Filings in Legal Databases as Possible Source for Withdrawn State Court Opinions

We wanted to share as a tip the good fortune that might be had in a legal database’s collection of “Filings” when one is searching for withdrawn state court opinions.  In our scenario, citations in both WestlawNext (“WLN”) and LexisAdvance (“LA”) indicated that a particular state supreme court opinion had been withdrawn.  The WLN & LA results for the withdrawn opinion revealed only that the opinion had been substituted, but no longer contained the text for the withdrawn opinion.  However, with some deep digging into WLN’s “Filings” linked to the substituted opinion, we were able to find a PDF copy of the withdrawn opinion attached as an exhibit to a petition for review.  Often (and as was the case here) the HTML versions of these “Filings” lack referenced exhibits, but thank goodness for PDFs…particularly for these 25-year-old, pre-electronic-filing state court cases!

We hope you’re equally as lucky in gaining ready access to withdrawn state supreme court opinions!

Operation Asymptote – Spread the word – Download distributed PACER documents

Operation Asymptote

Overview

Operation Asymptote is an initiative designed to download as much of PACER as possible by spreading the burden across many individuals, none of whom need to spend anything by staying under PACER’s $15.00 per quarter free access allowance.

What do I need to do this?

  1. You must have five minutes.
  2. You must have a valid credit or debit card, even though it will not be charged.
  3. You must have a computer with internet access that can run Firefox.
  4. You must have a PACER account.
  5. You must have the free RECAP browser extension.
  6. You must download no more than $15.00 worth of PACER materials per calendar quarter.

. . .

Selling Others’ Briefs, Illustrated

To better illustrate some of the points made by Paul in his posting Selling others’ Briefs, Bryan L. Jarrett (our former student and now an associate at Jones Day) has given us permission to post two of the charts he created for his paper “Vending Appellate Briefs.”  (To recap, Bryan’s paper surveyed the practices of sixteen state jurisdictions and DC — the ten largest ABA jurisdictions (by membership size) and seven jurisdictions that did not supply copies of appellate briefs to commercial vendors.  The data was gathered in 2010.)

The first table (“Table I: The Ten Largest Jurisdictions”) displays five questions (for the jurisdictions of NY, CA, TX, FL, IL, DC, MA, OH, PA and NJ): do these jurisdictions provide appellate briefs online; do they have an arrangement with a vendor (Westlaw, Lexis) for the distribution of briefs; do these jurisdictions send appellate briefs directly to vendors; is the exchange of briefs quid pro quo; and have any attorneys objected.

The second table (“Table II: Jurisdictions that Do Not Supply Their Briefs to Vendors”) focuses on seven jurisdictions (NV, NH, NM, OK, VT, UT, and WY) and addresses the same questions as in Table I.

Selling others’ briefs

Following up on George’s post “A pair of lawyers . . . sue West and LexisNexis for reproducing their court filings,” I took a second look at a directed research paper a student did for me a couple of years ago on the subject of vending appellate briefs.  The student surveyed 17 jurisdictions — 10 that provide briefs to vendors and 7 that do not.

One of the interesting take-aways from the student’s paper is the wide variety in means by which vendors have obtained briefs.  Some states have made various arrangements with vendors; others refuse to do so.  For a very few states there is a distinct quid pro quo. Past practices will change, though, as the vendors are increasingly just pulling from posted copies; unless a court rules against such a practice it will only accelerate.

California and Pennsylvania, of the surveyed jurisdictions, both have quid pro quo arrangements.  For example, in California, the state Supreme Court used to send copies of the briefs to certain public law libraries but stopped the practice when it made a deal with Court Records Service (later acquired by West Publishing) whereby the court receives microfiche copies in return for providing the briefs.

Massachusetts has what seems like an odd arrangement whereby briefs are scanned once at the Clerk’s Office, then sent to Westlaw, where they are scanned again and later returned.

To write the paper the student called librarians, court clerks, reporters of decisions, and the vendors.  None of the surveyed court staff members reported any attorney dissatisfaction with the practice of providing briefs to the vendors.  And in one state, the Reporter of Decisions speculated that attorneys actually liked “the free advertising.”  And many clerks were surprised that this has become an issue at all since the documents are public records.

