The federal courts administrator’s office is turning an enormous profit on fees for court records, to the detriment of lawyers, researchers, and the public, argues an amicus brief filed this week in the D.C. Circuit. The brief claims that a database that should cost less than $300,000 to run annually generated over $140 million in 2016 alone.
The non-profit Free Law Project is one of several companies urging the court to find that the fees charged by the Public Access to Court Electronic Records (PACER) system are illegally excessive. FLP, which has not been shy about pointing out all of PACER’s flaws as a search tool, runs an independent crowd-sourced (and, of course, free) service called RECAP that allows users to circumvent PACER’s clunky and sometimes expensive framework. (If you’re on a PC, definitely consider installing it.)
What’s so egregious about PACER’s fee system? First and foremost, the way it interacts with PACER’s supremely unfriendly search functionality. Amici explain:
PACER charges $0.10 per-page for “the number of pages that result from each search.” For example, if a user searches the party name “Johnson, T” and receives two pages of matches, she will be charged $0.20. If she then opens the Docket Report on a specific case, she will be charged an additional $0.10 for every page in the docket, even prior to opening any documents. Search costs are uncapped, so if “Johnson, T” returned 1,000 pages of search results, a user would be charged $100 for that search. This is frequently the case for common names. These fees are especially concerning as there is no way to preview the costs of a search. Individuals can accumulate large fees on mistaken searches, especially ones that are accidentally overbroad. Searches can also be prohibitively expensive if a user does not know the party name or case number….
PACER does not offer basic search tools: A user cannot search by judge, law firm, or a keyword within a docket or document.
(Citations omitted; emphasis added.) Hear, hear.
But the most interesting sections of the brief detail how these companies (some for profit, some not) are aiming to advance the very concept of legal research:
In addition to intelligent search tools, many innovators use statistical analytics and machine learning to develop tools that provide predictive information for lawyers. For example, an attorney might want to determine how likely a judge is to rule a particular way on a given motion at a given stage of litigation, or how likely a particular opposing party is to settle in a given kind of case. Amicus Ravel provides compiled statistics to show, for example, how many motions to dismiss have been ruled on by the Southern District of New York, and the outcomes of those rulings. Similar statistics are available broken down by judge, court, and law firm; legal technology companies Lex Machina and amicus Docket Alarm can show a user how successful a party has been in different courts on specific types of motions….
Amicus Judicata offers a “color” tool that highlights all cited cases in a given opinion or brief based on the treatment in subsequent history. It also offers a “clerk” tool that allows law clerks to evaluate the relative strength of a submitted party brief….
Patterns uncovered in federal litigation also could have benefits far beyond individual cases, including improving legal training, judicial decision-making, resource allocation, client decisions about when and whether to sue or settle, and the daily tasks of litigators.
But the full potential of these services can’t be realized without much broader access to the federal court records system, which is prohibitively expensive for new enterprises:
[E]xcessive PACER fees disproportionately burden startup companies, which cannot afford to spend tens or even hundreds of millions of dollars to download sufficient documents to create their required database of federal court filings. That extremely high startup cost, exacerbated by excessive PACER fees, gives a significant advantage to the three large, established legal database companies: Westlaw, LexisNexis, and Bloomberg Law. Indeed, the cost of PACER downloads has affected the ability of some amici to remain as independent companies rather than to sell to large, entrenched players…. Exorbitant PACER fees thus distort competition in the legal technology space, favoring incumbents over new companies that could create more innovative and accessible services….
[H]igh PACER fees mean most legal tools available skew towards commercial and intellectual property law — they are made for those clients that can afford to pay the high fees. But if federal court documents were not prohibitively expensive , small innovators could build research tools for areas of law, like employment or housing law, traditionally dominated by solo practitioners, non-profits, and pro-se litigants. Amici Justia and UniCourt, for example, have begun providing some free cases and court documents to anyone searching for filings online. This improves the availability of legal information — on employment discrimination, personal injury, divorce, and immigration issues — for all citizens.
By coincidence, this week my own PACER account – which I use to provide Virginia federal district court cases on this site – was disabled for the third time in five months. The system administrators advised me that, to keep my account activated, I need to actually perform a search rather than just reviewing the day’s written opinions. Suggestions for obscure search parameters welcome.