NewsFlash: Westlaw is Fallible!
Like many lawyers, I rely heavily on Westlaw and other electronic databases for research. So I was disturbed to discover that Westlaw had failed to note some pretty important developments in a case I had been litigating — omissions that may have affected the way other courts view the issue.
The case is Peoples v. CCA, which I have discussed in a previous post. My petition for rehearing en banc was granted on December 22, 2005, but Westlaw failed to note that information in either a yellow flag or in the history link. I called Westlaw to report that problem as soon as I noticed it in late January, and Westlaw fixed it quickly by attaching a yellow flag to the case and noting that en banc review had been granted. In the meantime, however, the Fourth Circuit had already cited to the panel opinion as supporting its view of the issue, apparently unaware that the Tenth Circuit had agreed to rehear the case en banc. (Though in fairness I do not believe that information would have changed the Fourth Circuit’s mind).
Then the en banc court issued a per curiam opinion in which it affirmed the district court by an evenly divided vote, which vacated the panel opinion. Westlaw has failed to note this change in the panel opinion’s status, despite the two telephone calls I have already made reporting this problem. And courts continue to cite the panel opinion as if it is good law.
No system of recording cases and their histories is failsafe, and I think that Westlaw and Lexis both do a pretty good job most of the time. I certainly don’t have a better system to propose. But this citation error makes me realize how heavily we all rely on electronic databases for our information about case law, and how one mistaken citation can affect a rapidly developing area of the law.