X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
With the proliferation of electronic filing initiatives in state and federal courts, new concerns have emerged about the implications of electronic access for the personal privacy of civil litigants and criminal defendants. After all, the potential ability to access and download electronic court filings via the Internet would make finding and disseminating sensitive personal information about litigants about as easy as flipping on a light switch and more convenient and less costly than physical retrieval at the court house. Thus, to protect litigants’ privacy in a paperless era, courts have hastened to implement a variety of measures, such as limiting access to electronic dockets only to those involved in the proceeding, implementing retrieval fees, or adopting the more secure portable download file (PDF) format standard for e-filings. However, as a small-firm practitioner representing clients of modest means, I worry that many of the policies adopted in the name of privacy may stifle the opportunity for attorneys like me to fully exploit the valuable legal resource of e-filed pleadings and briefs and thus improve the quality of representation we provide to our clients. For that reason alone, the courts should ensure that protecting the privacy of litigants does not compromise the ability of all attorneys to freely search and access e-filings for legal research and litigation purposes. By now, most courts have some experience with remote electronic access — the ability to retrieve documents via the Internet from outside the clerk’s office and, indeed, from any location with an online connection. For instance, one welcome and now pervasive example of electronic access can be found at the Web sites of various state or federal courts, where the public can search and retrieve the courts’ electronically issued opinions. And for some time, the federal court system has operated the Pacer system that allows registered users to access a Web-enabled dial-up service to search court dockets, download electronically scanned documents, or place orders for hard copies not available in a digital format. Yet, the value of electronic access ultimately depends on the underlying database and the quality and extent of available information. And that is where electronic filing comes in. By providing a mechanism whereby documents enter the system in an electronic form (as opposed to requiring conversion to electronic format through scanning), e-filing facilitates the perpetual and automatic expansion of a robust electronic database, which, in turn, increases the importance of access to users. What’s most exciting about electronic filing is its potential to make available a whole new legal research tool composed of briefs, pleadings, and memorandums of law — essentially lawyer work product in the public domain. THE PRIVACY PROBLEM But ease of access to a wide array of filings also has drawbacks, including the potential to enable users to retrieve sensitive personal information about litigants involved in court proceedings. Although even with paper filings, courts have long grappled with the dilemma of striking a balance between the personal privacy of litigants and the common law presumption favoring public access, in some respects, e-filing changes the underlying assumptions of the conventional paper system. Traditionally, courts established public access as a general rule, addressing privacy concerns on a case-by-case basis, for example, by issuing protective orders or allowing sensitive or proprietary information to be filed under seal. Yet at the same time, a system of paper filing itself, with the attendant high cost and time and troublesome legwork involved in searching and reproducing court documents, served as a practical and remarkably effective prophylactic against discovery and disclosure of sensitive personal information about litigants. Even the Supreme Court has recognized that the difficulties involved in gathering paper court files shrouds them in a cloak of “practical obscurity.” By contrast, unfettered electronic access via the Internet to e-filings would decimate the inherent protections of a paper system. Even under the most unsophisticated indexing system, any remote user could, from the convenience of home, perform a name search on an individual and access electronically filed complaints and briefs involving the individual and any damaging allegations or facts contained therein. More dangerous, in bankruptcy or divorce proceedings, a user intent on mischief could easily download and subsequently disseminate highly personal or sensitive information regarding a litigant’s financial status or family problems. And on a related note, jurors deliberating in an ongoing proceeding could potentially log onto the Internet during overnight court adjournments and view materials such as in limine suppression motions or irrelevant evidence not intended for juror scrutiny. To be sure, much of this information remains available in a paper system, but again, the cost and labor necessary to access these materials, as well as the limited operating hours of the file room, creates a practical barrier to disclosure in these instances. POLICIES TO PROTECT PRIVACY To their credit, the courts have been cognizant of these privacy concerns and have explored different options for resolution. (The privacy considerations undertaken by the federal court system, which has developed its own electronic