Rudovsky v. West Publishing Goes to Trial

The Legal Intelligencer reports:

…a federal court jury began hearing testimony Monday in a defamation suit brought by two law professors against West Publishing.

Professors David Rudovsky of the University of Pennsylvania Law School and Leonard Sosnov of Widener School of Law claim that West harmed their reputations when it falsely identified them as the authors of a poorly researched treatise update.

According to the complaint, the professors “were unable to reach agreement on the financial terms” for creating either a new edition of their treatise or an updated pocket part.  And, “in December 2008, without providing any notice to the Plaintiffs,” West published a pocket part to the treatise with the professors listed as authors (and “in smaller print, also identified ‘The Publisher’s Staff’ as an author”).

Now at trial, “Rudovsky testified Monday that he was “shocked” when he learned that West went forward in December 2008 and published a pocket part that still carried his and Sosnov’s names as authors — even though they had done no work and received no pay.”

According to an ABA Journal article, West’s lawyer argued that, “the two profs weren’t damaged by the publication of the initial 2008 pocket part, because they can’t prove either that their reputation was harmed or that they suffered financially.   However, the profs’ attorney, . . .  argued that damage to their professional reputation is assumed and doesn’t need to be proven, because this is a defamation per se situation, and Senior U.S. District Judge John Fullam agreed.”

U.S. District Judge John P. Fullam issued a two-page order that provides more detail on the Judge’s take on the law of defamation per se.  It also states:

“It is for the jury to determine whether the intended audience of the pocket part would conclude that plaintiffs authored an inaccurate and out-of-date supplement to the treatise.  If they so conclude, then I hold this would tend to damage the plaintiffs as legal authors and authorities on Pennsylvania criminal law and constitute defamation per se.”

The trial continues.  Get your popcorn ready, this should be interesting.

Earlier posts on the case available here:

http://legalresearchplus.com/2009/06/10/update-to-rudovsky-v-west-publishing-corp/

here,

http://legalresearchplus.com/2009/04/16/so-who-does-write-those-expensive-supplements-and-updates-to-big-name-treatises/

and here:

http://legalresearchplus.com/2009/04/25/rudovsky-v-west-publishing-corp-judge-writes-readers-were-not-informed-that-some-cases-cited-in-earlier-volumes-had-since-been-reversed-or-modified/

Why Ask Why West

I just received a brochure from Lexis for its set of California Reports, and I intend to share it with our advanced legal research class.

From the blurb:

As the official publisher of the California Reports, LexisNexis is part of the court’s publishing process.  LexisNexis editors work closely with the California Reporter of Decisions’ staff to meet all requirements for authenticity, integrity and accuracy.  All opinions are checked, corrected and approved prior to publication in the official advance sheet — and again before the bound volumes are published.  Plus all headnotes and case summaries are approved by the author of the opinion. . . .

A lot of work, to be sure.  And there’s no doubt that West’s efforts are similar.

What’s not similar are the prices for the bound volumes:

LexisNexis:

California Official Reports: Supreme Court Bound Volumes . . . $ 22.30

California Official Reports: Appellate Court Bound Volumes . . . $ 22.30

West (from our latest monthly invoice)

West’s California Reporter . . . $ 195.50

Westlaw rises to legal publishing fame by selling free information

From the Minneapolis City PagesWestlaw rises to legal publishing fame by selling free information,” by Erin Carlyle.

West makes its money by selling free, public information — specifically, court documents — to lawyers. On this simple model, the company raked in $3.5 billion in revenue last year, placing it on a par, sales-wise, with retail giant Abercrombie and Fitch. But its operating profit margin really impresses: At a whopping 32.1 percent, West outpaces that of tech giants like Google (19.4 percent), Amazon (3.4 percent), and eBay (20.8 percent). Westlaw excels at one simple task: saving lawyers time by making legal information more readily accessible. The company charges a firm of six to ten lawyers as much as $30,000 a year to access its state and federal databases. But since attorneys’ time is worth a lot of money, the service pays for itself. After all, the more work they can do, the more money they can make.

