Re: Public Domain Cite...West

From: Alan Sugarman (sugarman@hyperlaw.com)
Date: 04/19/95

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On April 19, Michael Trittipo responded to John Lederer's message which
related to my message of April 18. Both are copied below.

West denied the request for admission, as shown below. The rules are quite
clear -- if a the request may be denied with qualification, West was so
required to include such in its response. It did not do so.

With reference to Mr. Trittipo comments, I refer to Rule 36 of the Federal
Rules of Civil Procedure which states as to requests for admissions:

<BQ>
If objection is made, the reasons therefor shall be stated. The answer shall
specifically deny the matter or set forth in detail the reasons why the
answering party cannot truthfully admit or deny the matter. A denial shall
fairly meet the substance of the requested admission, and when good faith
requires that a party qualify an answer or deny only a part of the matter of
which an admission is requested, the party shall specify so much of it as is
true and qualify or deny the remainder.
</BQ>

I also note that Trittipo did not explain his curious deletion from the quote
he extracted from the West brief to the Wisconsin Supreme Court. See below.

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
Alan D. Sugarman Federal Appeals on Disc tm CD-ROM
President Opinions of US Court of Appeals
1993 to Date - All Circuits
HyperLaw, Inc. ®
P.O. Box 1176
New York, NY 10023
sugarman@hyperlaw.com 212-787-2811 212-496-4138(fax)
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

On Wed, 19 Apr 1995 Michael A. Trittipo, of West main outside counsel said:
<---- Begin Included Message ---->
On April 17, 1995, John Lederer noted my quote of the statement in West's
brief that "West Publishing does not object to other publishers using
initial citations to its case reports." Mr. Lederer then wrote that he had
read that in "NY [West] denied a reqquest for admission that otherpublishers
could use the first page cite."

That's not an accurate characterization of the NY request for admission. Due
to its wording, the request did not ask just for an admission "that other
publishers could use the first page cite." Take the following two questions:

"Do you object to my going to the store?"
"Do you object to my going to the store to shoot the owner?"

A "no" answer to the first as a general matter is not inconsistent with a
"yes" answer to the second. Given this fact, consider a demand to:

"Admit that you don't object to my going to the store for any purpose."

It might mean either "Admit that there are at least some purposes for which
you don't object to my going to the store," or "Admit that there are no
possible purposes as to which you would object to my going to the store."

A request thus framed is likely to be denied. This was the form of the
request at issue.
<---- End Included Message ---->

Following is the April 18, 1995, message from Alan Sugarman to which Lederer
was referring:

Mr. Trittipo, there you go again. Let us look at the full quotations in the
West supplemental brief, and the bracketed material which indicates the words
Mr. Trittipo chose to delete:

West Publishing does not object to other
publishers using initial citations to its case
reports--the volume number, the West reporter
designation, and the first page number of the
case report. It has stated that position
repeatedly and <-- contrary to the suggestion of
one of West's critics, Alan Sugarman, in his
letter to the Court--> consistently in deposition
testimony, in the briefs it has submitted in
federal copyright cases, and in its statements
to this Court on March 21. <Since> West has no
objection to the use of initial citations to its
case reports, even by its competitors <, those
initial citations are effectively "in the public
domain.>"

Now, West has now decided that just maybe it is not such a good idea to say
that "<, those
initial citations are effectively 'in the public domain.>', so, since it is
Monday, I guess West decided "let us just take out those few words".

In addition, no one from West et al has tried to explain what West meant in
this answer to the Bender Request for Admissions:

REQUEST FOR ADMISSION NO. 10:
West does not object to anyone, including
Matthew Bender, using First Page Citations for
any purpose.
WEST RESPONSE:
Denied.

Of course, West said it "in deposition testimony, in the briefs it has
submitted in federal copyright cases, and in its statements
to this Court " ... nothing was said about requests for admissions.

So, this is the explanation: