The latest really big screwup with PACER and CM/ECF requires a quick fix, then serious reflection, but not utter disdain for a judicial records system that is a triumph of good government

If you don’t pay attention to information technology in the federal judiciary, you don’t yet realize that the flagship, called PACER and CM/ECF, just hit an iceberg.  PACER is public records system that is integrated with the federal judiciary’s internal case management and electronic case files (CM/ECF) system.  For a relatively small fee, PACER allows anyone, anywhere, at anytime electronic access to virtually all documents filed with the federal trial courts and courts of appeal. At least that was so until August 11, 2014.

The Administrative Office announced in a one paragraph bombshell that closed cases in four courts of appeals and the bankruptcy court in Los Angeles would no longer be available electronically for cases that were filed prior to various dates.  The notice reads like this:

On August 11, a change was made to the PACER architecture in preparation for the implementation of the next generation of the judiciary’s Case Management/Electronic Case Files (CM/ECF) system. NextGen CM/ECF replaces the older CM/ECF system and provides improvements for users, including a single sign-on for PACER and NextGen CM/ECF. As a result of these architectural changes, the locally developed legacy case management systems in the five courts listed below are now incompatible with PACER; therefore, the judiciary is no longer able to provide electronic access to the closed cases on those systems. The dockets and documents in these cases can be obtained directly from the relevant court. All open cases, as well as any new filings, will continue to be available on PACER.

U.S. Court of Appeals for the 2nd Circuit Cases filed prior to January 1, 2010
U.S. Court of Appeals for the 7th Circuit Cases filed prior to January 1, 2008
U.S. Court of Appeals for the 11th Circuit Cases filed prior to January 1, 2010
U.S. Court of Appeals for the Federal Circuit Cases filed prior to March 1, 2012
U.S. Bankruptcy Court for the Central District of California Cases filed prior to May 1, 2001.

Please contact the court directly to obtain copies of documents and dockets in the above cases. Contact information for each court is available on the Court Locator page.

For thoughtful and in-depth articles on this fiasco, see Jeff John Roberts, Why the federal court record system PACER is so broken, and how to fix it, GIGAOM (August 27, 2014) and Nick Gerda, Federal Court Cases Removed from Public Computer Access, Voice of OC (August 27, 2014). While I think those on the “outside” are far too critical as I shall discuss briefly in a moment, these articles are good starters for anyone interested in the topic.

So, what does some old senior district judge from flyover country think?  Here is what I think:

1.  Fix the screw up now.  Upload the old cases. I know it can be done because years ago our court did it. It was an unbelievable pain in the butt, but we did it. Drop the “legacy” system excuse. It will take a lot of work and money, but there is no way to spin this manure into gold. It cannot be ignored. Too many of our citizens have become too dependent upon these records to tell them to kiss off, particularly in a snotty one paragraph missive that was apparently provided as an afterthought.

2.  If you work for the government, then you know the phrase “lessons learned.”  How did this happen? Blame, or at least responsibility, should be fixed on someone or some group. Since we never fire anyone, the least we can do is to figure out how this happened and when it was discovered. The judiciary should then make those findings available publicly, and it should do it sooner rather than later.

3.  For those who live in the IT world outside the judiciary, it is fashionable to trash PACER and CM/ECF. The problem is that those digit-heads are clueless when they get beyond slot A fits into slot B. Of course, in a perfect world these systems would be elegant and the cost to the public would be zero. But we don’t live in the pristine world of the computer geeks. They know absolutely nothing about managing a large organization, and that is particularly true for an organization that supports judges who have jobs for life under the Constitution. As a consequence of this real life illiteracy, these outsiders have no clue what a triumph these systems are from a variety of perspectives such as internal management of cases to external judicial transparency. The will and skill necessary to convince the internal stakeholders (judges and lawyers) to adopt the concept of these systems (to let go of paper) and then construct a dual public/internal system with few glitches is a major milestone in the annals of good government.* This was a truly a monumental achievement. For my money, PACER and CM/ECF should be here to stay despite the present debacle.

RGK

*For example, compare the disastrous implementation of the health care web sites with the relatively trouble-free implementation of PACER and CM/ECF.

 

 

36 responses

  1. Pingback: The Legacy of PACER | Simple Justice

  2. Do technology people not know what habeas cases are like? You folks ain’t the only ones with growing pains; our office is trying to go wireless and it is making accessing old habeas files an absolutely massive pain in the butt. Habeas and new filing systems do not get along.

