An uproar recently erupted in the legal community that raises the question of where the market should expect to rely on the government—and where it should look to private industry.
The catalyst for the recent debate was when decades' worth of public records from five federal courts—the U.S. Court of Appeals for the Second, Seventh, and Eleventh circuits and the Federal Circuit, as well as the U.S. Bankruptcy Court for the Central District of California—were summarily taken offline with less than a paragraph of notice to the public.
Notably, some of the removed dockets were from recent cases in the Federal Circuit, where many pivotal patent issues are decided.
In announcing upgrades to the federal government's official warehouse of court dockets and documents—Case Management/Electronic Case File Public Access to Court Electronic Records system (aka PACER) —the U.S. Administrative Office noted, "As a result of these architectural changes, the locally developed legacy case management systems in the five courts … are now incompatible with PACER; therefore, the judiciary is no longer able to provide electronic access to the closed cases on those systems."
Law firms, academics and journalists were apoplectic. Should they be?
HISTORICAL PERSPECTIVE
A historical perspective is useful. PACER, as a database, was created in 1988, while the ability for the public to file court records electronically was adopted by most courts by 2005.
The intent of the PACER system, similar to that of the Electronic Data Gathering, Analysis and Retrieval database (aka EDGAR), was to relieve the burden of processing and storing paper documents to make court operations more efficient. Public access was not the central requirement. Neither were the needs of practitioners, even though their acceptance was critical to the system's success and adoption.
It was an incredible feat to get the entire legal community to comply with new electronic filing methods, but it has been quite successful. At a time when there are still entire state court systems without a digital database, all federal courts have adopted PACER. There are 2,100,000 cases filed into CM/ECF PACER every year, containing 60,000,000 entries, according to a report by consultant J. Michael Greenwood, one of the system's creators.
Today, only a small number of cases are exempted from e-filing, creating a vast treasure trove of data that makes court proceedings more transparent—and opens up avenues of research and awareness that were at one point too time consuming or cost prohibitive to perform.
BEFORE PACER
Before PACER started gathering and archiving data, accessing a single document meant sending an employee to a courthouse with a bag of quarters in hand to physically copy dockets and documents. Now there is a database that attorneys can use for various tasks, such as comparing briefs in multiple cases or getting a sense of how hard an adversary may fight back on an issue.
Essentially, the government did the heavy lifting by creating a system for filing and retrieving documents and mandating compliance to use it. So with the recent uproar in mind, why does the legal community continue to expect it to do more?
This is reminiscent of the creation of EDGAR. When created, it took important company filings out of the Redweld folders and cardboard boxes at the Securities and Exchange Commission and made them accessible. Of course, accessible meant just what the name of the system implied—gathering and retrieval. Tools to search and analyze the data were in the domain of private industry and third-party vendors.
Today, there are a plethora of tools on the market that make the retrieval process on EDGAR seem like the Dewey Decimal system.
Private vendors have delivered tools that can drill down to the deal and document type, evolving the data to become a negotiation and drafting tool giving practitioners instant knowledge as to "what's market" in deal terms and clauses. Some of the more advanced platforms can even deliver results as targeted as individual clauses within EDGAR exhibits.
PATENT & TRADEMARK
The U.S. Patent and Trademark Organization is another interesting example of the interplay between government and industry. With a priority on public access, all of its data—including patents and patent applications—are now hosted on a privately owned search engine to avoid service disruptions because the third-party vendor, Google Inc., has a much stronger technology platform.
Further, after the White House recently issued a call to improve the strength of the U.S. patent system, a private analytics vendor, Lex Machina, using USPTO and PACER data, is now providing its expertise to the market—as well as back to the USPTO. The company is supplying data to help recipients of demand letters that claim patent infringement to determine the best course of action based on the prior activity of the non-practicing entity issuing the demand.
Court dockets are no different. Once the government forced litigants and judges to file electronically through PACER CM/ECF, it became the responsibility of private industry to take the data further. They have the means, the knowledge and the incentive to develop what the market needs.
In fact, private industry has for years been enhancing the value attorneys derive from PACER. For example, there are a number of products on the market that archive data from court dockets, including LexisNexis Courtlink, Westlaw CourtExpress and my company's Bloomberg Law.
These products offer tools that PACER does not, such as more advanced search options, the ability to receive alerts on new cases and to track the progress of cases in which the attorney is not appearing. (These products still contain many of the cases that were recently removed from PACER.)
There is plenty of knowledge and talent in the market to build on what the government has already provided. If PACER did not create those records in the first place no one would be upset over removing them. None of the docket vendors would have any record of them.
Now that there is a long history of digitized case dockets, law firms have figured out that the data are more useful than the case management function for which they were traditionally used.
INNOVATION
What's the future of innovation look like with regard to PACER?
» Private industry continues to seek ways to decipher the trends, patterns and relationships contained within millions of records to help them make better strategic decisions in their cases or to figure out what the next big issue for their practice is.
» Lawyers are looking for judicial scorecards to glean how often a judge grants or denies a particular type of motion or how long he or she generally takes to reach a decision. A practitioner coming into a new matter may need to quickly understand the entirety of a docket that has the potential to grow to thousands of entries, needing a way to easily filter to the important aspects of the docket.
» Law firms are looking to discard dusty old-form files for a system that delivers recent and relevant exemplar documents—and perhaps goes even further by delivering clauses in briefs, similar to breakthroughs with EDGAR data.
Who is going to deliver these tools? The answer is certainly not government. We should thank the folks at PACER for bringing the federal courts into the modern age, but then we should turn to industry and ask what they plan to do to continue improving PACER's value.
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