The following\u00a0year the court\u00a0adopted a local “citation format” rule<\/a>. \u00a0That rule directs those\u00a0citing decisions released after January 1, 2000 and published at the court site to do so “using the four-digit year in which the opinion is issued, the letters ‘DNH,’ [and] the three-digit opinion number located below the docket number on the right side of the case caption ….” \u00a0For decisions published in “the Federal Supplement, the Federal Rules Service, or the Federal Rules Decisions” the rule authorizes volume and page number citations to those print reporters\u00a0as an alternative.<\/p>\n This took place well before the E-Government Act of 2002<\/a> called upon federal courts to provide web-access to “all written opinions.” \u00a0While\u00a0this island of non-print-based citation has escaped the notice of The Bluebook<\/em>, the 2001 local rule remains in effect and the practice continues<\/a>. \u00a0McFadden v. Walmart<\/em>, 2017 DNH 002<\/a>, was decided on January 5 of this year. \u00a0The district’s judges themselves do still, on occasion, cite using opinion numbers. \u00a0See, e.g., Hersey v. Colvin<\/em>, 2016 DNH 203, 10<\/a>\u00a0(citing\u00a0 Corson v. Soc. Sec’y Admin., Comm’r<\/em>, 2013 DNH 144, 24\u201325<\/a>). \u00a0So do \u00a0attorneys. \u00a0The New Hampshire Bar Association publishes a monthly\u00a0“US District Court Decision Listing”<\/a> that contains\u00a0summaries of selected decisions of the prior month. \u00a0The decisions covered are cited\u00a0by their “medium neutral” or “public domain” opinion numbers.<\/p>\n Since the court-attached opinion\u00a0numbers appear within the texts they identify, researchers need no other citation to retrieve a decision\u00a0from any electronic\u00a0source. \u00a0They do the job\u00a0on Bloomberg Law, Casetext, Google Scholar, Lexis Advance, Ravel Law, and WestlawNext. \u00a0They also work with\u00a0the GPO’s FDsys case law repository<\/a>\u00a0(about which more below). \u00a0For the same reason these sources also provide the opinion number required for a conforming\u00a0District of New Hampshire citation.<\/p>\n Although\u00a0nearly all legal research services retain the opinion numbers attached by the U.S. District Court for New Hampshire, only Casetext, Fdsys, and the court’s own database preserve the location of the page breaks in the original version of a\u00a0decision that the court’s\u00a0rule directs be used for pinpoint citations. Arkansas and Louisiana, two state systems that, similarly, adopted neutral citation but sought to avoid paragraph numbering by specifying the pagination in a court-released pdf file as the basis for pinpoint references, have suffered the same fate in research services that, like Google Scholar, base their texts for many jurisdictions on the versions published in\u00a0the Thomson Reuters National Reporter System. \u00a0Not only are paragraph numbers more precise and more tightly connected to the logical structure of a cited document than pagination, they\u00a0travel far more reliably with the portions of text they denote into the full range of\u00a0data services used by those doing legal research.<\/p>\n Not all decisions rendered by District of New Hampshire judges receive court-applied opinion numbers, only selected ones. \u00a0In compliance with the E-Government Act of 2002 all written opinions of the court, including reports and recommendations by magistrate judges,\u00a0are made available without charge through the PACER system, where they can be gathered by the online services. \u00a0A non-trivial number of those opinions\u00a0\u2013 ten percent or more \u2013 have\u00a0not been given opinion numbers nor placed in the court’s searchable database. \u00a0That is particularly true with categories of cases such as inmate suits and Social Security appeals that are routinely resolved\u00a0by a magistrate’s report and recommendation, followed by a short judicial order adopting it. \u00a0As a result, a significant body of district case law cannot be found in the court’s searchable database nor cited by means of opinion numbers. \u00a0Because of this incompleteness, responsible\u00a0case law research cannot be carried out using the court’s database. \u00a0Thoroughness\u00a0requires use of one of the comprehensive research services. \u00a0 And that leads to citations by the court of its own prior decisions that employ Westlaw or\u00a0Lexis proprietary cites rather than, or in parallel with, the court’s public domain, medium neutral scheme.