How did it do this?  According to the story, by following these eight rules:

Rule 1: Find a niche with growth potential

Rule 2: Organize information to make it useful

Rule 3: The internet is a distribution channel — not a product

Rule 4: Turn words into math

Rule 5: Separate the signal from the noise

Rule 6: Computers can’t do everything

Rule 7: Treat content like patented material

Rule 8: Print’s not dead, it just needs online help

Rudovsky v. West Publishing Corp. – Judge writes readers were “not informed that some cases cited in earlier volumes had since been reversed or modified.”

An earlier post here, “So Who Does Write Those Expensive Supplements and Updates to Big Name Treatises?, commented upon a lawsuit brought against Thomson West by the authors of one of their treatises.   Yesterday Judge Fullam (United States District Court, Eastern District of Pennsylvania) issued an opinion in the case that is the subject of a story in The Legal Intelligencer, “Judge denies injunction to law professors but seems to back some claims in defamation suit,” by Shannon P. Duffy.”  The story quotes from the judge’s opinion, Rudovsky v. West Publishing Corp.:

“Although plaintiffs had no role in authoring the pocket part, defendant West made it appear that they had indeed authored the pocket part, with aid from members of the publisher’s staff,” Fullam wrote.

“To make matters worse,” Fullam wrote, “the quality of that particular pocket part was not up to standard.”

Fullam found that “few if any relevant court decisions were included in the publication,” and that readers were “not informed that some cases cited in earlier volumes had since been reversed or modified.” ‘

Here’s the full opinion:


IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DAVID RUDOVSKY and : CIVIL ACTION
LEONARD SOSNOV

v.

WEST PUBLISHING CORPORATION, :
WEST SERVICES INC., and :
THOMSON LEGAL AND REGULATORY :
INC. t/a THOMSON WEST : NO. 09-cv-00727-JF
MEMORANDUM
Fullam, Sr. J. April 23, 2009

Plaintiffs are well-known law professors who, in 1987, contracted with the defendant West Publishing Corporation to publish a book on Pennsylvania criminal procedure, entitled “Pennsylvania Criminal Procedure: Law, Commentary and Forms.”  They also undertook to provide annual updates (“pocket parts”), and such updates were in fact provided each year until 2007, with the exception of the year 2000, when a second edition of the entire publication was issued.

When the time came for a 2008 update, the parties were unable to agree upon the financial terms pursuant to which plaintiffs would provide the pocket part, and the contractual arrangement between them was terminated.

Defendant nevertheless issued a 2008-2009 pocket part, in December 2008, but that publication was entitled “By David Rudovsky … and … Leonard Sosnov.” Below their names, in smaller print, were added the words “and the publisher’s staff.”

Thus, although plaintiffs had no role in authoring the pocket part, defendant West made it appear that they had indeed authored the pocket part, with aid from members of the publisher’s staff. To make matters worse, the quality of that particular pocket part was not up to standard. Few, if any, relevant court decisions were included in the publication; and the reader was not informed that some cases cited in earlier volumes had since been reversed or modified.’

Plaintiffs thereupon filed this lawsuit, seeking equitable relief as well as damages. By the time of the preliminary injunction hearing, the defendants had taken some further steps to remedy the situation. Eventually, defendants informed their subscribers that the plaintiffs had not had any part in the preparation of the 2008-2009 pocket part, and that the pocket part contained errors and omissions which would be remedied in the subsequent pocket part. Subscribers were also advised, in rather small print, that upon request, they would be given a financial credit against subsequent pocket parts.

The issue now before this Court is whether further interim relief should be ordered.

On the basis of the evidence thus far available, it seems clear that plaintiffs have established a right to some form of remedy – damages to reputation come to mind – but it would seem that the harm has already been done, and that, if plaintiffs do require further injunctive relief in order to complete their remedy, such relief would be just as effective after final hearing.

Plaintiffs argue, for example, that the defendant should be required to disclose more prominently and with greater clarity and emphasis that plaintiffs were not involved in the preparation of the offending pocket part. Plaintiffs also argue that the defendants should be required to extend to all subscribers an offer to refund the cost of the offending pocket part. But I am not persuaded that plaintiffs’ entitlement to this kind of relief is so clear that it would be appropriate to order it preliminarily.

In short, I am inclined to believe that the likelihood of further irreparable harm pending final outcome of this litigation has not been established with sufficient clarity.

