am I here in my role as
17 representative of the A.B.A.'s intellectual property law
18 section to the A.B.A. Special Committee on Citation Issues.
19 The intellectual property law section opposed the
20 A.B.A. Special Committee resolution at the August 1996 annual
21 meeting, but expressed no opposition to the general concept of
22 public domain citations or to the specific alternate systems
23 which have been implemented in various Federal and State
24 jurisdictions.
25 You've received Shepard's statement and its
40
1 exhibits. Briefly stated, Shepard's responds as follows to
2 the questions posed in the notice of this hearing: First, as
3 to your first question, Shepard's cannot advise you whether
4 the Federal Courts should adopt the proposed A.B.A. citation
5 format. We don't think it's our role to say what citation
6 conventions should be.
7 However, we are very willing to assist you in making
8 that judgment by sharing with you our perceptions as citations
9 publishers and as observers of the citation practices. From
10 that perspective, the A.B.A. format is workable as a naming
11 convention for Court opinions and as a component of a full
12 citations format, which also includes other elements.
13 The proposal for internal paragraph numbering also
14 is a workable alternative model for pinpoint -- for supporting
15 pinpoint references. But implementing Courts may wish to
16 clarify by Court rule whether the intended -- whether the
17 internal paragraph numbers are to be construed as part of the
18 opinion.
19 As to the second question on the costs and benefits
20 of implementation, we can only respond to the cost question
21 from our perspective as citations publishers. Any requirement
22 to cover an additional citation system in our products would
23 entail additional costs and increase pressures for price
24 increases.
25 We believe that these costs can be minimized,
41
1 especially for electronic products, but we continue to have
2 concerns about the cost impact on the print products.
3 I would be happy to respond to any questions.
4 JUDGE BARBADARO: Do you have an answer to the
5 conversion table parallel citation issue?
6 MR. SPIVEY: Well, one answer is that we -- as
7 you've heard before, that Shepard's itself publishes
8 conversion tables. And in the -- in the materials that we
9 supplied before the meeting, we had some examples of how we
10 had implemented that in Louisiana, where we provide
11 cross-references from the public domain citation format to the
12 West Regional Reporter citation format and vice versa.
13 Whether or not it's necessary to do that depends
14 upon how the -- the new citation formats are implemented. If
15 they are required, it's required to use the public domain
16 citation format, then we feel required to provide that
17 service.
18 If it is not required, then we can -- we can respond
19 to what the market interest is in the new citation format and
20 provide them or not provide them, provide them to a great
21 extent or to a lesser extent, provide them in one medium or
22 another depending upon -- on market interest.
23 The -- a question certainly is whether -- whether a
24 parallel citation is to be required or whether it is -- it is
25 optional. If it is -- if it is required, we have to provide
42
1 those kind of conversion tables. If it's not, we can just
2 follow the -- what the market desires.
3 JUDGE NOTTINGHAM: Any other questions?
4 Thank you, Mr. Spivey.
5 MR. SPIVEY: Thank you.
6 MR. BOWDEN: Our next speaker is James Love,
7 representing Consumer Project on Technology.
8 Mr. Love. Mr. Love, you'll have up to 15 minutes of
9 your testimony and questions. I'll give you a signal when you
10 three minutes remaining.
11 TESTIMONY OF JAMES LOVE
12 MR. LOVE: I brought a one-page exhibit for the
13 committee just to kind of help in going through some of the
14 numbers I wanted to talk about. Thank you.
15 My name is James Love. I'm an economist. I'm not a
16 lawyer. I work for a project we call the Consumer Project on
17 Technology in Washington, D.C. We're an organization started
18 by Ralph Nader in 1995. We spend a lot of time working on
19 issues relating to the Internet, access to government
20 information, regulatory issues, intellectual property rights,
21 a wide range of things. And we also work to try and -- in
22 ways to try and get the government agencies to use the
23 Internet in ways that enhances democracy.
24 We're a project at the center for the study of
25 response. I've actually been involved in these issues relating
43
1 to citations and access to legal information since 1991, when
2 I testified before a joint committee of Congress, asking that
3 they take steps to make better access to what was then a
4 Department of Justice data base on Court opinions called
5 Jurist. We've been active very much ever since on the
6 citation issue.
7 I'm not an attorney. I do have some attorneys
8 working for me. But we don't -- I can't afford -- our
9 organization cannot afford commercial Lexis or Westlaw
10 accounts. We rely -- I don't have even a borrowed or stolen
11 password to Lexis or Westlaw like a lot of people in my field
12 do.
13 So we actually go out and try to find opinions
14 frequently on the Internet and different places we can. We
15 look at -- we need to get access a lot to District Court and
16 Circuit Court opinions because, for a lot of areas I work in,
17 like antitrust issues, copyright issues, patent issues, and
18 telecommunication regulation, it's really important to see
19 decisions that are written by District Court Judges and
20 Circuit Court Judges.
21 Now, in my testimony I submitted before, I spent
22 some time on the cost of these citations in terms of leasing
23 them from West under the terms of the license that the
24 Department of Justice negotiated between West and -- and the
25 government, in terms of the recent merger between Thomson and
44
1 West Publishing, and I would like to go over the arithmetic a
2 bit.
3 But, first, to tell you that you should probably
4 know there's a copyright suit between West and -- there's a
5 copyright suit in New York and in Minneapolis, which is
6 challenging whether or not West actually owns the citation
7 under existing copyright law. And there are some belief that
8 West will lose the case and, therefore, the issue of, you
9 know, whether the citations are owned by or monopolized may be
10 resolved in that forum.
11 We're, I think, a ways away from a final resolution
12 there, but the Court should know that, in 1995, West sought to
13 get an amendment and a paperwork reduction act which would
14 have created a new property right in the citations on the
15 so-called West provision. It was defeated in 1995, but was
16 almost, you know, carried the day.
17 And in Geneva, in December of 1996, last year, there
18 was a proposed treaty that the United States at one point
19 supported, which would have conveyed a new sui generis
20 property right in the citations under the sui generis database
21 proposal, which I've been told by the Judiciary Committee in
22 the House of Representatives there will be a bill introduced
23 and have hearings in this Congress on.
24 So I think it ought to be clear to the Committee
25 that West is pursuing a variety of avenues to create -- if
45
1 they lose the copyright suit, to create new sui generis type
2 property rights to maintain their ownership claims on U.S. law
3 citations.
4 And so that's one of the reasons why we don't think
5 the Courts can afford to continue the current intolerable
6 situation where private, foreign-owned company owns the
7 citation to the bulk of American case law. Now --
8 JUDGE BARBADARO: Excuse me. If we have parallel
9 citation --
10 MR. LOVE: Pardon.
11 JUDGE BARBADARO: If we continue to require parallel
12 citation to a West publication, but adopt the citation system
13 proposed, isn't that still going to leave West with the
14 competitive advantage that you're concerned about? And isn't
15 that going to continue to result in the increased cost that
16 you're concerned about?
17 MR. LOVE: Yes.
18 JUDGE BARBADARO: So you feel we need to abandon
19 parallel citation altogether as a requirement?
20 MR. LOVE: As a required thing. I wouldn't have any
21 problem with it as an optional -- you know, making it an
22 option like --
23 JUDGE BARBADARO: The reality is, until District
24 Courts no longer use West publications, they're going to
25 require as a matter of local rule --
46
1 MR. LOVE: Yes.
2 JUDGE BARBADARO: -- citations to the Reporter.
3 MR. LOVE: Yes.
4 JUDGE BARBADARO: So whether we get it nationally or
5 not, I think the reality is that the vast majority of Courts,
6 by local rule, will continue to require parallel citation. So
7 if that's the case, then this proposal won't significantly
8 address your competition and cost concerns, will it?
9 MR. LOVE: Well, I think it would. I mean, I
10 personally, I agree with the idea that you shouldn't require
11 the West citation as a parallel cite. But this is a scenario
12 I see happening. You require the government to put an
13 official cite on a document like most other government
14 agencies, like you see in the congressional record or Federal
15 Register, whatever, and then there's a plethora, then, of free
16 products and very inexpensive commercial products that provide
17 the government citation.
18 Then you have some Federal Judges saying we're going
19 to require the West citation, which is expensive, relatively,
20 for practicing lawyers to get. Then you're going to have a
21 situation where a lot of lawyers are going to be buying the
22 cheap products, and they're going to complain to the local
23 District Courts, and they're going to say, why are you forcing
24 us to buy a product from West Publishing when we're perfectly
25 satisfied with a product we either got for free on the
47
1 Internet or which we got from a competitor of West. Isn't
2 that's really silly?
3 JUDGE NOTTINGHAM: Do you know whether that is
4 happening today? Are local Bar members complaining to
5 District Courts or to Circuit Courts that this is somehow
6 hamstringing them or --
7 MR. LOVE: I think that -- that every place we've
8 seen where State Bar associations have been involved in the
9 public domain citation, the Bar associations in the --
10 particularly the sole practitioners and the small firms have
11 pushed very hard for the public domain cite to replace the
12 West cite.
13 And part of the reason for that is because CD-ROM
14 prices and things have fallen through the floor whenever
15 they've adopted public domain cites. I mean, they've seen
16 huge decreases whenever there's been competition. And the big
17 firms, maybe they don't care, but the small firms care a lot.
18 JUDGE NOTTINGHAM: Do you have documentation of
19 that?
20 MR. LOVE: Well, I did look through the 1,400 pages
21 of public comments that were filed when this started. But,
22 yeah, I mean, I just got a note yesterday from Arizona where
23 it's an issue out there now. And I personally have talked to
24 people at State Bars all over the place.
25 And I will also tell you that I'm not a lawyer. And
48
1 a lot of people I hear from, in addition to the people in the
2 Bars, are regular taxpayers who feel that the Courts are --
3 have, you know, have an improper situation where they're
4 requiring -- where it's leading to a situation where a private
5 entity owns an integral and essential part of access to the
6 law that they're expected to obey. So it's not just lawyers.
7 I think you have a lot of people who are not lawyers who are
8 pretty concerned about this.
9 JUDGE BARBADARO: Well, I'm very sympathetic to the
10 concern. I recognize that, particularly small law firms,
11 there's a significant cost associated with maintaining books.
12 And the reality is I think you're right, that small law firms
13 tend to use CD-ROM and other electronic means of collecting
14 cases.
15 But the reality is, I doubt very seriously that the
16 Judicial Conference could prohibit District Courts from
17 requiring, as a matter of local rule, parallel citation. And
18 I strongly suspect that the reality is that parallel citation
19 will be required by the vast majority of Courts as a matter of
20 local rule, regardless of what the Judicial Conference were to
21 do.
22 And if that is the case, then your concern about
23 competition and cost is not going to be addressed by this
24 proposal. Do you have a response to that? Because that's my
25 analysis of your concern about competition and costs.
49
1 MR. LOVE: Yeah. I have a response to that. And
2 that is that Court opinions are used for people in a variety
3 of settings, including scholarly work, in terms of lots of
4 analytical work. There are a lot of people that will accept
5 an official domain cite readily.
6 And I believe that, even though there are some
7 Judges that are so wedded to the idea that West is almost part
8 of the government, that it will force everybody to patronize
9 their products.
10 JUDGE BARBADARO: Well, don't mischaracterize that
11 view. That's not my view and I --
12 MR. LOVE: I'm not saying it's your view.
13 JUDGE BARBADARO: Excuse me.
14 MR. LOVE: It's some Judges, not you. Because I
15 think the members of this Committee are atypical. I mean,
16 we're not worried about you guys. We're worried about the
17 2,000 Judges which are not on this Committee.
18 JUDGE BARBADARO: Well, I think you're misjudging
19 the Judiciary. It's not a question of whether West is part of
20 the government. It's the reality of having to go and read
21 something out of a book and how to find it without a
22 conversion table.
23 MR. LOVE: Well, you know, if -- if -- if West was
24 required, if the -- if the citation was part of the opinion,
25 the -- you know, the sequential number and the paragraph
50
1 numbers were part of the text opinion, West would put it in
2 books just like they do in other publications.
3 West already puts public domain cites in their
4 publications when the Courts issue them from the Court. I
5 mean, West has already crossed that line a long time ago.
6 They do that now. They do that for Federal things like
7 Federal -- I think for Military Court, or I don't what to
8 be -- misspoke myself on a particular publication. They do it
9 for some State publications that have public domain cites.
10 So West will put the public domain cite in their own
11 books. And it will be up to West to make it convenient for
12 people to buy its product to find the public domain cite as
13 well as their competitors do. And I can assure you that West
14 is an innovative and competent company, and they can meet that
15 challenge.
16 But as far as the District Courts, I mean, my father
17 was a Judge. He was not a Federal Judge. He was a lower
18 level Judge. And -- and I know that, from my own experience,
19 that, you know, there's traditions within the Judiciary. And
20 sometimes it takes a while for people to deal with change.
21 But I think it's your job to educate the Judiciary
22 that there's a fundamental issue about whether or not a
23 private company should own the road map to American law. And
24 whatever that takes. I'm not sure what it takes.
25 I can tell you that, that this -- this meeting has
51
1 been a long time coming, that -- that every one was really
2 delighted and pleased that the Technology Committee ordered
3 this hearing and accepted public comments.
4 But there's a sense that this is -- this is a
5 problem that's -- that's immensely obvious to people that paid
6 their own money to get access to Court opinions. I mean, they
7 understand what the problem is.
8 JUDGE NOTTINGHAM: Well, suppose we number the
9 opinions and suppose we put paragraph numbers in them. That's
10 not going to make it free, is it?
11 MR. LOVE: It's not going to what?
12 JUDGE NOTTINGHAM: It's not going to make the law
13 free. If we just do that and nothing more, that is, if we
14 don't put it on the Internet, for example, then private
15 entities are still going to have to disseminate those
16 opinions, are they not?
17 MR. LOVE: Well, as I'm sure you know, all the
18 Circuits already disseminate opinions electronically. All of
19 the Circuit opinions are on the Internet, or I should say
20 all -- I mean, all of them have a program for putting their
21 opinions on the Internet through these law schools. They all
22 go up unofficially without citations. You may or may not get
23 the corrections.
24 So the Circuit Courts and the Supreme Court are
25 already issuing slip opinions electronically. We know the
52
1 courts, Administrative Office of the Courts are spending
2 billions to get District Courts up to speed electronically.
3 We know the opinions are all done on word processing formats.
4 I mean --
5 JUDGE NOTTINGHAM: I'm sorry, you said the
6 Administrative Office is spending billions to get the District
7 Courts up to speed?
8 MR. LOVE: Yeah. I mean --
9 JUDGE NOTTINGHAM: What do you mean by that?
10 MR. LOVE: I mean, the budget for automation that
11 the Administrative Office of the Courts administers is a big
12 number. I believe that the -- Eleanor Lewis is someone that
13 has spent a lot of time on that, and she would be better
14 equipped than me to give you the numbers but -- she will be
15 testifying after me.
16 JUDGE NOTTINGHAM: I can assure you it's not
17 billions.
