Using Discovery to Build a Record
In a trial, “the record” is the formal recording of the legal events in the courtroom. It will include transcripts of witness testimony and examination, attachments covering other exhibits admitted into evidence, motions and objections made by the parties or the judge, the judge’s ruling on those motions and objections, the judge’s instructions to the jury if one is empanelled, the facts as found by the fact finder (either the judge or the jury), and the verdict as reported. A good record– one that accurately represents the proof presented and motions and objections made– is nearly as important to a litigant as the trial outcome. In a system that does not permit the introduction of new information after the close of trial (with rare exception), the record contains the only basis for reversal or modification of an unfavorable trial verdict on appeal.
While much is made of the importance of lodging objections and preserving arguments in the record for appeal, the development of the record begins with discovery, the time near the beginning of the trial when parties must produce documents and other information in response to an opposing party’s request for production. Especially in corporate litigation, discovery still can look like rooms full of boxes full of paper. In this context, the focus today increasingly is on e-discovery, and consulting firms that help companies manage their electronic data in the legal discovery context have begun to crop up. Many volumes of scholarship study the discovery process, critique it, and suggest reforms to a legal regime often thought of as unduly cumbersome, costly, and inefficient. The simple idea for the purposes of this post, however, is that our legal system has a discovery process through which parties build a common pool of available information that will allow them to resolve their dispute.
Information is important to the broader public discourse as well, as previously noted. See supra (discussing the availability of judicial decisions). Everything from scholarly books and articles to literature and artwork of all forms to newspapers, radio programs, websites, and encyclopedias can be a source of this information. In recent years, one such source of information has risen in global popularity. Wikipedia, a free, online “encyclopedia,” claims to be “one of the five most visited websites in the world.” The numerous entries present a wide range of coverage and quality, and anyone can edit the entries. See generally this series of posts on the nuances of Wikipedia’s editing culture. Of course, some think this free-ranging malleability renders worthless (or at least suspect) any serious use of the site’s content. (Even if one thought citation to Wikipedia in a formal work was appropriate based on the quality of Wikipedia content, it is still inappropriate under the notion that there is no need to cite to general knowledge, which is usually found in sources like traditional encyclopedias.) The site’s popularity, however, would seem to be a testament to its usefulness to the public, at least in some minimal capacity.
A recent visit to the main English language page revealed that the site is currently running a fundraising campaign. As of today, they represent that they’ve collected $1.4 million on their way to a $7.5 million goal.
When deciding whether to fund– individually or collectively– collective information, both quality and usefulness are relevant factors to consider. More directly, the question this post presents is, “Is Wikipedia worth preserving?” This is a question about informational needs, accessibility, value analysis, free riders, and a host of other things. To spur discussion, respond to the poll in this post. Feel free to explain your vote or offer other thoughts in the comment section, below.