filing system in-house rather than contracting out to vendors, are well-documented at such online sites as http://www.uscourts.gov/privacy.html and http://www.uscourts.gov/ttb/ june00ttb/internet.html.) The various measures, both direct and indirect, are briefly identified and evaluated below. Direct restrictions on docket access. Direct restrictions prevent users from even gaining electronic access to files in some or all situations. For example, some courts have considered the possibility of limiting access to electronic files in a particular docket to the participants in that proceeding, but instead adopted variations on this overly restrictive approach. Another policy option identified in a paper by the Administrative Office of the Court is to permit broad public access to certain categories of filings, such as pleadings or briefs, which, at most, might summarize personal information without revealing potentially harmful details. At the same time, access to other filings containing more sensitive facts, such as tax returns or asset sheets, would remain available only to participants in the proceeding. Another direct restriction, not previously discussed, would be for courts to extend to any licensed attorney in good standing the broadest possible access for use in research and litigation (almost analogous to copyright law’s “fair use doctrine”) while imposing varying degrees of restrictions on the general public. In addition, traditional methods of shielding sensitive and propriety information from public view remain available. This method has been employed by the New York courts, which otherwise permit unlimited public access to files. In the Eastern District of New York, the Social Security Administration requested and was granted a standing protective order prohibiting the electronic filing of administrative transcripts because of concerns about identity theft and claimants’ privacy interests. Finally, courts could also implement temporal restrictions on electronic access. For example, instead of making electronic access to all documents immediately available right after the filing, courts could impose a short waiting period prior to electronic publication to ensure their appropriateness for public release, thus avoiding the impossible situation of attempting to later seal a document initially made available to the public electronically. Similarly, courts could also shut down electronic access to certain files during the course of a trial to prevent jurors from accessing impermissible information. Access subject to penalty for abuse. In contrast to a system of “prior restraint,” other courts are attempting to curb misuse of electronic files through a system of subsequent penalty. For example, the New Mexico courts’ Web site offers a user-friendly name and docket search of electronic filings. But at the same time, the site also contains a prominent link to a New Mexico statute that criminalizes misuse of information obtained from public state agency records and computer databases. Fee-based restrictions. Most courts now offering electronic access to e-files do not charge a fee for remote search or retrieval. Yet, retrieval fees have been identified as a potential safeguard against broad public access. Although, under a fee system, the bulk of e-filed documents would theoretically remain available, as a practical matter, the costs associated with obtaining these documents would deter casual users from retrieving documents on a whim. PDF formats. Finally, another more subtle obstacle to unfettered electronic access to documents, albeit inadvertent, lies in the near universal requirement among courts for the submission of e-filings in PDF format. Existing software enables users of even rudimentary technical skill to convert word-processed documents to the PDF format conveniently and inexpensively. PDF format replicates the original source of the document while permanently fixing the content so that documents cannot be altered and can be uniformly printed. (Apparently, even in an e-filing age, it is expected that judges and clerks will still be printing out hard copies rather than reading documents on the computer screen.) From a privacy perspective, however, the contents of PDF files, unless specially extracted, are not susceptible to text-based search engines. This provides an added level of protection to the materials contained within. But by complicating the ability to search text, PDF may limit the utility of electronic files as research tools; participants in an online discussion group of attorneys recently groused about a Pennsylvania court’s switch from publication of cases in HTML (the language used to publish Web pages) to the less search-friendly PDF format. PRIVACY PROTECTION EFFORTS Although most of us have been programmed to cringe at “prior restraints,” direct restrictions on access, if narrowly tailored, are probably preferable to other alternatives because they apply across the board to all users. For example, if courts decided to allow users access only to pleadings and briefs over the Internet or broadened the scope of information subject to protective orders, these restrictions would apply equally to small- and large-firm attorneys, commercial data collectors, and the public. Thus, an attorney like me, frequently operating on a tight budget, would have the same ability as larger firms to freely access pleadings, briefs, and other materials (as well as the wealth of legal citations contained