<\/p>\n The situation in the District of New Hampshire is categorically\u00a0different from that in the numerous states that have adopted similar plans of electronic publication and court-applied citation. \u00a0Matters litigated in state court can often be argued and decided solely on the basis of that state’s own case law. \u00a0By contrast, rarely if ever can those representing parties to a matter before the U.S. District Court for the District of New Hampshire or\u00a0the judge\u00a0handling the case disregard\u00a0decisions from the First Circuit and other U.S. Courts of Appeals and decisions\u00a0by other district courts as well. \u00a0For the district judge that calls for\u00a0use of one of the two commercial systems available to the federal judiciary; for attorneys, use of those same systems or some comparably comprehensive alternative. \u00a0The court’s less-than-complete database of decisions may, conceivably, be a useful place to start research but never a place to finish it. \u00a0Thorough research and consistent citations of relevant decisions lead almost inexorably to the use of one or more of the proprietary systems. \u00a0With this district’s judges the dominant system is Westlaw. \u00a0Their pinpoint cites\u00a0to unpublished decisions, including those in citations to cases that have court-applied opinion numbers, overwhelmingly use Westlaw pagination instead of\u00a0the page numbers contained in\u00a0the court’s original version. \u00a0The citations to Mudge v. Bank of Am., N.A.<\/em><\/a>,\u00a0Gasparik v. Fed. Nat\u2019l Mortg. Ass\u2019n<\/em><\/a>, and Dionne v. Fed. Nat\u2019l Mortg. Ass\u2019n<\/em><\/a> in LaFratta v. Select Portfolio Servicing, Inc.<\/em>, 2017 DNH 007<\/a>, as released by the court, are examples. \u00a0LaFratta<\/em> and other recent decisions reveal a declining use of the court’s opinion numbers and a growing practice of linking citations to authority of all kinds into Westlaw.<\/p>\n Since 1994 decisions of the U.S. Court of Appeals for the Sixth Circuit, both published and unpublished, have carried a “file name” identifier<\/a>. \u00a0Designed to fit within the name space of the MS-DOS operating system of that era those identifiers consist of eight characters, followed by a period, followed by two more. \u00a0The file name of one unpublished decision<\/a> released in January 2016 is “16a0051n.06”. \u00a0Miller v. Comm’r of Soc. Sec., 811 F.3d 825<\/a> (6th Cir. 2016) decided the same month is: “16a0020p.06”. \u00a0(The “n” and “p” indicate whether the decision is to be published or not.) \u00a0While Lexis retains these identifiers, they don’t follow opinions into volumes of F.3d or Westlaw. \u00a0As seems gradually to be happening with the District of New Hampshire opinion numbers, the Sixth Circuit file names have become useless data.<\/p>\n Effective January 1, 1996, the Supreme Court of South Dakota began attaching medium neutral citations<\/a> and paragraph numbers to its opinions. \u00a0The practice continues; the court’s rules of appellate procedure still\u00a0require use of this public domain citation system<\/a>. \u00a0Later in that year,\u00a0by local rule the U.S. District Court for the District of South Dakota<\/a>\u00a0laid down the same steps. \u00a0Even at the time not all of the district’s judges bought into the change. \u00a0With the appointment of a new chief judge in 1999\u00a0who was not an enthusiast, the system continued in the opinions of only one of three active district judges and a\u00a0magistrate judge. \u00a0When the district judge in question\u00a0took senior status in 2008, all trace of the scheme disappeared.