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

6 SUBCOMMITTEE MEMBERS

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

19 In re: A.B.A. Resolution on Citations

22 Public Hearing

23 Ceremonial Courtroom
United States District Court
24 Washington, D. C.
Thursday, April 3, 1997
25

1 WITNESSES

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

22
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

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.

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

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

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

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.

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.

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,

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

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

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

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

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.

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

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

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.

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

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

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

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 --

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.

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

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

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.

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

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

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

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.

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

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

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

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

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

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

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.

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

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

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

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,

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

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

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

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

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 --

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

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

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.

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

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

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

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.

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

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

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

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

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

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.

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.

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.

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,

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

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.

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

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.

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

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

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 availabi