    • Technology people do not know what habeas cases are like. It is like asking whether lawyers know how to program in assembler. That is why technology people need analysts, domain experts and straight answers instead of being called “digital head” or “unable to deal with ambiguity” or other derogatory names whenever we have a question.

      Huge projects like this are not done and should not be technology people alone. Whoever attempts it failed before he started.

      The real issue is that whoever pays and organizes such projects has no interest in making them usable. They just want something “deliverable” as cheap and fast as possible. Hence the output quality.

      • Dear Test,

        If that is what technology people really want, then they should make their desires perfectly clear from the beginning. All the best.

        RGK

    • SLS,

      Here we upload the entire state court record to CM/ECF by requiring the state to convert the record to PDF. The record is then attached to an evidence index. Among other things, this approach provides internally consistent pagination (a huge problem in the old paper days) and makes everyone life 1,000 percent easier because the complete index record is available for copying and reading any time night or day. My guess is that you are going to have trouble with wireless because of habeas file sizes, but don’t rely upon me. All the best.

      RGK

  3. For all such faults, PACER remains the gold standard when comparing state e-filing systems. The state systems here (MI) vary by county and each has its own idiosyncrasies. My pet peeves are the variation in required backslashes before or after signatures and a paternalistic “review” of the filing by some entirely unidentified bureaucrat who can reject the filing – often a day or more after submission – deadlines be dammed.

  4. I’m so technologically-challenged that I didn’t even realize that PACER and CM/ECF are considered to be outdated. They both work when I need them to work, and that’s usually good enough for me. One thing I don’t understand, though, is why different courts have different filing procedures. I practice mostly in the Eastern District of Pennsylvania, the District of New Jersey, and the Southern and Eastern Districts of New York. New Jersey is by far the easiest — everything, beginning with the complaint and cover sheet, can be electronically filed. The same is true in the E.D.N.Y., except that it’s much more complicated and much easier to mess up. I’m pretty sure that the E.D.Pa. — unless you’ve received special training — still requires that the initiating documents be submitted on floppy disks or CDs.

    Can anyone explain why there are different filing systems, and will that change with the NextGen system?

    • Matt,

      I can’t help you. Standardization of what to file and how to file is extremely important. I do not understand why there isn’t a uniform approach in the districts you mention.

      Here we upload virtually everything from the lawyers and the court itself–including massive records in state habeas cases (we have the death penalty in Nebraska), transcripts from our court reporters, presentence reports and pretrial service reports in our criminal cases, and digital audio from judges like myself who don’t use court reporters. We try to hard to make the digital file both complete and easy to use for the lawyers and the public. For example, on our external site, we have an audio tutorial (with screen shots) that lawyers can access. It walks the new filer through the basics in easy to understand steps. I have blogged about our wonderful “help desk” and “trainer” Luta Pleiss. She takes her job–making lawyers lives easier–very seriously.

      Finally, one passing mega snark: Requiring complaints to be filed on C/D or floppy is beyond stupid. There is no good reason for that, none at all.

      All the best.

      RGK

  5. Every couple of years, I replace all my hard drives and update the programs. I’ve been doing that for 15 years, or so. The new program reads the old data, and I have the documents I didn’t purge for every one of those cases. It’s really no big deal, and the courts can do the same.

    This is a really bad idea for any cases where litigants have been banned for abuse of the courts–especially prisoner cases.

    • Skink,

      In addition to the “three strikes” problem, it is also a huge problem for cases dependent upon the filing or resolution of a 2255 motion seeking to vacate federal criminal judgments or sentences. All the best.

      RGK

  6. Though it may be outdated, PACER and CM/ECF should be the gold standards for government document access. Anybody who has tried the newer Social Security Electronic Records Express (ERE) system understands that attempts to improve on PACER have been failures in terms of ease-of-use and accessibility.

  7. It is strange to hear you say that PACER charges a relatively low fee. The 5 cents per page fee is quite clearly excessive when you consider that the marginal cost of the government providing the electronic copies is nil (compared with the marginal cost of providing physical copies, which is substantial), and the per page fee has absolutely no relationship to the actual costs of providing electronic versions. (In other words, unlike physical copies, it doesn’t cost the government any more to supply a 100 page document than a 1 page document). And when an industrious individual started putting case records on the free RECAP service, the government threatened him with criminal charges.