<\/p>\n In 1996 the American Bar Association House of Delegates recommended that all U.S. jurisdictions “adopt a system for official citation to case reports that is equally effective for printed case <\/a>reports and for case reports electronically published<\/a>.” \u00a0The resolution proceeded\u00a0to spell out the key elements of such a\u00a0system: 1) attachment\u00a0of identifiers to all decisions, consisting of the year, the court, and a sequential decision number, 2) insertion of\u00a0paragraph numbers, and 3) adoption of court rules requiring that citations employ these elements. \u00a0In response the Automation Committee of the Judicial Conference of the\u00a0United States and the Administrative Office of the\u00a0Courts simply surveyed federal judges and clerks regarding the ABA citation recommendation. \u00a0Without asking the Federal Judicial Center for a study or furnishing rationale or context, it simply asked all these individual actors whether they favored the steps. \u00a0Overwhelmingly they expressed\u00a0satisfaction with the status quo, hostility\u00a0to paragraph numbering, and puzzlement over\u00a0the grounds for change.<\/a> \u00a0The recommendation died in committee and has not since been revived.<\/p>\n The E-Government Act of 2002, in a\u00a0section immediately prior to the one\u00a0addressing\u00a0the federal courts, \u00a0directed the creation of and authorized appropriations for an integrated online information system<\/a>\u00a0covering\u00a0all federal administrative agencies. \u00a0That portal was to be designed to allow public access to agency material “integrated according to function or topic rather than separated according to the boundaries of agency jurisdiction.” \u00a0In contrast, reflecting the highly decentralized administrative structure of the federal courts, the act’s directive\u00a0that all federal court opinions be made accessible\u00a0online was directed at the chief judge or justice of each and every court in the federal system. \u00a0A more coordinated approach might have drawn attention to the citation issue.<\/p>\n Similarly, the reform movement that led to the addition of Rule 32.1 of the Federal Rules of Appellate Procedure<\/a> in 2006 might\u00a0well have focused\u00a0attention on\u00a0how the “unpublished” decisions of the U.S. Courts of Appeals, which by the\u00a0terms of the new rule became citable, could or should be cited. \u00a0Its sponsor, the Advisory Committee on the Federal Rules of Appellate Procedure, heard concerns about how those for whom Lexis and Westlaw were beyond reach would access to this large body of case law. \u00a0Ignoring the citation challenge the committee pointed to the E-Government Act’s mandate as addressing the problem<\/a>.<\/p>\n The strategic appearance of the West\u00a0Federal Appendix<\/em>\u00a0in 2001<\/a>, which furnished the means for proprietary volume and page number citation for these “unpublished”\u00a0decisions to members of the federal judiciary (all of whom have access to Westlaw) almost certainly encouraged this blindness.<\/p>\n Federal court electronic case management systems trace all the way back to applications developed by the Federal Judicial Center in the late 1960s<\/a>. \u00a0Those established the fundamental structural model that persists to this day: central development of a set of electronic tools, with most decisions about whether, when, or how to use them left to the\u00a0individual courts. \u00a0It is probably significant\u00a0that, having its own administrative and technical support, the U.S. Supreme Court has taken no part\u00a0in promoting or coordinating technology adoption in the subordinate\u00a0federal courts. \u00a0In 1990 Congress catalyzed the opening of existing court-located case and document management systems for remote electronic access<\/a>.\u00a0 At the time that meant dial-up. \u00a0The move to electronic filing began in 1995. \u00a0At around the same time the Administrative Office of the U.S. Courts began work on a national party and case number index to the electronic records of the federal courts that had implemented its\u00a0CM\/ECF system. \u00a0For many federal courts this Public Access to Court Electronic\u00a0Records<\/a> service (PACER) subsequently became the mechanism for compliance with the E-Government Act’s mandate. \u00a0While access to other documents through PACER carries a fee, all documents tagged by the deciding court as “opinions” can be retrieved without charge. \u00a0However, PACER provides\u00a0no full-text index of those opinions. \u00a0They can only be\u00a0tracked down using docket number, party names, court, and case\u00a0type.