WE, THE ASSOCIATION OFNew Hampshire Law Librarians, are writing to express our concern over the current state of legal publishing as it affects New Hampshire.

We represent librarians from major New Hampshire law firms, Franklin Pierce Law Center, the New Hampshire Law Library and Rivier College. Our responsibilities include assisting a wide variety of legal professionals and lay people in the use of legal information resources, and consequently we take an active interest in the quality and accuracy of those resources.

In recent years, the legal publishing field has become highly concentrated, with just a few major publishers, of which Lexis and West are the two most important, publishing most of the materials that attorneys need to use. This is a cause for concern everywhere, but may be especially serious for relatively small markets such as New Hampshire. With a small market and very little competition, what incentive is there for large, multinational publishing conglomerates such as Reed Elsevier (owner of Lexis Publishing) and Thomson & Thomson (owner of West Group) to devote significant resources to keeping New Hampshire legal materials current and accurate?

This has already become more than a theoretical concern. We're starting to see inaccuracies and incomplete information in important, widely used materials. Some recent examples are:

Moore's Federal Practice: Federal Rules of Civil Procedure, Rule 26 has been amended, effective 12/1/2000. An attorney writing an explanation of the changes asked for a redlined copy of the new rule, and was first given a copy printed from the US Courts' Web site, (H.Doc 106-228, Amendments to Federal Rules of Civil Procedure http://www.uscourts.gov/rules/approved.htm), then found a redlined copy in Moore's Federal Practice. The two versions did not match, and the version in Moore's was not correct.

New Hampshire Court Rules Annotated: The U.S. District Court Local Rules in the 2000-2001 edition of this popular and important resource are two years out of date, the rules that were in effect in 1998. Notice to librarians of the error came not from Lexis, but from the librarian at the U.S. District Court, after the clerk of the court reported receiving incorrect filings from attorneys relying on NH Court Rules Annotated. A phone call to the area Lexis sales representative elicited the information that a replacement edition will be shipped, but there has still been no notice of the problem from Lexis to its customers.

Lexis Publishing Law on Disc for New Hampshire and New Hampshire Revised Statutes Annotated 2000 pocket parts, as published by Lexis: Annotations and history for the last three years have been omitted, with no indication of the omissions. To cite the example that first called this problem to our attention, although the text of NH RSA 151:21, as published on the CD, is correct, the listed history reflects only amendments through 1992, although there were amendments in 1997 and 1998, which are accurately reflected in Lexis' online product. The same problem exists in the 2000 pocket parts that Lexis shipped last month. While this is not as bad as the text itself being wrong, the missing history is still seriously, and potentially dangerously, misleading.

Closely related to the missing history are the annotations that were in the 1999 pocket parts, which have been removed. Two examples of the many missing annotations are NH RSA 47:17 and NH RSA 49-B:2. For 47:17 (Bylaws and Ordinances), the 1999 Cumulative Supplement cites Casico, Inc. v. City of Manchester, (1997) 142 N.H. 312, 702 A.2d 302. This is missing from the annotations in the 2000 Cumulative Supplement. For 49-B:2 (Home Rule - Municipal Charters), Appeal of Barry (1998) 143 N.H. 161, 720 A.2d 977 is cited under both Construction and Charter Amendments in the 1999 Cumulative Supplement, but in the 2000 Cumulative Supplement, it is cited only under Construction.

Lexis says that these omissions are due to copyright considerations. The state of New Hampshire is the owner of the copyright on the annotations for the last three years, and only the official publisher, which is now West Group, can print the annotations that were written for the state during that period. The copyright concerns appear to be valid, but why were the annotations not rewritten to avoid the problem, or at least a note included indicating that annotations were removed and referring the reader to other sources? Why is this being interpreted by Lexis to apply to the mere factual listing of years and amendments, which would appear to be beyond the reach of copyright?

We don't know whether or not Lexis could have rewritten all the annotations in time for inclusion in the 2000 pocket parts. We do know that, if the annotations could not be included this year, a note warning users of the omissions was both possible and necessary. The absence of the annotations and of any warning that annotations were omitted makes the Lexis print and CD editions of the NH RSAs very risky products to rely on.

All of these problems relate to Lexis products. However, we believe it would be wise for lawyers, librarians and legal researchers to take a broader warning from this, and to exercise caution and check multiple sources wherever practical. With competition in legal publishing dropped to a minimum and New Hampshire such a small market, we cannot count on competition to keep the remaining publishers careful and accurate. We must all exercise care in using, recommending and relying on legal publications, whichever publisher produces them.

The letter was signed by seven officers and members of the Association of New Hampshire Law Librarians (association titles in parentheses): Christine Swan (president), Librarian, NH Supreme Court Law Library; Mary Burbank (vice president), Librarian, Sulloway & Hollis, P.A.; Elisabeth Carey (membership coordinator), Librarian, Orr & Reno P.A.; Frances W. Rodier (treasurer), Librarian, Hamblett & Kerrigan, P.A.; Rebecca Gerlack (secretary), Assistant Librarian, Sulloway & Hollis, P.A.; Kathleen D. Fletcher (past president), Librarian, Wiggin & Nourie, P.A., Elizabeth Swan (member), Librarian, Devine, Millimet & Branch.

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