In a few weeks it will be spring, and we’ll have a rush of Supreme Court opinions to look forward to.  The court will marshal a good two centuries of precedent in reaching its decisions, and I’m sure we’ll see references to Marbury and to Erie, from Celotex to Twombly.  But we’ll also see a few references to a more obscure case.

U.S. v. Detroit Timber and Lumber Company, 200 U.S. 321, was decided 106 years ago this coming weekend.  Writing for a majority, Justice Brewer addressed some obscure points of law regarding the right to cut timber on public lands.  However, in rejecting a precedent proffered by one of the parties, he made the statement that would earn Detroit Timber its place in the history books: “[T]he headnote is not the work of the court…It is simply the work of the reporter…and is prepared for the convenience of the profession.”  It is for this proposition that Detroit Timber is cited in almost every decision released by the Supreme Court today:

Outside the court’s standard footnote, headnotes and case syllabi have been mentioned by the court a few other times.

Database: SCT

Search: op(head-note)

Result: 57 Documents

Database: SCT

Search: op(syllabus /s case court)

Result:  86 Documents (the extra search language is necessary to weed out unrelated education cases)

Most of these cases refer to annotations of State Supreme Courts, which, in some States, actually is “the work of the Court,” and does “state its decision.”  This rule in the States is probably what led Solicitor General Hoyt to make his failed argument from the annotations in Detroit Timber (Justice Brewer even recognizes that some States have a different rule).  He probably wasn’t the first to make this mistake, and he almost certainly won’t be the last.

Distinguishing the Court’s legal opinion from research tools can be extremely important.  Background on a particularly infamous invocation of the annotations can be found by running the following search in JLR: corporate /3 personhood /p head-note syllab!.  I saw 5 results, each of which gives a decent introduction to the history of this particular legal concept.

The court reporter who wrote the headnote into the official record of the Santa Clara decision was an adept lawyer who had ties to the railroad industry…Since only the text of judicial opinions is binding precedent, this case should not have been cited since then as the bedrock case supporting corporate personhood.

24 JENVLL 75, fn 122

Our attorney editors may be adept but they don’t have ties to the railroad industry. This 2008 video does a good job outlining how Westlaw adds headnotes. Watch our editors add headnotes at 2:58.

See Mr. Gil Grantmore’s brief history of U.S. v. Detroit Timber and Lumber Company at 5 Greenbag 157.

Detroit Timber clearly does not stand for the proposition that the headnote is irrelevant or inappropriate for citation. On the contrary, after explaining the genesis of the headnote, the Court goes on very carefully to consider its substance. True, the headnote did not carry the imprimatur of the Court. But it nevertheless seems to have been considered at least respectable persuasive authority. The common view today that the syllabus is valueless cannot be supported by Detroit Timber.

As Jill V. mentioned the other day, Hostess, makers of Ding-Dongs, Ho-Hos, and assorted other guilty pleasures, filed for bankruptcy recently.  The case is pending in the Bankruptcy Court for the Southern District of New York, under Docket numbers 7:12-bk-22051 through 22056. Hostess previously declared bankruptcy in 2004, in the Western District of Missouri.  The Docket number for that case was 4:04-bk-45814.

But even that prior bankruptcy wasn’t the first time Hostess made front page legal news.  That distinction goes to the so-called Twinkie Defense.  This is the mildly derogatory term applied to former San Francisco Supervisor Dan White’s defense when tried for the double murder of Mayor George Moscone and Supervisor Harvey Milk (some of the essential facts of the case can be found at 117 Cal. App. 3d 270).   Contrary to popular memory, Mr. White did not argue that eating a Twinkie had caused him to commit murder; he actually argued that he suffered from severe depression, which prevented him forming the requisite mens rea for homicide; his consumption of junk food was introduced merely as a symptom.  See footnote 204 in 36 USFLR 261.

The Twinkie Defense had a direct impact on California law when the legislature chose to amend Cal. Penal Code § 28 to abolish the Diminished Capacity defense and replace it with the slightly different ‘Diminished actuality’ defense.  The literal impact of this change can be found in the annotations to the current Penal Code § 28.  While Westlaw doesn’t have legislative history from California for 1982, a search for, diminished /3 capacity /p diminished /3 actual!, in the JLR database reveals 17 articles, which do a pretty good job discussing the motivation behind the change.

