Will PACER’s records removal motivate use of software alternatives?

Earlier this month, PACER announced court documents for closed cases from the last decade in the U.S. Courts of Appeals of the Second, Seventh, Eleventh, and Federal circuits, as well as documents from the U.S. Bankruptcy Court for the Central District of California will no longer be electronically available. More details, including the specific date ranges of what cases have been removed, are available here. Will users react to this event by increasing their use of free PACER alternatives currently available on the internet? The immediate reactions to this news have been justifiably critical of PACER’s actions:

• PACER Changes Draw Ire of Attorneys, Journalists – The National Law Journal
• Why PACER removed access to case archives of five courts – The Washington Post
• US courts trash a decade’s worth of online documents, shrug it off – Ars Technica
• Down the Memory Hole: PACER Deleted Decade of Court Records – Josh Blackman’s Blog
• PACER Officials Give Weak, Nonsensical Excuse For Why PACER Deleted Tons Of Public Court Records With No Notice – Techdirt.

PACER states the reason for the removal involves the impending implementation of “NextGen”, which has been developed to replace the current Case Management and Electronic Case Files System (CM/ECF). The above courts stored their records on locally created case management systems, systems that, according to the Administrative Office of the US Courts as reported by the Washington Post, could not be made to be compatible with NextGen.

Rather than increase usage of PACER’s NextGen, will this situation, where such an enormous collection of data has been so quickly eradicated, signal a change in user behavior and lead to heavier usage of the alternative databases that store and mirror the collections found on PACER? The obvious alternatives include RECAP, the software that populates the Internet Archive with PACER dockets and documents essentially via crowd-sourcing, and then offers those dockets and documents in the Internet Archive for free. PlainSite is another repository containing federal court dockets and documents that offers free searching and retrieval. Justia, too, offers an easily navigable interface that contains dockets and documents for free, including those no longer available in PACER. The shortfall with these alternatives to PACER concerns the completeness of a case’s available documents; most of the sites are populated with the opinions of the cases, but getting the briefing, or other documents, can be spotty.

More, cloud-and-crowd-source-based alternatives to PACER could potentially see an uptick in users as well. PacerPro, which I wrote about previously here, is definitely one of these interfaces; once a PacerPro user downloads a document from PACER, this document is added to PacerPro’s cloud and becomes free for all other PacerPro users to access–the big caveat right now is PacerPro has neither appellate nor bankruptcy courts available in its system. Though, PacerPro CEO Gavin McGrane mentions on the PacerPro blog, that adding appellate and bankruptcy courts is in the works. Inforuptcy, another piece of software that fits the cloud-and-crowd-source bill (and another piece of software I have written about here), saves documents users retrieve from PACER to its own cloud as well. Users of this interface can then, similarly, freely download these cloud-saved documents. Inforuptcy currently has bankruptcy courts, but not district and appellate, though, according to Bob Ambrogi’s LawSites blog, district courts are planned to be added by the end of the year. And lastly, the large commercial vendor Bloomberg BNA operates on the cloud-and-crowd-source model as well; again, once users download a PACER document through the Bloomberg BNA interface, these documents become free to other users. Bloomberg BNA has district, appellate, and bankruptcy courts, but also carries a heftier price tag. These alternatives attempt to mirror and host the PACER collection while also providing document pull cost-savings to users and sleeker interfaces, and all could see their stock rise now that PACER has opted to destroy their electronic records.

The no-longer-electronically-accessible documents can be obtained from these courts directly—either by sending a court runner, or possibly enlisting a snail mail request. The drawbacks are, runners can be expensive (a minimum of $100 is usually required), and snail mail requests can potentially take longer than what’s acceptable in a firm. A third alternative is to use the Westlaw and Lexis brief banks to see if the big commercial companies have scanned and hosted court documents on their own servers—and, of course, there are various costs associated with doing that as well.

All in all, though this is a burdensome situation, it also presents a great opportunity to law librarians as retrieving court documents is one of our many specialties.