<\/p>\n As filed in a\u00a0court’s CM\/ECF system an opinion is\u00a0stamped with identifiers that consist solely of case\u00a0docket number, filing date, and the document’s\u00a0place in the sequence of filings in the matter \u2013 “Case 1:15-cv-00200-LM Document 5\u00a0Filed 11\/17\/15” for example. \u00a0A uniform federal court citation system could have been appended to this system, either initially or in the\u00a0“next generation” version now being rolled out. \u00a0It was not.<\/p>\n In recent years\u00a0the Government Printing Office Federal Digital System (FDsys) has begun\u00a0drawing opinions from participating federal courts and loading them into a text-searchable database. \u00a0Following a pilot phase, the Judicial Conference of the United States authorized<\/a> national implementation\u00a0of this inter-branch cooperative venture in September 2012. \u00a0Over four years later, it remains seriously incomplete in scope; only 49 out of 94 districts courts are included. \u00a0Furthermore, among included courts, the chronological depth and currency of the data vary considerably. \u00a0And while GPO authenticates each\u00a0PDF file it receives from a participating\u00a0court system and\u00a0associates a useful array of metadata<\/a> with it, it has not, as it could, attached an identifier that a lawyer or judge would recognize as a citation. \u00a0To date, this is simply\u00a0another more\u00a0missed opportunity.<\/p>\n At the beginning of 2017, the prospects of a system-wide citation scheme modeled on that launched in New Hampshire at the turn of the century appear dim.<\/p>\n As noted above, this one district court still attaches\u00a0medium-neutral citations to many, although not all, of its decisions. \u00a0Whether one obtains such a\u00a0decision from the court’s database or a commercial source, its\u00a0opinion number is available and, when included in a citation, it furnishes a highly efficient retrieval identifier. \u00a0Decisions that have been given a place in F. Supp.<\/em> or F.R.D.<\/em>\u00a0can be retrieved by volume and page number from nearly all research services. \u00a0Adding the opinion number as a parallel adds negligible value. \u00a0For “unpublished decisions” whether or not, given an opinion number, Westlaw or Lexis citations may suffice\u00a0for the court, its judges having access to both. \u00a0But limiting a citation to one or the other or even both in parallel may leave the opposing party and others who might rely on Google Scholar or Casetext or Ravel without an efficient retrieval hook. \u00a0Pincites pose a further problem. \u00a0Lexis includes Westlaw cites for unpublished cases but not Westlaw pagination. \u00a0Westlaw ignores both Lexis cites and Lexis pagination.<\/p>\n![\"\"](\"https:\/\/citeblog.access-to-law.com\/wp-content\/uploads\/2017\/01\/dnh.jpg\")
<\/a><\/p>\nIII. Critical\u00a0Respects in Which the\u00a0Model Falls Short<\/h2>\n
A. The\u00a0Use of\u00a0Pagination as the Means for Pinpoint Citation<\/h3>\n
B. A\u00a0Failure\u00a0to Include All Substantive Opinions (Including Magistrates’ Reports and Recommendations)<\/h3>\n
C. Inherent Limits on\u00a0a Single-District Citation System within\u00a0a Federal Court with 93 Other Districts<\/h3>\n
IV. The Sorry Fate of Other Single-Court Citation Schemes\u00a0within the Federal Judiciary<\/h2>\n
A.\u00a0The Sixth Circuit’s Ancient DOS-Based Naming Scheme<\/h3>\n
B. The Relatively Brief\u00a0Run of Neutral Citation in the District of South Dakota<\/h3>\n
V. Missed Opportunities to Implement Non-Print-Based, Non-Proprietary Citation\u00a0across the\u00a0Federal Courts<\/h2>\n
A. The Judicial Conference Response to the 1996 ABA Resolution<\/h3>\n
B. Terms of the E-Government Act’s Mandate<\/h3>\n
C. Addition of Rule 32.1 to the Federal Rules of Appellate Procedure<\/h3>\n
D. Implementation of the Federal CM\/ECF System, its PACER overlay, and the\u00a0Fdsys Decision Archive<\/h3>\n
VI.\u00a0How Should Decisions of the U.S. District Court for the District of New Hampshire Be Cited?<\/h2>\n