ARCHIVAL RESEARCH

Author(s): DON MACLEOD

Source: Litigation , Summer 2014, Vol. 40, No. 4, At the Crossroads (Summer 2014), pp.
18-20
Published by: American Bar Association

Stable URL: https://www.jstor.org/stable/44678096

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Litigation

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 This vast electronic archive stores a

mind-blowing 398 billion web pages in

its servers as part of its effort to create

¡Witness what it calls "a digital library of Internet

sites and other cultural artifacts in digi-

ARCHIVAL RESEARCH tal form." Best of all, it's free. With a few
clicks, you can travel to the web's past and
see the digital evolution unfold, year by
year.

When using the Wayback Machine,

keep one important caveat in mind. Even
though the parent company recognizes
the value of its archive for litigation, it
is a nonprofit organization with no in-
DON MACLEOD
house legal staff. And because Internet
Archive is no deep-pocketed Google, it
The author is the manager of knowledge management for Debevoise & Plimpton LLP in New York and the
tries not to become embroiled in legal
author of How to Find Out Anything (Prentice Hall Press, 2012).
disputes. The site explicitly states, "The
Wayback Machine tool was not designed
for legal use." Nevertheless, the organi-
zation does try, however reluctantly, to
accommodate legal requests. It provides
a standard affidavit for use in proceed-
ings and outlines the fees for notarizing
the affidavit, as well as the limitations
lawyers should know how to win- for its use, in the frequently asked ques-
smart past."
"The past is never dead. It's not even
William Faulkner wrote that in his 1950 now out useful nuggets from a variety oftions. Still, Internet Archive encourages
book Requiem for a Nun , but he may asinteresting websites, free and commercial.lawyers to rely on stipulation and judicial
well have been writing it today about the notice as ways of providing archival ma-
Internet. When most of us think of the terials to the courts without burdening
online world, we think of its characteris-The Wayback Machine them with unnecessary costs.
tic immediacy: ephemeral tweets, dispos-When it comes to looking at the web's
able pictures on Instagram, and up-to-past, the place to start is the Wayback
the-second text messages. What doesn'tMachine (http://archive.org/web), a Google's Cache
come to mind, though, is that the web is search tool from the nonprofit organiza-Not every look into the past requires
actually a giant archive because, in thetion Internet Archive. The idea behind digging up years of old information.
Sometimes, merely seeing a page in a
electronic world, nothing is ever trulythe Wayback Machine is perfectly simple.
deleted permanently. state before it was edited- that is, be-
It takes a periodic snapshot of the web-
For researchers, the web's value as yes, the whole, publicly available web,
fore embarrassing information was re-
an immense collection of times past in all its messy glory- and then allowsmoved or an incriminating statement was
scrubbed- will do. And that is a job for
outweighs its usefulness as a conduit anyone who cares to catch a glimpse of
of current information. For litigators inwhat a website looked like at some time the Google "cached" feature.
particular, this online attic represents a in the past. Just plug in a URL, such as As most everyone knows, Google peri-
odically dispatches its crawler software
largely overlooked resource for turning www.whitehouse.gov, and the Wayback
up factual information. In fact, the web isMachine will produce a clickable calen-
to swallow the Internet whole. When you
run a Google search, you get a list contain-
a library of stored intelligence on peopledar to show the dates on which it snagged
and companies, products and ideas, andthat website's close-up. ing the websites and pages from Google's
a terrific place to learn the backstory on The Wayback Machine is like a family latest crawl. That way, your Google
any imaginable subject. Digging up thephoto album for websites; it shows how search is fresh and timely. It is interest-
past often sheds light on the present, andthe pages have changed over the years.
ing, though, that Google also lets you see

18 LITIGATION

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what the page looked like before Google of record" is indeed an indispensable re- travel to visit physical repositories in re-
last visited it. The cached feature is ac- pository of news, but it is merely one ofmote towns and then spend tedious hours
cessible by running an ordinary Google
hundreds of newspapers that can be elec-trolling paper or microfilmed contents.
search and then clicking the dropdown
tronically winnowed for useful facts. And searchable PDFs have transformed

arrow that appears next to the URL. WhyIn addition to the Times , try the sub-archival research into a faster and neater
might this be useful? Well, in instances
scription website Newspapers.com. It pro-process; litigators should avail themselves
vides access to more than 3,000 Americanof these superb resources. It takes some
where you bump up against the dreaded
404 error ("page not found"), the cached
newspapers, dating from the 1700s to the effort, yes, but mining for gems, literal or
feature may be able to reconstruct what
2000s. Unlimited access is $79.95 a year. figurative, is always a challengingbusiness.
was on a page before the content disap-
Diligent researchers should also refer to For the well-heeled litigator, the gold
peared. Surprising information may still
the Library of Congress's guide to news- standard for searching the news of the past
paper archives to discover where to find is a Nexis password. The Nexis collection
be within reach, even though it no longer
exists on the current web. repositories of local newspapers. These serves up more than 30 years of full-text
A quick point of illustration. Some smaller publications can shine a light on news from thousands of newspapers, mag-
years ago, the Department of Homeland past disputes, help locate heirs, or trace azines, wire services, and public relations
Security issued a confidential report on family members. Even the local Tribune sources. It's pricey but thorough, and in
planning for terrorist attacks to state can provide the type of details that once the hands of a skilled librarian or frequent
agencies responsible for responding to were accessible only to those willing tosearcher, Nexis can find that proverbial
the hypothetical events. The report was
inadvertently posted to a state govern-
ment website in Hawaii and then taken