Yes, they are public records but that doesn’t mean they are in the public domain.  Yet who wins if a court rules that Westlaw and LexisNexis are infringing authors’ copyright?  My student thinks that the attorney authors are really the only winners (if they receive royalties) and most of them have already received substantial compensation for writing these briefs and all other players (the courts, the public) are losers.   I hope that in the spirit of pro bono most attorneys will continue to make their appellate briefs available to all the world and not press ownership claims (with perhaps some sort of opt-out provision for the rare instances when, for privacy or other sensitive concerns, certain briefs should not be published).   It would also be a better world if LexisNexis and Westlaw could also take responsible pro bono actions here, as suggested by Ed Connor and not profit from the work product of those in the private sector.

Here’s the cite to my student’s paper:  Bryan Jarrett, Vending Appellate Briefs: The practice, its future, and implications if found illegal.   Submitted October 30, 2010.

Abstract:

This paper analyzes the collection and sale of appellate briefs.  It presents the findings of a survey of seventeen jurisdictions.  The paper discusses how Westlaw and LexisNexis access the briefs, whether they have structured mutually beneficial agreements with the courts that provide the briefs, whether attorneys commonly object to the sale of their briefs, the likely future of the industry, and the potential policy implications of a successful legal challenge to the industry’s practices.

PACER Training Pilot Project Begins in July

PACER Training Pilot Project Begins in July
June 17, 2011

A pilot project aimed at having public libraries enhance the public’s knowledge and use of the federal judiciary’s Public Access to Court Electronic Records (PACER) service begins July 1, 2011.

Two libraries – the Library of Congress in the District of Columbia and the Law Library for San Bernadino, California – will kick off the pilot, but up to 50 additional public libraries may join them in future months.

PACER allows users to obtain case information from federal courts without having to visit the courthouse. The service allows an Internet user to request information about a particular case or party, and makes the data immediately available for printing or downloading at a cost of 8 cents per page.

In the pilot project, libraries will conduct at least one training class for the general public every three months, and offer training or refresher opportunities for library staff at least one a year. Those staff members, in turn, may assist library patrons in the use of PACER. For participating libraries, the first $50 of PACER use fees each quarter will be waived.

The pilot is a joint undertaking of the Administrative Office of the United States Courts, the Government Printing Office, and the American Association of Law Libraries.

The Existential Exercise of Finding State Court Materials Online

Recently, we’ve had the opportunity to explore the online availability of state superior court filings, both through commercial retrieval services (such as Lexis’ CourtLink or Westlaw’s CourtExpress), and the superior courts’ own websites.  Sites like Justia are also incredible resources for obtaining select trial court documents, but our project instead examined more standardized provision of dockets and filings.

Having wrapped up this undertaking, we thought it would be useful to share our reflections.  First, a quick caveat about what this project did not involve. We were not comprehensively indexing document availability in every U.S. county, or even in all fifty states.  Rather, we examined selected states and counties, based mainly on population size.  In addition, though we are aware of various existing studies and compilations documenting the availability of state court records, we wanted to look behind some of these reports.  As we often found, a commercial retrieval service’s representation that the “civil filings are available” did not mean all filings on all matters.  Moreover, in a world of ever-changing court websites and eFiling programs, existing studies unfortunately have a somewhat limited shelf life.

So, with those disclaimers in mind, we are excited to share how floored we were by the disparities in the online provision of state court dockets and pleadings!  Here are a couple of observations:

I.          Commercial Services (e.g. CourtLink and CourtExpress)

  • Sometimes, one can get little for one’s money.  The commercial services’ promotional materials are sometimes misleading if you want to retrieve filings.  For instance, their coverage charts could indicate that dockets from Shawnee County, Kansas are available, but one can’t actually retrieve the dockets online; they are “available” only in the sense that one can make a request online (and pay additional money) to have a runner pull them from the court.
  • Another drawback was the infrequency with which commercial services updated their state trial court dockets.  Even if one clicks a button to manually update a docket, this does nothing if one is attempting to do so within the long stretches between docket captures.  (Commercial services capture docket snapshots only every 45 or 60 days, meaning that even if one tries updating in an intervening period, one really isn’t getting any newly-added information.)
  • We also found that, while commercial services often capture federal dockets and filings from PACER indiscriminately, their state court coverage is extraordinarily selective.  They often choose cases based on subject matter cachet, or the perceived needs of their customers.  If you want documents from a run-of-the-mill breach of contract case, you might be out of luck.
  • Don’t try this at home if you want to conduct empirical analysis!  What isn’t available through commercial services significantly constrains research, but what hinders research even further is the inability to determine what isn’t available. How can one properly evaluate, for example, filings in a given jurisdiction when it is unclear what hasn’t been made available for searching?