18 MR. LOVE: Well, he might be surprised.
19 JUDGE NYGAARD: You would hope.
20 MR. LOVE: Maybe over a period of time obviously.
21 Some of these things take place over time. But, I mean, the
22 Court spends millions of dollars to purchase Westlaw and
23 Lexis. They spend millions of dollars to purchase books over
24 the course of time. The Court is already spending a lot of
25 money in this area.
53
1 If you add up all the amount of money the Courts are
2 spending on information systems and computers, it's a big
3 number. And all of the money that's been generated from those
4 75-cent-a-minute fees on the PACER system and stuff like that,
5 it's actually a fair amount of money. It's very cheap --
6 JUDGE NOTTINGHAM: Okay. Mr. Love, your time is
7 expired. Thank you.
8 MR. LOVE: Thank you.
9 MR. BOWDEN: The next speaker is Ollie Smoot for the
10 Association For Computing, U.S. Public Policy Committee.
11 JUDGE NOTTINGHAM: Hold on. Let's take a short
12 break for the court reporter to switch paper.
13 TESTIMONY OF OLLIE SMOOT
14 JUDGE NOTTINGHAM: Mr. Smoot.
15 MR. SMOOT: Good morning. Thank you. It's a
16 pleasure to be here to represent the U.S. Policy Committee of
17 the Association For Computing. Our association is, we think,
18 the oldest technical society in the computing area. We have
19 about 70,000 members in computing and information sciences.
20 The first thing I should say is that we support the
21 A.B.A. proposal. And I would like to explain from a technical
22 viewpoint why we do so. I would like to focus on electronic
23 publishing and the technical aspects -- the technical
24 feasibility of the proposal.
25 In addition, you always have the challenge, as you
54
1 get down into the list of speakers, of all of the additional
2 information that's been brought to the table. And I would
3 like to try to address some of those; in particular the
4 parallel citation issue.
5 We agree with Mr. Carbine's comment that the
6 revolution has occurred. The evidence of this is all around
7 us. As Jamie Love just said, the bulk of Court decisions are
8 becoming available electronically. Our society, as well as
9 most of the scientific disciplines, are themselves right in
10 the middle of going to an electronic basis.
11 As you may know, they are extensively reliant on the
12 printed record in terms of developing science, because new
13 science builds on the shoulders of what's been known before.
14 So we're in sort of the same areas as the judicial
15 system is with slightly different needs. But we all see these
16 same issues in this area; that is, how do you provide the user
17 easily accessible accommodating links to the record?
18 In addition, all branches of the Federal government,
19 State governments, and local governments, are investing
20 heavily in technology to make one of their principal products,
21 which is information easily accessible to the average citizen
22 as well as the person who has a -- has business before that
23 branch of government. We see this citation issue as falling
24 directly in improving user access to judicial information.
25 The A.B.A. proposal, if viewed from a systems
55
1 perspective, has a very good design, in our view. It
2 addresses the known key issues. It is not overambitious. It
3 leaves flexibility where there's no need for centralized
4 prescription. And it has some built in redundancy, which is
5 always a good thing.
6 The major changes that we have focused on are the
7 sequential case number and the paragraph numbering. Paragraph
8 numbering, we believe, and we believe that the prior speakers
9 have agreed, is not really a technical issue. It may be a
10 minor operational issue. And it will require some change in
11 attitude for the reader.
12 I actually have in my day-to-day occupation to read
13 a lot of international documents where paragraph numbering
14 appears more and more to be the norm. And I have made this
15 transition. I now flow over them. But when they're referred
16 to in the document, it certainly does simplify back
17 referencing.
18 Sequential numbering systems are used in many of the
19 activities that fall within computing. And, in fact, within
20 my own organization, we run about 85 standards committees with
21 some 1,000 projects, all of which depends basically on
22 sequential numbering of documents. So there are a lot of
23 people who have done this, both manually and increasingly in
24 an automated fashion.
25 You can design a complex or a simple sequential
56
1 numbering system, a centralized one or a decentralized one.
2 In our view, the A.B.A. proposal strikes a middle ground. You
3 should view the year as part of the sequential numbering
4 system. And that's good, because it gives you some redundant
5 information; namely, how contemporary is the cite.
6 The case number, then, is an arbitrary number. And
7 in -- from what we can tell about the judicial system, it
8 really is -- is fine for it to be up to the Court that's
9 involved to decide how they're going to assign these.
10 Usually, in small organizations, you just designate
11 one person who may have a yellow pad with some rules on it,
12 and you have the numbers, and you have the title of the
13 document.
14 In larger operations, you may do this automatically
15 through a computer system. But it's really a choice that's
16 very easily made and will take, I think, a minor transition.
17 Finally, let me address the parallel citation issue.
18 As I understand -- understand it, despite the A.B.A. proposal
19 that there be the new citation and then any other applicable
20 traditional citations, the concern is that, in reading a case
21 with the new approach, on-line, and then wanting to go to a
22 printed volume, you would have to switch citation systems.
23 It was our view that most of this would be taken
24 care of by the fact that these parallel citations would
25 already be there. We believe that both sets of citations will
57
1 be available in multiple sources; that is to say, cases that
2 will be made available electronically by Courts themselves or
3 by other information providers who don't provide very much
4 value-added --
5 JUDGE STRAND: Let me just ask you that. Back to my
6 law clerk again, we get a cite to 1996, 5th Circuit 15. Is it
7 your thought that data bases like Cornell and Villanova and
8 others would have right on-line, immediately available, a
9 conversion that would be as easily available as just quickly
10 going to the Cornell Web site?
11 MR. SMOOT: That was going to be my point, sir. I
12 think, either through competitive opportunities, if somebody
13 can see how to make this a viable product -- there are already
14 similar kinds of products in other disciplines. Or we've been
15 talking about conversion tables. I think that, as the Courts
16 become willing to use other newer technologies, you can put in
17 immediate what we call hot links from one document to another.
18 It does require that both be available electronically. But
19 that kind of technology is already available and in use.
20 In fact, in our technical committees for their
21 meetings where, typically, they process, in two days, over 150
22 documents, the agendas now are all -- the agendas on all the
23 documents are provided currently on floppy disks. And all of
24 the agenda documents are hot linked so that, when you're
25 looking at the agenda, you click on the computer, and the
58
1 other document immediately comes up.
2 Now, the additional issue that was put forth here
3 was that you might want to read this in print. I have this
4 same problem. Long documents that I have electronically, I
5 typically print out and read at my convenience. But I think
6 what the technology can provide you is that it would be able
7 to pull up that document for you. You can then skim it. And
8 then when you want to actually study it, you can go and read
9 it in print. So we think there is an additional technological
10 opportunity here as this new citation system goes into place.
11 That's really the -- all of the comments I had to
12 make. We think that it's a forward-looking proposal and
13 appreciate that the Judiciary is considering it.
14 JUDGE NOTTINGHAM: Let me ask you a question that
15 has been addressed by previous speakers, but at least not to
16 my persuasive satisfaction; and that is, why is it impractical
17 to expect that some enterprising private entity or person will
18 not see the opportunity and go out and number -- gather
19 citation, gather opinions from the Courts, number the
20 opinions, put paragraph numbers in them, and effect what you
21 are talking about?
22 MR. SMOOT: Well, you've raised a matter of
23 contemporary interest in our society and in science in
24 general, which is we want to be able to cite authoritative
25 documents.
59
1 JUDGE NOTTINGHAM: It's authoritative in any case.
2 If it's got my signature on it, it's authoritative. I mean,
3 or anybody, any Judge's signature.
4 MR. SMOOT: Yes. But the problems that were talked
5 about earlier, about revisions, I'm not trying to suggest that
6 you do this, I'm saying that you can do this -- this is what
7 we're considering doing -- that is to say, that the A.C.M.
8 would be the source of the authoritative copy. We would
9 maintain an authoritative copy that is technically controlled
10 and prevented from alteration.
11 It would also provide in the system that we're
12 putting together so that if, as the author, you discover that
13 you didn't add the numbers up right, that you can go back in,
14 and through a process within A.C.M., revise your report. And
15 that would also be officially recorded in the archives of the
16 A.C.M.
17 Now, I would think that the Courts would have a
18 similar kind of desire. But, because it's not part of this
19 proceeding, I wouldn't suggest that Courts would want to
20 become the official repository of the text, because that's
21 not, I assume, what's done today. But it is -- it is an
22 option that you could look at in the future. And it would
23 provide for an official copy of every decision.
24 JUDGE NOTTINGHAM: So revisions are the problem that
25 you are addressing.
60
1 MR. SMOOT: In our area, yes. You want -- you
2 don't -- people like to make changes, you know. And they get
3 a copy of something. And maybe they make what they think are
4 annotations, and then they pass it on to somebody else. If
5 it's not textually obvious that these are annotations, you
6 can't be sure that you have the official copy.
7 This is -- this is -- if we were to shift to the
8 copyright area, a major issue that's being dealt with in the
9 copyright law, how do you maintain the author's control over
10 the text as opposed to all of the issues that you talked about
11 earlier about copyright and competition.
12 JUDGE NOTTINGHAM: Well, the A.B.A. proposal itself
13 does not address what is the official copy.
14 MR. SMOOT: Exactly.
15 JUDGE STRAND: Well, and, sir, are you suggesting
16 that just, if there's a change made in a decision, let's say a
17 week later, and you felt there was something that was unclear
18 in the order that you had issued, and that you had assigned a
19 number to in accordance with the official citation, if you
20 changed that the following week, it would just have a new
21 citation number; is that fair to say? Or are you saying go
22 back and correct the old one?
23 MR. SMOOT: I believe the A.B.A. proposal would say
24 that, if it's a substantive change, you would have a new
25 citation.
61
1 JUDGE STRAND: That's what I understand it to be as
2 well, which is certainly an easy way to handle that.
3 MR. SMOOT: Yes.
4 JUDGE STRAND: Thank you.
5 JUDGE NOTTINGHAM: All right. Thank you, Mr. Smoot.
6 MR. SMOOT: Thank you.
7 JUDGE NOTTINGHAM: The schedule calls for a
8 15-minute break at this time. According to my watch, we're
9 running about 10 minutes ahead of schedule. My suggestion is
10 that we break for only 15 minutes, subject to views of the
11 other Subcommittee members, and come back in 15 minutes so as
12 to keep ahead of schedule. The Subcommittee is in recess.
13 (A brief recess was taken.)
14 JUDGE NOTTINGHAM: All right. Let's proceed.
15 MR. BOWDEN: Okay. Our next speaker will be Marc
16 Rotenberg from the Union for the Public Domain.
17 You have 15 minutes, and we'll give you a
18 three-minute warning.
19 TESTIMONY OF MARC ROTENBERG
20 MR. ROTENBERG: Thank you very much for the
21 opportunity to appear today. My name is Marc Rotenberg. I'm
22 the Director of the Electronic Privacy Information Center.
23 I'm also a member of the adjunct faculty at Georgetown Law
24 Center, where I've taught information privacy law since 1991.
25 And I've served on several international expert panels,
62
1 including, most recently, the expert panel on cryptography
2 policy of the Organization for Economic Cooperation and
3 Development in Paris.
4 I am here today on about a behalf of the Union for
5 the Public Domain, which is an independent membership
6 organization created in 1996 to protect and enhance the public
7 domain in matters concerning intellectual property. I'm going
8 to make five brief points this morning in support of the
9 A.B.A. citation proposal.
10 First, the current citation system, which relies on
11 proprietary page numbering, impedes the development of
12 alternative publishing sources. Because a single company
13 exercises control over page numbering, other companies and
14 other publishers of legal information are restricted in their
15 ability to make available legal materials to the public.
16 Second, a public domain citation system based on the
17 A.B.A. proposal is more appropriate to the emerging on-line
18 world than is the current citation system. As information is
19 increasingly disseminated in electronic formats, page numbers
20 based on print format publications are cumbersome and
21 literally out of place in digital documents.
22 The inclusion of a page number for a pinpoint
23 citation, for example, in an electronic document is
24 essentially an arbitrary designation, as it bears no natural
25 relationship between the number and the location in the
63
1 document.
2 Paragraph numbering scheme, on the other hand, is a
3 significant aid to a person reviewing a document and trying to
4 locate a particular reference. It is equally well suited to
5 electronic formats and to print formats.
6 My third point in support of the A.B.A. resolution
7 is that a public domain citation system will promote access to
8 legal materials by practitioners and by the general public.
9 New forms of electronic publishing, including CD-ROMs and the
10 Internet, have made legal information widely available in
11 timely fashion at little cost.
12 The Internet, in particular, provides a virtually
13 unlimited environment for the development of new research
14 methods, locating services, and publication of legal
15 materials.
16 An appropriate citation system, that is one which is
17 based on the electronic environment, will allow the further
18 growth of these techniques, enrich the law and the public's
19 understanding of our legal institutions.
20 My fourth point in support of the A.B.A. proposal is
21 that paragraph numbering for legal documents is a widespread
22 practice, particularly in many international organizations. I
23 served recently on an expert panel of the OECD where draft
24 documents were considered, discussed, revised, and ultimately
25 published this past week by the organization in Paris.
64
1 Paragraph numbering scheme is a convenient way for
2 members of the panel to participate in these discussions and
3 to revise the documents. And when the documents are
4 published, it facilitates discussion among researchers and
5 national governments.
6 My fifth point in support of the A.B.A. proposal is
7 that I believe that the public domain citation system will
8 facilitate the development of new teaching methods. I began a
9 course on privacy law at Georgetown in 1991 that looks
10 specifically at the impact of new technologies on our
11 traditional notions of privacy, whether drawn from tort,
12 contract, or constitutional law.
13 In developing the course materials for this class, I
14 relied, not only on print publication, but also made available
15 to my students material over the Internet through a Web site.
16 I found, as I proceeded with this effort, that the traditional
17 numbering schemes were not particularly helpful to identify
18 the materials that were being distributed on-line to the
19 students.
20 I am quite sure that, as law schools look
21 increasingly to forms of electronic dissemination for legal
22 materials, other teachers will encounter these problems as
23 well. And I suspect that, over time, the paragraph numbering
24 system will become the favored approach, precisely because it
25 is difficult to use pinpoint cites based on print publication
65
1 for materials that are distributed in these digital formats.
2 JUDGE BARBADARO: Let's me ask you how you think
3 your students will react to opinions that are broken down into
4 numbered paragraphs. It would be a mistake to teach law
5 students that they can analyze opinions by looking at
6 paragraphs in isolation. Is there any danger that this would
7 encourage people to focus on isolated portions of the opinion
8 rather than to view the opinion in totality?
9 MR. ROTENBERG: I don't think so, sir. I think a
10 good teacher focuses on the substance of the text and the
11 content of the opinion. And one of the first hurdles that
12 must be overcome to begin that discussion is to locate the
13 relevant passages within an opinion.
14 In a traditional print environment, you can say to
15 your students, for example, in U.S. vs. Cats, let's look at
16 page 462 in our print publication. And the class begins
17 together looking at the same paragraph.
18 That becomes more difficult to do when an opinion
19 has been circulated in the electronic environment, because the
20 reference page 462 is not particularly helpful if you're
21 trying to look at Justice Harlan's concurrence, for example.