I recognize that reasonable minds might well differ as to whether the corrective measures taken by the defendants were adequate. And it may well be that the defendants may, in their own self-interest, decide that further interim corrective measures should be taken, in order to minimize plaintiffs’ claims for damages. But I am not persuaded that the situation is sufficiently clear as to warrant further preliminary injunctive relief. An Order will be entered.

BY THE COURT:
/s/ John P. Fullam
John P. Fullam, Sr. J.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DAVID RUDOVSKY and : CIVIL ACTION
LEONARD SOSNOV
v.

WEST PUBLISHING CORPORATION, :
WEST SERVICES INC., and :
THOMSON LEGAL AND REGULATORY :
INC. t/a THOMSON WEST : NO. 09-cv-00727-JF
ORDER
AND NOW, this 23rd day of April 2009,upon consideration
of plaintiffs’ Motion for Preliminary Injunction, and defendants’
responses, IT IS ORDERED:
That the motion for preliminary injunctive relief is
DENIED.
BY THE COURT:
/s/ John P. Fullam
John P. Fullam, Sr. J.

The History of CALR, Part 1: More on Thomson West and FLITE Takes Flight

THE HISTORY OF COMPUTER-ASSISTED LEGAL RESEARCH (CALR)

______________________________________________________

First in an occasional series

More on Thomson West Merger and FLITE Takes Flight

********************

This is the first in an occasional and somewhat random look back at the early days of computer-assisted legal research (CALR).  It stems from a post here earlier in the week about a terrific new book by noted antitrust lawyer (and Stanford Law School alumnus) Gary L. Reback, Free the Market!: Why Only Government Can Keep the Marketplace Competitive (catalog record copied below). The very readable book gives an insider look at the merger (Mr. Reback represented LexisNexis) and as Jonathan Zittrain notes on the jacket, “Gary Reback offers a powerful defense for government’s role in protecting market competition. He draws from rich historical examples and his own extraordinary personal vantage point: his victories and defeats at the front lines of the most high-profile antitrust cases of the past two decades.”

Thomson West Merger

In 1997, Mr. Reback took a vacation to Hawaii after he had “spent a year of futility . . . trying to convince the Justice Department to block an anticompetitive merger that would raise the price of hiring a lawyer for just about every consumer of legal services anywhere in America.”

Storytelling for Lawyers and Monopolizing the Law

Chapters 14 (“Storytelling for Lawyers”) and 15 (“Monopolizing the Law”) tell the story of the 1996 merger of Thomson and West, “. . . the largest publishers of court opinions, treatises, and other materials used to do legal research. No other company was even close in terms of market share or customer usage.” And, as an earlier post here suggests, the end result of this merger created a wrecking ball for academic law library budgets. In my opinion absurd and obscene annual price increases was indeed an effect of this merger.

These two chapters trace through some of the very interesting history of legal publishing, electronic and otherwise, from the 1870s to present.

At one point in chapter 15 Mr. Reback states “. . . both Thomson and LexisNexis started charging law schools for online legal research, originally provided free of charge.” I shared this information on the law library directors listserv.

A few directors contested that statement and commented that, to their knowledge, neither Lexis nor Westlaw was ever free; a couple of other directors weren’t so sure and thought that perhaps there were some free installations.  But this comment also elicited a small flood of memories and reminiscences from directors about the very early days of CALR.

Stanford Law Library’s First CALR Terminal (Lexis only)

I myself came to stanford in 1982.  At the time the library had one Lexis terminal, and no Westlaw terminal.  The terminal was the so-called “DeLuxe” terminal, which was a large sit-down consol, reminiscent of the “con” of an early Star Trek starship.  It was located in a room shared with our photocopiers and microforms, both of which were used far more than the Lexis terminal.  For one thing, there was a daily blackout period and we could not access the database between the hours of 11:00 a.m. and 2:00 p.m. There was no downloading of documents, and printing was done laboriously, one screen shot at a time.  Connection was via an internal modem and a phone line paid for, I think, by Lexis.

Dick Danner, from the Duke Law Library noted on the listserv that “the early history of Lexis from an insider’s perspective, with a bit about Westlaw, can be found in: William G. Harrington, ‘A Brief History of Computer-Assisted Legal Research,’ 77 Law Library Journal 543 (1984-85).”

