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.

Bloomberg Law Search (BBLS) Tracking of Documents Related to Bernard Madoff

In line with its stated mission to be a “complete information-services, news and media company that provides business and financial professionals with the tools and data they need on a single, all-inclusive platform,” Bloomberg — in its Bloomberg Law Search (BBLS) function — has compiled over 350 (as of today) documents related to ongoing U.S. legal and regulatory actions against Bernard L. Madoff, the investment advisor accused of running a US$50 billion Ponzi scheme that may be the largest financial crime of all time.

Open Access in Peril for EU Documents?

Shrinking access to EU documents?  This is from a press release on the European Ombudsman site:

“The European Ombudsman, P. Nikiforos Diamandouros, has called on the European Parliament (EP) to defend the European Union’s commitment to transparency and the citizens’ right of access to EU documents. This follows the European Commission’s recent proposals to revise the law on public access to documents. In his contribution to today’s public hearing in the EP’s LIBE Committee (Civil Liberties, Justice and Home Affairs), the Ombudsman said:

“The Commission’s proposals would mean access to fewer, not more, documents. This raises fundamental issues of principle about the EU’s commitment to openness and transparency.”

Read the entire contribution given by the Ombudsman 

The EU proposals sharply limit the definition of what is a “document”  —  “The Commission’s proposed definition of a document would mean that, in many cases, citizens could only apply for access to a document if it appeared in a register.”

Read the full text of the EU proposal to revise Regulation 1049/2001: Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL regarding public access to European Parliament, Council and Commission documents” [4/30/2008]

Hat tip to the lawlibrarians blog for tracking this!