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Harsh Realities, Questionable Ethics and the Proliferation of Litigation in Legal Information Provision

Whether or not there is truth in the rumours that upstart, Harvey, has been keen to acquire the much-admired vLex, it was interesting to read the analysis by Isha Marathe, of Legaltech News, on the topic, as reported via legal market heroes, House of Butter.

The HoB report concludes, “If Harvey wants to make true on the third item in its tech offerings—workflow automation; an AI assistant, and legal research—it’s going to have to find the data. The story of Harvey and vLex underscores the market barriers to a startup becoming a substantial legal research mainstay in an industry where quality case law is being stockpiled by a few major companies.”

As court cases, based on alleged misuse of content, proliferate, a recent one being CanLII v. Caseway, this seems to me to be a critical area of concern, not just for the businesses in question but more generally around both the established providers and those who want some of the action, in other words, “the haves and the have nots” of valuable, deep and research-based legal information. Among the cases being litigated of late, claims and counterclaims have been flying in every direction, while, at the same time, we witness mergers and content licensing agreements to allow the information-weak to derive some benefit from those who have worked and invested to achieve their information strength, occasionally over centuries. I am bound to wonder, however, if anyone thinks that this should indeed be a simple, inexpensive and deserved challenge to overcome. While not pretending to have any expertise on questions of copyright, especially across multiple legal jurisdictions, I suspect it is reasonably safe to generalise that access to primary statutory content and the texts of decided cases is, at most, a matter of drudgery, but more so of cost and expertise, for those who want to source it. This content is normally, at base, in the public domain, making it low in added-value. The high value is added by intelligence, context, integration, annotations and commentary, as well as headnotes to reported cases; in other words, that which competent, established and successful law publishers have been doing for hundreds of years. Now delivered in modern-day media, the books, journals, law reports and bodies of regularly updated, annotated and cross-referenced statutory materials remain the treasure troves of legal research, litigation support, offering the ability of practising lawyers and others to do their jobs and make claims to expertise and professionalism. Much of the rest, perhaps depending, to a degree, on jurisdictional practice requirements is, arguably, froth. If this is the case, on the basis that most challenges can be overcome by throwing money at them, then there is no reason why those who want it cannot acquire it in one way or another from the so-called stockpilers; the assumption should be that every business and asset is for sale at the right price. However, there is also no reason to think that it can be done cheaply, easily or in ways that might breach competition laws in any jurisdiction in question. Even so, the best content and indeed power and resources, tend to be held by those at the very top of the pyramid; others below them, however visible and attractive themselves, rely on others for licences to content that they can only dream of owning. Licenses, contractually granted, can be similarly withdrawn, leaving some licensee providers, curators and aggregators weak and vulnerable.

By the relevant metrics, it would seem that Thomson Reuters, RELX/Lexis Nexis and the more significant among their competitors have been doing, mostly, all the right things and can probably remain as market leaders for so long as it suits them. That is even though, having regard to Lexis+ AI, their product quality, if allegations are to be believed, would seem to be distinctly sub-optimal, but not sufficiently so as to prevent Lexis Nexis from securing a long-term contract with the US Federal Judiciary; the recent negative comments about the product in question have been challenged by Lexis Nexis (see, however, Mastering AI Prompts for Legal Professionals Practical Strategies and Tools).

These front runners set many of the standards, are copied and are looked upon enviably by the self-styled, yet ever-envious disrupters below them, who are often desperately keen to be acquired by them. At the same time, when it comes to setting good examples and maintaining the highest behavioural standards, the market leaders, depending on how one chooses to view them, can look remarkably grubby and low-rent.

Recently, disturbing reports were published about RELX/Lexis Nexis’s tactics and ways of dealing with its recognised trade union members at Law360. Perhaps only because the members took strike action, the dispute was settled, but subsequent news might indicate the true beliefs of the Lexis Nexis management as they have unilaterally derecognised the National Union of Journalists (of which I am a member) in their businesses in the British Isles. This was, conveniently, just ahead of their decision to close RELX’s Estates Gazette magazine and information service. No doubt, some will think these to be examples of fine management, in the latter case, just before the December holidays, yet to give a boost to 2024 director bonuses and to their 2025 budgets, but I hope that many of their customers and even shareholders will believe the opposite. They will note, however, that RELX’s lofty statements about its caring for its people, as published on its web site, chooses to omit its preference to drive out union membership among them. If only the rhetoric were matched by action, to dispel any accusations of hypocrisy.

These signs of the times, some might worry, will be emboldened by the turn of political events and prevalent toxic attitudes in the USA and elsewhere. Indeed, as they seem to have taken to making up rules and standards as they go along, they might not have much use for a system of laws there at all, from now on. The corrupt, criminal and fascist governments which are on the increase in many parts of the world ought to be, in my view, obvious enemies of those who respect the rule of law and good government, supported by responsible and ethical law publishing, however much some of the publishers and their customers might profit from those régimes. A lesson which I learned from law publishing was that it was not our role to express opinion or give advice, leaving that to professional advisers, but merely to ensure accuracy, expertise and relevance. I hope that this remains the mantra.

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