II.        Publicly-Available Court Websites

  • A trial court’s offering of documents online is not necessarily a question of whether the court sits in a county wealthy enough to provide them.  For example, the superior court in Cincinnati, OH (sitting in Hamilton County) offers document access online, but San Diego County does not.  And one can view civil dockets from Dallas, TX, but not from Denver, CO.  There seems to be something other than wealth or the political inclinations of the jurisdiction at play.  Perhaps it is a matter of prioritization by the state legislature or judiciary, or maybe even the serendipity of having companies nearby that can get databases up and running.  Certainly, jurisdictions with well-established eFiling programs have a leg up on putting documents online; but, even in jurisdictions with eFiling in place, it is not always the case that dockets—let alone documents—can be retrieved on the Web!
  • The quality of available dockets varies dramatically because state court clerks exercise no uniformity in document description.  It is difficult to compile a collection of complaints if various clerks label documents “pleading” or “misc. filing.”
  • Navigational problems can leave you lost at sea.  We spent a lot of time fumbling our way around some of these sites.  One wonders if it is truly “access” to records if one needs a vacation after trying to find them.

At the end of the day, we found too many gaps in coverage for anything to be considered “consistently” available online.  One first step in measuring the parameters of these disparities would seem to be a county-by-county analysis of which trial courts in which states provide online access to dockets and/or filings—either through commercial services or their public websites.  Surveys like the McCormick Tribune Foundation’s comprehensive 2007 assessment, or the commercial services’ coverage charts, are great first steps—but additional testing is required, particularly to keep such studies current.

Judiciary Approves PACER Innovations To Enhance Public Access

http://www.uscourts.gov/Press_Releases/2010/JudicialConferenceMar2010.cfm

NEWS RELEASE

Judiciary Approves PACER Innovations To Enhance Public Access

 
Contact:
 David Sellers, 202-502-2600

 
March 16, 2010 —  The Judicial Conference of the United States today approved key steps to improve public access to federal courts by increasing the availability of court opinions and expanding the services and reducing the costs for many users of the Public Access to Electronic Court Records (PACER) system. At its biannual meeting in Washington, D.C., the Conference voted to:

 
 
� Allow courts, at the discretion of the presiding judge, to make digital audio recordings of court hearings available online to the public through PACER, for $2.40 per audio file.

� Adjust the Electronic Public Access fee schedule so that users are not billed unless they accrue charges of more than $10 of PACER usage in a quarterly billing cycle, in effect quadrupling the amount of data available without charge. Currently, users are not billed until their accounts total at least $10 in a one-year period.

� Approve a pilot in up to 12 courts to publish federal district and bankruptcy court opinions via the Government Printing Office’s Federal Digital System (FDsys) so members of the public can more easily search across opinions and across courts.

The Conference approved the plan to make digital audio recordings available on PACER after a two-year pilot project showed significant public interest in accessing these files. Prior to the pilot, such access was possible only by obtaining a CD recording from a court clerk�s office for $26. During the pilot, Internet access to the same content cost eight cents, but the $2.40 fee approved today was deemed by the Conference to be reasonable and come closest to recouping, but not exceeding, costs. Digital audio recording is used in most bankruptcy and district courts (where magistrate judges account for most of the usage).

For printed court documents, the $10 fee waiver affects tens of thousands of PACER users. In fiscal year 2009, about 153,000 PACER account holders�nearly half of all active accounts� did not receive a bill. For that 12-month period, a quarterly waiver would have affected an additional 85,000 accounts� resulting in 75 percent of all active accounts not receiving bills. Analysis of fiscal year 2008 billing data showed a similar impact.

As mandated by Congress, electronic access to court information is funded through reasonable user fees, and not through taxes paid by the general public. Last year, PACER received more than 360 million requests for electronic access to information from the over 33 million federal cases that have documents online. The Electronic Public Access fee revenue is used exclusively to fund program expenses and enhancements that increase public access to the courts. As a result, PACER is a very economical service: the charge for accessing filings, other than opinions, is just eight cents per page, with a maximum charge of $2.40 regardless of the length of a document. At federal courthouses, public access terminals provide free PACER access to view filings in that court, as well as economical printouts (priced at ten cents per page). The charge for copies from the paper case file in the clerk’s office was–and remains–50 cents a page.

All court opinions are available through PACER free of charge, and that will not change. The pilot project to make bankruptcy and district court opinions also available through the Government Printing Office’s system will enhance public access to those opinions.