22 And to have the paragraph numbering where he describes, for
23 example, what a reasonable expectation of privacy is, and to
24 jump in on paragraph 65, I think, would actually be a very
25 helpful teaching aid.
66
1 JUDGE STRAND: Let me ask you a question. Back to
2 my law clerk or even, more importantly, to my colleague
3 next-door who gets a memo in connection with the summary
4 judgment, and it cites him to 1997 9Cir.240. And he also has
5 over on this part of his desk Consideration of the A.B.A.
6 Proposal, re: New Citations. And he says to himself, or she
7 says to herself, how do I find this? And so what is your
8 answer to me? Let's assume, first of all, that the person has
9 a computer and a modem, but they don't have the Internet.
10 What do they do?
11 MR. ROTENBERG: Well, first of all, I would say that
12 most people today who are using computers and modems, if I
13 person owns a modem, it's almost certainly to have the
14 opportunity to use the Internet, not in all cases.
15 JUDGE STRAND: Except my fact. We don't have the
16 opportunity to use the Internet for a lot of reasons that are
17 not relevant right now. We do have a modem. We do actually
18 have Westlaw, of course. But how is that person going to deal
19 with it if you don't have the Internet?
20 MR. ROTENBERG: I think --
21 JUDGE STRAND: I think these are the real problems
22 that we need to --
23 MR. ROTENBERG: I understand. I think there are a
24 couple of answers. I mean, clearly, there will be a period of
25 transition. And there are ways to handle this period of
67
1 transition. The most obvious one is to require the provision
2 of a parallel citation where the print publication exists to
3 make it possible, as it's been in the case that people do not
4 have access to all Reporter systems. And to make it as easy
5 as possible for -- for attorneys and the Court to review
6 opinions that are presented, the parallel cites have
7 traditionally been made available.
8 There will also be some responsibility on the part
9 of the Court system to develop the methods, to make the
10 opinions available in electronic format. And this process is
11 already under way. I mean, it is the case now.
12 JUDGE STRAND: Well, I understand. But, I mean,
13 these are the questions, the real questions that the judicial
14 users are concerned about. In fact, they just don't know the
15 answer to it. And I think that's why, in many instances, they
16 say, well, gosh, I don't know how I would find this. I don't
17 have the Internet. And many of my colleagues, who have not --
18 you know, went to law school before Lexis and Westlaw, for
19 example, they're not computer users in any event.
20 Certainly our law clerks are more able to deal with
21 this issue. But if you are trying to get support from the
22 Judges, we need to have answers for them as to how they're
23 going to deal with that.
24 And, of course, part of the problem is, if you say,
25 well, the answer is to get the parallel cite, then we're back
68
1 to the issue of whether or not that helps the whole ball move
2 forward or not if you are going to require the parallel cite.
3 MR. ROTENBERG: Well, I appreciate your point, Your
4 Honor. I think your own reference to the recent availability
5 of the Lexis/Nexis service is evidence that there are ways to
6 incorporate new technologies and new electronic information
7 services, even in circumstances where the judiciary may not be
8 fully trained in how these techniques are used.
9 Students graduating law school today, as has been
10 true for several years, know quite well how to use the
11 Lexis/Nexis service and the Westlaw service and I think, as a
12 result, are better researchers, are able to find more material
13 more quickly.
14 And I think it is in that spirit, in the evolution
15 of on-line electronic resources that you will find clerks
16 coming along who have the ability to find the cases in this
17 new citation format.
18 JUDGE STRAND: But, I mean, they can't find them
19 without a conversion table no matter how clever they are;
20 isn't that fair to say? I mean, right now, if you get the
21 uniform citation, you've got it get it converted. And that's
22 what we've been talking about.
23 MR. ROTENBERG: Right.
24 JUDGE STRAND: We're trying to get as many practical
25 answers as to how this would work. Maybe the answer is that
69
1 it should be -- adoption, should that occur, be in the form of
2 a proposal that would take place some period down the road so
3 that it gives the electronic publishers and other
4 entrepreneurs an opportunity to try to solve some of these
5 problems for us. I don't know.
6 MR. ROTENBERG: It may be the case, though, that
7 that's a bit of a chicken and egg problem, because you need to
8 have a critical mass of opinions in this format available to
9 create the additional locater service.
10 JUDGE STRAND: Well, that could start easily,
11 getting the numbering and the pagination that's suggested.
12 The question is: How does the Judge or clerk get the
13 transformation from the uniform citation to the actual
14 document that they need in a hurry?
15 JUDGE NOTTINGHAM: To put Judge Strand's question in
16 a more specific form, suppose I wanted to find 1996 S.D. 4
17 today. I understand South Dakota has adopted this. And I
18 have a computer. I don't have access to the Internet. How do
19 I find it?
20 MR. ROTENBERG: All right. There -- the simple
21 answer, Your Honor, is I don't know the answer. And I think
22 there are people who are testifying today who could answer
23 that question for you.
24 But I will -- I will, again, if I may, rely on the
25 Lexis/Nexis example once more, suggest that that really is a
70
1 very good recent evidence of the ability for people to be
2 trained in these new services, to incorporate these new
3 services, and I think provide, over time, greater access to
4 legal materials.
5 And, ultimately, that's the goal of this effort is
6 to take advantage of the opportunity provided by the on-line
7 environment and CD-ROM and the Internet, to make legal
8 information more widely available at less cost to more people.
9 And I think that's a critical goal.
10 JUDGE STRAND: One of the other things I'm not clear
11 about, I guess all of the Circuits and probably most of the
12 State Appeal Courts have electronic data bases from which
13 Villanova and Cornell can just routinely download information.
14 I may just not be aware of it, but I certainly know that the
15 District of Arizona does not have an electronic repository of
16 our District Court decisions that we regard as being something
17 we want to have published.
18 Who comes to get those? I mean, in historical past,
19 Lexis and Westlaw have been the two who have asked us to send
20 them opinions that we want published. And so that was easy to
21 do. In this new world, what do they do? They sit down in the
22 clerk's office, and then what happens? I mean, if they're not
23 on a data base, how do the electronic publishers get ahold of
24 them?
25 MR. ROTENBERG: Well, presumably, the Courts would
71
1 be responsible for the numbering that would be associated with
2 the opinions --
3 JUDGE STRAND: Right.
4 MR. ROTENBERG: -- and the specific paragraph
5 numbering for the case.
6 JUDGE STRAND: That would be easy.
7 MR. ROTENBERG: I agree. I think that's probably a
8 trivial problem. The dissemination of those documents in
9 electronic format, because they're created and maintained in
10 electronic format, is not particularly difficult either.
11 JUDGE STRAND: Now, wait a minute now. I mean,
12 they're created and maintained on WordPerfect.
13 MR. ROTENBERG: Right.
14 JUDGE STRAND: But they're not, at that point, on an
15 electronic data base that's accessible to anybody. I mean,
16 that's on our internal network. So there has to be something
17 put in place where the documents that we want to release for
18 publication are transferred from our own internal network to a
19 data base.
20 I mean, certainly, that's technically possible. And
21 it's in place for the Circuits and for the Supreme Court and
22 for many of the State Courts of Appeals and the Supreme
23 Courts, but it isn't for the District Courts. And that's a
24 big change as far as I understand it. And I don't know just
25 what is suggested in that regard.
72
1 MR. ROTENBERG: Well, I know a number of different
2 proposals have been made. I don't know which proposal is
3 best. But if I could note that many Federal agencies, just in
4 the last couple of years, have very effectively developed
5 World Wide Web site, Internet sites, that provide
6 extraordinary amount of agency information, I would say, also,
7 on an interactive level, at a higher level of complexity, as a
8 technical matter, than the publication of a Court opinion.
9 A timely example would be our IRS, which now makes
10 available 24 hours a day any tax form that a tax payer may
11 like to download from a Web site. And if those hundreds of
12 documents are available in the very elaborate page formatting
13 over the Internet, I think the, by comparison, the publication
14 of Court opinions would not be very difficult.
15 JUDGE BARBADARO: Just to follow up Judge Strand, I
16 know in our court, what the secretaries do is, when they send
17 out copies of the opinions to the lawyers, they copy it to a
18 file, which our computer people make available to anyone from
19 the public that wants to dial up.
20 So all of our opinions are available electronically.
21 And it's my understanding that the users of the information
22 periodically download it, West, Lexis, other people, and get
23 it as a matter of routine.
24 JUDGE NOTTINGHAM: Mr. Rotenberg, your time -- were
25 the members -- your time is expired.
73
1 MR. ROTENBERG: Thank you.
2 JUDGE NOTTINGHAM: Thank you.
3 MR. BOWDEN: Thank you. Our next speaker will be
4 James Schatz from the West Group.
5 TESTIMONY OF JAMES SCHATZ
6 MR. SCHATZ: I hope you can bear with me today. I'm
7 a little under the weather. And I hope my voice will hold up.
8 I represent the West Group, which is the new entity
9 resulting from the 1996 merger of West Publishing and Thomson
10 Legal Publishing and their affiliated companies, such as
11 Lawyers Cooperative Publishing and Clark, Bogman, Calahan.
12 West appreciates the chance to testify today. And
13 as you requested, I have some brief opening remarks which --
14 and have reserved most of my time for answering your
15 questions.
16 West is directly interested in the topic of Federal
17 case law citations, because it is a publisher of Federal Case
18 Reports, and the Supreme Court Reporter, Federal Reporter,
19 Federal Supplement, and other print publications, as well as
20 on West CD-ROM library products and on Westlaw.
21 West is also interested in the topic, because
22 supporters of the new case law citation systems have often
23 premised their support on mistaken views of West copyright
24 interest and position in the legal information marketplace.
25 These mistaken views have been expressed here, both in written
74
1 form, in the written comments that have been introduced, and
2 in the testimony given so far today.
3 Specifically, while made in many different ways, the
4 faulty predicates are that a new citation system somehow will
5 make Court decisions more available and increase competition
6 in case law publication, and that copyright interests in
7 private case law compilation have the opposite effects. These
8 claims are false.
9 As the Judiciary knows, Court decisions have always
10 been freely available in print form to those who have been
11 interested. In recent years, the Courts have made
12 extraordinary efforts, both at the Federal level and the State
13 level, to also make Court decisions widely available on
14 electronic form, generally at no cost.
15 In short, Court decisions have never been more
16 widely available, and their availability continues to grow.
17 This wider availability has -- has had the usual economic
18 effects you'd expect. Competition --
19 JUDGE NOTTINGHAM: The suggest is --
20 MR. SCHATZ: Yes.
21 JUDGE NOTTINGHAM: -- that, even though they're
22 available, there is an inhibitory effect of West's star paging
23 copyright. That's the suggestion that is being made.
24 MR. SCHATZ: Right. And I'm going to get to that in
25 a couple minutes here.
75
1 In fact, there are now over 250 providers of over
2 800 case law sources in a very highly competitive market. And
3 this represents growth of well over 300 percent in the past
4 few years alone.
5 The copyright interest that these providers have in
6 their case law sources, if these requirements are met, in no
7 way diminishes this robust competition. This is true because
8 there is no need for one competitor to freeload on another
9 competitor's efforts given the easily available --
10 availability and public domain status of Court decisions.
11 As another context, copyright protection of specific
12 case law compilations actually bolsters competition, because
13 such protection and piracy encourages the necessary investment
14 and creation of new products and services.
15 Thus, while it is true that the star pagination
16 issue has been and is being litigated, the uncertainty
17 surrounding the issue, which is now on appeal in two Federal
18 Circuits Courts, is totally irrelevant to the issues of wide
19 availability of Court opinions and their public domain status.
20 JUDGE BARBADARO: Let me ask you a question. If
21 this system were adopted, and parallel citations were required
22 to a West Reporter, and a competitor of yours wanted to
23 publish a collection of Federal decisions, would it be West's
24 position that they would be entitled to charge that person, if
25 they were going to provide parallel citations, some kind of
76
1 conversion table?
2 MR. SCHATZ: West citations have been used as
3 parallel citations for probably over 100 years without any
4 objection from West. As an example, Lexis has used West
5 parallel citations on every case that West reports and they
6 report from the inception of Lexis in 1973 without any
7 objection from us.
8 JUDGE BARBADARO: So the answer to my question is,
9 if this system were implemented, and there were parallel
10 citations required to a West publication, West would not seek
11 to charge anybody --
12 MR. SCHATZ: Never has.
13 JUDGE BARBADARO: -- for collecting those parallel
14 citations?
15 MR. SCHATZ: It would not. In fact, it encourages
16 other people to use West parallels -- West citations as
17 parallel citations.
18 Turning to the A.B.A. recommendation, while West
19 agrees with the general thrust of the Courts --
20 JUDGE STRAND: I'm sorry. Before you get away from
21 that, because that leaves me unclear about it. Let's say that
22 someone wants to fully utilize West's parallel citations and
23 includes the page breaks, the star pagination, that, I take
24 it, there would be a charge for from West. Is that --
25 MR. SCHATZ: West objects to that. And that is
77
1 under -- that's in litigation.
2 JUDGE STRAND: That clarifies it.
3 JUDGE BARBADARO: How is that significantly
4 different?
5 JUDGE STRAND: That's my point.
6 JUDGE BARBADARO: How is it significantly different?
7 MR. SCHATZ: Because it will -- a product that's
8 star paginated allows somebody to create a citation to a West
9 product without ever using the West product. If you think
10 about it, West wouldn't be in business very long with the
11 National Reporter System if other people could create West
12 cites without ever using the West product.
13 JUDGE BARBADARO: Well, could --
14 MR. SCHATZ: And that's sort of giving the
15 impression that they're using the same. And West thinks its,
16 you know, publications are at a higher editorial level than a
17 lot of others. People give the indication they use the higher
18 editorial West product without ever using it.
19 JUDGE BARBADARO: You would not charge if someone
20 had a conversion table that gave a page reference and an
21 internal page reference to a West publication, but you would
22 charge if they use star pagination so that that appeared right
23 in the text of the opinion?
24 MR. SCHATZ: That's what West has objected to, and
25 that's what star pagination litigation has been all about.
78
1 And what it does in the electronic arena is it would allow
2 somebody to recreate a West book page by page by page from
3 another source.
4 On Lexis right now, you can do that. Lexis pays a
5 license fee for that. West thinks that anybody that is able
6 to recreate a West product like that, the whole compilation,
7 page by page, should be required to pay a license fee or do
8 their own work.
9 Turning to the A.B.A. recommendation, while it is
10 with the general thrust of the Court commentators to the
11 effect, as stated by one, that a new citation system would be
12 burdensome, cumbersome, and unnecessary, West believes it's up
13 to each jurisdiction to determine what citation system or
14 systems it will utilize.
15 West also believes, like many Court commentators,
16 that the present official citation system is based -- based on
17 case numbers, dates of decision. And slip opinion pagination
18 works quite well both in the electronic and the print worlds
19 and that -- and has some other real advantages that a lot of
20 the Court commentators discussed.
