Next month, the case of Rudovsky v. West Publishing Corporation will go on trial. If you are unfamiliar with it, I suggest you hit up the link and read the background. And then come back here for the juicy bits, as revealed in the testimony given during the April 14, 2009 hearing on the plaintiffs request for preliminary injunction. I’ve quoted some (but not all of) the relevant parts to this post below:
DIRECT EXAMINATION OF PROFESSOR DAVID RUDOVSKY
Q: What if anything did you learn about deficiencies in this pocket part?
A. Well, what I did — and this is what I learned — I looked at it — I — I was just curious to see what kind of job they had done. So, I looked at several section where I knew there had been a fair amount of activity by the Pennsylvania courts, post-conviction, sentencing, appeals were three I think I looked at, because I was aware of certain cases that had come down which surely should have been included in any new supplement or [sic] packet part and when I looked, they weren’t there. So, I found that somewhat curious and unsettling. [¶] I looked at all those cases and I — I think — I didn’t see a single case cited with a 2008 date, which meant to me they had missed or had decided not to include scores of cases decided by the appellate courts related to the material in the book. [¶] And on my first review, I think I found one or two additional cases, that is of the hundreds of cases that we had already included [in the earlier supplement], it appeared to me that there were — on first glance — one or two additional cases that had been included. [¶] It turned out on further review, we were able to determine that all they had included were three new cases, none of them particularly significant, two in a string cite and one with a parenthetical description, it didn’t — it didn’t add anything to the — pocket part. [¶] And — and, essentially, what I found was that what had happened — in our view — was that the pocket part that was mailed out called the 2008/2009 pocket part, was almost verbatim — again, with a couple of added cases and a couple of citations to rules — but virtually verbatim which had been sent out under our names a year and a half previously or a year previously which we had done. [¶] It — it had, basically, they’d put a different cover on it, 2008/2009 instead of 2007/2008 and — and that’s what they did. Very upsetting.
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Q: And I take, Professor Rudovsky, that it’s not just a — that not referring to a reversal or granting of a petition for review [of a case cited in the supplement], is not simply a matter of the citation, itself, but it also affects the discussion that takes place within the text?
A: Well, that’s right. [¶] I mean, the — the Judge did say, you could always Shepardize although I’m not sure why you’d need a treatise, you could always take an original case and go from that. [¶] What West wanted from us and what we set out to do starting in 1991 when we first — or 1990 — when we first published this book, is to give the practitioner, not just a list of cases in each area but a discussion of those cases, what the cases mean, how the law is developing, what issues are open, what argument could still be made, notwithstanding certain decisions from both sides, prosecutor or defense. And, indeed, when you look at our pocket parts, we try to integrate that. [¶] So, if a major case came down, we just wouldn’t say, the Supreme Court has decided this issue in X, we would then explain what the Supreme Court did including all those other factors that as a lawyer, you’d want to know, Shepardizing it, wouldn’t necessarily give you that.
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Q: Professor Rudovsky, do you feel that the sale of the 2008/2009 pocket part on or about December of 2008, was done with, either — well, it was done with an expression by West that it was endorsed by you
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A: Well, it — it was clearly an endorsement in that sense, as I understand the question [¶] I can’t imagine that a publisher could put out something, charge somebody for it, use our names, when it was, I — and — and sham is the only word that comes to mind that actually describes it. [¶] There was nothing new other than these three meaningless citations in — in this pocket part that gave the subscriber anything that was worthwhile. It was the same as they had gotten the years before. [¶] And prominently displayed on that pocket part were our names. [¶] Sure and they Shepardize and maybe they’ll find [the change in the law], but if they do that, they’re going to say, what are these guys doing? They didn’t alert me of a — of a new Supreme Court case.
What you should know is that the Professors want (1) a clear advisory to both print and online subscribers that they are no longer updating the treatise they spent nearly 20 years writing, (2) a notice to subscribers of the 2007-08 pocket part that they could get their money back, and (3) a disclosure that subscribers of the 2007-08 pocket part received an essentially worthless supplement—what they call a “sham.” The outcome of the dispute, while largely inconsequential to most practicing attorneys, raises some important issues about the implied contract between legal researchers and the publishers from whom they purchase content. Perhaps even more so with legal publishers who use their own editorial staff to update an existing product (ours included).
Although I’ve never had occasion to consider this issue, there have been plenty of times in the past when a lawyer has asked me, “Now, is there anything new in this edition?” And like any good publisher, I will walk you through what’s been added (we usually have a “What’s New” section in our introductions that covers some of the high points). In other words, I’m trying to meet an implied expectation, namely that you assume you are purchasing the latest information.* Once that expectation is violated, then the system itself is called into question, and I assume the role of thief. Will that be the case for Thomson Reuters Legal after Rudovsky is decided? I wouldn’t think so based on the editors I’ve met from there, but that will be your call. Perhaps now you’ll look at one of the many serial publications you purchase and peruse it to determine the amount of work that went into updating it. Or, perhaps you’ll want to know whether the editorial group assigned to the product is located overseas. Maybe you won’t do anything, and merely accept it as confirmation of what you’ve thought all along: these legal publishers charge us all this money and for what? A reprint?
* Caveat: There are some products that don’t lend themselves to large overhauls and substantive rewrites, but you purchase a new edition anyway because you’re getting insurance. Namely, you’re guaranteed for another year that the material included in the product is up to date.
In considering what expectations a legal researcher might have, I came up with the following list:
- The consumer should be informed of the very last date the publisher checked for new cases. Any publication you purchase from a legal publisher should clearly indicate its age (i.e., the last month-day it was updated), which will give you a sense of how much Shepardizing you’ll be doing, assuming you do that sort of thing.
- The consumer should be informed of the very last date the cases were Shepardized, KeyCited, or otherwise verified. This helps because it will allow you to set date restrictions on your reports, making for faster research.
- The consumer should be told whether the original author(s), if still alive, updated the product or approved the changes made to it. If the author(s) did not approve the changes, then an explanation as to why, and who did. In most instances, there is a new author or editor associated with a product, and his or her involvement in the project is self-evident.
- The consumer should expect that a new edition (or supplement) is current. “Current” is used here to mean that the content has been modified to reflect new, substantive developments in the law and the existing citations have been verified as accurate as of the date of publication. For example, I think the customer has a right to expect changes based on new supreme court cases, rules and code amendments, and any other relevant statutory changes.
- The consumer should expect not to be charged for a book that should have been updated, but wasn’t. Publishers should not rely on a lawyer’s professional responsibility to research the law to justify sub-par editions to previously published works.
- The consumer should expect to know the location of the editorial group assigned to assist the author or editor or to update the product in-house.
I think this is a good working list and one that I’ll take to my editors and discuss how we could implement some type of “newness notice.” If you have any others, feel free to add them to the comments below.
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Let me add that I think we are living in dangerous times right now. The ideas of “print is dead” and “algorithms are meaning” seem to be pushing us to accept secondary material as bits of networked content that are influenced by tags, not people. The value of an author—a learned person—cannot be replaced by Wikipedia, Google, Shepards, or KeyCite. The quality of an author’s scholarship can be enhanced by such finding tools, but they cannot add meaning or help you understand. You would do well to remember that, and teach it.
[Image (CC) by gcfairch]