Case law — the record of judicial opinions that all lawyers rely on — increasingly lives in the “cloud.”
The cloud consists of data and services that live on someone else’s servers. Although the term itself is new(ish), the basic idea is embodied by traditional legal research services like LexisNexis and Westlaw — data lives on someone else’s servers, not your own. Thus, someone else controls the data, not you. And someone else can delete or modify the data, and you’d never know…
It’s one thing to have to contend with Supreme Courts, like California, that have the power to “depublish” an opinion that helps your case and making it worthless as far as precedent is concerned. But to my knowledge, those cases are still on the books, and binding on the parties to the litigation that created the opinion. It’s an entirely different problem when a court can ask a publisher to take down an opinion previously published, and the publisher does it. In fact, the publisher has apparently been doing it for years. Maybe you knew about it, but I didn’t.
via Dear Publisher, Please Stop Deleting Case Law | Jason Wilson | Law Publishers.
This is the sort of thing that has always given librarians heart attacks — to the extent that one librarian I knew years ago attempted to print out every Web site she ever accessed and stored them in file cabinets. A bit extreme? Yes, but the point was that she could control it once it was in print: the data couldn’t disappear, change, etc.
I don’t have the solution to this conundrum — cloud services make too much sense to fight — but the downsides are expensive, too. What to do, what to do?
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cloud supporter,
There are indeed potential technical solutions. Many libraries try to capture journal publications by their institutions in repositories to keep an archive outside of the journal alone. The U.S. government has even gotten into this by requiring NIH-funded research to be stored on their system (PubMed) as well as on the systems of private publishers. The Wayback Machine at archive.org is also a good resource.
Still, paper had the benefit of built in massive mirroring: once published, it was difficult to impossible to obliterate a publication (whether that was case law or not). Electronic publication does not have that same in-built defense (although data still tends to stick around electronically anyway).
I'm not sure a gov't solution is best, or even if we need a solution at all -- but it is unsettling to see the biggest repositories of case law quietly remove a case with no trace remaining on their systems at all.
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