21 West has made all of these beliefs known during the
22 consideration of the E.C.S. proposal in the early 1990s. And
23 West believes that it's quite telling, when totaled, that the
24 responses in the 35-page summary of the Judges' survey reveal
25 that about 80 percent of those responding don't believe
79
1 additional case numbers or paragraph numbers should be added
2 to Court decisions or that use of official citations should be
3 required. And that's in the 35-page summary that we were
4 provided.
5 JUDGE BARBADARO: If this proposal were adopted,
6 what would West do to make its books usable to people that
7 have only the official citation?
8 MR. SCHATZ: A number of states have already
9 implemented these systems. And West has used, as a parallel
10 citation, the new citation, and has incorporated the official
11 paragraph numbering in its product.
12 JUDGE STRAND: Does the spine indicate the new --
13 would that indicate any of the new citations?
14 MR. SCHATZ: Spines do not indicate that. That has
15 been suggested. It might be possible on some individual State
16 publications.
17 JUDGE STRAND: I think Arizona, certainly, the State
18 Bar is suggesting that.
19 MR. SCHATZ: Arizona, we're discussing that with.
20 And they've made that suggestion. That's being discussed with
21 them, that's right. In the Federal Courts, unless there's one
22 overall numbering system, there simply wouldn't be room on the
23 spine.
24 JUDGE STRAND: Yeah.
25 MR. SCHATZ: Even if somebody wanted to change the
80
1 product and, arguably, degrade its looks. I don't think it
2 would be very user friendly, if you think about it, to have
3 all those numbers.
4 JUDGE STRAND: Certainly not for the District Court.
5 MR. SCHATZ: Certainly not for the District Court.
6 And I don't even think it would work very well in the Circuit
7 Courts.
8 JUDGE STRAND: Yeah.
9 JUDGE NOTTINGHAM: With only the official citation
10 in a jurisdiction such as South Dakota, can somebody find the
11 law on Westlaw? Can somebody find that case on Westlaw?
12 MR. SCHATZ: Somebody can find it on Westlaw. On
13 Westlaw, you don't even need the same citation. You need the
14 name of the party, name of the date, name of the Court.
15 JUDGE NOTTINGHAM: If you only have the citation,
16 though, you can't find it on Westlaw.
17 MR. SCHATZ: The print citation would get you there.
18 The official citation would get you there. The docket number
19 would get you there. That would be true on Lexis, on Matthew
20 Bender products, on a lot of other people's products.
21 Electronic people don't need any help. They have an easy time
22 finding it.
23 JUDGE NOTTINGHAM: So I could search on Westlaw the
24 South Dakota official citation only?
25 MR. SCHATZ: Right. You can.
81
1 Finally, as discussed in detail on West written
2 comments, if the Judicial Conference should decide to
3 implement an additional official citation, we emphasize there
4 already is one, West believes it is of vital importance that
5 the new system not discriminate against the vast majority of
6 legal researchers who continue to rely mainly or solely on
7 print case law sources.
8 Such discrimination would, in the words of one Court
9 commentator, have serious consequences for sole practitioners
10 and small law firms that don't have or want or cannot afford
11 access to electronic case law sources.
12 JUDGE NOTTINGHAM: Mr. Schatz, we've got a factual
13 dispute here, it appears. You're saying the vast majority of
14 people out there are still using books and similar resources.
15 Every previous speaker has said that we're behind the eight
16 ball. Everybody is doing things electronically. What
17 documentation do you have to support your view, empirical
18 documentation as to use?
19 MR. SCHATZ: It's West's view as, you know, being
20 involved in the market that that's true. It's also based on a
21 survey that West did in Wisconsin during the citation
22 controversy there where it indicated that most people still
23 rely mainly or solely on print case law sources.
24 JUDGE NOTTINGHAM: Where would one find that
25 documentation if one were interested?
82
1 MR. SCHATZ: I believe it was provided to the
2 Wisconsin Supreme Court, and we can provide a copy.
3 JUDGE NOTTINGHAM: Other than that, are you aware of
4 any documentation supporting your view over the other view?
5 MR. SCHATZ: No. I'm not sure I -- you know, one
6 person who has said that is Jamie Love, said that 80 percent
7 of people still do that. I'm not sure of the percentage, but
8 West believes strongly that it's the vast majority still use
9 print sources.
10 JUDGE BARBADARO: It depends on what your print
11 sources are. If you're looking at an official State Reporter,
12 my sense would be that most small practitioners might well
13 keep a copy of their State Reporter. But how many solo
14 practitioners have copies of a Federal Reporter? They're very
15 expensive to maintain. And I suspect very few solo
16 practitioners would have a full set of Federal Reporters.
17 MR. SCHATZ: It's not a question of what they have,
18 what they own, it's what they use. So a solo practitioner in
19 a small law firm might go to the local law library and use a
20 print source. And many people do. And that's one of the
21 groups that West is concerned about. And I was just going to
22 say that the same would be true for most pro se litigants and
23 other nonlawyer legal researchers rely mainly on print
24 sources.
25 As discussed in the West written comments, there are
83
1 easy ways to protect this majority that have been endorsed in
2 the A.B.A. recommendation and adapted in the few state
3 jurisdictions that have implemented new citation systems, and
4 that is mandatory parallel citations.
5 I'd be happy to answer your questions, but I thought
6 I ought to answer one that was answered a couple times and
7 never answered, and that is: Why couldn't a publisher number
8 paragraphs or cases on its own? And the answer is, of course,
9 you can. Both Westlaw and Lexis have done that. They have
10 created electronic pagination, and they've created things
11 called Lexis cites and Westlaw cites.
12 In Colorado, which has the new system that allows
13 the use of the initial Westlaw citation plus a paragraph
14 number, LOIS, that standards for Log of Information Services
15 numbers paragraphs on their CD-ROM products. I was just told
16 in the hallway just before this that Versis Law, which is
17 another on-line service and I think is provided out of
18 Washington, also numbers its paragraphs.
19 So the answer is that anybody else could do it. And
20 then you let the marketplace decide what's the most valuable
21 and useful.
22 JUDGE NOTTINGHAM: How do you handle updates or
23 changes and revisions in that scheme?
24 MR. SCHATZ: Well, every publisher does it
25 differently. West tries to make sure that its Reports are
84
1 complete when they're published. And that's why you have
2 advanced sheets, and bound volumes come out later. Hopefully
3 all of those corrections are caught. If they're after bound
4 volumes then West would reprint them in the new bound volume
5 but would make them on Westlaw and CD-ROM library products
6 immediately.
7 JUDGE NOTTINGHAM: Well, that assumes the present
8 system where the judicial officer or Court sends the original
9 opinion to Westlaw, doesn't it? If you've got LOIS and one of
10 these other groups that just picks up the opinion and then
11 renumbers it, the Judge may never know that this electronic
12 source has picked this up and published it.
13 MR. SCHATZ: That's a question of how much editorial
14 work a publisher wants to do and how good a products it wants
15 to provide to its customers. If it does, it will do that work
16 and provide that information to the customer.
17 Other people do it. Lexis does the same thing as
18 West. If it notices an error in the opinion, Lexis will call
19 the Court and say, shouldn't there have been, for instance, a
20 "not" here. The Court might say yes or no, whatever the
21 decision is.
22 But any -- any publisher can do that. And some have
23 chosen to do that and some have chosen just to send out what
24 the Courts -- without doing any editorial work. And it serves
25 different levels of the market, and people can make decisions
85
1 in the marketplace on what they want to use.
2 If there are no more questions, I was going to
3 answer a couple of other comments that were incorrectly made
4 earlier. Mr. Klien said that West is the official Reporter
5 for the Federal Courts. That's simply isn't true. And I
6 think the Department of Justice knows better than that, but it
7 simply isn't true.
8 He also said that most rules require West citations
9 be -- require West citations, Federal Rules. There's a report
10 attached to the A.A.L.L. report of the American Association of
11 Law Libraries, and they're going to be testifying shortly, but
12 that indicates that there aren't such rules. There aren't
13 rules like that. Most rules in the Federal Courts are you
14 cite the authorities relied on. Open citation.
15 Mr. Fleming said that CD-ROMs were generally
16 cheaper. It's certainly true that a CD-ROM is cheaper to
17 produce than a book. Not by much, though. But it is cheaper.
18 However, the editorial costs are the same. And so the cost
19 isn't really that much different if you have a highly
20 editorialized product. If you have a product where you just
21 download whatever you get, you don't check it over, and you
22 put it right on a CD-ROM, that's cheap. But if you do the
23 editorial work, that's expensive.
24 There was a question asked about North Dakota and
25 South Dakota number of cases, and they have this new system.
86
1 I know South Dakota, I think, was 224 cases were published in
2 1995, I believe that would have been. I think North Dakota
3 are similar numbers of cases.
4 West, as an example, I think, in hard copy form
5 publishes 65,000 case reports from Federal cases a year, to
6 give you an idea of the difference of how that may be -- how
7 easy it may be to implement at different Court levels.
8 And I've already discussed the other spine of the
9 book situation.
10 JUDGE NOTTINGHAM: All right. Mr. Schatz, your time
11 is expired. Thank you.
12 MR. SCHATZ: Thank you.
13 MR. BOWDEN: All right. Our next speaker will be
14 Robert Oakley for the American Association of Law Libraries.
15 TESTIMONY OF ROBERT OAKLEY
16 MR. OAKLEY: Thank you. Good morning, members of
17 the panel. My name is Robert Oakley. I'm the director of the
18 law library at the Georgetown University law center. But I'm
19 here this morning on behalf of the American Association of Law
20 Libraries.
21 As law librarians, we deal with citation issues on a
22 daily basis, and we are keenly aware of the changing patterns
23 of legal publishing that make it necessary for the Courts to
24 adopt a new form of citation to their opinions.
25 This issue started, as Judge Robertson asked early
87
1 on, because of the copyright issue. But that's really no
2 longer the heart of the matter. The real problem now is what
3 was described earlier as the revolution, the changing nature
4 of legal publishing. That is becoming increasingly
5 electronic, as we have all heard many times today. And that
6 changeover makes it necessary for us to consider this kind of
7 a proposal.
8 A.A.L.L. has been interested in this issue since the
9 last time it was considered by the Judicial Conference in
10 1992. At that time, we reviewed the draft that was
11 circulated, offered some suggestions, and were generally
12 supportive of the proposal at the time.
13 Since then, A.A.L.L. has spent a great deal of time
14 studying the issue. And in 1995, it adopted a task force
15 report that contain substantially the same proposal as the one
16 before you today.
17 To answer succinctly, then, the questions posed for
18 today's hearing, the American Association of Law Libraries
19 does believe that the Federal Courts should adopt the medium
20 neutral system of citation recommended by the A.B.A.
21 resolution. We believe that the cost to the Courts will be
22 minimal and that the benefit to the Bar and the public will be
23 substantial.
24 I'll make three brief points in support of these
25 conclusions. First, low cost electronic systems for legal
88
1 research now provide an alternative to the traditional systems
2 that can lower the cost of research for the practitioner and
3 the cost of justice for the American public.
4 In the last two decades, the nature of legal
5 research has changed dramatically. In the early '70s,
6 virtually all research required the use of books. And a
7 system of reference to those books was both necessary and
8 appropriate.
9 Today, practitioners use a wide range of sources
10 depending on the nature of their need and how much they are
11 willing to pay. And many of them do have access to the
12 Internet.
13 Virtually every law student today is comfortable
14 using Lexis and Westlaw by the end of their first year of law
15 school. In practice, however, many lawyers find that they can
16 neither afford those systems, nor can they afford to maintain
17 large print libraries.
18 Increasingly, these practitioners are turning to
19 other forms of information, including information stored on
20 CD-ROM or on the Internet as a low cost way of getting the
21 information they need.
22 Almost every Court now distributes its information
23 in some electronic form, usually by means of an electronic
24 bulletin board. A number of CD-ROM products give
25 practitioners the equivalent of a law library on their desk
89
1 top. And information from many Courts is available free on
2 the Internet.
3 Decisions available on the Net include the decisions
4 of the Supreme Court, every Federal Circuit Court of Appeals,
5 and many State courts. Internet access also makes the
6 opinions readily available to the American public. These new
7 systems lower the cost of legal information to the Bar. That,
8 in turn, should lower the cost of legal services to the
9 American public.
10 But our second point is that, for the Bar to make
11 effective use of these systems, there must be some generally
12 accepted means of reference to the opinions that does not also
13 require reference to some other source, such as paper.
14 Despite all the heat around this issue, the
15 development of a medium neutral citation system is not
16 terribly revolutionary. It is simply necessary to facilitate
17 access to the newest forms of legal information.
18 More and more, the creators of legal information are
19 distributing that information on the Internet. In addition to
20 the Court information that I mentioned earlier, legislatures
21 and administrative agencies are also finding the Internet a
22 convenient and inexpensive medium for the distribution of
23 their information. If a lawyer finds such information useful
24 and wishes to refer the Court to it, there must be some
25 mechanism by which to do so.
90
1 The need for such a system of reference is just as
2 necessary for the new electronic media as the system of
3 reference to books was 20 years ago.
4 Furthermore, there should be no requirement of an
5 additional reference to a paper version, because that would
6 defeat the whole point of the proposal. If a practitioner in
7 rural Virginia finds that it's too costly to maintain a print
8 library or too hard to go to a distant public law library,
9 then they should not be required, unless there's a very good
10 reason to do so, to maintain those libraries or make that
11 difficult travel.
12 A.A.L.L. does not support mandatory parallel cites,
13 but they do understand that parallel cites may be necessary
14 during a period of transition.
15 If you do want to move from the electronic systems
16 to the book, and a couple of questions have been asked about
17 that, the spine is one way, in relatively simple
18 jurisdictions, for instance, the highest Court of a given
19 state, very easy to put the basic information on the spine.
20 And it will be very easy to move directly from the medium
21 neutral cite into the print format.
22 In addition, it was asked about, if you have the --
23 just the raw citation, how can you find it without access to
24 the Internet? If you do have access to other electronic
25 systems, Lexis or Westlaw, it would be very easy for you to
91
1 construct a search that would take you directly to that print
2 publication, that -- directly into the -- to the opinion in
3 that electronic form.
4 If you want to go to the print publication, there's
5 the possibility of spine references or, as we've heard many
6 times today, parallel tables.
7 Third, experience shows that it is neither
8 difficult, nor costly for the Courts to implement the systems
9 required for these public domain systems. Several
10 jurisdictions have already taken the necessary steps for this
11 proposal to be effective.
12 Implementation of a medium neutral citation would
13 require two things: Sequential numbering of the opinions and
14 the numbering of paragraphs. We've already heard that
15 numbering of paragraphs is, excuse me, really quite easy. I
16 talked to someone in Wisconsin yesterday. They've written the
17 macro. It's simply built into the editorial process. It's a
18 single keystroke to get that done.
19 Numbering the opinions is a little bit more
20 difficult, of course, but it is also not easy -- not
21 difficult. It simply requires the clerk at the time of
22 issuance to add the serial number at the top of the opinion.