The Twinkie Defense had a brief return to the spotlight in 2006, when Justice Scalia mentioned it at oral argument in the case of U.S. v. Gonzalez-Lopez, ostensibly as an example of the kind of innovative thinking a good defense lawyer can do.  Less often mentioned was Scalia’s next sentence, “I would not consider the Twinkie defense an invention of a competent lawyer.” The transcript is available at 2006 WL 1134467.

For a sense of what people thought of the Twinkie Defense at the time, you can run the search, twinkie /1 defense & da(bef 1/1/1984) in ALLNEWS (11 results).  For more on Hostess’s ongoing financial troubles, try, hostess /s bankruptcy & da(aft 1/1/2004) in the same place.  And while I wish it had been me, credit for the first Bankruptcy/Twinkie defense connection must go the Editorial Board at the Hartford Courant, as revealed by simply combining the last two searches into HOSTESS /S BANKRUPTCY & TWINKIE /3 DEFENSE.

Mr. John Hithon of Alabama got an early Christmas present this year, when, on December 16, a 3 judge panel of 11th Circuit Court of Appeals reversed itself and re-instated a jury verdict that had been entered against his former employer in the case of Ash v. Tyson Foods, 2011 WL 6270741.  If this story seems familiar, you probably heard about it in the same place I did, the New York Times front page earlier this week.  If you didn’t see their write-up, it’s available on Westlaw at 2011 WLNR 26636445.

For the Times, and probably for a lot of the general public, this case was of interest because a part of it concerned whether use of the term ‘boy’ was a racial epithet, or merely water-cooler conversation.  When the Court, in 2010, held it to be mere conversation, the Plaintiff lost his discrimination claim; by holding that the racial overtones were a matter for the jury, his claim survived.

The Times noted that it is fairly rare for a Court of Appeals to reverse itself outside of the scenario of an en banc reconsideration.  I put together the following search:

sy(prior previous earlier /s opinion /s vacat! & motion moved petition! /3 re-hear!) % sy(“en banc”)

In our Court of Appeals content on WestlawNext (or CTA on Westlaw) this search finds 44 results, with Ash v. Tyson being the most recent (without the excluding the words “en banc,” the search returns 59 cases).  In the KeyCite history, these cases are noted with a straightforward ‘vacated on rehearing’ or ‘vacated on reconsideration.’   Searches like this one – within the synopsis field -  are great for users who want cases with a particular procedural posture.   Note that many cases also include Holding (HG) and Background (BG) field data. But, these fields are included in SY.  And, I actually found that searching in the Synopsis returned better results than searching the Holding field.

Field outlines for various document types can be found on WestlawNext from the Advanced Search link.  For example, see the Fields for Cases (pdf) document we pulled from the advanced search link at the cases page.

Earlier this week the protestor who threw a shaving-cream pie at Rupert Murdoch was sentenced to six weeks in jail.  Jonnie Marbles isn’t the first pie-thrower to face consequences in court.

On Westlaw.com, I ran the following search across state and federal cases to pick up other pie-throwing cases: thr*w! hit! strik! struck /s pie /100 assault battery tort disorderly abet! conspir! 

The earliest pie-throwing case shows up in 1977, and is notable for the fact that it’s not the hurling of the pie which is at issue.  In Goldfarb v. Baker, 547 S.W.2d 567, after a pie was thrown at a professor, the professor threw the student who he believed responsible out of the classroom, and the student brought a claim against the professor for “outrageous conduct.”  The student’s case was dismissed.

In Geraci v. St. Xavier High School, 1978 WL 216591, the court found in favor of a private school after a student was expelled for his role in a pie-throwing conspiracy.  In that case, the student induced a friend to throw the pie, although he later said that he didn’t think the friend would go through with it.  The student’s conspiring role was enough, however, to find that he had violated the school’s code of conduct and thereby breached the contract with the school.

In another twist on the pie-throwing conspiracy, in State of Connecticut v. Diorio, 529 A.2d 1320, the court upheld a parent’s conviction for breach of the peace, for hiring a clown for her daughter’s junior-high graduation to throw a pie in the face of the dean of students.  The clown later testified against the parent at trial.

And then there’s the political pie-throwing: 

State of Ohio v. Conliff, 401 N.E.2d 469, concerns a fellow who was acquitted by a jury of assault after throwing a pie at the governor of Ohio.  (Interestingly, that’s another case where the throwing of the pie was ancillary to the case; the issue on appeal was whether the pie-thrower was subject to criminal contempt for saying to the judge, off the record but in the course of the proceedings, “Are you ready for your ounce of flesh now, your Honor?”)

