In this morning’s Legal Intelligencer, there is an article that is sure to catch your eye: After Settlement in Amtrak Case, Opinions Erased From Lexis and Westlaw.
The confidential settlement in Klein v. Amtrak — a case in which two trespassing teenagers climbed atop a parked train car and suffered serious burns when they got too close to a 12,000-volt catenary wire — included an unusual provision that called for the trial judge to vacate all of his published opinions and have them removed from Lexis and Westlaw.
And it worked.
A few months after holding an hourlong oral argument, the 3rd U.S. Circuit Court of Appeals agreed in late July to remand the case to the trial judge, U.S. District Judge Lawrence F. Stengel, who, in turn, agreed to vacate eight of his published opinions and to “direct” Lexis and Westlaw to remove them from their databases.
I wasn’t aware that a court had the power to “direct” a commercial publisher to delete previously published case law. As it turns out, that is not exactly an accurate statement:
Gretchen DeSutter, a spokeswoman for Westlaw, said Stengel’s request to remove the opinions would “absolutely” be honored, and that any instance in which a judge vacates a published opinion automatically leads to its withdrawal from Westlaw’s database.
So the real answer is that a judge’s request is honored. Presumably this goes for any judge, not just federal ones, and goes for any case. Now you see it, now you don’t.
It’s one thing to have to contend with Supreme Courts, like California, that have the power to “depublish” an opinion that helps your case and making it worthless as far as precedent is concerned. But to my knowledge, those cases are still on the books, and binding on the parties to the litigation that created the opinion. It’s an entirely different problem when a court can ask a publisher to take down an opinion previously published, and the publisher does it. In fact, the publisher has apparently been doing it for years. Maybe you knew about it, but I didn’t.
The blogotwittersphere was all abuzz just a short while ago over Amazon yanking the Orwell books, and the wisdom of collecting things in the Cloud continues to be an ongoing discussion. Although these issues aren’t the same as the Amtrak case, the concern they raise is: how much do we trust large digital information vendors?
The idea that previously published cases can be deleted from the two largest legal information providers in the country troubles me, as it should you. The cases could have easily been marked “vacated,” and the precedential value of them lost for any future litigants. So why take the unusual step of removing them? I suspect we will never get an answer to this question.
Fortunately for us, however, there are the Tubes. And a quick search of Klein, Amtrak, and Stengel will get you pdfs for many of the judge’s opinions. Ironically, some of them are found on the uscourts.gov site. For example, here’s a link to the judge’s order on the MSJ. But in the end, the fact that there is still public access out there, somewhere, doesn’t really help us when it comes to researching. I say this because deleting opinions, or any other material for that matter, requires us to know what we don’t know, namely, there used to be an opinion on this database, and now it is gone.
Oh, and in case you thought Westlaw and Lexis were the only ones implicated, I did a quick check on Loislaw for the previously published opinions. They aren’t there either.
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