23 For multidivisional Courts, it's a little bit more
24 difficult, but still not hard. Single numbering system could
25 be applied through a relatively easily coordinated effort; or,
92
1 if that was too difficult, the separate divisions could each
2 have their own system.
3 To conclude, as a result of the trend toward
4 electronic publishing of Court and other legal information,
5 it's inevitable that, sooner or later, there will have to be a
6 system for reference to such information.
7 The proposal before you today is a reasonable first
8 step in that direction. It will make legal information more
9 widely and less expensively available. The cost to the Courts
10 is minimal. But the benefits to the Bar and public are
11 significant. The American Association of Law Libraries urges
12 its adoption.
13 I would be happy to answer any questions.
14 JUDGE NOTTINGHAM: All right. There appear to be no
15 questions. Thank you, Mr. Oakley.
16 MR. OAKLEY: Thank you.
17 MR. BOWDEN: All right. Our next speaker, Eleanor
18 Lewis, American Associations of Legal Publishers.
19 TESTIMONY OF ELEANOR LEWIS
20 MR. LEWIS: Good morning. I represent the small
21 publishers. I represent the publishers who do not have a
22 license from West, who are not able to publish products that
23 have currently available citations. For them, your decision
24 is very important. It determines whether their products will
25 be useful to everyone or just continue as second-tier
93
1 products.
2 Our members produce both print and electronic
3 products. They -- they produce them for various Courts,
4 State, Federal, or across certain subject matter areas. But
5 your decision dramatically affects what happens to their
6 products in the future.
7 We believe that you must be the ones to apply the
8 paragraph number and the sequence number. There have been
9 many questions about why shouldn't the private company do it?
10 The reason is that, if company A puts in sequence numbers to
11 Judge Nottingham's decision of last Friday, and then company B
12 does it, but they paragraph number differently, and then they
13 sell their products, there's total chaos out there. Paragraph
14 10 in company A's product is not paragraph 10 in company B's
15 product.
16 That is why the Courts must be the one to do the
17 paragraph numbering. And because it is so simple and so
18 inexpensive, there is no reason for the Federal Courts not to
19 do it.
20 Then we come to the sequence number. Once again,
21 the sequence number has to come from the Courts. Otherwise,
22 company A will give one decision a sequence number because
23 they got it out of sequence. You know, they don't know the
24 order in which the Courts are issuing the opinions. Once
25 again, sequence numbering is not complex. And it's not
94
1 expensive.
2 I think, from sitting here today, that if you
3 retained someone in Mr. Smoot's organization as a consultant,
4 they could probably in a few weeks give you a valuation of all
5 the different methods of doing sequence numbering, and you can
6 make a decision as to which is best.
7 We believe that it is best if it is done centrally
8 by one location in the country or one location in each circuit
9 probably, and that it can be done mechanically or with a
10 telephone tape. But it is something that the Federal Courts
11 must do.
12 What you are seeing here is that, really, a side
13 effect of the A.B.A. citation resolution is that it pushes
14 control back into the Federal Courts for the dissemination of
15 their opinions and for the determination of what is an
16 official opinion. Right now, the Federal Courts have
17 advocated that responsibility and given to West.
18 There is chaos out there in terms of decisions. You
19 have bulletin boards that are putting up pre-slip opinions.
20 Then you have other locations that are putting up slip
21 opinions. And then, finally, you have the West reporter
22 opinions that come out. And they are the unofficial official
23 report.
24 JUDGE NOTTINGHAM: What is a pre-slip opinion?
25 MS. LEWIS: It's what your clerk puts in the box
95
1 outside of your chambers or in your courthouse. There -- your
2 opinion --
3 JUDGE NOTTINGHAM: Before it's filed?
4 MR. LEWIS: What?
5 JUDGE NOTTINGHAM: Before it's filed?
6 MR. LEWIS: It's filed. Before it's filed? The day
7 you issue it, yes, it would probably have a file stamp on it.
8 It may vary by courthouse.
9 JUDGE NOTTINGHAM: What's the distinction between a
10 pre-slip opinion and a slip opinion?
11 MS. LEWIS: Because between the time you put that
12 opinion in the box and the time it goes to the slip publisher,
13 you may have made changes. And those changes, you don't go
14 back and change what you've already put out in your box. And
15 three publishers have gotten it, and they've put it up on-line
16 or sent it around to their clients.
17 JUDGE NOTTINGHAM: Well, whatever bears the file
18 stamp is the official opinion of the Court, including
19 revision.
20 MS. LEWIS: But then there can be a change between
21 that and what goes to the slip publisher or what the slip
22 publisher publishes, because he then calls up and says, Your
23 Honor, I think you may want to change page two, the fifth
24 line, and so it goes.
25 JUDGE NOTTINGHAM: And if that's done, it gets an
96
1 official stamp, and that's the official opinion.
2 MS. LEWIS: Right. But already, the earlier opinion
3 that you put outside of your chambers marked filed, has been
4 disseminated and is up on some bulletin board somewhere in the
5 world. And that's why I think, in a sense, there is chaos out
6 there.
7 And in terms of what is the official opinion, most
8 people look to the West Reporter as having the official
9 opinion. One of you mentioned that the official opinion is
10 what is in your file. I tried last summer to get to your
11 files in the archives on the east coast to look at closed
12 opinions. It takes a lot of time. You have to set up
13 appointments in advance.
14 And then I went to files in the Philadelphia
15 archives. I looked at five files there. Two of them had no
16 opinions in them. In fact, one of them had nothing dealing
17 with the case that was named on the front of the folder.
18 The official opinion for posterity is what is in the
19 West Reporter. And many of you do not have that in your
20 files.
21 (Judge Robertson and Judge Baker returned to the hearing
22 room.)
23 Parallel cites, our members feel very strongly that
24 you should not require any parallel cites to either the first
25 page of the West reporter or to a pinpoint cite.
97
1 First of all, West claims a copyright over
2 everything. They claim a copyright over the case name, you
3 know, Smith versus Rogers, and then the citation in their
4 Reporter.
5 JUDGE NYGAARD: Do you take issue with the gentleman
6 who was up here previously saying that, at least for a period
7 of transition, there should be a parallel cite? Do you take
8 issue with that position?
9 MR. LEWIS: Well, one problem is, it's not clear.
10 Is he asking only for a parallel cite to the first page or
11 also to the internal page numbers for pinpoint cites?
12 If -- we take issue with any requirement for a
13 parallel citation for internal page numbers and for
14 quotations, because, if you do that, you have done nothing.
15 You have eliminated the benefit of the A.B.A. system, and you
16 may as well stop now.
17 JUDGE BARBADARO: You wouldn't need that to address
18 the concern of how do I find it in the book. All you need is
19 the first page.
20 MS. LEWIS: Correct.
21 JUDGE BARBADARO: And the paragraph number would be
22 there in the book, because they would print whatever the
23 official citation was.
24 MS. LEWIS: Correct.
25 JUDGE BARBADARO: Would you oppose parallel citation
98
1 to the first page of the opinion?
2 MS. LEWIS: Yes, we do. We do. But we understand
3 that people need an adjustment period. But, yes, we do.
4 Because for our members, when they put out their products --
5 and some CDs are issued monthly. Some are issued quarterly.
6 And on-line, there's that permanent cite standing alone on the
7 day of issue; whereas, the West citation doesn't come for six
8 weeks, seven weeks, eight weeks.
9 They are available, but they're late, because they
10 are based on a 19th century technology as we enter the 21st
11 century. And that is what is wrong with this citation system.
12 It is out-moded, and it is expensive to the general public.
13 Next, we are very concerned about the survey results
14 that you received from Federal Judges. We believe, though,
15 what Judge Leif M. Clark of the Western District of Texas
16 said, said it best of all. He said: Why is it that the AO is
17 sending me so little information. Normally, I get a very
18 complete package, but not here. And then he also said: This
19 is not a survey to use if you want an unbiased answer. That
20 survey is very biased.
21 Do you -- and your Judges know so little about what
22 is going on, that there is a Judge in Los Angeles who spent
23 considerable time and energy having someone write a macro for
24 paragraph numbering. He thinks he is inventing the wheel. He
25 doesn't know that the wheel has been invented in Canada. It
99
1 is invented by J.D. Fleming's committee. It has been invented
2 in North Dakota, South Dakota, and Maine.
3 JUDGE NOTTINGHAM: Ms. Lewis, do you have in the
4 survey forms the comment that you attributed to the Judge from
5 the one District in Texas?
6 MR. LEWIS: He wrote a separate letter, Your Honor.
7 He wrote a three-page letter.
8 JUDGE NOTTINGHAM: Is that among the materials that
9 we have? I do not recall.
10 MR. LEWIS: Oh, yes. I received it from the AO. I
11 have nothing but what I received from the AO. And I have
12 those 35 pages of questionnaire answers.
13 First of all, we urge you to that make the
14 individual questionnaires responses public to us. We've asked
15 for that last week, two weeks ago. I asked for it again.
16 But, secondly, if you read those responses, those
17 Judges do not understand what is going on in other venues.
18 They don't understand the de minimus cost of doing paragraph
19 numbering. They should be concerned if they think it's going
20 to take thousands of dollars and hundreds of hours.
21 JUDGE NOTTINGHAM: What do you think is the source
22 of their disinformation or their lack of understanding?
23 MR. LEWIS: The fact that they were not given
24 complete information by the committee and the AO and also the
25 way the survey questions are phrased.
100
1 JUDGE NOTTINGHAM: Well, you suggested in some
2 materials that you have made a matter of public record that
3 the West Group had contacted Federal Judges about this hearing
4 and that this information furnished by the West Group was the
5 source of the type of response that we were getting. Do you
6 have any evidence to support that assertion?
7 MR. LEWIS: Well, some of the Judges used phrases
8 that have only been used in this debate in the last few years
9 by Mr. Schatz and people working with him. A solution in
10 search of a problem. If it ain't broke, don't fix it.
11 JUDGE NOTTINGHAM: That's a pretty common --
12 MR. LEWIS: Well, the first one, a solution in
13 source of a problem is -- well, but I'll tell you, sir, the
14 only people who have used those phrases at all the hearings,
15 and you can look at them at the A.B.A., in Wisconsin,
16 anywhere, are the West people. They're the ones -- a solution
17 in source of a problem is a phrase I never heard before I
18 entered this arena.
19 JUDGE WATERS: Is that your proof?
20 MS. LEWIS: Yes.
21 JUDGE WATERS: What he asked you is the proof.
22 That's your proof.
23 MS. LEWIS: Yes. Well, the other thing is, we do
24 know that West is not equal to other publishers. We do know
25 that West has access to the Judges in a way that our members
101
1 do not. What is our proof for that? Our proof is --
2 JUDGE NOTTINGHAM: What do you mean access to the
3 Judges? Your charge was that West had sent specific
4 information to the Judges, and you called it disinformation, I
5 think --
6 MS. LEWIS: I didn't use that term.
7 JUDGE NOTTINGHAM: -- in which -- but that was
8 leading to the survey results. I'd like to know what you have
9 other than, if it ain't broke, don't fix it to support that
10 charge.
11 MR. LEWIS: A solution in search of a problem.
12 JUDGE NOTTINGHAM: Well, let me make something a
13 matter of public record here, because you have made it a
14 matter of public record, and I feel that it needs some
15 response.
16 One would have expected, if West were putting out
17 that sort of information, that the Judges on this Subcommittee
18 might have been contacted by the West Group. One might have
19 expected that the members of the Automation and Technology
20 Committee might have been contacted by the West Group as the
21 people who were going to make the initial decision.
22 I have asked the Judges of this Committee, this
23 Subcommittee, and Judge Forrester has asked the Judges of the
24 full Committee whether they have received any such contact.
25 And no Judge has responded affirmatively. We have received no
102
1 communications from the West Group of the type that you claim
2 were being distributed. If you have any information about
3 that concerning other Judges, we would be most interested in
4 hearing it.
5 MR. LEWIS: I never made a charge against the
6 members of this Committee or the full Committee. But for some
7 of the members who responded in those -- to those 400
8 questionnaires, I -- those are the ones to ask, not the
9 members on the Committee. But West does have contact --
10 JUDGE NOTTINGHAM: But don't you think that, if West
11 were going to do this, to be effective at it, it might contact
12 the Judges on the Subcommittee or the Committee to get them to
13 go along with the information? After all, we're going to be
14 making the initial recommendation. Why would they contact an
15 isolated Judge here or there when these Judges are going to be
16 the ones doing it?
17 MR. LEWIS: Well, 400 survey results, they're
18 important to this Committee, which is why I'm questioning the
19 usefulness of them, because I think, in large part, they're
20 based on a lot of ignorance and lack of information.
21 JUDGE WATERS: Ms. Lewis, specifically what you said
22 is West is visiting, slash, writing, slash, calling Federal
23 Judges, explaining how bad the change will be for them. The
24 high prices you pay West for their products is now being used
25 to finance this full press attack on the A.B.A. citation of
103
1 proposal.
2 Is your only proof of that what you've told us?
3 MR. LEWIS: No. We also know that West deals
4 regularly with certain Circuits. For instance, the 5th
5 Circuit, the number of negative comments coming from the 5th
6 Circuit is overwhelming. West is the slip opinion publisher
7 in the 5th Circuit. There is probably a lot of weekly
8 communication back and forth about that -- that work that they
9 do.
10 The 5th opinion comments and criticisms are --
11 they're trivial compared to what the benefits are of what's
12 going to occur.
13 JUDGE NOTTINGHAM: Well, it wasn't --
14 MS. LEWIS: We don't think it's an accident that the
15 comments -- the most negative comments come out of the
16 Circuits where West is the slip opinion publisher.
17 JUDGE NOTTINGHAM: Well, I don't think that's
18 empirically true. The response is overwhelmingly across the
19 board negative, Ms. Lewis. It's not just the 5th Circuit or
20 the 4th Circuit or any particular Circuit. You look across
21 the board, the response was negative.
22 MS. LEWIS: Well, maybe we should randomly sample
23 the Judges or ask West who they've contacted and talked to.
24 They meet with certain people regularly in the course of doing
25 business.
104
1 They also give out vanity volumes to Judges. Here
2 is one that went to the Honorable David J. Porter. But I'm
3 sure Judge Porter isn't the only one to get a vanity volume
4 compliments of West Publishing Company.
5 JUDGE NOTTINGHAM: That isn't what your charge is.
6 We've all received what you call vanity volumes. Your charge
7 was that West had put out disinformation specifically with
8 respect to this hearing and the subject matter of this
9 hearing, and I guess you've answered the question of what
10 basis do you have for that charge.
11 MR. LEWIS: In connection with funding this change,
12 and there's a lot of concern about funding, although it's not
13 clear how great the cost will be, we urge you to look at the
14 PACER monies. The PACER revenues that are accumulating are
15 more than were ever anticipated. And they are there waiting
16 to be used. They are not earmarked for anything in particular
17 by any legislation, because these are user fees.
18 The other source of monies can be the fifty cents
19 per page xeroxing fee that is charged by the federal courts.
