I recently learned about Esq.Me, a legal document marketplace site that allows attorneys to purchase and sell legal documents. Documents for sale include simple documents, like affidavits of service, as well as more complex documents, like appellate briefs. Esq.Me joins other existing legal document marketplaces sites like Lawyers Help Lawyers, as well as defunct marketplace sites like StandardForms, Example Motion, and My Law Docs. These legal document marketplace sites seek to fill a niche needed by small firms and solo attorneys. Small firms and solo attorneys may not be able to afford to subscribe to a version of Westlaw or LexisNexis that would give them access to blank forms or templates. They do not have a network of other attorneys who might be able to provide them with templates. They may find the prices charged by legal forms vendors, like Blumberg, to be costly, or they might need something, like a specific memorandum of law, that cannot be easily acquired.
While legal document marketplace sites serve a purpose, they also open the door to other problems. An attorney purchasing something even as simple as an affidavit of service has no way to know, without conducting additional research or using their own knowledge, that this affidavit is correct in form and in substance. While affidavits of service are less complex, legal document marketplace sites also offer more complicated legal documents, like memorandum of law or affirmations, for purchase. An attorney purchasing one of these documents does not know outright (without conducting additional research) whether or not the motion supported by the memorandum or affirmation was successful. If an attorney decides to conduct this additional research, they may discover after the fact that the documents he or she paid for are freely available as e-filed documents.
One unexpected benefit of e-filing is that it allows attorneys to freely access legal documents from other law firms, including some of the largest and most prestigious law firms in the world. In addition to this, these lawyers can also find out if a document they have decided to purchase, such as a complaint, was dismissed due to a technicality, or if the case itself proceeded to trial. If an attorney downloads a legal document, like a pleading, and discovers that the case was dismissed, the attorney can look at the entire case to find out why and apply the lessons to her own future filings. While sites like PACER charge a fee to search and download documents, in states like New York, which have mandatory e-filing for a number of different types of cases, cases and legal documents can be viewed and downloaded free of charge.
However, attorneys using e-filed documents as templates need to be careful. Documents like briefs and pleadings are subject to copyright protection. In Newegg Inc. v. Ezra Sutton, P.A., Newegg, Inc. and another party were defendants in a patent infringement lawsuit. Ezra Sutton, P.A., represented Newegg’s codefendant. Newegg provided Ezra Sutton, P.A. with a copy of an appellate brief it was going to file, appealing denial of attorney’s fees. Newegg’s co-defendant was also seeking to appeal the denial of attorney’s fees. Without Newegg’s permission, and after having expressly promised not to circulate this draft brief, Ezra Sutton, P.A. filed an appellate brief with United States Court of Appeals for the Federal Circuit that was substantially similar to the brief it had been provided by Newegg. Newegg sued Ezra Sutton, P.A. for copyright infringement, and later moved for summary judgment, while Ezra Sutton, P.A. attempted to raise fair use as a defense. The court granted summary judgment on Newegg’s copyright infringement claim. The court determined that Ezra Sutton, P.A. did not meet its burden in demonstrating fair use in part because Ezra Sutton, P.A. copied most of Newegg’s brief without making any major changes. This was particularly important as both Ezra Sutton, P.A. and Newegg were appealing the same decision based on similar facts.
To the contrary in White v. W. Pub. Corp., the Southern District of New York found that when Lexis and Westlaw offered an attorney’s templates for download, this qualified as fair use because, in part while the attorney “created the briefs solely for the purpose of providing legal services to his clients and securing specific legal outcomes in the Beer litigation, the defendants used the brief toward the end of creating an interactive legal research tool.”
Similarly, if an attorney authorizes another attorney to use a pleading, and later revokes that authorization, the attorney who uses the pleading in the same litigation cannot be found liable for copyright infringement. In Unclaimed Prop. Recovery Serv., Inc. v Kaplan, the Court of Appeals for the Second Circuit affirmed dismissal of copyright infringement action holding that an attorney (and copyright holder) who provided authorization to another attorney to use a pleading in the context of a litigation “will be construed to encompass the authorization, irrevocable throughout the duration of the litigation, not only to the expressly authorized party but to all parties to the litigation and to the court, to use the document for appropriate purposes in the conduct of the litigation.” In Unclaimed Property Recovery Services, Inc., the plaintiffs (an attorney and its client) had provided authorization to the defendant (an attorney) to use a complaint, but claimed that the defendant infringed on the complaint after the plaintiff withdrew authorization for the defendant to use the complaint, and when the defendant filed an amended complaint that was substantially similar to the first complaint.
Thus if an attorney decides to use an e filed pleading as a template, this attorney must be wary to avoid copyright infringement by either obtaining authorization from the drafting attorney or making sure that the use qualifies as “fair use.” Even if an attorney decides to purchase a legal template from a legal template marketplace site, prior to purchasing the template, this attorney can also use e-filing to conduct research to determine if it is worth purchasing the template. With the expansion of e-filing, attorneys have free access to different types of legal documents from different jurisdictions. While remaining mindful of copyright law, attorneys can use e-filing as a valuable research and reference tool.