    A lot of state records systems are entirely free.

    • Brent,

      Actually, you are wrong.

      The fee is higher than five cents–ten cents up to 30 pages, generally. Parties, including pro se litigants, get one free copy and no access fee is charged for a judicial opinion. The records are freely available at public viewing terminals at each courthouse. A court may also consider exempting: indigents, bankruptcy case trustees, pro bono attorneys, pro bono alternative dispute resolution neutrals, Section 501(c)(3) not-for-profit organizations, and individual researchers associated with educational institutions. See here for the fees and exemptions.

      It is also true that PACER makes money for the judiciary. Within reason, I see no problem with the judiciary recovering costs plus a “profit” when the “profit” is used to fund various other technology needs of the judiciary and that is what happens now.

      All the best.

      RGK

  8. While this is certainly annoying, that it is (mostly) limited to the specified Courts of Appeals will hopefully limit the scope of the problem. Almost by definition, most of what is filed on an appellate docket is available elsewhere regardless, with the one exception being the actual briefs themselves. One hopes that, from a practical perspective, this will not cause much damage in the short or long terms.

  9. Sketch,

    I strongly believe you are understating the significance of the problem for federal practitioners who have a heavy practice in those courts impacted by this silly “legacy” problem. But, I hope you’re right.

    All the best.

    RGK

  10. If the technology experts are currently updating PACER and CM/ECF, I strongly recommend that they expand the size of the files that can be uploaded at any one time, and that they make it uniform across the board. In the Northern District of California we can only submit 5 megabytes of data at a time; in habeas cases it can take more than a day to efile the entire state court record at that pace. In the Ninth Circuit we can submit 50 megabytes at a time. The update should clearly address this issue.

    • Peggy,

      Good idea. I think Nebraska has a 10 MB limit per file. Incidentally, I also believe that there are “compression” programs with PDF that might help. All the best.

      RGK

  11. I think the public value of open records, and the relatively low cost of operating an online records system like PACER, militates for Congress to reduce the fees for PACER to zero and fund it directly out of tax revenue.

    Fully free access would allow independent developers to create far better systems for accessing court records, with more powerful search tools and permitting really interesting data analysis. It would facilitate much greater research work in regard to Federal courts (without the hassle of having to ask for a discretionary fee waiver). And it would reduce the complexity of the system. When it’s fully free, there’s no need for a payments system or logging of fine grained usage by individuals, nor is there a need for extra proceedings or technology to deal with indigent persons or litigants who need access to records.

    • Peter H.,

      You may be right. Resolution of that policy question would require an open and honest discussion about “costs,” “profits,” “control’ and a host of other things. That said, I think that debate is worth having. Thanks for your thoughtful engagement.

      All the best.

      RGK

      • Whoa whoa whoa, I thought we were talking about Congress here. What’s this “open and honest discussion” I’m hearing about?

  12. As an addendum, if the PACER folks want to steal a free implementation from elsewhere in the federal government, the USPTO’s PAIR system is really quite good, and is totally free to both practitioners and the public.

  13. Judge Kopf – I think I learned something today – “spin manure into gold”! Is that one from your old trial lawyer days? Oh, and as for PACER – fix it.

    • Tom,

      Well, sorta. So here’s the war story.

      Chief Judge Bill Riley, before he came to the bench, appeared before me representing a party in a patent case tried to a jury. The patent had to do with a manure spreader. After the lawyers and I rejected the pattern jury instructions and made up our own that made some sense, Bill won.

      I have known Bill since law school days. He is a brilliant person, and one of the most decent fellows I know. Anyway, we both interviewed for law clerk jobs with the same two judges, Judges Lay and Ross of the Eighth Circuit. In a very strange twist, the judges told us to pick who we wanted to clerk for as they didn’t care who they took. Bill picked Lay, since Bill insisted that he had a job in a year and Lay’s clerkship was for one year only. I always said Bill lied about that job. In truth, I got the better of the deal. Judge Ross became my mentor and dear, dear friend.

      Years passed. When Bill had his investiture ceremony he asked me to speak. I agreed and told the story about the manure case. I ended my talk by saying that “Bill is the first Court of Appeals judge to have turned shit into gold.” Some, but not all, in attendance were amused. Bill laughed.

      All the best.