Another pie-thrower did not get off so lightly in State of Minnesota v. Greenberg, 2000 WL 781092.  The court found sufficient evidence for convictions for intimidating a legislator and disorderly conduct, and that pushing a pie into someone’s face is not a form of constitutionally-protected speech.

The U.S. District Court for the Northern District of California recently issued its decision rejecting a motion to vacate the the court’s judgment that California’s “Proposition 8″ ban on same-sex marriage is unconstitutional.  The motion to vacate asserted as grounds that the the presiding judge should have recused himself from the case, based on his disclosure after his retirement from the bench that he is homosexual and has been in a same-sex relationship for the last 10 years. 

Specifically, it was alleged that this long-term relationship gave rise to some form of non-pecuniary interest or inference of impartiality requiring recusal or disqualification.  This seems to be a novel issue in the jurisprudence of recusal, and the court offered some interesting language in its decision.  (You can see the full text on Westlaw at 2011 WL 2321440.)

After a review of existing case law under FRCP 455(b)(4)*, the court “adopt[ed] the following legal conclusion: In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge under Section 455(b)(4).

The court emphasized that it is a mistake to say that a member of a minority has a greater interest in safeguarding civil rights than the majority: “In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.”

The court also found that a possible future interest in marrying is too tenuous or indeterminate to require recusal under the statute: “… to base a recusal standard on future subjective intent to take advantage of constitutional rights is to create an inadministrable test, frustrating congressional efforts to protect judicial integrity with a clear, mandatory recusal statute.”

Responding to the movants’ suggestion that the judge’s prior non-disclosure might lead that infamous reasonable person to question his impartiality, which would require recusal under FRCP 455(a), the court observes, “… silence is by its very nature ambiguous, and thus is open to multiple interpretations. Another, and equally reasonable, way to interpret that silence is suggested by Ninth Circuit caselaw, which holds that it is to be presumed that any judge is impartial.”  The court goes on to say, “Beginning from the presumption that judges are impartial, the Court postulates that a judge who is silent in such a situation has already, sua sponte, considered the question of recusal and has determined that he need not disqualify himself, because no reasonable observer would conclude that his impartiality could reasonably be questioned.”

Later, the court goes to far as to observe that the judge in this case, “like all judges, had a duty to preserve the integrity of the judiciary. Among other things, this means that if, in an overabundance of caution, he were to have disclosed intimate, but irrelevant, details about his personal life that were not reasonably related to the question of disqualification, he could have set a pernicious precedent.”  (One can only imagine what personal details of his or her life a judge might be contemplating when reading these words.)

Already notice of appeal has been filed, while the appeal of the underlying decision on Proposition 8 is still pending.  Certainly we have not heard the last of this issue.

* Our search for 455(b)(4) in the FED9-ALL database, yields 35 cases.

Watching “The Social Network” lose out to “The King’s Speech” for Best Picture, I couldn’t help but wonder how Cameron and Tyler Winklevoss, would-be twin inventors of Facebook, reacted to the news.  Were the Olympic rowers disappointed that the movie that made them famous didn’t walk away with the big prize?  Or, was the announcement some cause for relief, a signal that their nearly decade long pursuit of justice against Facebook wonderkin, Mark Zuckerberg, might be moving out of the public eye and eventually wind down.  Either way, my guess is that emotions remain high in the boathouse as the Twins await yet another court ruling in the epic battle over Facebook, one that has the potential to reignite the fight.

For those who have yet to see the movie, the Winklevoss twins (the “Twins”), together with their Harvard classmate, Divya Narendra, allege that they had the idea for Facebook, and that Mark Zuckerberg stole their idea.  Zuckerberg and Facebook deny the claims, and for their part, allege that the Twins and Narendra infiltrated their system, took thousands of e-mail addresses, and then spammed them.  After years of vigorous fighting worthy of all the Hollywood attention, the parties entered into a mediation driven settlement in which Facebook agreed to purchase ConnectU, the Twins’ failing competitor site, with shares of Facebook stock — a deal worth in excess of $160 million because of Facebook’s soaring value.

