To: Bob Berring
We have communicated a number of times this week off the=20
list concerning your 1992 letter to Congressman Hughes of=20
the House Judiciary Committee concerning citation=20
requirement in state and federal court rules. On Sunday,=20
you said that you were on sabbatical and would not be able=20
to look at your papers until Wednesday and you asked that I=20
give you an opportunity to review those papers. Yesterday,=20
I sent another message to you, but you have not responded. =20
This is Thursday.
I had pointed out to you that your letter:
*Ignored the rules of thirty-one states including all of=20
the largest states, because you had ignored the=20
requirements in states with official reporters.
*Ignored the Individual Rules and Practices of the eight=20
hundred or more federal district court judges.
*Miscounted in a material manner the number of federal=20
district courts with specific rules requiring West=20
citations.
I provided to you an excerpt that appears in the Hearing=20
transcript published by the Committee (available to all=20
librarians on this list who are at depository libraries, I=20
assume -- H.R. 4426, May 15,1992, Serial No. 105, ISBN 0-16-
040799-0.):
MR. FRANK
Would the gentleman [Mr. Ramstad?] yield. I want to be=20
very precise because this is, to me, an important=20
point. You said there are only=20
[page 163]
three States, one district court, and one circuit that=20
require =93and take seriously=94 -- are there some that=20
require and don=92t take seriously? I don=92t mean to be=20
picky, but ---
MR. BERRING
No -- well, there are some that --
MR FRANK
Let=92s forget =93take seriously.=94 Let=92s talk about require=20
or have a rule.
MR. BERRING
Just the ones I know of.
MR. FRANK
Would you submit a list of those?
MR. BERRING
I=92d be happy to.
I indicated to you that in my view your letter was not=20
responsive to Representative Frank=92s challenge to your claim=20
of only =93three states, one district court, and one circuit=94=20
because you chose to ignore states with official reporters.
Your letter has become an issue soley and only because it is=20
being featured prominently in the West public=20
relations/lobbying campaign, although West is well aware of=20
its deficiencies. For example, it was used by West at its=20
National Press Club press conference on October 19, 1994 and=20
was most recently posted on this list this week by Dorothy=20
Molstad, a top executive at West Publishing Company, who=20
runs their public relations. Yesterday, I received a=20
telephone call from a reporter of Forbes magazine who had=20
obtained a copy of your letter from West. In addition, your=20
letter was mentioned to me by investigators of the United=20
States Department of Justice Antitrust Division among=20
others. In all instances, the recipients had received the=20
letter from West.
The letter was also referred to by the attorney-lobbyists=20
for West at the October 19, 1994 TAP meeting, as proving=20
that few courts require West citations. No other authority=20
was provided by West. Indeed, your letter appears to be=20
Exhibit A with no other exhibits in the West lobbying/public=20
relations campaign. Had it not been for West, no doubt your=20
letter would have settled into obscurity.
At the TAP meeting, I challenged the West assertion on two=20
grounds: one, that the letter was limited in scope and=20
further that you prepared the letter as a consultant to=20
West. James Schatz, counsel for West emphatically said that=20
it was not prepared by you as a consultant for West. I will=20
deal with that issue last, but note, I was then attacked=20
publicly by a librarian from Minnesota for having besmirched=20
the reputation of a prominent law professor. I doubt very=20
much whether that librarian had read the transcript of the=20
hearing or focused on the substance of your letter.
In any event, I have sent to you on Sunday my analysis of=20
your letter. On Tuesday I sent you a draft of my letter to=20
Congressman Hughes. I have asked you whether you wish to=20
correct my analysis and whether you wish to comment on the=20
use of your letter by West. I would still wish to wait for=20
your comments, if you wish to provide any, before delivering=20
that letter and posting it on the list.
In the meantime, I would like to explain why I considered=20
you to have written this as a consultant for West. First,=20
the Hearing transcript identifies you as a consultant for=20
West, and such description was not challenged by Vance=20
Opperman, immediately after it was made:
[page 113]
"MR. FRANK:
We will take our final panel today: Mr. Vance Opperman,=20
who is a partner in the law firm of Opperman, Heins &=20
Paquin, and he=92s the lead counsel in West v. Mead. He=20
has been counsel to West=20
[page 114]
for 20 years or more. Accompanying Mr. Opperman will=20
be Ms. Donna Bergsgaard, who is the manager of West=20
Reporters & Digests section, and Robert Berring, who is=20
a consult (sic) to West and is the law librarian and=20
professor of law. They are our last panel. Oh I am=20
sorry, it=92s not the last panel.
=09All right, please go< Mr. Opperman, go ahead.
* * *
MR. OPPERMAN
Thank you, Mr. Frank. I have been properly identified. =20
I realize my full statement is in the record."
Second, I was at the hearing in May 1992. I personally paid=20
for my own expenses for travel and lodging to attend the=20
hearing. I seemed to recall some discussion concerning the=20
Subcommittee refusing to let you testify because it=20
considered you a consultant for West. Third, you had=20
testified as an expert witness for West at the 1988 West v.=20
Mead trial. Fourth, the letter itself was incomplete in a=20
way that favored the West position. So, it was reasonable=20
for me to view the letter as being done by you as a=20
consultant for West. If you wish, you can explain to the=20
list why the Subcommittee refused to let you testify at the=20
hearing. In addition, you have yet to answer my question as=20
to whether your letter was reviewed by West prior to your=20
submission of the letter to the Subcommittee.
Everything stated above was previously provided to you this=20
week. In any event, if you have any comments as to the=20
accuracy of this message or the letter that I drafted to=20
send to Congressman Hughes, and which I have sent to you,=20
please let me know.
As you know, I have attempted, without success, to permit=20
you to clarify the letter and the circumstances surrounding=20
it. I know that you are extremely popular among law=20
libarians. Indeed, it is my view that West believes that=20
any challenge to your letter will backfire because you are=20
so well liked, and, in my view, Dorothy Molstad posted your=20
letter on this list this week with the intent of forcing=20
someone to attack you. But, the issues are too important,=20
and West, which without a doubt knows the deficiencies of=20
your letter, has made your letter too central to its=20
argument to ignore it. Frankly, I am surprised that West=20
has pulled your letter from obscurity because they=20
undoubedly knew that it would be challenged, and, I wonder=20
if they considered the personal consequences.
Alan Sugarman
HyperLaw
sugarman@panix.com
212-873-1371
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