August 28, 2012
Legal research, like the rest of the world, has gone online. There are a few stragglers out there who prefer to go to the books for their statutes and cases, but for most, legal search engines such as Westlaw Classic and WestlawNext are the preferred tools for searching for precedents on a number of legal issues.
The recent controversy involving Julian Assange, the founder of Wikileaks, made me think of an interesting (albeit tangentially related) question regarding the internet and legal research. Even though lawyers, librarians, and other legal staff frequently use non-legal websites for leads or ideas on research, how accepting are courts of documents or materials from these types of websites?
The answer seems to be not very. I tried this search in All State and Federal materials on WestlawNext to see what courts are saying about relying on documents found on the internet, especially Wikipedia or Wikileaks.
ADV: (cite citation citable /p wikipedia wikileaks)
Most of the cases I found discussed citing to articles from Wikipedia. Here is what the Court of Federal Claims had to say about the subject in Campbell ex rel. Campbell v. Sec’y of Health & Human Services, 02-554 V, 2006 WL 445928 (Fed. Cl. Feb. 14, 2006):
A review of the Wikipedia website reveals a pervasive and, for our purposes, disturbing series of disclaimers, among them, that: (i) any given Wikipedia article “may be, at any given moment, in a bad state: for example it could be in the middle of a large edit or it could have been recently vandalized;” (ii) Wikipedia articles are “also subject to remarkable oversights and omissions;” (iii) “Wikipedia articles (or series of related articles) are liable to be incomplete in ways that would be less usual in a more tightly controlled reference work;” (iv) “[a]nother problem with a lot of content on Wikipedia is that many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written;” and (v) “many articles commence their lives as partisan drafts” and may be “caught up in a heavily unbalanced viewpoint.”
You can also look at Bing Shun Li v. Holder, 400 Fed. App’x 854 (5th Cir. 2010) andCrispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010) to get other courts’ similar views on citing to Wikipedia.
Despite the fact that many courts view this practice negatively, it is still frequently done. According to Courting Wikipedia, 44-APR JTLATRIAL 62, from 2005 to 2008, there were over 100 published opinions that cited to Wikipedia. There is also a whole host of law review articles that have been written about how to use Wikipedia for research and how it can be a useful tool, many of which can be found using the search I described above. So, maybe the tide is slowly changing when it comes to Wikipedia in the courtroom.
As for the more controversial Wikileaks, I didn’t see any cases talking about citing to materials from this source. However, I did find an interesting law review article that provided some guidance to law librarians on using this website as a source for material. That document can be found at:
James P. Kelly, Jr., Wikileaks: A Guide for American Law Librarians, 104 Law Libr. J. 245, 259 (2012)
I highly doubt the legal community is yet willing to embrace Wikileaks as a potential source based on what I read in this article. This, of course, is not surprising given the dubious nature of the documents Wikileaks contains and the questionable methods used by its creators to obtain documents deemed confidential. Nonetheless, as more and more information becomes accessible on the web, only time will tell what kinds of materials will be “acceptable” in the courtroom.
Other interesting articles include:
Diane Murley, In Defense of Wikipedia, 100 Law Libr. J. 593 (2008)
Sean Smith, The Case for Using, but Not Citing, Wikipedia, 42-DEC PROSC 31 (2008)
Lee F. Peoples, The Citation of Wikipedia in Judicial Opinions, 12 Yale J. L. & Tech. 1 (2010)