Disappeared News

by Larry Geller

I belatedly learned today that many Hawaii federal court documents are available for free through a project called RECAP.

The trove originally started with 20 million documents downloaded by the late activist Aaron Schwartz, who committed suicide in 2013.

It can be costly to conduct research on federal cases via the official PACER website. At 10 cents per page, before you know it, you’ll be billed some real money (but see below for how to do limited searches for free).

PACER ought be totally free, or at least, much more reasonable. See: May 1 Named National Day of PACER Protest (Information Today, 4/21/2015).

Note: RECAP is PACER spelled backwards.

The linked article also reminded me of the archaic data system I have to contend with when researching a case in Hawaii’s state court system. To wit:

The ‘Analog’ Days of Court Research

The PACER protest arises out of increasing frustration with the availability of information from the federal courts. Both the U.S. Constitution and federal law require that courts operate publicly, making trials and records of court cases open to the public. While limitations occasionally may be imposed to close court sessions and seal records related to particularly sensitive matters—such as those involving children, abuse victims, domestic situations, and mental health issues—most of the documents filed in court proceedings, as well as other court information, have been considered public records.

In the “analog” days, accessing those records meant a trip to the courthouse and to the clerk’s office to request and inspect a specific file. It might contain a wide variety of legal documents, including the complaints filed by plaintiffs and the answers filed by defendants, motions and discovery requests, court orders, and opinions. Journalists often use these records to track the status of important local trials. Consumer advocates might use them to identify unscrupulous businesses through their history of suing or being sued. Scholars often use them to look for litigation trends, such as tracking so-called patent troll lawsuits.

“High-tech Hawaii” is still mired in the “analog days” described above. A researcher wanting to search state court files has do go down to Punchbowl Street, fill out a slip of paper, and if the case file is available (that is, if a judge or another clerk does not have it on their desk somewhere) you can look at it, and pay for copies on a nearby machine. If the file is not there, you’ve wasted your trip and parking fees.

And the files can be incomplete or damaged. I’m told that case files are occasionally intentionally damaged by parties to a divorce who try to hide embarrassing information by literally tearing it out of the file when the clerk isn’t looking.

An antiquated search system on the Web doesn’t extend to the case files, and just try and find a court calendar in the system.

Searching with RECAP

The website has a simple search box, after which you are on your own.

But a lot can be accomplished, depending on what you start with, which is the same for any search. The HTML files have links to pdf documents, which are probably what you’re looking for.

I did a search for Hawaii Department of Education and came up with a flock of special ed cases that would have cost a pretty penny to obtain via PACER. Why would one want these? A parent of a special needs child could review cases to see what succeeded and what failed. For example, in the second case I clicked on, a parent was not properly represented by her attorney, it seems, and failed to convince a judge that “stay put”—that is, the continuation of a student’s existing program during litigation—should apply. Just asserting anything in court doesn’t cut it. The judge needs to be convinced with citations, reasoning and maybe a sprinkling of Latin to make the arguments palatable. That case could be a lesson to a parent researching their own situation.

And reading the docs was free.

The search function seems deficient, though, or at least, tricky. I could find a case by searching for Hawaii Department of Land and Natural Resources but not by Hawaii Aila, even though that name is mentioned in the documents. Searching on Aila alone yielded another case, to which he was a party, but not the earlier hit. So it appears the search may be only to the named case—obviously, I have yet to learn the rules for using the site.

Searching PACER for free

This won’t help anyone who needs to do extensive research, but if total PACER fees for a quarter are under $15, the fees are totally waived. And large documents are limited to a max of $3 each. So if a researcher’s needs are limited, it’s possible to get away with it for free.

Also, some documents, such as orders, are completely free although they’ll charge a dime for the search page on which you find the order.

The search is really easy once you get the hang of it, and even without downloading documents it’s possible to learn how a case is going in rough outline. If there is an order, judges have a tendency to be verbose, so that can be enough to understand the case and its outcome.

To use PACER, one needs to go to the (for example, Hawaii) federal court website and sign up for an account, giving a credit card for billing. Henceforth, to see documents from any federal court, it’s easiest to enter via that court’s website. The sign up link above is actually to the search page, so you can have a preview of that. The actual signup is then from here.

Time limitations of the databases

Old cases aren’t in PACER and won’t be in RECAP unless some kind persons uploaded their scans. See, for example, Yes We Scan.

As an example, most Felix Consent Decree documents are not on PACER. They are too old. It would be of some value if they could be made available, but to retrieve them from the feds is cost-prohibitive. The last I heard was that they are sitting in a warehouse in California and if one wanted to search them, it would be necessary to pay to have them retrieved. The number of documents is amazing. I have a tiny fraction of the pile. A clerk told me that the file took at least two hand trucks to haul out of their office on its way to storage. Practically speaking, those files are likely unavailable to the public forever (I would love to be wrong on this).

So give RECAP a try. You might find what you are looking for. And if you are sitting on a pile of federal court documents, consider contributing them.

Permalink posted by Larry @ 4/23/2015 01:18:00 PM