In a remarkable demonstration of — well — “True Grit”, the Twins have now asked the Ninth Circuit to undo the settlement.  They claim that, despite a bevy of lawyers at their side during the mediation, they were duped about the actual value of Facebook stock they were to receive as part of the settlement.  If the Court agrees, the Twins will be $160 poorer, the scorched earth litigation will resume in earnest, and if not already underway, a team of Southern California screenwriters will begin blocking out drafts of “The Social Network II.”

Overturning a settlement is no easy business.  Most who try argue, as the Twins have, that either the settlement was too indefinite to have resulted in a meeting of the minds or that the agreement was the product of fraud.  With regard to the agreement itself, there is typically a “presumption of enforceability” followed by a review of whether the terms are “sufficiently certain.”  As to fraud, Ninth Circuit courts require a showing of a duty plus a level of misconduct that “substantially impeded” the movant’s ability to act.  No easy feat.

One issue specific to the Facebook litigation is the Twins’ novel claim that the settlement should be unwound because Facebook committed securities fraud during the mediation.  The argument is that Facebook was guilty of insider trading in the mediation process because it failed to volunteer all the information it had regarding the valuation of the company.  Ultimately, the Twins relied upon their own research, namely a Microsoft press release, in coming up with a $36 per share value.  They claim that Facebook withheld information that would have disclosed a value closer to $9 per share.  The Twins claim that had they know that information, they would never have settled for so few shares.   

The securities claim will hinge on whether the Twins properly pled a securities claim and on whether Facebook had a duty to volunteer any information bearing on the value of the stock.  One wonders, for example, why such a duty would arise in the course of mediating such contentious litigation.  Oh, and there is the matter of the release signed by the Twins absolving Facebook for “any future fraud claim.”

For those interested in researching cases regarding settlement agreements, I ran a WestSearch on WestlawNext in the Ninth Circuit across all content sets for the following: enforce settlement agreement.  The result yielded the most relevant Ninth Circuit opinions on the topic including:

Callie v. Near , 829 F.2d 888 and William Keeton Enterprises, Inc. v. A All American Strip-O-Rama, Inc., 74 F.3d 178.

A click on secondary sources revealed several articles directly on point including:

 “Reviewing Agreements Reached During Mediation,” a chapter in Cole’s Mediation Law treatise. (MEDIATION § 4:13); and

“Disputing Irony: A Systematic Look at Litigation About Mediation,” a detailed Harvard Negotiation Law Review Article.  (11 Harv. Negot. L. Rev. 43)

A more directed boolean terms and connectors search might look something like:

((settlement mediation /4 agreement) /20 enforc!) and fraud! (sufficiently /4 certain definite) and (fail! +3 disclose) (withhold withheld +3 information)

For those interested in the outcome of the Ninth circuit decision in Facebook, set up a Docket Track in the DOCK-CTA9 for docket number 09-15021.  When the decision is filed, you will be e-mailed an alert. 

Other briefing of interest in this case:

Brief of Appellant/Cross-Appellee Facebook – 2010 WL 5625003

Brief of Appellee ConnectU (the Twins) – 2010 WL 5625005

Appellant’s Reply Brief – 2010 WL 562004

The U.S. Court of Appeals for the D.C. Circuit recently affirmed the contempt conviction of a defendant who directed an obscenity at a judge during a sentencing hearing.  The opinion is available on Westlaw at 2010 WL 5299865.  If you click that link, you’ll notice that the title of the case is In re Sealed Case because, naturally, the case has been sealed.  This brings to mind a research problem I’ve encountered a few times.

We often get calls from individuals looking for a specific case about which they have limited information.  Perhaps the most frequent such call is from a person who knows the name of at least one party, but may not know the citation, jurisdiction, or date of the opinion.  The easiest method to find such a case is to perform a party-name search using the Title field.  For example, if you know that one party’s name is Smith and the opinion was issued by a judge in the Federal District Court for the District of Minnesota, you can run a search in the DCTMN database for ti(smith).  However, if the case you’re looking for has been sealed, that search will not return it, because Smith’s name will not appear in the case title.  You may be thinking, “if the case is sealed, how would I know any of the parties’ names to try that search in the first place?”  For every sealed case, there are likely numerous individuals who are aware of the names of the parties.  If you are one of those people, or asked to find the case by one of those people, your first instinct will likely be to search by the parties’ names.

Given the possibility of a case being sealed, it might be worth running a search using information other than the parties’ names when the case you’re looking for cannot be found via a party-name search.  For example, knowing the defendant’s name would do us no good in finding the sealed case linked above, but a search in the CTADC database for contempt /s obscen! vulgar! will retrieve the case.

