The Legal Intelligencer (Law.com) reports:
The confidential settlement in Klein v. Amtrak — a case in which two trespassing teenagers climbed atop a parked train car and suffered serious burns when they got too close to a 12,000-volt catenary wire — included an unusual provision that called for the trial judge to vacate all of his published opinions and have them removed from Lexis and Westlaw….
A few months after holding an hourlong oral argument, the 3rd U.S. Circuit Court of Appeals agreed in late July to remand the case to the trial judge, U.S. District Judge Lawrence F. Stengel, who, in turn, agreed to vacate eight of his published opinions and to “direct” Lexis and Westlaw to remove them from their databases….
[A] spokeswoman for Westlaw[] said Stengel’s request to remove the opinions would “absolutely” be honored, and that any instance in which a judge vacates a published opinion automatically leads to its withdrawal from Westlaw’s database.
Calls to Lexis were not returned by press time.
It seems to me that it would be very helpful for scholars to have these opinions available somewhere, even if lawyers might find them less useful because they were withdrawn. I’ve therefore downloaded several of them and placed them here:
[UPDATE: Maxwell S. Kennerly (Litigation & Trial) links to most of these, plus two Oct. 2, 2006 orders and an Oct. 10, 2006 order, but not the Feb. 9, 2006 and Jul. 13, 2006 orders. Thanks to commenter Mike& for the pointer. I had also originally linked to a Dec. 16, 2005 document, but as commenter troll_dc2 pointed out, that was a motion for summary judgment with a proposed order, so I’ve removed it from the list.]
Of course, it would be best if they were stored somewhere where they could more easily be found. Perhaps it might be some central repository for such documents that professors, students, and lawyers will know to search when they’re looking for such things. Or perhaps if such deletion of opinions proves to be quite rare, some journal will want to publish these, so that the opinions will be findable using Lexis and Westlaw law review article queries even if not the case law queries. Or perhaps someone else is already providing copies of the opinions, in which case I’ll happily link to those copies [UPDATE: I’ve done this, having learned of Litigation & Trial’s post]. So I’d love to hear others’ suggestions about what should be done in cases such as this.
(By the way, even district court opinions that haven’t been withdrawn are generally only persuasive precedent, not binding precedent; and an opinion withdrawn pursuant to a settlement shouldn’t lose any of its persuasive force. But I expect that most judges would still decline to pay attention to an opinion that the authoring judge has vacated, which is why I think the opinions are probably mostly useful for scholars, not for practitioners.)
Many thanks to Kevin Gerson of the UCLA Law Library for his help.