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Amicus Brief Submitted by Professor L . Ray Patterson on behalf of American Association of Legal Publishers, Oasis v. West, Eighth Circuit September 5. 1996 Link to University of Georgia Law School Site.
Matthew Bender Amicus Brief Oasis v. West Eighth Circuit September 5. 1996 Matthew Bender asks Eighth Circuit to dismiss appeal in Oasis case because the court lacks jurisdiction.
Matthew Bender Amicus Motion -- Note, this was posted subsequent to the brief.
Opinion on Motion for Summary Judgment: Oasis v. West, Civil No. 3-95-563, U.S.D.C. D.Minn., May 17, 1996. Note -- Also See 1995 WL 254773.
Oasis Publishing is a Nebraska CD-ROM publishing company that publishes CD-ROMs of Connecticut law.
In April, 1995, Oasis commenced an anti-trust and copyright declaratory judgment action against West Publishing Company in the United States District Court in Miami, Florida. Oasis claimed that it intended to produce a CD-ROM of Florida state opinions using the text and pagination from Florida Cases, a West Reporter.
In Florida, West and Oasis entered into an unusual STIPULATION AND PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION. This was signed by a magistrate. The Stipulation is unusual because in paragraph 14, the burden of proof to show at trial that information is confidential is switched from the proponent of sealing to the opponent, distorting the Federal Rules of Civil Procedure. In addition, the Stipulation permits documents to be sealed at trial or in substantive motions without any review by the Judge. Accordingly, the parties are able to create a secret trial, relieving the Judge from the responsibility to determine what should be confidential.
West moved for dismissal based upon the grounds that the court lacked constitutional jurisdiction because there was no case or controversy. As West had claimed in other cases, such as Matthew Bender and HyperLaw v. West, West claimed that Oasis did not have the present intention and ability to produce the product and did not have a reasonable apprehension of being sued by West.
West also moved to transfer the case to Minnesota.
Without issuing an opinion, the Florida court transferred the case to Minnesota.
The case was first assigned to Judge Rosenbaum, who decided the original West v. Mead decision. Judge Rosenbaum recused himself. Judge Rosenbaum was quoted in the Star-Tribune series as follows:
West filed its lawsuit against Mead in Minnesota and it was assigned to the newest member of the bench, Judge James Rosenbaum. Because of their ties to West and its executives, Rosenbaum said, "each judge who had been on the court for some time recalls that they would have [disqualified] themselves" from hearing the case.To Full-Text of Times Mirror West Articles 1995
After Judge Rosenbaum recusal, The case was assigned to Judge Magnuson, who has been on the Minnesota District Court since 1981. Judge Magnuson presumably would have been one of the "each judges" to whom Judge Rosenbaum referred above.
Once in Minnesota, West agreed to stipulate that there was justiciability and withdrew its motion to dismiss. Because West continues to fight similar motions in the Matthew Bender and HyperLaw action in New York where the facts appear to be much weaker for West, questions have been raised as to whether West is engaged in blatant forum shopping and is as well involved in disingenuous motions in New York. On the other hand, there is a suggestion that West may also have stipulated to an advisory opinion before a favorable court, and one in the West v. Mead Eighth Circuit.
West and Oasis then cross-moved for summary judgment on the copyright issues. The parties entered into a stipulation of facts.
West and Oasis filed documents under seal, without any determination by the court that the documents were in fact properly sealed. Among the sealed documents are the depositions of West's Donna Berresgaard and West's Expert Witness Robert Berring.
A hearing was held April 26, 1996.Transcript Oral Argument
The court ruled in favor of West on May 17, 1996.
It is assumed that Oasis will appeal to the Eight Circuit.
If Oasis appeals to the Eighth Circuit, one question will be whether Chief Judge Richard Arnold recuses himself. In the Times Mirror Article quoted above, Judge Arnold was quoted as follows:
When the Star Tribune inquired, some members of the judiciary questioned whether they would accept the award or trips associated with the award while considering cases or administrative questions involving West.Judge Richard Arnold also wrote the 1986 West v. Mead opinion for the Eighth Circuit. When Judge Arnold met in New York in 1995 with Chairman Dwight Opperman of West to award the Devitt Award, the award was given to Judge Milton Pollack of the Southern District of New York, the same court where Matthew Bender and HyperLaw's case against West was pending before Judge Loretta Preska. After it was learned that one of Judge Pollack's law clerks who is still close with that judge is now the husband of Judge Preska and that a West executive who was a friend of Judge Preska may need to testify in the Matthew Bender and HyperLaw case, Judge Preska in July, 1995, recused herself from that case.
"It's something I need to think about," said Chief Judge Richard Arnold of the Eighth Circuit Court of Appeals, chair of the budget committee for the judicial branch. Arnold served this year on the Devitt panel, which met at the Four Seasons Hotel in New York.
If a West case came to his court after his service on the Devitt committee, Arnold said, he would consider disqualifying himself from the case or disclosing his relationship to the company.
Note - Judge Martin denied the West motion of May 12, 1996. The HyperLaw evidentiary hearing is scheduled for June 21, 1996.
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