20 It's probably -- it certainly is one of the most expensive in
21 Washington, D.C. in any agency.
22 JUDGE NOTTINGHAM: Are you serious about that?
23 Because the fifty cents covers, not only the cost of the
24 paper, but the cost of xeroxing, having some clerk come out
25 there and do it for you.
105
1 MS. LEWIS: But then that's an offset to her salary,
2 isn't it, because isn't she paid by a salary from the AO? And
3 then if you're getting it twice from me, the requester, and
4 from the AO, you have some money --
5 JUDGE NOTTINGHAM: The answer is no. And your time
6 is expired.
7 MS. LEWIS: Thank you.
8 JUDGE NOTTINGHAM: Unless any member has a question.
9 MR. BOWDEN: Our final speaker this morning will be
10 Alan Sugarman from Hyperlaw, Incorporated.
11 JUDGE NOTTINGHAM: You may proceed.
12 TESTIMONY OF ALAN SUGARMAN
13 MR. SUGARMAN: Yes. Good morning. I'm Alan
14 Sugarman, president of Hyperlaw. I'm a CD-ROM publisher in
15 New York. I publish Federal Appellate opinions. I'm also a
16 litigant against West in a copyright action in New York and an
17 antitrust action here in Washington. I also am a lawyer.
18 And, as you might guess, I'm a litigator, or I have done that
19 in the past.
20 I filed a number of subsequent materials with the
21 Committee after I received the comments from the other --
22 other people. And I have put them together in a bound volume,
23 which I provided this morning. I don't know if you have them.
24 JUDGE NOTTINGHAM: We do.
25 MR. SUGARMAN: And you also will find in this bound
106
1 volume the -- the letter from Judge Leif Clark from Texas.
2 I've also put in here the letter that I wrote to my former law
3 professor, Judge Posner, to -- and the clerks of the 5th and
4 the 8th Circuit.
5 I must say it's a little unenviable to be in a
6 position where three of the members of the Judicial Conference
7 have cursorily weighed in against what is being proposed
8 today. And two clerks of different Appellate Courts have
9 similarly weighed in, presumably with the permission of those
10 Chief Judges.
11 And I hope they read this transcript today. And I
12 hope they read the 1,200 pages of comments, many of which I
13 read on the way down on the train yesterday, which was quite
14 thoughtful and I think would put an end to the position that
15 this is somehow an invention of a few commercial publishers
16 out there, and there's no interest in this is going to somehow
17 hurt solo practitioners and small law firms.
18 To the contrary, it's the solos and the small law
19 firms who are solidly behind this. You can look at the
20 experience in the various State Bars that have pushed this.
21 Those are the people who feel they would be benefited.
22 And so I would reject -- and I do have a separate
23 comment here that was filed today concerning the West
24 position. And I think it's really ironic for West to point
25 out, based upon what I consider to be a phony survey as well,
107
1 that 80 percent of lawyers prefer books.
2 But I would also suggest that those -- that those
3 80 percent of the lawyers are the solos and small
4 practitioners who can't afford Westlaw and Lexis. So they use
5 books but doesn't necessarily mean they prefer to use them.
6 And we all know we read printouts, anyway. And, in
7 fact, you'll find in here that West is now doing something
8 which is really going to solve the whole problem for the
9 Judges who like to see that West look from their opinions
10 printed from a CD-ROM. And they're now offering on their
11 CD-ROMs the ability, when you find an opinion, as an option,
12 when it's printed out, it will look just like a book. So it
13 really approached that situation today.
14 The other point, also, is this proposal did not
15 originate from outside of the Court system. It originated
16 here in Washington, D.C. It originated with the
17 Administrative Office in 1991 when a few brave people in the
18 Administrative Office saw what was going to happen in the
19 future with electronic dissemination.
20 They -- the original draft of the electronic ECS
21 system called for paragraph -- suggested paragraph numbering
22 as being the best way to go. And if you really look at that,
23 that's all we have before us today is what came up in 1991.
24 This is a creature of the Federal Court. And more
25 so, the concept of using the sequential citation, the
108
1 immediately available citation, came from someone who
2 recognized intimately the problems with the West method of
3 citing the case law in this country.
4 And that person is none other than John B. West who
5 wrote an article in 1909 -- and you will find a copy of that
6 in the materials here today -- to which he said, we have a
7 problem. He says, I want a citation from the Court that's
8 permanent. When it comes from the Court, I want it in a
9 sequential number, so I know that something is not going to be
10 missing from this whole list of opinions.
11 So this is something that has a long tradition. He
12 was forced into this probably because of the -- of the
13 position -- the Courts were unable, without computers, to
14 accomplish what he envisioned back then. And I suggest you
15 read that and see this is not revolutionary.
16 JUDGE BARBADARO: Mr. Sugarman --
17 MR. SUGARMAN: Yes.
18 JUDGE BARBADARO: -- there's been reference to a
19 revolution in the private Bar, which is, I think, consistent
20 with my own observation. I think the survey results of the
21 Judiciary that have been referred to suggest that the
22 Judiciary isn't quite as far along in perceiving that
23 revolution. Rather than the result of conspiracy, a more
24 likely explanation, in my view, is the forces of inertia.
25 Do you have any suggestion as to how, if your
109
1 proposal were to be implemented, that we could help the
2 Judiciary come to understand the benefits of this proposal?
3 MR. SUGARMAN: Well, I think the Judiciary has to
4 understand the broad public support, both amongst lawyers as
5 well as in the general public.
6 I hope that they can be persuaded to get on the
7 Internet themselves and go surfing. And the fact is that
8 there are now over, perhaps, 20,000 published Federal
9 Appellate opinions on the Internet today.
10 But the problem you have -- and this was not -- if
11 someone was opposing this concept of citation, the problem
12 that happened is that people are actually reading those
13 things. And the people with a little bit of savvy, the
14 lawyers, realize they're getting dumbed-down versions.
15 Despite the clerks talking about pagination being
16 the way to go, when they go around and put them on the
17 Internet, they strip out the pagination. They strip out the
18 emphasis in your opinions that's underscored.
19 But the people -- the people -- and I see what's
20 going on out there. And they're getting these opinions. And
21 they're computer literate themselves. And the number of
22 people who know the Internet and the Web and the ease of doing
23 these things realize something's wrong.
24 JUDGE BARBADARO: How do you feel about parallel
25 citation, at least to the first page of an opinion during the
110
1 transition period?
2 MR. SUGARMAN: Well, I'm a pragmatist. And during
3 the transition period, I would urge that parallel citations to
4 the West Reporters be permitted, but only to the first page,
5 not to the internal paragraph numbering. And I believe, over
6 a period of several years, and probably three or four years,
7 perhaps that rule could be revisited, and we would end that.
8 And frankly, I suggest, at that point in time, people would
9 probably welcome it.
10 The CD-ROM is -- the CD-ROM is the best way to
11 produce -- to deliver books. It is -- on one CD-ROM, I can
12 put 50 or 60 books. And the new CD-ROMs now, hundreds. And
13 when you print from them, they will look just like they came
14 from a book. And why someone would want to pay for the
15 postage, handling, and all the other costs, storage, printing,
16 all the mechanical stuff of delivering material, not -- this
17 is material where you don't read the entire book. I hope
18 always to read my novels in book form.
19 JUDGE BAKER: Mr. Sugarman, when you deliver a CD to
20 a customer --
21 MR. SUGARMAN: Yes.
22 JUDGE BAKER: -- do you guarantee to that customer
23 that that CD will be readable with the equipment the customer
24 has 15 years from now or that you'll replace it with some
25 other medium that will be readable?
111
1 MR. SUGARMAN: No, I do not. And I think that
2 you're probably concerned about what could become the
3 permanent -- what makes the Court opinions permanent in the
4 future. Is that your question, really?
5 JUDGE BAKER: Well, I mean, my view of CD-ROMs, and
6 I use them for various things, is that they're not archival
7 because of the changes in technology.
8 MR. SUGARMAN: Well, they could --
9 JUDGE BAKER: Not that they're not permanent, but
10 the machines that read them will not be the machines we're
11 using.
12 MR. SUGARMAN: They could be done in an archival
13 way. I don't believe that -- well, the first thing is you can
14 take archival material and regenerate it into the next
15 generation. So if all CDs, at the time you went to new
16 technology -- the beauty of digital technology is you can then
17 reconvert it to the next generation.
18 JUDGE BAKER: That's why I asked if you were
19 marketing it that way, that you're going to replace their CDs
20 with whatever the new generation is?
21 MR. SUGARMAN: No, because mine is a service that
22 comes out quarterly and I don't -- I'm not trying to put
23 myself in a position of --
24 JUDGE BAKER: I didn't mean to put you on the spot.
25 MR. SUGARMAN: No, my personal belief is that, going
112
1 into the future several years now, that, ultimately, the
2 responsibility for maintaining the authoritative archive will
3 be done by various Courts. And it won't be -- and there will
4 be so many different copies of that archive made that you're
5 never going to have problems about losing it or never finding
6 it -- finding it again.
7 I want to point out, too, someone asked about the
8 market issue of why doesn't someone else go out and put in
9 paragraph numbers. And I would like to thank Mr. Schatz. By
10 the way, the fact that we both have laryngitis is not, I can
11 assure you, because we've been spending time together,
12 although I consider him a gentleman.
13 But Mead Data, or Lexis did attempt to do this. And
14 with all their power and market power and actually being in
15 the on-line market before West, they were unable to have the
16 Lexis cite become the dominant cite. And they were unable to
17 have their internal star pagination, their own cite, become
18 dominant. It just isn't going to happen.
19 And today -- and Ms. Lewis referred to the chaos.
20 Well, we actually have two electronic publishers today putting
21 in paragraph numbers to the Federal Appellate opinions. One
22 is Versis Law, and one is Tax Analyst, Mr. Fielding, who is
23 here today. And guess what, the paragraph numbers end up in
24 different places.
25 So what's the purpose of this? You know, I -- it
113
1 serves no purpose. It creates a lot of confusion. And,
2 believe me, it is easy to do. In fact, I find it -- I'm
3 trying to figure out whether Mr. Fulbruge from the 5th Circuit
4 is really against this proposal, because, in his letter that
5 he wrote to you, he said it was going to take all of five
6 minutes per opinion to paragraph number, although it takes me
7 20 seconds. And it will take five minutes for opinion to put
8 in the sequence numbers.
9 Well, I know how many opinions the 5th Circuit
10 publishes a year. And it's under 1,000. It's five or 600.
11 And I know there are 15 Judges on the 5th Circuit. And I know
12 each Federal Judge gets two law clerks and a secretary. And
13 you do the calculation, and you come down to two hours a year
14 per those -- the secretaries and the clerks. Now, is that too
15 much of a burden to bear? Is this something that is going to
16 kill this particular proposition, which has so much uniform
17 support outside of the Court system? I say no.
18 And I point out that, even the sequencing of the
19 Court opinions is -- it's very difficult when you're in the
20 outside to know what's really going on with the Court computer
21 systems. But we can peer into it slightly from the outside by
22 using the PACER system.
23 And it's quite clear that, when an opinion comes
24 down, some human being has typed in the information, that this
25 is an opinion, the date, what the opinion is about, the name
114
1 of the Judge, the docket number, everything. It's in the
2 computer system. Where do you see it? It's on the docket
3 entry.
4 And to say that you could not modify that computer
5 system, the entry system for that to -- to accomplish creating
6 a sequence number when you put in an opinion --
7 JUDGE STRAND: I don't think really --
8 MR. SUGARMAN: -- is unbelievable.
9 JUDGE STRAND: -- anybody is suggesting that that is
10 the problem.
11 MR. SUGARMAN: Okay.
12 JUDGE STRAND: The problem, I think, without any
13 sound foundation for the opinion, is simply, largely, inertia
14 and, largely, not having dealt with the practical issues.
15 What I suggested earlier, it's, if you were my law clerk, how
16 would you transform the new citation into the printed version?
17 Now, right now, we all have Westlaw, for example,
18 and that would be no problem to do. But to the Judge who
19 doesn't use Westlaw, perhaps, and who doesn't have the
20 Internet and, perhaps, who doesn't use computers at all, it is
21 a problem that they've never dealt with before intellectually.
22 They've never had to sit down and try and figure
23 out, how do I get from this unknown and new and unfamiliar
24 number to the page that I'm used to looking at? And I think
25 that's the problem. And all this talk about the macros and
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1 the numbering and that, certainly that needs to be done, but
2 that's not, I don't think, the problem.
3 MR. SUGARMAN: Well, I appreciate that, Judge
4 Strand. And that's why I'm a pragmatist and say, let the
5 Judges -- and there are many of us who, certainly, in the next
6 several years, books are going to be extremely important for
7 legal research -- let the practitioners cite to the first page
8 and volume number of the West book.
9 If you're using a South Dakota cite today, you can
10 cite to the South Dakota cite and the first page in -- first
11 page and the volume number in the Northwestern Reporter and
12 the paragraph number for the pinpoint. The Judge reading that
13 can open up -- he can find the case. He doesn't have to worry
14 about the official sequence number. He can open up the
15 Northwestern Reporter, find it. He can go right to the
16 paragraph thing. It should not change his day-to-day
17 operations at all, except he's going to have to add in the
18 extra parallel cite.
19 On the issue -- well, I know you said that, somehow,
20 there is an educational process that one has to go about. And
21 I think that the Judges should understand that other Courts,
22 respectable Courts do use sequence numbers, including the U.S.
23 Supreme Court. Now, they use it, but they just don't tell you
24 about it.
25 And the fact of the matter is, when you're dealing
116
1 with the -- with a great number of opinions, you need -- in
2 the publication process, you need to keep them in order some
3 way. And what do most official and Court -- official
4 publishers run by Courts do? They assign a sequence number to
5 the opinion during the process. And, in fact, the Court, if
6 you talk to the reporter of the Court, of the U.S. Supreme
7 Court, they have a sequence number they attach at the time the
8 opinion comes down. And you can find those in the GPO
9 bulletin board today if you wish.
10 And one other question was about the authority. I
11 do -- of this Judicial Conference. I do point out that the
12 official reports of the Supreme Court and the office of the
13 official reporter is created by statute. I don't have the
14 exact cite. But, certainly, Congress there felt empowered to
15 authorize or may, perhaps, compel the Supreme Court, I don't
16 know if that's possible, but there is some statutory authority
17 for that.
18 JUDGE NOTTINGHAM: That begs the question. The
19 Supreme Court by specific statute is given authority to report
20 its official decisions, which are about three years late, by
21 the way. But my question to you is: Have you researched
22 whether the Judicial Conference, a distinct body, has the
23 authority to tell any Federal Court or any Federal Judge to do
24 this as a mandate?
25 MR. SUGARMAN: Well, I know, from day-to-day, there
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1 is an awful lot of standardization amongst the District
2 Courts. I mean, they all have PACER, so somehow this is being
3 handled.
