According to the ABA’s Standing Committee on Lawyers’ Professional Liability’s Profile of Legal Malpractice Claims 2008-2011 (http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=213575)
11 % of all legal malpractice claims occur due to faulty research. It is more than not knowing the law and how it is to be applied. Sometimes a busy attorney just doesn’t keep up with changes in the databases she/uses on a regular basis. Not a good idea. Narver Insurance, as part of our blog series for attorneys and law firms, wants to make sure you are aware of the data changes in PACER that could trigger an unfortunate gap in your research and affect the outcome of your conclusions in your legal work product. The latest problem for attorneys, law librarians, paralegals and law clerks is PACER removing documents consisting of docket sheets and closed cases from selected files in August. 2014. The purpose of this blog is to give you specific information about the problem, the impact of the removal of information, options to access the missing information and how and where to order hard copy of the removed information from each court so your firm will not be put in a position of legal liability.
PACER (www.pacer.gov) is the digital system for U.S. federal court documents in the public domain. PACER is administered by the ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS (www.ao.gov) On August 10, 2014, in an unprecedented move without disclosing to anyone, or even discussing their plans with members of Congress, the AO electronically removed over 800,000 documents from the following courts listed below:
Second Circuit (cases filed prior to January 1, 2010)
Seventh Circuit (cases filed prior to CM/ECF conversion)
Eleventh Circuit (cases filed prior to January 1, 2010)
Federal Circuit (cases filed prior to March 2012)
U.S. Bankruptcy Court for the Central District of California (cases filed prior to May 1, 20001)
The reason these documents were removed from the system according to the AO was “ because upgrades to PACER are incompatible with the record management systems of a handful of courts,” The court most affected is the United States Bankruptcy Court of the Central District of California., who had the largest removal of docket sheets and cases.
IMPACT OF REMOVAL
What is the big peril if most of the cases and dockets removed were closed? One, there is no list of what was removed available from the above five courts so no one really knows what is missing. We are not just speaking to litigation research either. For anyone in your firm conducting research, omission of any facts associated with these removed cases such as information for due diligence for any transaction, on an adversary to your client, or gleaning intelligence from how a judge handles certain situations or motions, can leave your research with holes in it, and potentially affect your research conclusions and findings.
OPTIONS TO FILL IN THE MISSING CASES
If you are a law firm that subscribes to Bloomberg, Lexis Advance or WestlawNext, you may have some luck in accessing some of the removed dockets or cases. According to a blog post from Leslie Street, law librarian from the University of North Carolina Kathrine R. Everett Law Library, the basic docket information including docket sheets are available from the Bloomberg legal database system. There is an exception from the Seventh circuit where some of the pre-2008 cases do not show up on PACER with the full docket information. Any document not in the system at the time of the August 10th removal of cases from Pacer may not be retrieved from Pacer unless the case is still open.
Both Lexis Advance and WestlawNext with their court retrieval systems seem to have the same documents as Bloomberg, but the documents cannot be updated as PACER was the source. WestlawNext says that the update link to docket tracking and document image functionality are unavailable for cases filed prior to the cutoff dates in PACER.
There are also two other database choices to consider that are free. JUSTIA (www.justia.com) is a free legal portal with dockets going back as far as January 1, 2004. Another source is RECAP (www.recapthelaw.com) which is a project of THE CENTER FOR INFORMATION TECHNOLOGY AT PRINCETON that allows free access to millions of U.S. Federal District and Bankruptcy Court documents. The website will tell you how to access the cases.
If you cannot access you cases by the above databases, again the law librarians from the University of North Carolina Kathrine R. Everett have compiled great information under blog title “What Happened to the Information Removed From PACER? (http://blogs.law.unc.edu/library/) for each court affected, that includes contact information, instructions for inquiring about missing cases and costs involved.
NOW WHAT IS GOING TO HAPPEN?
The electronic removal of a history of our court cases has caused a plethora of angry responses not only from journalists and the law library community, but most importantly, bi-partisan members of Congress, view the actions of OA as overstating their authority. There are now Congressional hearings on the situation. This pressure has resulted in OA reversing their decision and they resolve that except for the Bankruptcy Court for the Central District of California , OA will electronically restore the deleted docket and case information by the end of October, but don’t hold your breath, it’s the government we are talking about!. OA claims that a separate solution is being developed for the California bankruptcy cases.
We obviously will keep you informed of any new developments concerning the restoration of the removed PACER cases. But to keep the chance of liability at a minimum, assign someone in the office to be responsible to check the PACER database under announcement section for any new news concerning the database on at least a weekly basis, and if there is any news, to disseminate a memo to everyone in the office who conducts legal or business research for your firm. If you have any questions, please do not hesitate to give us a call at: 626-588-3700.Tags: Administrative Office of the United States Courts, American bar Association Standing committee on Lawyer’s Professional Liability, Center for Information Technology at Princeton, JUSTIA, Legal Research, PACER, RECAPTHELAW, United States Bankruptcy Court for the Central District of California