therein) — thus leveling the playing field. This situation stands in stark contrast to the days predating the Internet (which now allows for free or inexpensive online legal research of electronic court decisions) when my laborious library research could never compete with the effectiveness of Lexis and Westlaw, used lavishly by my adversaries but way outside my price range. More important, the ability of all users to access the same scope of electronic information would mitigate the monopoly power of commercial information providers, thereby depriving them of the ability to ask any price for their services. After all, if attorneys can research briefs and pleadings online for free, then commercial, for-fee services would need to offer high value or establish modest prices. Yet, because of our propensity against direct restrictions, courts may instead opt for indirect restraints to protect privacy, which could inadvertently resurrect the intolerable disparity that existed between lawyers whose clients could afford Lexis or Westlaw and those who could not. The use of fees could prevent lawyers with fewer resources from accessing files available to deep-pocket firms. Equally dangerous, a for-fee system would enable commercial data purchasers to pay the fees for collection of electronic filings and information and offer these materials as part of an electronic service affordable only by some. Significantly, severe restrictions on access are the only purpose served by retrieval fees, since most people agree they are not justified economically. Studies undertaken concur that e-filing and electronic access saves significant amounts of money by sparing the courts the expenses associated with paper storage and employment of additional file clerks. At the same time, the startup and investment costs of actually developing and implementing e-file systems, if not borne by taxpayers, could be recovered through the imposition of filing fees, which in any event would still be less expensive than the costs associated with reproducing, messengering, and mailing a filing. While access fees serve no legitimate purpose except to limit access in an inequitable manner, the PDF filing standard selected by the court not only shields the contents of the document but also enhances the security of the filing system by eliminating the potential for unauthorized electronic modifications to documents. But at the same time, the PDF standard could potentially create inequities in two ways. First, some of the outside vendors operating e-filing systems require attorneys to submit e-filings in two formats — PDF version for submission to the court and a second version in text. Vendors can subsequently compile the text versions of documents into their own searchable databases and make them available at cost to those who can afford to pay. Moreover, even in the federal system, which the courts will operate directly, commercial providers could download PDF files and apply newly emerging technology to convert those files to a fee-based, searchable-text database. Unfortunately, PDF has been so widely accepted by courts that attempts at reversing the trend may be futile at this point. Nevertheless, even in a PDF system, courts can impose requirements to provide for search capability of PDF documents beyond case names or docket numbers. For example, courts could direct attorneys to provide a list of key words, subjects, or phrases as part of a filing cover sheet. In this way, an attorney seeking to research recent developments in the law of sexual harassment in anticipation of filing a complaint could at least perform a rudimentary search of the name or the term harassment and generate relevant pleadings and briefs. Alternatively, the courts could require attorneys to submit documents both in PDF format (for official filing use) and text format (to be part of a searchable database of pleadings, briefs, and other documents deemed appropriate for public release in the less secure text format). WHERE WE GO FROM HERE Like the Hobbesian state of nature, our adversarial system can be nasty and brutish (though not short). As a result, courts have long been sensitive to the privacy concerns of those immersed in the proceedings long before the World Wide Web and cookies made fear of privacy intrusions the latest topic at cocktail parties. But while protecting the privacy of litigants remains a noble goal, courts must also keep in mind that the very integrity of our system depends upon the ability of all involved to obtain the highest quality legal representation. Here, at the dawn of an electronic era, we have within our grasp an unprecedented and valuable research tool in the form of access to electronically filed pleadings and briefs. If freely accessible, this resource can substantially improve the quality of representation for litigants and add new dimensions to the way we perform legal research. By contrast, inequitable restrictions on electronic access to e-files, even in the well-intentioned interest of privacy, will put one more resource in wealthy litigants’ arsenal and further broaden the gap between the haves and the have-nots. In short, the courts and the legal community at large must realize that in the debate between privacy and access, the very integrity of our legal system hangs in the balance as well. Carolyn Elefant is the principal in the Law Offices of Carolyn Elefant (http://www.his.com/israeloce).

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.