Thursday, July 17, 2014

Don't Stop at the Stop Sign

New ImageThis post could be subtitled: Misadventures in Legal Research.  

Anyhow, a mildly amusing Case of the Disappearing Opinion.  The case, Foglia v. Renal Ventures Mgmt., LLC, is to be found at 2014 U.S. App. LEXIS 10549.  It's not an uninteresting decision in any event -- adopting the "nuanced" branch of the circuit split on pleading a False Claims Act case -- but that's not the point of the present posting.

The opinion is dated June 6, 2014 but has a Lexis stop sign to the left, suggesting a BIG PROBLEM. Clicking the "subsequent history" link takes one to an order, dated June 10th, stating:

It is hereby ORDERED that the Opinion filed on June 6, 2014 is vacated and an amended opinion shall be filed simultaneously with this Order. The revised opinion does not alter the June 6, 2014 judgment.

So far so good, except that there is no opinion dated June 10th and filed simultaneously with the order. 

With the June 6th opinion vacated, and nothing substituted, Foglia, which was intended to be a precedential opinion, has in effect disappeared from Lexis.

Not to worry. Further sleuthing (entailing the assistance of two colleagues and two research assistants) determined that the June 6th opinion posted on Lexis was in fact the amended opinion referred to in the June 10th order.  So all's well but for the stop sign.

A call to Lexis, hopefully, set the wheels in motion to correct that problem. Apparently, Westlaw simply posted the amended opinion, so there was no confusion there. 

If you're wondering, the reason for the amendment was the misidentification of one of the circuits in the split -- a single word change.

There are a few lessons to be learned from this:

1. Researchers should be wary of stop signs.

2. Courts maybe shoudn't simply swap out opinions -- any problem would have been obviated if the amended opinion had been dated June 10th.

3.  Law professors have an awful lot of time on their hands in the summer.


Thanks to my colleagues Ed Hartnett and Michael Risinger and my RAs John Dumnich and Angela Raleigh for their help.

UPDATE, July 18: I received a very gracious call today from Lexis but the bottom line is that the red stop sign remains in place. Even though the caller acknowledged that the opinion that one is cautioned to beware of is actually an uncriticized, precedential opinion.  The effect will be to mislead anyone researching on Lexis, but apparently that's OK. This has gone from being mildly amusing to being frustrating.

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In this instance, the Third Circuit did what it said it was doing on June 10, 2014. Namely, it filed an amended version of the June 6 decision along with its order vacating the earlier version. The failure exposed by this post is a lapse in the editorial systems at LexisNexis.
Several sites harvest all Court of Appeals decisions as released and, as a consequence, hold both versions of the Foglia decision. To see and compare them go to either or
For more on the general topic of opinion revision, see

Posted by: Peter W. Martin | Jun 22, 2015 6:04:26 AM

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