4 JUDGE NOTTINGHAM: That's not true.
5 MR. SUGARMAN: Perhaps you're questioning that.
6 JUDGE NOTTINGHAM: Yes, I am questioning that.
7 MR. SUGARMAN: Thank you.
8 JUDGE NOTTINGHAM: All right. Your time is expired,
9 Mr. Sugarman.
10 We are, I think, about five minutes ahead of
11 schedule. But this room is being used for another purpose
12 over the lunch hour. So I think that we should stick to the
13 schedule that we have, which calls for us to be in recess
14 until 1:30.
15 Is there anything else that we need to take up,
16 Ms. Countryman? Do you have any procedural things that need
17 to be dealt with?
18 MR. BOWDEN: If everyone can please remove any
19 personal belongings with them when they leave the courtroom
20 and return to us promptly at 1:30 and rejoin and start up
21 again.
22 (A luncheon recess was held from 11:53 a.m. to 1:42 p.m.;
23 wherein the hearing continued as follows:)
24 JUDGE NOTTINGHAM: All right. Mr. Clerk, will you
25 call the next witness, please.
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1 MR. BOWDEN: All right. We'll begin with Cleveland
2 Thornton, an attorney. Again, we'll go back to the 15 minutes
3 and include both comments and questions.
4 TESTIMONY OF CLEVELAND THORNTON
5 MR. THORNTON: If it please the panel, I'm Cleveland
6 Thornton, the only one here who doesn't represent a client or
7 an organization. Perhaps I have some good advice about
8 practical matters to answer of the questions have been asked
9 and to -- that have already been asked, and, perhaps, to talk
10 about other questions you might have and to make a couple
11 points.
12 If I were -- Mr. Strand, if I was your law clerk,
13 and I wanted to find that case, and all I had was Westlaw, I
14 would go in and type CI paren and the uniform citation, close
15 paren, and I'd have it. I could go on the Internet, do the
16 same thing; I'd have it. I could go to Lexis/Nexis, type in
17 the uniform citation, I would have it. I could go to a
18 publication like CCH, and I would look in the index and for
19 that cite, and I would have it.
20 I would suspect, and it needs to be kept in mind,
21 that the uniform -- the medium neutral citation issue is not
22 just about the Internet or about electronic publishing, it's
23 about books. And right now, we have -- as well as the
24 electronic. Right now, we have one publisher whose citations
25 are authorized, at least in the minds of the Court.
119
1 The Bluebook changes the world, the new edition of
2 The Bluebook, Edition 16, it changes it in at least two ways.
3 First, it says the medium neutral citation or the official
4 cite -- and that's in my paper in paragraphs 11 through 13 or
5 14 -- it's, and I quote from The Bluebook, it says that the
6 media neutral citation is the preferred citation if that's
7 what you have. It also says you may cite to another citation
8 in addition to that.
9 That's what the A.B.A. proposal says. And I want to
10 be very clear about what the A.B.A. proposal does. It says:
11 Cite the uniform citation. And, for the time being, cite to
12 West. But only cite to the volume and the first page of the
13 West Reporter. Don't -- you don't have to cite the pinpoint
14 citations. That's important, because, this morning, you asked
15 Jamie Love -- and I don't -- my -- my eyesight is --
16 JUDGE BARBADARO: Barbadaro.
17 MR. THORNTON: Barbadaro, Judge. You asked about
18 the economic efficiencies of this, and haven't you lost it if
19 you still have to cite to West?
20 Well, in a stipulation of fact that West filed in
21 the Oasis case that's being litigated up in Minnesota, I guess
22 it is, they said the following thing: They claim a
23 citation -- a copyright to the first page of the citation.
24 They also claim a copyright to the pinpoint citation; that is,
25 the internal page numbers.
120
1 But they say, for the first page of the case, even
2 though they claim a copyright to that, the fair use provision
3 of the Copyright Act applies; and, therefore, it is not a
4 violation of the copyright to cite -- for another publisher to
5 cite that first page.
6 So you get the best of both worlds here. You don't
7 get quite as much economy as if you had only one citation, the
8 uniform citation, but you don't have to pay a license fee to
9 go cite to the first page. And since the citations would be
10 in paragraph, and I presume West would print that, if you have
11 the uniform citation and the pinpoint cite to the paragraph,
12 and you have the West citation just to the first page, you can
13 do what you want to do.
14 To answer your other question, Judge, what about the
15 Judge who doesn't have a computer, doesn't like computers,
16 doesn't want to use computers, and only wants to use the
17 Federal Reporters? Well, my best answer is there are a lot of
18 senior partners around that feel that way as well. They're
19 not just Judges. Being 51 this month and heading on toward
20 geezerdom myself, I feel for that.
21 The answer is this: I don't have a magic answer. I
22 would say that, if you have the uniform citation, you can go
23 to West. And you might have to look in a -- in an index and
24 find it, but you might even have another publisher who
25 decides, now we've got a uniform citation; I can put out some
121
1 inexpensive case citations. Like CCH could do this. And you
2 could go to those. And they could put on the cover -- on the
3 binding. There's nothing that says, that ordains that West is
4 the only publisher that can put out all the reports of the
5 Federal Courts in paperback or book format.
6 But, also, I would tell that Federal Judge -- or I
7 don't tell Federal Judges, I would suggest to that Judge the
8 following thing: Here's the publication from BNA. They're
9 the ones who do Law Week. This is not Law Week. This is
10 called BNA's Electronic Information Policy and Law. And we
11 all know what BNA's publications do.
12 At the end of this publication is a case. And it's
13 a wonderful case called CompuServe versus Cyber Promotions.
14 And it's wonderful, because it takes the ancient doctrine of
15 trespass law and applies it to computers. How? Because Cyber
16 Promotions are sending out all this junk mail and hiding who
17 they really are. And CompuServe says, please don't do that.
18 And they said, yes, we are. And so CompuServe sued them, and
19 they won.
20 And this case was decided February 3rd, 1997 in the
21 Southern District of Ohio. All I know it's in the Southern
22 District of Ohio. If this is how I got it in Law Week or
23 somewhere else, what would I have to do if I was that Federal
24 Judge? I would have to go ask my clerk to find it on Westlaw.
25 I could go to the Internet and try to find it. They look at
122
1 these places who do publish District Court opinions. They're
2 not very many on the Internet now. They're mostly Circuit
3 Court.
4 But the point is I have to go look at an index. But
5 if I had the uniform citation, I would already be ahead of the
6 game, because it would be on this opinion when it first came
7 out.
8 But let's look at the internal thing of this
9 opinion, for example to help this Federal Judge who doesn't
10 want to use computers. About the fourth or sixth page into
11 this opinion, it cites Morris versus Alabama, 326 U.S. 501.
12 Well, if he doesn't have the U.S. Reporters, he's got to go
13 look at an index to get to the Supreme Court Reporter or the
14 Lawyer's Edition, depending on what he uses.
15 You look further down, and you get the case of
16 Associated Press versus United States and Turner Broadcasting
17 versus the FCC, underline, U.S., underline, because it hasn't
18 been published yet, and citing to 114 S. Ct. 2445. Well, if
19 you've got Lawyer's Edition, you've got to look at an index to
20 find that case.
21 And I'm assuming for the moment we're not using
22 computers. I'm speaking for the moment about books. We want
23 to say the books. What do we do about the books? That's what
24 you've got to do, look at an index.
25 If you go further down, you'll find this other
123
1 wonderful citation. And by the way, this has been unadorned
2 by any editorial word by West or anyone else. This is the way
3 the Federal District Judge wrote this opinion. That Federal
4 District Judge cites: Cyber Promotion versus America On Line,
5 1996 Westlaw 633702. A Judge who uses a book is out of luck,
6 because that's electronic citation. It's to Westlaw. Not to
7 the book, not to the Internet, but to Westlaw, a proprietary
8 publication. Not even to Lexis.
9 So what you have to do, then, is do what? You've
10 either got to sign up for Westlaw and pay that high fee, if
11 you're in private practice, and find that case; or you've got
12 to have your law clerk go look on Lexis/Nexis and try to find
13 the case.
14 But if you had the uniform citation, you would still
15 be better off than if you didn't have it, even if you're only
16 in a world of books, because you would at least know what
17 Court it was in. And you don't know that from the West
18 citation. And you would know -- you would know, because of
19 competition, that there are other reporters, including paper
20 reporters, where these cases are.
21 And it would include this BNA -- this BNA
22 publication, because it's a computer case. And you could go
23 look in the index and find that case immediately and never
24 look at the computer.
25 So that Federal Judge is still better off with the
124
1 uniform citation, even if he never uses computers or Internet
2 or anything else.
3 Now, I don't think for a moment that the inertia and
4 the tradition could be overcome by making an argument that a
5 uniform citation just for books would be better than what we
6 have now. I would never win that, even though I might be
7 right on the merits, because I think the issue is partially
8 tradition and partially not wanting to change.
9 But when you add the factor of the computer into it,
10 and when you add the fact that these comments make abundantly
11 clear that the Bar -- the small practitioners and the small
12 firms can't afford to get their own cases that they've already
13 been paid -- that's already been paid for by the taxpayers,
14 without having to go to a library at a lot of expense, because
15 time is money, you've either got to bill that client the time,
16 or you're going to be -- you're going to be in a situation
17 where big law firms can outmaneuver you, because they can get
18 access to the electronic stuff, and you can't.
19 And the fact of the matter is, you can't do decent
20 research anymore unless it's on the computer. The -- the
21 headnotes and the digest just don't get it anymore.
22 I want to ask -- answer another one of your
23 questions, sir, is with regard to printing, I don't like to
24 read things on the machine. I don't either. Even though I've
25 got a really nice screen, and I've done everything I can to
125
1 make it nice, how would I do that?
2 Suppose I'm a Judge, though, that likes to -- I can
3 get the case. I know how to get the case. But I don't want
4 to do the research, but I know how to find it, and I want to
5 read it in paper. Well, you hit the print button. But you
6 don't like the way it looks. It looks like this, maybe, even
7 not as fancy as that. It may look like the old days of Lexis
8 and Westlaw and came out looking like a teletype from World
9 War II.
10 Well, six years ago, I created a macro. It took me
11 about 10 minutes. So when I hit the macro and it printed, it
12 printed in double columns like West right on my computer,
13 except it was better than West, because the print was bigger,
14 and it was easier for me to read.
15 So I could create a macro that made it -- I can have
16 a macro that made the print 20-point type so Judges and senior
17 partners and others with bad eyesight could read it on paper
18 very easily.
19 Or I can make it really small, eight-point type, so
20 you can get -- I think so many of you see depositions now in
21 which they put the entire deposition in three columns, small
22 type, both sides. You get a 200-page deposition on 16 pages.
23 That's another way to do it.
24 My point is that it -- how you want it to look, the
25 output and the input, can be anyway you want it. And the
126
1 uniform citation -- or the media neutral citation doesn't
2 affect that. It doesn't make it better. It doesn't make it
3 worse.
4 But I think I can make a strong case that it is
5 better, even if you only live in a world of books. It is
6 clearly better in a world of electronics and books, even in
7 electronics where people read things on paper.
8 So I don't know if -- now I've got to look at my
9 notes, because my sermon is over in that regard.
10 I want to answer some questions that West put out,
11 particularly said there are 850 publications that have cases.
12 I don't know whether that's true or not, but let's assume that
13 it is.
14 The fact is, you can only cite to one, and that's
15 West, unless you follow the new Bluebook. If you follow the
16 new Bluebook, not only do you have the media neutral citation
17 that I pointed to in paragraphs 11 through 14, but you also --
18 also, in those paragraphs, there's another part of The
19 Bluebook that's important, that's new. It says: If
20 information is available on the Internet, the Internet is a
21 good citation.
22 Well, Versis Law is on the Internet. And you'll see
23 in my paper that, if you wanted to cite to a case, and I cited
24 the one -- as a matter of fact, I got the case, the M.B.A.
25 case out of the 2nd Circuit. If I got -- if you cite that
127
1 case, I would -- and they use a uniform citation. They just
2 up and did it, and they number their own paragraphs.
3 I would put that uniform citation in and then the
4 hypertech -- you URL, the Uniform Resource Locater. You'll
5 see in my paper how that looks. I know -- I started
6 practicing in Alabama before Judge Johnson. I know, if I
7 cited that to him, I would be in jail. I just would.
8 And he would want -- he'd say -- he'd put his
9 glasses down and say, Mr. Thornton, we don't cite those in
10 this Court like that. And I would say, yes, sir. And I would
11 go spend the money to get West.
12 So it isn't -- and so now you've got a universe in
13 which you say, if Judges will say The Bluebook is the way you
14 cite cases, instead of saying West is, I now have a legal way
15 to cite cases that is not uniform. And it's going to make a
16 lot of folk mad.
17 So my bottom line is that the universe is not only
18 changed with respect to the technology, but the universe is
19 changed with respect to the traditional way you cite cases if
20 you cite to The Bluebook.
21 And so then what are you left with? You're left
22 with saying I'm going -- I am going to force you to cite to
23 West Publishing. I think that's a bad idea for the reasons
24 stated by the Attorney General -- Assistant Attorney General
25 for Antitrust this morning.
128
1 I think the -- the close relationship that the
2 Judiciary has with West is not a healthy relationship, and it
3 ought to be tended to, because it's too close.
4 We heard this morning that West said it's not the
5 official reporter. The assistant Attorney General for
6 Antitrust says it is the official reporter. And at least one
7 Judge and a couple clerks said it is the official reporter.
8 Well, West is right. It's not the official
9 reporter. And that's a problem, because if you've got
10 everybody thinking it is and require that you cite to it, then
11 you, in effect, have an official reporter without having to go
12 through the procurement rules; you're doing it by fiat.
13 That's a bad thing to do.
14 And I want to make sure my point is clear on this,
15 because I see some frowns, and maybe it's not. If you follow
16 The Bluebook in the old days, you said I'm going to cite to
17 Fed. Supp., because that's what The Bluebook says, but now The
18 Bluebook says you don't have to do that, so now you have to
19 say -- you've got to cite to West.
20 I think that's a bad idea. And I think it's
21 probably illegal for the reasons I just said. It probably
22 gets around procurement law. It is bad policy. And I think
23 the Judiciary is a little too close to West for a lot of
24 reasons that weren't intentional. They're not intentional.
25 But it's a system that developed. And now it's time to change
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1 it.
2 JUDGE BARBADARO: Are you opposed to a parallel
3 citation for even a transition period?
4 MR. THORNTON: No, sir. I support that. And I
5 supported -- the A.B.A. proposal says that. I support that.
6 I think it's a good idea.
7 JUDGE BARBADARO: It still gives West an advantage.
8 MR. THORNTON: Well, not everything is perfect. I'm
9 not here to get -- I'm not here to say bad things about West.
10 West has done a great job. When I have a choice, I use
11 Westlaw whenever I can afford it. I like Westlaw. I like
12 West. But I don't like being forced to cite to something that
13 I shouldn't.
14 But to answer your question, yes, I do support the
15 transition. It's the way to do it. This is a high-bound
16 profession. We don't have a centralized authority that says
17 you've got to do such and such, and I think we probably
18 shouldn't have that.
19 This is really a collegiate thing between the Bar
20 and the Courts here to talk about how do we run things. And I
21 think the transition is a good idea. And I think the
22 evolution of it will be that, when it's time not to do that,
23 we'll all know not to do that.