It is relatively rare that this will happen (a search in ALLCASES for ti(sealed) returns only about 500 documents, not all of which are sealed cases), but I have had at least a couple calls in which we have discovered, after several failed party-name searches, that the case we were looking for had been sealed.

Another day, another blizzard.  The northeastern United States is recovering after 20 to 30 inches of snow fell over the weekend.  The storm has severely disrupted transportation throughout the region, rendering highways impassable and stranding subway riders in New York City.  Like thousands of others attempting to fly to or from a city in the Upper Midwest during our own snow-filled weekend of December 11-12, I ended up stranded in an airport (in my case the Detroit Metro Airport) due to flight cancellations.  During the extra 24 hours I spent in Detroit, I had ample opportunity to think about possible legal issues surrounding such a situation.

Obviously, airlines include language in their ticket purchase agreements releasing them from liability for cancellations or delays.  I wanted to check, though, to see if any resourceful litigants had found ways around those exculpatory clauses.

I tried a WestlawNext search in All State and Federal Jurisdictions for: liability for flight delay or cancellation (for Westlaw.com users, try an ALLCASES search for delay! cancel! /5 plane airplane flight /s liab! or sy,di(delay! cancel! /5 plane airplane flight /p liab! breach!), which should retrieve some comparable results).  A number of the results involve plaintiffs asserting tort claims, e.g., intentional infliction of emotional distress, to circumvent the bar placed by the contractual language.  Those claims generally found little success, with one court writing:

Plaintiff must establish both the existence and the violation of a duty owed to her by Defendant to establish liability in tort. . . It appears that Plaintiff does not complain of any duty of care owed by Defendant separate and apart from the Conditions of Carriage. . .  Even if Plaintiff’s allegations could be construed as a duty separate and apart from the contract, Defendant had no duty to provide Plaintiff with a stress-free flight environment.  Ray v. American Airlines, Inc., 2009 WL 921124 (W.D. Ark. Apr. 2, 2009).

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Some of you may be following the case of John Edward Green, in which he and his attorneys have challenged the constitutionality of the Texas death penalty.  Click here and here for some background information on the case.  The case took a new turn Tuesday, as the Texas Court of Criminal Appeals ordered that a hearing to determine the death penalty’s constitutionality be stayed and that the parties brief the issue for the Court.

Prior to the ruling, the hearing had proceeded for two days.  Instead of responding to the defense’s  evidence, the State of Texas made the decision to “stand mute,” (not present evidence) during the hearing.  I must admit that the State’s choice to stand mute came as a surprise to me, and it is something that I can’t say I’ve encountered before.

Black’s Law Dictionary, 9th Edition (BLACKS on WL) gives two definitions for “stand mute.”  The first refers to a criminal defendant’s refusal to enter a plea.  The second states: “. . . to raise no objections.”  So, would the State’s choice to stand mute affect an appeal in this case?  It is probably a safe assumption that the state would appeal an order declaring the death penalty unconstitutional.  Given the general rule that an objection or argument not raised in a lower court is waived (for a statement of the Texas rule, see Penry v. State, 903 S.W.2d 715, 729 (Tex. Crim. App. 1995)), would the state be unable to defend the statute’s constitutionality on appeal?

I ran searches on the issue in both Westlaw.com (stand! stood /3 mute! /s appeal! appell! /s waiv! in TX-CS) and WestlawNext (waiving appeal by standing mute, choosing Texas as the jurisdiction).  Many of the results dealt with issues such as a criminal defendant standing mute in lieu of entering a plea or plea agreements that called for the prosecution to stand mute during sentencing.  One case that came up in both search results seems to address the issue:

When the verdict was rendered by the jury, the trial court asked both the State and appellant if they had any questions as to the verdict. Both said that they did not. Because appellant stood mute, i.e. made no objection to the verdict when it was rendered, he waived the error about which he now complains.  Finch v. State, 2003 WL 22909180 (Tex. App. Dec. 10, 2003).

Regardless of the answer, it may not matter in this case.  The Court of Criminal Appeals may ultimately prevent the hearing from continuing.  Also, there is quite a lot of history in this case regarding the death penalty issue.  In fact, the judge issued an order in March declaring the death penalty unconstitutional, only to later rescind the order and schedule the current hearing.  Thus, it is likely that the State has already put forth arguments that it could renew on appeal.

