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Legal Research Revisionism

What happens in the Eastern District of Pennsylvania stays in the Eastern District of Pennsylvania. That could be the new motto for that court, based on a story by Shannon P. Duffy in The Legal Intelligencer that is drawing a lot of interest among legal bloggers. The story describes the unusual terms of a personal-injury case settled while on appeal to the 3rd U.S. Circuit Court of Appeals:

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.

Westlaw spokeswoman Gretchen DeSutter tells Duffy that the judge's request to remove the opinions would "absolutely" be honored and that Westlaw automatically removes an opinion from its database anytime a judge vacates it.

No sooner did Duffy's piece appear than two different legal bloggers stepped up to fill this newly created legal-research void. At The Volokh Conspiracy, Eugene Volokh posted seven of the eight "decommissioned" opinions, which he somehow found with help from Kevin Gerson of the UCLA Law Library. He did this, he wrote, because "It seems to me that it would be very helpful for scholars to have these opinions available somewhere, even if lawyers might find them less useful because they were withdrawn." Volokh's post drew a slew of comments about the propriety of the judge's decision to withdraw the opinions.

Also stepping in to fill the void was Maxwell S. Kennerly at the blog Litigation & Trial, who published all eight of the withdrawn opinions. "As a citizen, I am a strong believer in open government and governmental accountability, including for the judiciary," Kennerly explained. "As a lawyer, I do not believe a court can ever truly 'unpublish' a decision, and I believe that law is made every time a court decides any issue."

Notably, Kennerly found the opinions using RECAP, the recently released Firefox extension that recycles PACER documents into a publicly accessible archive (as Carolyn Elefant wrote about here last week). Kennerly's post drew posts from blogs such as Concurring Opinions and Techdirt praising RECAP for its power to preserve documents in the public domain even after they are "unpublished." "Insofar as systems like RECAP help keep government more open and prevent the expunging of records, that is perhaps an unexpected bonus feature to the transparency project," wrote Deven Desai at Concurring Opinions. "It preserves some truth."

Not to diminish the sleuthing by these bloggers that allowed them to find and publish these withdrawn opinions or to diminish the potential power of RECAP, but there is a slight ironic twist to this story, as Duffy, the author of the original story, pointed out in a comment posted on Volokh's blog. Although the documents were removed from Westlaw and Lexis, they did not exactly disappear from public view. They remained available to the public in the court's file and on the court's Web site (scroll down to case number 2004-0955). As we said at the outset, what happens in the Eastern District of Pennsylvania stays in the Eastern District of Pennsylvania -- or at least on its Web site.

Posted by Robert J. Ambrogi on August 24, 2009 at 12:49 PM | Permalink | Comments (4)


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