      RGK

  14. Judge Kopf–

    I’ve been a frequent PACER user for a lot of years, and it’s a wonderful resource. That said, I don’t quite share your sense of outrage. It’s lousy to be sure, but it’s not as though the records are being boxed up in a gargantuan government warehouse near the Ark of the Covenant. They’ll still be publicly available — just not with the ease we’ve come to appreciate.

    Moreover, with one exception, they’re all courts of appeals, where most of what shows up on the dockets are briefs and joint appendices that are comprised of materials otherwise available on district court PACER sites. I’d be far more concerned if they were district court PACER archives.

    If the judiciary’s budget were larger than it is, I would certainly agree with you that preserving these PACER records would be worthwhile. But as you know so much better than I, Congress funds the judiciary on a shoestring. Perhaps I’m mistaken and the money necessary to correct this issue would not come from other judicial funds, but if I’m not mistaken I would prefer the scarce resources be used elsewhere.

    David

    • David,

      All good points, particularly the resource allocation issue. But, since PACER does spin a profit, I would make the argument that the judiciary ought to cost-out the fix before nixing the fix. All the best.

      RGK

  15. If you want to get a good idea of why software projects fail, read “The Limits of Software” by Robert Britcher. It does a good job describing how most software projects fail because of people problems, not technology, and the counterintuitive notion that technological constraints make projects more likely to succeed by limiting project scope.
    None of the problems with PACER described in the linked articles are technological; they’re organizational. In some businesses or organizations you can get around the types of problems PACER is having by making your software developers users of the software, or by sitting the developers right next to users. I don’t see either of these working for PACER.

    • Robert,

      Thank you very much. One of the things we have played around with is testing with law clerks. For example, trying to integrate West Law hyperlinks with WordPerfect has been a real problem. Jan, one of my career law clerks, did testing runs for our local approach to the problem and that experience was shared with Westlaw as well.

      All the best.

      RGK

  16. I noticed nobody objected to your postscript swipe at medical web sites. Likely that’s because it’s true.

    If you were referring to electronic medical records (EMR) systems that doctors and hospitals use to catalog patient information, the catastrophe is nearly complete. All the systems are insular to their particular locus of use. Nobody can talk to anybody else, and since the proprietary systems are so expensive to set up and maintain, that’s not going to change anytime soon. Like never. Try migrating from one system to another. It is to laugh.

    I’ve worked in the Colorado Department of Corrections for the past nine years. Like all EMR systems, the DOC system doesn’t talk to any other medical systems, and often doesn’t talk to parts of its own system. The DOC system was programmed and is maintained by ONE GUY who must, by now, be an octogenarian. Can you hear the whistling of the approaching meteor?

    The one outstanding advantage of EMR systems is I can read my own writing. I can even read the writing of other doctors. That alone is worth the price of admission.

    Now medical information websites are a different animal. Popular websites dealing with medical issues are useful for obtaining enough information to create confusion and panic. Most of what is presented can also be obtained from daytime TV.

    Websites for medical professionals, however, are practically indispensable. Modern medical knowledge is so vast that anyone who claims to understand it all is a bald-faced liar. The sites I use are continuously updated and cost a bundle for a subscription. I imagine (hope) there are equivalent sites for the legal profession to stay current. If not, here’s a golden opportunity for a legal entrepreneur.

  17. Dear Doctor Wright (Bill),

    My snark related to the Obama-care insurance exchange web site. I understand completely the importance and utility of medical information websites, and the dependence that doctors place on those site. You might be interested in knowing that the legal profession has similar sites that collect case, statutes, law review articles and such in searchable format. I came to the law before these sites were widely available, so, unlike my younger colleagues, I have a very special appreciation for them.

    Thanks for your engagement. All the best.

    RGK

  18. Judge Kopf,

    Relevant to the above, you (and other judges) may find this ongoing case of interest, in which I am a plaintiff:

    http://www.plainsite.org/dockets/29himg3wm/california-northern-district-court/think-computer-foundation-et-al-v-administrative-office-of-the-united-states-courts-et-al/

    I think it would be a highly worthwhile thought experiment to have all federal judges represent themselves in moot court cases given a budget of only $15.00 per quarter, with no access to Lexis, Westlaw, or any other paid legal subscription service–just PACER, at $0.10 per page and/or $30-$64 per case.

    Aaron

  19. Pingback: More on the PACER problem « Hercules and the umpire.

  20. Pingback: Pacer will be “fixed”–that’s great assuming there is no “bait and switch” « Hercules and the umpire.

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