24 And Judges in different Districts can decide you
25 don't have to do that. Because -- because it's not much of a
130
1 problem do it, because it's not -- you can do it without
2 having to pay West a fee. And you still get the uniform
3 citation that's on the opinion when it first comes out.
4 And since most of these CD-ROM reporters send out --
5 I know, for example, the Geronimo, the guy that's going -- the
6 gentleman that is going to speak after me, sends his CD-ROMs
7 out every month. So the first time the case has come out,
8 you're going to have the uniform citation. But three months
9 later, when West puts its citation out, they'll just go put it
10 on theirs. So the case originally just had that and then
11 eventually will have both citations.
12 So a lawyer sitting in his office in Tuskegee,
13 Alabama, where I started practicing, I was doing the Tuskegee
14 syphilous case in 1971, there were -- all it was Federal case
15 law. And the nearest library was 70 miles away. And that's
16 what I had to do to go get the cases.
17 Now I can be in Croatia where I have a client and do
18 my research with a laptop. So when we have electronic filing
19 in Court, I can even stay there, not that I want to, but I
20 could, even file from there if I wanted to, eventually, not
21 now. So if I -- how much time --
22 JUDGE NOTTINGHAM: Mr. Thornton, your time is
23 expired.
24 MR. THORNTON: Can I say one thing?
25 JUDGE NOTTINGHAM: I just don't think it would be
131
1 fair for everybody else.
2 MR. THORNTON: Thank you, Your Honor. I appreciate
3 you having this hearing to make it public.
4 JUDGE NOTTINGHAM: Thank you.
5 MR. BOWDEN: All right. Our last speaker for the
6 afternoon will be O. R. Armstrong from Geronimo Development
7 Corporation.
8 TESTIMONY OF O. R. ARMSTONG
9 MR. ARMSTRONG: Good afternoon, Your Honors. I am
10 Russ Armstrong. I am the founder and the president of
11 Geronimo Development Corporation. We're headquartered --
12 we're often referred to as the second largest legal publisher
13 in Minnesota. We're headquartered in St. Cloud, which is up
14 the Mississippi River, a ways from one of our competitors.
15 I have brought with me a rather unusual book. This
16 is the Volume 247 of the Virginia Reports. It's unusual
17 because, unlike most of the books you've ever looked at, when
18 you turn and open this book up, what you don't find is a
19 copyright notice. There are none. There are copyright
20 notices in some of the other Virginia Reporters, but not in
21 the Virginia Supreme Court.
22 Well, what Virginia has done as a consequence, and
23 they've done this -- I've looked back at the earlier Virginia
24 Reporters. Virginia never put a copyright notice in its
25 Reports. Whether that was prescient, whether they saw the
132
1 dawn of electronic research a long time ago or not, I don't
2 know. I think Virginia simply felt that the law belonged to
3 the people and that a copyright would somehow run afoul to
4 that principle.
5 But what they did is they put both the text and a
6 citation system, albeit, page numbers, they put it in the
7 public domain. And what I'm here to tell you is that, as a
8 consequence of having a citation system in the public domain,
9 Virginia invited competition.
10 The reason that I started my company, the reason I
11 started in Virginia is I had practiced in Washington, D.C.,
12 downtown, until I got kind of tired of that and decided to
13 hang a shingle out in Fairfax. I hung a shingle in Fairfax in
14 about 1982; and, at that time, Westlaw and Lexis were
15 available. They were wonderful. They were marvelous.
16 But as a solo practitioner, starting out in
17 Virginia, the kind of clients I had coming in the door weren't
18 going to pay me to do legal research. And they certainly
19 weren't going to pay me at the rates that I would have to pay
20 to access law electronically.
21 Well, it seemed to me like the law of the State of
22 Virginia, the statutes and the cases of the State of Virginia
23 was what I really needed. And I sensed that the reason that
24 Westlaw and Lexis were so expensive is because they had the
25 fishery regulations in Alaska, and they had every single thing
133
1 you could think of, a marvelous database, but very expensive
2 to maintain.
3 And probably, like the airlines used to be, the
4 people who -- who did the long haul were paying for the people
5 who were doing the short haul. Certainly at the expense of
6 looking up the 80 percent of the cases is what had -- had to
7 generate enough money to get all the minutia in there.
8 So I thought, well, why can't we do this? Why can't
9 we have a system that shows us just the law we need as
10 Virginia practitioners at a very affordable price for solos
11 like myself. And the idea nagged me and nagged me and nagged
12 me until, finally, I scaled back the practice of law and
13 started the company.
14 I wasn't the only one. Six months after I started
15 my company and came out with a product in Virginia, the Michie
16 Company came out with a product. Two years later, West came
17 out with a product. After West, another small competitor came
18 out with a product. There are now four of us that manufacture
19 CD-ROMs in Virginia.
20 We all include the core body of Virginia law,
21 statutes, and cases. We include some of the Circuit Court
22 cases and some of the worker's comp, but we try to put on a
23 disk all the law that a Virginia lawyer needs.
24 These products vary in price. There are different
25 market niches. Some of the companies tout their features such
134
1 as annotations. What I do is, as Cleve mentioned, is we
2 update our disk every single month.
3 Our system sells for about $400 a year. Some of the
4 competition sells for $2,500 a year. But we have -- what we
5 have done is we have found a market. And because the citation
6 system and the text were available to us, we came in and
7 filled that market and have become a successful company doing
8 that.
9 Our system is in use by every prosecutor in the
10 state of Virginia along with the Supreme Court and the Court
11 of Appeals and most Courts and thousands of attorneys.
12 Now, I would submit to you that, however you solve
13 the minutia, and I'm sure you've heard a lot about paragraph
14 numbering this way, paragraph numbering that way, docket
15 numbers, sequential numbers, who assigns the sequential
16 numbers, who should assign the sequential numbers, when does
17 it get issued, I can understand that there would be a great
18 deal of minutia, a great deal of -- of entanglements, a great
19 deal of things that have to be decided, what I would urge is
20 that you don't lose sight of the overall benefit to be gained.
21 I believe that, if a public domain citation system
22 can be established for the Federal cases, you will find in
23 short order that there are going to be more than one supplier
24 of Federal cases.
25 JUDGE NOTTINGHAM: Is the A.B.A. proposal what you
135
1 define as public domain citation system?
2 MR. ARMSTRONG: Yeah. Yes. I like the A.B.A.
3 proposal. I think -- you asked a question of Mr. Thornton
4 about the parallel citations. I think his point in responding
5 to your question on A.B.A.'s recommendations as to parallel
6 citations that it be to the first page of the case, I agree
7 with him. I think it would be a mistake -- it might defeat
8 the whole purpose if you require the parallel citations to be
9 pinpoint parallel citations, because then you force people
10 into the position where, once again, they cannot get along --
11 they can't do their research without the West books.
12 West and any other publisher, print or electronic,
13 would be able to number their paragraphs, and their documents
14 would be as citable as any others. But if you require
15 pinpoint citations to page numbers as a parallel citation,
16 then you -- you haven't solved the problem of a -- of a single
17 source of authority.
18 JUDGE STRAND: This is, perhaps, getting down to
19 detail that is not what we should be talking about, but in a
20 Court like ours, a District Court that does not have an
21 electronic data base, let's assume I issue an opinion that I
22 feel should get this numbering system, and we take it down to
23 the clerk's office, what is your understanding of how that
24 gets available and to whom is it available if it's --
25 MR. ARMSTRONG: You mean --
136
1 JUDGE STRAND: -- essentially submitted for part of
2 the public domain citation?
3 MR. ARMSTRONG: You mean to whom the opinion should
4 become available?
5 JUDGE STRAND: Well, I guess it's available to
6 anyone. But, as a practical matter, what do we need? Do we
7 need to create an electronic data base, I guess? Is that --
8 MR. ARMSTRONG: Well, I think you should. Are you
9 familiar with the Wisconsin proposal?
10 JUDGE STRAND: No.
11 MR. ARMSTRONG: Has that been brought up? Wisconsin
12 is one of the several states that have had and have looked
13 at -- Wisconsin hasn't adopted it yet. They're considering a
14 proposal that would create an electronic archive where the
15 official texts of Wisconsin's opinions would be maintained.
16 Some of the databases that are maintained right now exist for,
17 maybe, 60 or 90 days, and the older cases are dropped off.
18 Wisconsin is talking about creating a system where
19 everything goes into that archive. That's -- that's it. All
20 publishers could use that archive, and they know they would be
21 getting the official text. And I think that is a very wise
22 idea, storing data electronically, either on hard drive or as
23 we do on CD-ROM disks. The data on my CD-ROM disks will be
24 around a millennia longer than paper books will. It's a far
25 more permanent form of storage.
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1 JUDGE BAKER: But is it retrievable on a permanent
2 basis?
3 MR. ARMSTRONG: It will always be retrievable.
4 JUDGE BAKER: You're going to have CD-ROMs readers
5 that will read your CDs 15 years later?
6 MR. ARMSTRONG: I can still take floppy disks that I
7 used in my law practice in 1981, put them in a
8 five-and-a-quarter drive and read them.
9 JUDGE BAKER: Not if it's an eight-inch floppy disk.
10 MR. ARMSTRONG: I never had an eight-inch.
11 JUDGE BAKER: Well, if it's produced in discovery,
12 you get an eight-inch floppy disk, and they say we're going to
13 produce this to them, we think it's got relevant documents on
14 it, but we don't have any equipment reading that.
15 MR. ARMSTRONG: The Attorney General opinions
16 database that we have on our CD-ROM disk, we put it on 18
17 months ago, we retrieved that from a BRS system that was an
18 eight-track. People who maintained that tape simply wrote a
19 patch program, ran their tape, converted the data into, I
20 think it was ASCII or SGML, I don't want to be too technical,
21 and put it in a format that my computer could read, and it was
22 available.
23 The data that's stored magnetically is always stored
24 as bits and bytes. It's always zeros and ones. And
25 regardless of the medium in which you store it, there is
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1 always a way to figure out the pattern of those bits and bytes
2 and retrieve that information. Just -- just like ink is
3 always black and white, you can always retrieve it by reading,
4 you can always retrieve the information off the old media.
5 I've staked the company right now on the CD-ROM
6 technology and believe that CD-ROM technology will be around
7 for a long time. I know there are new variations of CD-ROMs.
8 They're talking about CD audio and the -- and the disks are
9 different, and the drives are bigger and all that. Frankly, I
10 don't see that happening.
11 You'll notice that all the computers that you buy
12 new off the shelf right now still have the
13 three-and-a-half-inch floppy disk drive. Compared to the
14 CD-ROMs and the Internet and everything else, it doesn't carry
15 an awful lot of data. It's not any -- a whizbang deal
16 anymore. But it was just perfect for the time.
17 It -- and it will be -- like we still mail letters
18 in envelopes. There may be better ways to mail letters; but
19 when we send them, it's still an envelope. The
20 three-and-a-half-inch disk was that way. It was an ideal
21 container for that amount of data.
22 I think that the existing CD-ROM disks that we're
23 getting quite used to seeing is a perfect container for that
24 body of information and will be around for a long time.
25 JUDGE NOTTINGHAM: Do CD-ROM's degenerate over a
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1 long period of time, or do we know the answer?
2 MR. ARMSTRONG: We use -- the CD-ROM company that we
3 use to manufacture our disks is 3M. 3M has been in the
4 business as long or longer than anyone. And in order to
5 answer that question coming from our customers, we've talked
6 to 3M about it. 3M estimates the life of the CD-ROM to be 100
7 years.
8 JUDGE NOTTINGHAM: And then what happens to it?
9 MR. ARMSTRONG: That would probably be the halflife.
10 At -- a CD-ROM stores data not magnetically. The floppy disk
11 that you're used to stores it magnetically the same way the
12 audiotape does in your tape recorder. You can erase it with a
13 magnet.
14 Plus, in a -- in a tape recorder, where the tapes
15 wrap around each other, where they're coiled up on the one
16 side, it's possible for the magnetic -- it's -- it's not an
17 active thing, but it's possible for there to be a shadow
18 image, that it can kind of counteract itself, because it is
19 magnetic, and magnetism does degrade over time.
20 CD-ROMs are actually physically embedded pits. Now,
21 the one thing that can cause them possibly to degrade is that
22 the materials used in the CD-ROMs are somewhat exotic. I've
23 been told that the plastic that the CD-ROM is essentially made
24 out of is the same substance that's used in bulletproof glass
25 for car windshields. And the pits that are etched in there,
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1 there's two materials. There's a shiny surface, and then
2 there's the clear plastic. And there can be, in 100 years, a
3 little bit of degradation, but they're mighty permanent.
4 I'm going to try not to run out of time here. A
5 point I would like to make before I have to leave is I
6 think -- and I'm sure it's been discussed this morning, but I
7 would think that each jurisdiction should assign its own
8 sequential numbers. That's a technical point. But, as I see
9 it, if the 4th Circuit assigns sequential numbers, then the --
10 the database that I would hope to produce would be a database
11 of 4th Circuit opinions. If all of the opinions in the 4th
12 Circuit are assigned sequential numbers, I will be able to
13 know that I have them all.
14 It is going to make it more difficult for someone to
15 print a volume of books like Fed. 3d that contains cases from
16 all the different Circuits, because then the sequential
17 numbers would not fall in order in that book.
18 But there's a number of ways to get around that.
19 One is, instead of printing Fed. 3d, Fed. 3d could be a series
20 of Reporters of Circuits, and the numbers could line up.
21 That's more of a problem for them to solve than for -- for me
22 to solve for them.
23 So I would -- I would prefer, if this becomes an
24 issue, that the sequential numbers come out of the Circuits
25 themselves or the Districts themselves. It would make it much
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1 easier for the publishers, who undoubtedly will publish that
2 way, to verify that they haven't missed a case.
3 In closing, I -- I noticed, as I came driving
4 through town, that Washington has been once again inundated
5 with tourists. The tourists are wandering all over this town
6 right now, and they're looking at landmarks. They're looking
7 at the Washington Monument and the Lincoln Monument. They're
8 looking at all these things they own. They're looking at
9 landmarks that they own.
10 Most of them would be lost without the cheap little
11 maps that they bought from a variety of vendors. Those maps
12 let them find the Washington Monument. It will let them go to
13 the Lincoln Monument and be inspired.
14 And I think what we're asking here is to produce a
15 map for the landmarks of the law, which I think they also own.
16 Thank you.
17 JUDGE NOTTINGHAM: All right. Thank you, sir. And
18 that's the last speaker. The Subcommittee wishes to thank all
19 who have appeared here today. The matter will be taken under
20 advisement and a recommendation made to the full Automation
21 Committee. Thank you.
22 (The hearing of the Automation and Technology
23 Subcommittee concluded at 2:15 p.m.)
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1 REPORTER'S CERTIFICATE
2 I, Vicky J. Stallsworth, RPR, CRR, certify that the foregoing
3 is a correct transcript from the record of proceedings in the
4 above-entitled matter.
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