down once the agency realized that it

should not have been posted. But an en-
terprising journalist caught wind of the
report, Googled it, and, as expected, saw
that the report had been removed. The
Google cache still had the copy of the re-
port, and the reporter had a scoop. The
cached feature is a backdoor shortcut to

yesterday's information.
Another untapped resource is online
media databases. The cliché that today's
newspaper is the first draft of history is
put to the test with the advent of online
newspaper archives. These archives are
no longer the musty "morgue" of clips
that reporters once rifled through while
fleshing out a story; instead, immense
databases of daily news now provide
immediate access to facts, names, busi-
ness trivia, and the day-to-day minutiae
of newsworthy events. The New York
Times alone, which makes all of its edi-
torial content fully searchable from 1851
on, represents a triumph of search tech-
nology. Like the reporter of old who nosed
out useful facts from clips in file cabi-
nets, today's litigator looking for insight
could do worse than to search the Times

archives. The self-proclaimed "newspaper

VOL 40 I NO 4 I SUMMER 2014 Illustration by Tim Foley 19

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needle in a haystack that might clinch a content aggregator for the results of the But Hein delivers on legal archives, too.
key point in your argument. rounding up they've already done. The Available by subscription or at your lo-
Moving on- the U.S. Census Bureau's first way is cheaper, but it's time-consum- cal law library, Hein cooks up a smorgas-
compilation of statistical information ing. A confirmed do-it-yourselfer could bord of old legal materials, including the
adds to the variety of online reserves. sleuth her way to an extensive dossier of complete texts of early federal codes and
Its decennial headcount doesn't merely information on individuals and organiza- U.S. Statutes at Large, antique American
tot up the number of people living in the tions by sifting through myriad databases case law, and, for the rules-ravenous, the
50 states of the Union. It also pulls to- for everything from political contribu- complete Code of Federal Regulations
gether a vivid statistical portrait of the tions at the Federal Elections Commission from 1938 to present. Also look to Hein
nation. There are many ways to search to real estate records at the local record- for the Federal Register from volume 1. If
the Census Bureau's site, but the most er's office. You will spare yourself time you still need to appease the legal scholar
useful is the American FactFinder. The and aggravation, though, by paying to see lurking inside your mind, there's always
FactFinder is designed to search dozens
the digestible package of public records Hein's "Legal Classics Library" to scratch
from content aggregators like Lexis's your intellectual itch. When your practice
of data points from the most current cen-
sus and compare them with trends fromPeople Finder or the web-based vendor demands that you reconstruct the legal
Intelius. These companies do the legwork ecosphere from the Eisenhower years,
previous years. Search by demographic
for you by harvesting the interesting data HeinOnline should be your first stop on
characteristics, economic data, housing
from county, state, and federal agencies your trip down legal memory lane.
numbers, and other official numbers. The
results will offer statistical insight aboutand then offering the results of their work No compilation of online archival in-
communities across the country concern- formation would be complete without a
ing wages, occupations, political districts, reminder that Google Books rescues ink-
and a host of other factual scenarios that and-paper damsels from the clutches of
crop up during litigation.
All of life's major dusty library shelves, by e-printing mil-

activities leave a trail lions of out-of-print and out-of-circula-

tion book titles. Your law firm library
Public Records
probably doesn't have a copy of the 1766
But what about more individualized or
that once was paper edition of Blackstone's Commentaries on

personalized information? "Skip tracing" but now is electronic. the Laws of England sitting on the shelf,
used to be a job for hard-boiled investiga- but no matter: Google Books scanned the
tors in hard-soiled trench coats. Now that copy held in Munich's Staatsbibliothek
public records flood the Internet, digging for a fee. Access restrictions to the data to make it as readily accessible and
up information on individuals has never apply, and you will need a legitimate searchable as this month's issue of the
been easier. Yes, some of the most inter- reason for looking at personal records.American Lawyer.
esting and sensitive information about an But whether you slog through the files The depth of archival materials on
individual will require a court order or yourself or rely on a commercial service the web cannot be overstated. Historical
a search warrant, but enough personal to put its finger on an individual's latest information comprises the vast majority
data are hiding in plain sight to make on- address- or real estate assets or pilot's of the web's content. The sites outlined
line searches for public records worth the license or incarceration record or bank- here are only a small selection of resourc-
time and effort. ruptcy filing- you will be looking throughes to help you look backward. The con-
As individuals live their lives, they the same collection of records. scientious researcher should have little

sign contracts, get into trouble, buy The long look backward is not just problem digging up the recent past. As
houses, and obtain licenses to conduct a the province of services like Google or Faulkner said, the past isn't even past.
business or a profession. All of life's ma- public records research. Smart litiga- With so much older information still
jor activities leave a trail that once was tors who need to see the text of federal floating around the Internet, that's truer
paper but now is electronic. Background statutes from the past have a superb re- than ever.
checks, criminal records, and social me- source in the widely available U.S. Code Happy hunting! ■
dia searches are all part of a person's pub- archive from the redoubtable legal pub-
licly available curriculum vitae. lisher William S. Hein. Its web service,
There are two ways to round up pub- HeinOnline, is best known for its com-
lic records data: do it yourself or pay a prehensive collection of law reviews.

20 LITIGATION

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