Pacer will be “fixed”–that’s great assuming there is no “bait and switch”

I am a passionate supporter of PACER and CM/ECF and that’s why I was so upset when the Administrative Office of the United States Courts (AO) cut off access to certain records of certain Courts of Appeal and one large bankruptcy court with a snotty missive and no advance notice as a part of an upgrade to CM/ECF. See here and here. Many others, including especially the Senate Judiciary Committee, were upset too.

As the excellent Wall Street Journal law blog reported on Friday, in an article written by Jacob Gershman, Judge Bates, the Director of the AO, wrote Chairman Patrick J. Leahy of the Senate Judiciary Committee and seemingly caved to the uproar. In the letter, dated September 19, 2014, Bates stated:

I write in response to your letter dated September 12, 2014, regarding electronic access to information maintained by five federal courts. We regret the disruption in electronic access to this information, but I am happy to inform you that we have developed a solution that will restore full electronic access to all the courts of appeals material by the end of October 2014. The restored access will be implemented on a rolling basis in the four affected courts of appeals. We also are developing a solution for the single bankruptcy court that was affected.

This disruption impacted about 600,000 docket sheets of cases that have been closed for more than a decade in the Bankruptcy Court in the Central District of California. It also impacted about 235,000 documents, virtually all of which are docket sheets, in closed cases in four courts of appeals. The courts of appeals cases have all been closed for at least a year. It is important to note that there has been no change in PACER access to the docket sheets and documents in the tens of millions of cases residing in the courts’ Case Management/Electronic Case Files (CM/ECF) system.

A docket sheet is a chronological listing of documents and events in a case. It is not a case filing, record, or opinion. No documents or records were lost or destroyed. Furthermore, all open cases in every court, as well as all new filings, continue to be available on PACER. There is also no impact on the electronic availability of opinions on the courts’ or the Government Printing Office’s FDsys websites. Opinions continue to remain available at no charge. In sum, then, this limited disruption of electronic access in five courts involved docket sheets for some closed cases, not any filings, opinions, or other documents, and not any materials relating to open cases.

The federal judiciary is committed to providing electronic public access to case information in federal courts. Restoring access to the docket sheets is a reaffirmation of this commitment. Regular PACER fees will apply to information requests made through the new access solution, just as they did previously, resulting in no change.

We are moving steadily toward implementation of the NextGen CM/ECF case management system, which will provide more functionality, easier-to-use interfaces, and eventually the ability to log into multiple court systems with a single sign-on function. These are significant enhancements that we expect will be welcomed by lawyers and litigants. Unfortunately, the legacy case management systems in these five courts are incompatible with the new security protocols that accompany these improvements. These legacy systems were developed over 20 years ago and long-term support and maintenance is no longer practical or feasible at this time.

In the interim, before full electronic access is restored in the next few weeks, anyone seeking access to the docket sheets in any of these four courts of appeals can contact the court, which will supply a copy. The one bankruptcy court will do so as well. As stated above, we expect to have all the appellate court docket sheets converted to PDF format and available through PACER by the end of October.

PACER remains the most comprehensive electronic case information system that is publicly available in any court system and we are constantly striving to improve the system and the services it provides. It currently serves 1.8 million registered users and provides responses to more than 500 million on-line queries. While we believe there has been some misunderstanding about the type and scope of information to which electronic access has been disrupted during our transition to NextGen, we also recognize that restoring full electronic access to these docket sheets and ensuring that we communicate with PACER users in a timely and effective manner are important to meeting our users’ expectations and needs.

. . . .

I have two reactions. Tentatively, I say “good for the AO.” However, Bates writes only about making the docket sheets available. If prior to this “fix,” and the implementation of NextGen, one could electronically obtain the docket sheet and, via a hyperlink, any other documents identified in the docket sheet, then this “fix” is not a “full” one. That is, if the fix is limited to docket sheets only, that is not a complete fix if one could have obtained other associated documents from the legacy systems via the earlier iteration of CM/ECF and PACER. I hope that Bates’ letter is not a bureaucratic “bait and switch.”


PS For the “open access” folks, who complain about PACER fees and such, they continue to gripe. As I have indicated before, their complaints don’t reflect the “real world” exigencies.

4 responses

  1. For what it’s worth, I know that under the “old” system for the Second Circuit (one of the four circuits of the court of appeals affected by this fiasco), it was NOT possible to get any documents via hyperlink from those dockets. So if all the affected docket sheets are like the “old system” in the Second Circuit, there is no bait and switch here. In fact, I am hoping that as they do the conversion of the old dockets to PDF they will also clean up the formatting, which for pre-2010 cases in CA2 used to be just awful to read.

  2. pdgpa,

    That is too bad, and, frankly, really stupid. While they are uploading the docket sheets, they ought to add the functionality of a hyperlink to other documens in the file. All the best.


  3. I cannot agree that it would be “really stupid” to restore the system to its prior state. The Second Circuit did not have electronic filing for its pre-2010 cases, so the documents underlying those docket entries would not likely presently exist in electronic form. As a result, it would not be possible to hyperlink to them from the restored docket sheets unless each paper document were retrieved from the old, archived file and scanned in, and then, in effect, refiled electronically. I can’t imagine the price and effort would be worth it. Having PACER access to older dockets, however, is definitely worth it, to ascertain more accurately the history of a case and of related cases, for example.

  4. pdgpa,

    OK, restoring PACER to the status quo is better than not restoring PACER to the status quo. But if you are going to upload docket sheets, why not go all the way? Certainly it would take more time and money, but it would be worth the effort.

    As a factual matter, I wounder how many of the courts that require the PACER fix previously hyperlinked to the underlying documents shown on the docket sheet. Assuming there were some, for those courts, a return to the status quo will not be accomplished unless the underlying documents are hyperlinked.

    All the best.


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