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.

PACER and CM/ECF update

I don’t pimp commercial products, although the more traditional form of pimping has sometimes appealed to me. The Code of Professional Responsibility prohibits me from lending my “prestige” to the commercial endeavors of others, and this post is in strict conformity with that stricture.

BUT, given my prior post on the problems with PACER and CM/ECF (here), I would be remiss if I failed to mention to federal practitioners that there is a new commercial service that might enhance our government systems. On September 2, 2014, the ABA prominently described “PacerPro.”  See Stephanie Francis Ward, Legal Rebels Profile, Gavin McGrane hopes to set the pace for documents with PacerPro, ABA ( Sep 2, 2014 8:45 AM).  That article followed an insightful analysis of the service by Robert Ambrogi a Rockport, Mass., lawyer and writer. He covers technology at his blog LawSites and co-hosts the legal affairs podcast Lawyer2Lawyer. See Robert Ambrogi, Service offers a better way to search federal court records than PACER (ABA Journal March 2014).

As I say, this is not an endorsement.  It is, however, a word to the wise.


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.


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



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