The Judiciary is conducting a comprehensive assessment of its Electronic Public Access Program services to identify potential enhancements to existing services and new public access services that can be provided to litigants, the bar, and the public. All active PACER users were welcomed to participate in at least one of the assessment surveys, focus groups, or interviews. The results of that assessment will be available by July 2010.

The US Party/Case Index is a tool that enables users to locate a case across the federal courts. The application has been running in its current format since September 1999, and currently receives over 200,000 searches daily. A new version of the search tool, which includes additional search capabilities and result formats, has been developed and will be deployed under the new name PACER Case Locator this month.

Judge says: Keep this opinion out of Westlaw and LEXIS

 Judges make decisions and write opinions.  Some opinions get published and some do not.  Unpublished opinions get unofficially published in West’s Federal Appendix and very often show up online.   And on infrequent occasions some opinions find their way into LexisNexis but not Westlaw; others are found in Westlaw but not LexisNexis.

Here’s a case that caught my eye while doing some docket searching (I drink POM Wonderful, so that’s why it stood out).

On December 21, 2009 Judge A. Howard Matz, of the United States District Court for the Central District of California, issued an 7-page order in the case of POM Wonderful LLC v. Welch Foods, Inc..   This opinion includes, among other things, a discussion of standing under the California Unfair Competition Act and the California False Advertising Act.  At the end of the document, the judge writes:  “This Order is not intended for publication or for inclusion in the databases of Westlaw or LEXIS.” (emphasis mine)

A quick search of Bloomberg Law dockets produces at least a dozen other orders from this same judge with this same language.

So what about Bloomberg Law.com?  Or Google Scholar?  Or Fastcase?  Justia?  May any/all of them include the order?

Or is it just the strength of the Wexis duopoly and the judge really means he does not want the order published online anywhere.

LexisNexis and Westlaw have been the big players for decades.  But Google really could be a game-changer.  As a review article in the March 8, 2010 issue of The Recorder (“Worthy Adversary”) by Oliver Benn of Google Scholar points out:

If Google wants to devote its resources to addressing its current limitations, the future of legal research could become very different.  Many courts accept briefs electronically.  Why not hyperlink cited cases in the brief to the cases’ free Google pages?

And getting back to POM Wonderful, apparently it is available in LexisNexis and Westlaw, despite the judge’s request that it not be (please see comment from Bev Butula).

Brother, can you spare $1,000?

In the age of ever-increasing price tags it can take a lot to cause sticker shock, but I got just that when I assisted a faculty member in requesting photocopies of a lengthy case file from a trial level court.  The final bill was just under $1000.  An amount that doesn’t crack top-ten lists for outrageously priced products, but not a small amount of money either.  Especially when you consider that court records like these are public record.

It begs the question, as part of the public record how publicly accessible are court records? Should “public record” in an increasingly digital world mean a trip to a court house door (possibly states away) or a photocopy bill in the triple (or more) digits?  Neither are easily answered, but both should be considered as we begin to assess the state of public access to primary sources of law and the materials that go in to making them.

A note: I know requests like this are commonplace for many librarians and researchers, but this was my first time getting to the nitty-gritty of requesting a whole case file and doing the math on its cost.  Everyone I spoke to at the court was extremely helpful and they were able to fulfill the request even more quickly than they initially forecasted.

Judicial Information Management in an Electronic Age: Old Standards, New Challenges

“Judicial Information Management in an Electronic Age: Old Standards, New Challenges”

Federal Courts Law Review, Forthcoming

PETER A. WINN, University of Washington School of Law

Under well established law, information in court records is open to the public, but it may be sealed upon a fact-based showing either that the information is not a matter of legitimate public concern or is sufficiently sensitive to need such protection. Under the former paper-based court record system, however, routine violations of these publcity standards were widely tolerated. At the same time, the practical obscurity of paper provided a default privacy benefit for negligently unsealed sensitive information. With the introduction of electonic filing, old improper sealing practices are now increasingly being exposed and criticised; while the dealth of practical obscurity has caused individuals with sensitive information in court files, to be increasingly exposed to harm. This article argues that restoring an appropriate homeostasis to the judicial information eco-system, where legitimate privacy and publicity interests are both protected, does not require replacing established common law standards; but it will require the adoption of new legal procedures, better use of information technologies, and more careful training of judges and lawyers. Ultimately, to properly achieve this goal, the existing common law adversarial system of information mangement will need to be supplemented by a new administrative model.

Source:  LSN Information Privacy Law Vol. 2 No. 34,  10/07/2009