The Air Force Starts Digitizing the Law – FLITE (Federal Legal Information Through Electronics) Database

And then J. Denny Haythorn, Associate Dean of Library and Information Services & Professor of Law at Whittier College School of Law shared this very interesting story about FLITE (reproduced with permission):

In the Law Library Journal article the author refers to the system the Air Force had developed by the late 1960s. The Air Force system was called Federal Legal Information Through Electronics (FLITE) and was operated from the basement of the Air Force finance center in Denver at Lowery Air Force Base.  FLITE had a large staff inputting federal court reports, administrative court reports (e.g., Comp Gen, Board of Contracts Appeals, etc.), US Code sections, CFR sections, and military regulations into databases. There was a staff of research attorneys who received calls from government lawyers for research and they would help formulate searches in the database.  The Finance Center did not use their computer mainframe at night so the searcher would run overnight and be printed.  The research attorneys would call back with the results the next day and sometimes mail the printouts to the requesting attorney.

More powerful minicomputers and the internet simplified the search process to ultimately be more like the commercial services thought FLITE kept the research attorneys for assistance with searches.  The office also continues to maintain unique databases of information use by military lawyers.  FLITE purchased the first PC computers for Air Force legal offices and began a program of law office automation using shareware software (PC Write for example), commercial software, and software specifically written by the office.

FLITE also was an early adopter of CD and DVD technology.  The goal was to have Judge Advocate General attorneys in the field with legal resources for a standalone law office.

The office still exists and is now located with the Air Force Judge Advocate School at Maxwell Air Force Base, in Montgomery, Alabama.  In the 1980s I was one of the research attorneys as they made the transition from batch, overnight searching to real time searches and then user searching directly on the internet.  I also worked on the manuals for some of the software.

Denny will be contibuting more about his experiences as a CALR pioneer, so please stay tuned for later installments of this series.

And here’s the catalog record for Free the Market!

Author: Reback, Gary L., Stanford Law School graduate, J.D.(1974)
Title: Free the market! : why only government can keep the marketplace competitive / Gary L. Reback.
Related e-resource: Publisher description
http://www.loc.gov/catdir/enhancements/fy0906/200804668
Imprint: New York : Portfolio, 2009.
Physical Description: x, 416 p. ; 24 cm.
Note: Signed by the author. CSt-Law
9-d.html

Note: Includes bibliographical references (p. [397]-403) and index.

Contents: Protecting competition — Product distribution –Patent and coypright limitations on competition –
Monopolies and market exclusion — Mergers and acquisitions.Subject (LC): Trade regulation–United States.
Subject (LC): Competition–United States.
ISBN: 9781591842460
ISBN: 1591842468

CALL NUMBER
HD3616 .U47 R136 2009

Monopolizing the Law

From a fascinating, must-read brand new book by noted antitrust lawyer Gary Reback, Free the Market: Why Only Government Can Keep the Marketplace Competitive.

Free the Market: Why Only Government Can Keep the Marketplace Competitive
By Gary L. Reback
Portfolio Books, 2009
*****
Chapters 14, “Storytelling for Lawyers.” and 15, “Monopolizing the Law,” clearly explain how LexisNexis and Westlaw became the market forces that they are today.
From chapter 15:
. . . The West-Thomson merger had precisely the effect that everyone, other than Thomson, the Justice Department, and the judge predicted it would.  Prices for print publications soared.  Thomson started putting fewer pages into each West volume of court cases and charging more for the books.  Price increases for West publications following the takeover exceeded both the rate of inflation and the rate of increases for prices in legal publishing more generally.  One study documented a price increase of over 70 percent for “value added” legal publications (books with supplements) in the four years following the merger.
Prices for online research also climbed astronomically.  Thomson raises rates to private firms each year.  In each of the recent years, Thomson’s charges for online legal research in the West databases have increased roughly 7 percent.  To search the comprehensive West database for state and federal decisions now costs more than $17 per minute.  The federal minimum wage, by constrast, is about $7 an hour.  In addition both Thomson and LexisNexis started charging law schools for online legal research, orginally provided free of charge.  Last year the annual rate increase to law school librarians was roughly 7%, breaking the budget of many university law libraries.