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[Editor's Note: this is article is part of a brief series dedicated to fact-specific and pre-trial research frustrations]

Strolling past the John B. West commons here in Eagan, I wonder,  is that his real name?  Sinclair Lewis’ Babbit (another Minnesotan)  used to say, “I may not be any Rockefeller or James J. Shakespeare, but I certainly do know my own mind, and I do keep right on plugging along in the office….”  In fact, John B. is his real name. The “B” is for Briggs.  Check out Robert Jarvis’ profile in the American Journal of Legal History (50 AMJLH 1)

Early in the twentieth century, John B. West developed the topic and KeyNumber System – a digest of American law. Some have challenged the Digest’s relevancy — it’s “literary warrant”  — for the digital age.  Even William Patry, a West author, relegated it to the “crassest form of cattle branding.”  According to Professor Peter Schanck, attorneys  “tend to concentrate more on the facts … than on abstract doctrines. In so doing, they prefer searching descriptive word indexes over topical analyses, and they search the indexes as much for factual terms as for legal concepts.”   (See Peter Custer citing Schanck at 102 LLIBJ 251.) Really? In fact,  Custer noted that his research indicates “an overall preference for using both descriptive word indexes and topical analysis followed by a lesser preference for using the descriptive word index alone, with only a small number preferring to just search using topical analysis.

Well, I may not be any John B. West but I certainly do know my own mind.  I’m a big fan of William Patry but I use the Digest every day.  Ultimately, I think the combined method described by Custer is preferred by Reference Attorneys who know the Digest well.  Many times, searching the topic as it relates to specific facts is critical. But, I wouldn’t give up the Digest.

Consider copyright fair use.  The elements of fair use are well known and easy to cite. But, according to Patry, “Fair use is an issue that is decidedly not capable of generalized application. Fair use is, as the U.S. Supreme Court and the Congress have repeatedly noted, highly “fact-specific,” to be adjudicated only on a “case-by-case basis”” (PATRYFAIR 7:5).  It makes sense, then, for Patry to organize his chapter on the fair use of life stories by case:

• Toksvig v. Bruce Publishing
• Eisenschiml v. Fawcett Publications
• Greenbie v. Noble
• Holdredge v. Knight Publishing
• Rosemont Enterprises. v. Random House
• Estate of Hemingway v. Random House
• Meeropol v. Nizer
• Rokeach v. Avco Embassy Pictures
• Iowa Sate Univeristy Research Foundation v. American Broadcasting Co.
• Salinger v. Random House
• New Era Publications Int’l ApS v. Henry Hold & Co.
• Wright v. Warner Books
• Norse v. Henry Holt & Co.
• Nash v. CBS
• Elvis Presley Enterprises v. Passport Video

The following search for the same subject matter on Westlaw delivers 50 results:

Federal Intellectual Property Law Cases (Copyright): fipc-cs

Initial Search: biography /s fair-use (50 Results)

I have little doubt that most, if not all of Patry’s cases are in the result set or cited within cases of this result set.  But, is reviewing all 50 cases the most efficient means for isolating the important cases?  Instead, try using the topic number for copyrights like this:

Locate: to(99) /p biography /s fair use (19 Results)

The results begin to look more like Patry’s contents.  Patry described the KeyNumbers as insipidly generic. Generic? In this case, maybe, especially in the way we’re using them. It’s an extraordinarily simple edit.  I wouldn’t say, ‘insipid’,’ however.  How might you measure the value of reducing your result set from 50 to 19? The 19 results do not replicate Patry’s list exactly but it very likely represents a shorter path to the important case law on this topic. WestlawNext fares even better.  The Digest is now working behind the scenes as part of WestlawNext’s WestSearch.  Our search for

copyright fair use in biography or life story

delivered all but three of Patry’s cases directly in the result list.

Finally, in keeping with our theme for the week, let’s also consider pre-trial discovery issues.  Discovery is another area where many of our customers require fact-specific results. Quite often, the answer is, there is no answer.  Or, rather, we necessarily resolve ourselves to, ‘is it likely to lead to the discovery of admissible evidence?’  Or, ‘is it unduly burdensome?’ But, what if you’re investigating the burdensomeness of a particular item? Maybe you wouldn’t want to miss a case with your facts.  So, try these searches with topic-number related roots and fact-specific terms:

State Discovery / Procedure: to(307) /p meta-data

Federal Discovery / Procedure: to(170A) /p meta-data

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