Friday, August 21, 2009

When Settlements Remove Decisions from Lexis & Westlaw

Shannon Duffy, at reported on Aug. 19, that a settlement agreement in Klein v. Amtrak called for removing eight legally significant decisions from publication. Two trespassing teens were badly burned by electric catenary wires when they were horsing around on a parked train car. But the train was parked for quite a while and the owner of the train yard and the owner of the train car knew that there were frequent trespassers, so the situation was dangerous. They could have shut off the power to the catenary wire, or posted warning signs -- but didn't. A jury awarded large damages and huge punitives.

After years of litigation, the parties reached a settlement. Interestingly. the defense attorneys managed to get the trial judge to order all previous decisions related to the case "removed." Duffy says that Westlaw plans to honor the judge's decision to remove the eight cases. No response from Lexis by the time the article went to press. Duffy's excellent article focuses largely on the legal issue of the secrecy of sealing the decision and "erasing" the previous, related decision.

As a librarian, though, my attention was immediately on the discrepancy factors and archiving issues. Print volumes will continue to house the decisions. Will courts accept them as precedent or will they be considered "unpublished" if researchers locate them and try to use them in arguments in the future? Will there be some way that the printed cases are marked to show they have been retracted by the court? Or will it show up in Shepards and KeyCite that these cases no longer "exist?" What if Lexis decides not to take them out of its database? The judge's order has no binding effect on the company.

Have there been any decisions in the meantime that relied on these eight decisions as precedent? What effect will that have on those cases? How will KeyCite and Shepards code those cases, especially thinking about the Table of Authorities feature?

Isn't this kind of like New Speak in Brave New World? I am rather disturbed by the whole thing. Tip of the OOTJ hat to Grace Mills for alerting me to the issue!

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