By Jason Wilson
I’ve been catching up with some light reading of various deposition transcripts in Rudovsky v. West Publishing Corp., No. 09-CV-727 (E.D. Penn.), which were publicly available through Pacer.gov. While we wait for the court’s decision on West’s motion for judgment as a matter of law, I’ve reprinted some interesting excerpts related to West’s publication updating standards back in 2008-2009.
What is important about these excerpts (and in my opinion, I don’t believe these systems or approaches to be unique to West) is that they get to an underlying issue not being asked of lawyers and legal researchers generally, that is, what do you, the consumer, consider to be a quality update to a legal treatise? It’s rare to find lawyers talking about such things, and law librarians had a perfect opportunity to do so at the recent AALL Vendor Colloquium, but instead limited their focus to pricing and subscription models, vendor communications, digital v. print, etc. Honestly, what difference does all of that make if you don’t know what standards vendors use to measure the underlying quality of the product?
So let’s kick this discussion off with excerpts from the deposition [Fn 1] of Sarah Redzic, Attorney Editor for West Publishing, examination by Noah Charlson, attorney for the Plaintiffs taken on March 3, 2010:
Q: [W]hat did you do to prepare the update [for the 2008 -2009 supplement to Pennsylvania Criminal Procedure]?
A: I undertook the process of research for an update, for that update.
Q: And how did you do that?
A: I — I believe that I — we had the previous update provided by the authors. It was the material that was provided the year before, and I used that material, and I — I KeyCited those cases that were in that material, and from there — from there I believe the KeyCite can lead you to other — other links, other research, other — other research treatises, other encyclopedias and other links that can point you to research, and I looked up some of those. And I also completed — I also looked up all the Rules of Criminal Procedure, I believe.
Q: When you say you looked up all the Rules of Criminal Procedure —
Q: — what do you mean you looked them up?
A: I mean I went through every single rule in Criminal Procedure to check for the validity of the rule.
Q: Did you look for new rules that had been added or amended?
A: As I said, I went through every single rule, so I looked for newer rules as well.
Q: And I take it that any changes that you had — that you found would have been refelected — you would have made sure were reflected in the pocket part?
A: Well, it was — again, it was a judgment call as far as what I was going to include or not include, so I decided what to — I decided to include what I thought would be relevant given the time constraints.
Q: Did you — did you read any articles about changes in the law and changes in criminal law in Pennsylvania in connection with your work on the update?
A: I may have. I don’t remember specifically.
Q: Did you research whether any criminal statutes had been changed, amended or added?
A: As I said, I researched the Rules of Criminal Procedure.
Q: Well, besides the rules, did you look at any Pennsylvania statutory law?
A: In — I — when I KeyCited the cases, I don’t know — there may have been links to other — to other statutory changes, but I don’t recall specifically.
Q: Did you, for example, read through the Legal Intelligencer, the daily legal newspaper in Philadelphia about any significant — to see articles about any significant developments in criminal procedure during the prior year?
A: I don’t recall.
Q: Did you look for any law review articles about significant Pennsylvania cases during the prior year?
A: Again, when you KeyCite the cases and you go through the cases, law review articles are sometimes linked. I don’t remember specifically what I looked at or if I looked at any of those.
Q: About how much time did you spend working on the [supplement].
A: I can’t really give any specifics of that. It’s just a span of several — I don’t know, a few weeks. I can’t — I don’t know the specifics of the time.
Q: A few weeks working on it all day every day or —
A: I don’t believe so, no.
Q: Do you know how many titles you were responsible for at that period of time, October 2008?
A: I believe between 60 or 70.
Q: Of those 60 or 70 titles, can you estimate how many of them are — were treatises that required — or any kind of publication that required an annual pocket part?
A: I believe most of them — well, for pocket part publications — well, for treatises with pocket parts, most of them are, I believe, updated yearly.
Q: When you — when you completed the 2008 supplement, was it reviewed by anybody?
Q: So as far as you know, it just went straight to Manufacturing?
A: It went straight to be processed, yes, for …
Q: When you were working on the December 2008 supplement, what was your understanding of what it is you were trying to accomplish?
A: My understanding was that I was supposed to provide the — provide an update, provide an update in a certain amount of time that in our judgment would be sufficient and — I don’t know what else — what else do you want me to say?
Q: You said you were to prepare an update that was sufficient. Sufficient for what?
A: For publication.
Q: And what’s your understanding of what the publishability guidelines [Fn 2] require for a topical treatise update?
A: Again, that really depends — the guidelines are general guidelines, and they’re — you know, they’re — depends on the book, it depends on the situation, so I don’t — I don’t know as far as — I don’t have the guidelines in front of me, so I can’t — I can’t really answer that.
It’s a tough deposition to read because I feel for Ms. Redzic. She’s a young attorney having to discuss and defend editorial standards and practices that she’s still getting a grasp of in the context of an adversarial proceeding. But despite that, there’s a great deal about what she said concerning updating standards that editors and authors of legal treatises should be talking about, particularly “publisher’s staff” editors. How much research is enough before we call an update done? How many books can an editor reasonably expect to manage over the course of 50 weeks (assuming two weeks vacation and no PTO or sick days)? What do our customers expect?
I’ve suggested that our industry would benefit from an editorial round table, but that call has fallen on deaf ears. No one is interested in talking about this, and the one fear I have is that many formerly great works will only get worse with each annual update, only the customer won’t know it until it’s too late. As editors and authors, we should be able to recite without hesitation what we do to update our products. We just need to define what is the least expected amount of work that could be performed to maintain all of this data and have it be considered a “quality” update.
And so with that question in mind, I leave you with an excerpt from the deposition of Teri M. Kruk, Director of Content Operations for West Publishing in Rudovsky v. West Publishing Corp., No. 09-CV-727 (E.D. Penn.), examination by Mr. Charlson taken on March 3, 2010:
Q: Well, I’ll ask you this: Are you comfortable, as a Director at West, with the idea of a law school graduate a year out of law school, less than a year in her tenure — roughly a year into her tenure as an Attorney Editor, on her own preparing a supplement to an analytical treatise on Pennsylvania Criminal Procedure with no supervision and no review?
A: Yes, I am.
Q: Is that providing a — do you believe that that’s a way to provide a high quality publishable product for West’s customers?
A: Yes, it is.
Fn. 1. For the sake of brevity and readability, I have paraphrased certain comments and omitted some Q and A and the objections. The complete depositions are available on Pacer.gov, or you can email me and I’ll send you copies.
Fn. 2. As best as I can tell from the deposition (the exhibits were not attached), West’s standards for publishability at that time (2008) “must satisfy the following objective criteria”:
1. “Does the submission provide current and accurate coverage of substantive and/or procedural law? This means that the submitted information discusses applicable law. West has an obligation to its customers to provide them with coverage that is as up-to-date and accurate as possible with each release.” Redzic Depo, lines 17-24, p. 113 & lines 1-6, p. 114.
2. “Is the coverage complete from the perspective of the publication and its intended customers? In other words, does the submission cover material that the customer would reasonably expect to find covered? You must make a judgment call with respect to ‘completeness’ based on the customer’s expectations for the set for which the materials are intended.” Redzic Depo, lines 20-24, p. 114, lines 1-2, p. 115 & lines 2-5, p. 116.
[Image (CC) by gwilmore]